Opinion
No. 01-08-00235-CV
Opinion issued July 23, 2009.
Original Proceeding on Petition for Writ of Mandamus.
The underlying lawsuit is Millennium Income Fund, L.L.C. v. Dow Hamm III Corp. W. Dow Hamm III, No. 2003-13955 (61st Dist. Ct., Harris County, Tex.). The orders that are challenged in this original proceeding indicate thatthe name of the corporate relator is "Dow W. Hamm III Corporation." Relators give that party's name as "W. Dow Hamm, III Corporation." We employ the name used in the style of the complained-of orders.
MEMORANDUM OPINION
In 2008, relators, Dow Hamm III Corp. and W. Dow Hamm ("the Hamm parties"), filed a petition for a writ of mandamus complaining of former Judge John Donovan's December 10, 2007 order compelling arbitration before arbitrator Michael L. Landrum, arguing that the trial judge had abused his discretion by "appoint[ing] a specific arbitrator for the parties, even though their arbitration agreement required the selection of a neutral arbitrator following the rules of the American Arbitration Association." The real party in interest, Millennium Income Fund, L.L.C., filed a response to the petition, to which the Hamm parties replied.
The Honorable John Donovan, former judge of the 61st District Court of Harris County, Texas.
In 2009, former Judge Donovan was succeeded by Judge Al Bennett. On March 3, 2009, upon the Hamm parties' motion, this Court abated the mandamus proceeding in order to allow Judge Bennett to reconsider the decision of former Judge Donovan. See TEX. R. APP. P. 7.2(b) ("If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party's decision.").
The Honorable Al Bennett, judge of the 61st District Court of Harris County, Texas.
The Hamm parties then filed a motion for Judge Bennett to reconsider the December 10, 2007 ruling. On April 16, 2009, Judge Bennett filed with this Court a copy of an order, signed the same day, in which he "affirmed and adopted" Judge Donovan's December 10, 2007 order as his own. Accordingly, on April 29, 2009, this Court reinstated the original proceeding.
Before the Court now is the Hamm parties' July 16, 2009 unopposed motion to abate the proceeding again. In it, they advise that Judge Bennett signed a second order, dated May 4, 2009, which reads:
Before the Court is Defendants' [the Hamm parties'] Motion for Reconsideration Pursuant to First Court of Appeals' March 10, 2009, Order of Abatement. Having considered the motion, the evidence, and any timely filed response, the Court is of the opinion that the portion of Judge Donovan's December 10, 2007, Order which appointed a specific arbitrator should be VACATED.
Therefore, it is ORDERED that a neutral arbitrator shall be appointed pursuant to the terms of the partnership agreements and the AAA rules, and not by this Court.
This order expressly vacates the very portion of the December 10, 2007 order — affirmed and adopted by Judge Bennett in April 2009 — of which the Hamm parties complain, awarding them the relief that they seek before this Court.
The May 4, 2009 order expressly supplants the referenced portion of the December 10, 2007 order. It also implicitly supplants the April 16, 2009 order to the extent that the April order had adopted the vacated portion of the December order.
The Hamm parties have moved to abate this proceeding "so that the conflicting[April and May] orders in the trial court may be resolved," arguing that "Judge Bennett's true intent is not clear" because the two orders conflict. However, we construe the later-signed May order to supplant the conflicting portions of the December and April orders, so that no conflict remains. Accordingly, we deny the motion to abate the proceeding.
The superseding of the order of which a relator complains moots the mandamus proceeding. See, e.g., In re Office of Att'y Gen., 276 S.W.3d 611, 617 (Tex.App.-Houston [1st Dist.] 2008, orig. proceeding). Here, the portion of the December 10 order of which complaint is made, which was later "affirmed and adopted" by the successor judge, was vacated and replaced with an order that comports with the relief sought before this Court. The proceeding is thus moot, and we must dismiss it. See In re ONEOK Abruckle Land Co., No. 01-09-00347-CV, 2009 WL 1332078, at *1 (Tex.App.-Houston [1st Dist.] May 8, 2009, orig. proceeding) (memo. op.) (dismissing original proceeding as moot when trial judge had vacated order of which relator complained).
We dismiss the mandamus petition as moot.