Opinion
No. 04-05-00686-CV
Delivered and Filed: June 14, 2006.
Appeal from the Probate Court No. 1, Bexar County, Texas, Trial Court No. 2001-PC-2946, Honorable Guy Herman, Judge Presiding.
Sitting by assignment.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This case arises from a complex probate proceeding. Mary Cadena, Logan's Bar, Inc., The New Logan's Bar, Inc., and Heard Smith, L.L.P. ("Appellants") appeal from the trial court's order denying their motion to recuse the Honorable Polly Jackson Spencer from presiding over the probate proceeding. Because the trial court did not abuse its discretion, we affirm the trial court's order denying Appellants' motion to recuse.
Background
In his will, Jesse S. Trevino, Jr. named his cousin, Mary Cadena, as independent executor of his estate, which included two bars called "Logan's Bar." Upon Trevino's death, Cadena was named the independent executor and retained counsel, William Hailey, to assist her with the probate proceedings. Soon thereafter, Cadena was concerned that the bartender of Logan's Bar would refuse to vacate the premises and asked William Hailey for advice. William Hailey, however, informed Cadena that he was unable to provide further legal assistance and recommended that she meet with his son, Joel Hailey. After meeting with Joel Hailey, Cadena signed a contract engaging his services, which provided for a forty percent contingency fee of all property and assets that she may recover, sell, transfer, or assign in the matter. Joel Hailey was able to successfully obtain possession of Logan's Bar for Cadena.
Subsequently, Cadena's relationship with Joel Hailey fell apart. Joel Hailey filed a motion seeking the probate court's approval of the contingency-fee contract, which the court approved. He then filed suit against Cadena, seeking her removal as executor. And, according to Joel Hailey, under the contingency-fee contract, he owned a forty percent interest in Logan's Bar, including any profits from Cadena's operation of the bar. Cadena then retained new counsel, Mark Smith of Heard Smith, L.L.P., to represent her with respect to Hailey's claims and to further assist her with regard to Trevino's estate. The probate judge, the Honorable Polly Jackson Spencer, signed an order awarding Hailey a forty-percent interest in Logan's Bar.
On December 31, 2003, Hailey named the law firm Heard Smith, L.L.P. as a defendant, claiming that the contract between him and Cadena entitled him to forty percent of the fees paid to Heard Smith, L.L.P. Despite Judge Spencer having presided over numerous hearings for a period of two years, on February 3, 2005, Appellants filed a motion requesting a transfer of the probate proceedings to another court for several reasons, including Judge Spencer's possible impartiality. Judge Spencer denied the motion. Appellants then filed a motion to recuse Judge Spencer. After a hearing, Judge Herman, appointed by the administrative judge to hear the motion to recuse, denied the motion. Appellants now appeal.
Discussion
In their sole issue, Appellants complain of the denial of their recusal motion, arguing that "Judge Spencer's recusal was mandated by Rule 18b(2)(a) of the Texas Rules of Civil Procedure because her impartiality might reasonably be questioned in this case." According to Appellants, "two of the parties to the lawsuit are lawyers who practice regularly in the judge's court and know the judge socially and personally, while [Cadena] is a non-lawyer with no connection to the judge outside of this case." Appellants thus conclude that these relationships between Judge Spencer, Smith, and Hailey "jeopardized the judge's impartiality, or at a minimum, created the appearance of impropriety in this case."
Texas Rule of Civil Procedure 18b(2)(a) provides that a "judge shall recuse himself in any proceeding in which his impartiality might be reasonably questioned." Tex. R. Civ. P. 18b(2)(a). We review the denial of a motion to recuse under an abuse of discretion standard. Vickery v. Vickery, 999 S.W.2d 342, 349 (Tex. 1999); Brosseau v. Ranzau, 81 S.W.3d 381, 399 (Tex.App.-Beaumont 2002, pet. denied); Woodruff v. Wright, 51 S.W.3d 727, 736 (Tex.App.-Texarkana 2001, pet. denied). "The test for abuse of discretion is not whether in the opinion of the reviewing court the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles." Woodruff, 51 S.W.3d at 736.
At the recusal hearing, Smith, the attorney from Heard Smith, L.L.P., testified that because he and opposing counsel Hailey, both parties to the suit, are very familiar with Judge Spencer, other parties involved in the suit, specifically Cadena, might have concerns about the judge's impartiality. Smith testified that he has known Judge Spencer, both personally and professionally, and her family for over fourteen years. And, he testified that the majority of his legal practice involves probate work and that he rarely practices outside of Bexar County. In addition, he testified that Judge Spencer's husband's law firm, Clemens Spencer, had represented Smith before, although Judge Spencer's husband had not been directly involved. With respect to Judge Spencer's relationship with Hailey, Smith testified that Joel Hailey and William Hailey have had a long-established friendship with Judge Spencer.
During his testimony, Smith recognized that he probably should have filed the recusal motion long before he did, but stated that he had not realized how the relationships between himself, Judge Spencer, and Hailey looked to outsiders until his client, Cadena, pointed out the judge's familiarity with both him and Hailey.
Reviewing the record of the recusal hearing, we find no abuse of discretion. Appellants presented no evidence of Judge Spencer's impartiality, bias, or prejudice toward Smith, Hailey, Cadena, or the other parties. The evidence only showed the existence of a friendship between Judge Spencer and two of the parties. We cannot hold that the trial court abused its discretion because the record shows the existence of a friendship between Judge Spencer and Hailey and Smith, respectively. See Woodruff, 51 S.W.3d at 738 ("We find that recusal is not required merely because the trial judge knows the defendant, or even because the defendant (who was for some time the only heart surgeon in this region) performed surgery on a family member of the judge."); see also Brosseau, 81 S.W.3d at 400 ("[T]he existence of a friendship between a judge and an attorney appearing before him is not sufficient, without more, to demonstrate partiality."). Based on the evidence presented, the trial court was within its discretion to conclude that recusal was not required under rule 18b(2)(a).
We, therefore, hold that the trial court did not abuse its discretion in denying Appellants' motion to recuse.
Because we find no abuse of discretion, we need not address Appellee's issue of whether Appellants waived their recusal motion by waiting so long to bring it.
Conclusion
We overrule Appellants' sole issue and affirm the trial court's order denying Appellants' motion to recuse.