Baluch v. Miller

• Decision Date: 12 June 1989
• Docket Number: No. 05-89-00347-CV,05-89-00347-CV
• Citation: 774 S.W.2d 299
• Parties: Abdul R. BALUCH, Relator, v. Honorable Dee MILLER, Judge, 254th District Court of Dallas County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 299

774 S.W.2d 299

Abdul R. BALUCH, Relator, v. Honorable Dee MILLER, Judge, 254th District Court of Dallas

County, Texas, Respondent.

No. 05-89-00347-CV.

Court of Appeals of Texas,

Dallas.

June 12, 1989.

Earle S. Lilly, Pamela E. George, Dallas, for relator.

Anne D. Turner, Gregg A. Cooke, Kyara Marie Victor, Judy L. Miller, Dallas, for respondent.

Before STEWART, ROWE and OVARD, JJ.

STEWART, Justice.

Relator Abdul R. Baluch brings this petition for writ of mandamus to command the Honorable Dee Miller, Judge of the 254th Judicial District Court of Dallas County, Texas, to vacate an order denying his motion to proceed to trial and refusing to set a hearing or hear any other temporary matters until Baluch paid $25,000 in interim attorney fees. We find that Judge Miller abused her discretion in refusing to proceed to trial; accordingly, we grant the writ.

This is Baluch's second mandamus petition to this Court arising from the underlying dispute between the parties. See Baluch v. O'Donnell, 763 S.W.2d 8 (Tex.App.--Dallas 1988, orig. proceeding). Baluch is the petitioner in a voluntary legitimation proceeding in which he seeks custody of his son, Abdul Baluch II. After multiple pleadings and motions had been filed, and hearings on motions had been held, the Honorable Bob O'Donnell, Judge, 301st Judicial District Court of Dallas County, Texas, entered a temporary order on September 2, 1987 which granted custody to the mother, Kyara Marie Victor, and awarded her $25,000 in interim attorney fees. Baluch was ordered to pay the attorney fees by October 1, 1987, but did not pay them. On December 8, 1987, the court entered an order striking Baluch's pleadings as sanctions under rule 215(2)(b) of the Rules of Civil Procedure. On September 21, 1988, this Court found that Judge O'Donnell abused his discretion for entering the order striking Baluch's pleadings, because the order awarding interim attorney fees was not a discovery order. Baluch v. O'Donnell, 763 S.W.2d 8, 11 (Tex.App.--Dallas 1988, orig. proceeding). On September 23, 1988, Judge O'Donnell vacated his earlier order and notified the parties that the case would be set for a jury trial on October 24, 1988. Baluch filed a motion for a continuance. On October 18, 1988, Judge O'Donnell issued an agreed order granting a continuance; the order did not specify a date on which the case would be tried.

On February 9, 1989, Judge O'Donnell recused himself from the case and asked the presiding judge of the administrative district to reassign the case. On February 27, 1989, the local administrative judge transferred the case from the 301st District Court to the 303rd. On March 3, 1989, the case was transferred again, this time from the 303rd District Court to the 254th, Judge Miller's court.

Thirteen days after the transfer to Judge Miller's court, on March 16, 1989, Baluch filed a motion for a trial setting. A hearing was held on this motion on March 20, 1989. At that time, the record reflects that the court said the following:

I think that is true [that no trial setting would be made until the attorney fees are paid]. As soon as it is paid I will give you-all a special setting in 60 days and I promise you cases in my court do go when there [sic] are set. They go fairly rapidly. I am prepared and I have got the kind of docket where I can easily plug it in any 60-day period. But I am going to go on--I read the mandamus and it may be that I am wrong, but the mandamus was granted because sanctions were issued for something that had nothing to do with discovery, and sanctions can only be granted when there is a problem with the discovery process; but, I am not going to grant any sanctions. I am prepared to try this any day as soon as the prior orders of Judge O'Donnell are complied with or when the Court of Appeals tell [sic] me that I have to set it.

MS. GEORGE [COUNSEL FOR BALUCH]: So, am I to understand that if the twenty-five thousand dollars in fees are not paid, then there will be no trial setting in this cause.

THE COURT: I am not going to hear anything until the $25,000.00 or the Court of Appeals order [sic] me to do that.

Baluch challenges the order entered by Judge Miller on three bases. We first address his assertion that Judge Miller had no jurisdiction to hear the case, because the assignment of the case to her court was improper. Baluch offers no authority or argument in support of this contention. The record reflects that the case was transferred twice; once from the 301st District Court to the 303rd, and then from the 303rd to the 254th, Judge Miller's court. In both instances, the order of assignment was signed by Mark Whittington, who is characterized in the order of assignment as "Local Administrative Judge". A local administrative judge has the duty to implement and execute the local rules of administration; this duty includes transfer of cases. TEX.GOV'T CODE ANN § 74.092(1) (Vernon Supp.1989). Thus, there is authority for the local administrative judge to transfer Baluch's case. While we see nothing in the record to support relator's claim that the transfer was improper, it is possible that the transfer was erroneous. However, an order that is entered without observing requirements that are purely procedural is not void; as a result, mandamus will not lie to attack it. Eagle Signal Corp. v. Wittig, 766 S.W.2d 390, 393 (Tex.App.--Houston [1st] 1989, orig. proceeding); Qwest Microwave, Inc. v. Bedard, 756 S.W.2d 426, 436 (Tex.App.--Dallas 1988, orig. proceeding). Thus, we decline to grant relief on the basis of the transfer of the case from Judge O'Donnell's court to Judge Miller's court.

Baluch also challenges the validity of the court order awarding interim attorney fees. This Court said in its prior opinion that Baluch has an adequate remedy on appeal to challenge the validity of the order. Baluch v. O'Donnell, 763 S.W.2d 8, 11 (Tex.App.--Dallas 1988, orig. proceeding). We will not pass upon that matter again. Beckham v. City Wide Air Conditioning Co., 695 S.W.2d 660, 662 (Tex.App.--Dallas 1985, writ ref'd n.r.e.). Thus, we treat the Order of Interim Attorneys' Fees as a valid order for purposes of this proceeding.

Baluch next argues that Judge Miller has no authority to refuse to proceed to trial. He contends that the denial of his motion to set the case for trial has denied him access to the justice system to which he is constitutionally entitled. U.S. CONST. XIV; Tex. Const. Art. I § 19; Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex.1984). He further argues that Judge Miller's attempt to use her inherent power to control her trial docket as a method of imposing sanctions for failure to comply with a temporary order or as a means of enforcing that order is beyond the scope of docket control; thus, the trial court refused to perform the mandatory duty of setting the case for trial. Greenberg, Benson, Fisk and Fielder, P.C. v. Howell, 685 S.W.2d 694, 695 (Tex.App.--Dallas 1984, orig. proceeding).

Judge Miller responds that: (1) the underlying suit is a suit affecting the parent-child relationship and that the temporary order at issue is authorized by Section 11.11(a)(5) of the Family Code ¹; Shirley v. Montgomery, 768 S.W.2d 430 (Tex.App.-Houston [14th Dist.] 1989, orig. proceeding), and (2) that she had no clear affirmative duty to set the matter for trial, especially since Baluch refuses to comply with a valid court order. She further notes that Baluch has never raised the issue of his inability to pay the interim fees ordered, thus distinguishing this case from Shirley v. Montgomery, supra. She maintains that, under these facts, her refusal to set the case for trial is the only means remaining...