In re Caddell, 05-22-00435-CV

CourtCourt of Appeals of Texas
Writing for the CourtOpinion by Justice Reichek
Citation649 S.W.3d 857
Parties IN RE Brenda L. CADDELL, Relator
Docket Number05-22-00435-CV
Decision Date05 July 2022

649 S.W.3d 857

IN RE Brenda L. CADDELL, Relator

No. 05-22-00435-CV

Court of Appeals of Texas, Dallas.

Opinion Filed July 5, 2022


W. Mark Montgomery, for Relator.

William Randall Ackerman, for Real party in interest.

Before Justices Schenck, Reichek, and Carlyle

MEMORANDUM OPINION

Opinion by Justice Reichek

In her May 6, 2022 petition for writ of mandamus, relator Brenda Caddell challenges the trial court's (1) ruling sustaining the denial of her objection to the visiting judge, and (2) refusal to reconsider the enforcement motion that the visiting judge had denied. Entitlement to mandamus relief requires relator to show that the trial court clearly abused its discretion and that she lacks an adequate appellate remedy. In re Copart, Inc. , 619 S.W.3d 710, 713 (Tex. 2021) (orig. proceeding) (citing In re Prudential Ins. Co. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) ).

Based on our review of the petition and the record, we conclude that relator has failed to show an abuse of discretion. Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P. 52.8(a).

Schenck, J., dissenting.

DISSENTING OPINION

Opinion by Justice Schenck

In this original proceeding, relator Brenda L. Caddell challenges an order sustaining the ruling on her objection to the assignment of a visiting judge in this Suit Affecting the Parent–Child Relationship (SAPCR). I dissent from the majority's denial of relator's petition because relator timely objected to the assignment of the visiting judge.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 2019, relator, the paternal grandmother of the deceased Father's children, filed the underlying SAPCR in Johnson County seeking access to her grandchildren. Thereafter, the case was transferred to Dallas County and assigned to the 303rd District Court. On December 19, 2019, the trial court issued temporary orders based on Mother and relator's agreement. The temporary orders divided possession time between Mother and relator if they lived within 100 miles of each other. Mother and the children subsequently moved to Maine, precluding relator from having access to her grandchildren.

On March 17, 2020, relator filed a motion to enforce temporary orders. Mother and the children eventually moved back to Texas, but Mother denied relator physical access to the children because of the COVID pandemic. The enforcement motion was initially set for hearing on December 21, 2020 before Judge Dennise Garcia, who was then the presiding judge of the 303rd District Court.1 On December 9, 2020, the

649 S.W.3d 859

hearing was removed from the trial court's December 21 docket due to a scheduling conflict.

On January 12, 2021, Judge Carmen Rivera-Worley, retired,2 signed an "Agreed Order to Appear" in the SAPCR setting, per the parties’ agreement, February 3, 2021 as the date relator's motion would be heard. The order did not identify the judge who would appear or preside over the February 3 hearing or indicate that Judge Rivera-Worley had been generally assigned to the 303rd District Court or this case in particular.

On February 2, 2021, the court coordinator sent an invitation via email to relator's and Mother's counsel to attend a Zoom meeting the following day with a visiting judge. On that same day, relator filed an objection to the assignment of a visiting judge. On February 3, Judge Rivera-Worley overruled relator's objection as untimely, noting that she had already taken action in the case by signing the January 12, 2021 agreed order. Judge Rivera-Worley then proceeded to hear the motion to enforce temporary orders. By email dated March 22, Judge Rivera-Worley ruled on that motion as follows:

Following a review of the pleadings, exhibits, testimony and argument of counsel, I find it in the best interest of the children to deny the Grandmother/Petitioner's Motion for Enforcement and for Sanctions.

On April 12, 2021, relator filed her first petition for writ of mandamus challenging Judge Rivera-Worley's order overruling her objection to the assignment of a visiting judge. On August 4, 2021, this Court denied that petition on procedural grounds without prejudice to the refiling of same. In re Caddell , No. 05-21-00233-CV, 2021 WL 3412238, at *1 (Tex. App.—Dallas Aug. 4, 2021, orig. proceeding) (mem. op.). In doing so, this Court noted:

We have no authority to issue a writ of mandamus to a successor judge for a visiting judge's ruling. 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."). Rule 7.2(b) would require us to give the successor judge an opportunity to reconsider the challenged order before we may consider relator's request for mandamus relief. Nevertheless, we note that our opinion does not prevent relator from refiling another enforcement action.

Id. at *1 n.1.

On October 15, 2021, relator filed her second amended motion to enforce temporary orders in the district court. By that time, Judge Rhonda Hunter, the successor to Judge Garcia, had become the presiding judge of the 303rd District Court. A hearing on the amended motion was held on January 31, 2022, during which Judge Hunter considered arguments as to whether she had the authority to proceed to hear that motion based on this Court's August 4, 2021 denial of the prior petition for writ of mandamus. She then ruled as follows:

I am Judge Rhonda Hunter .... I was sworn in on March 30, 2021. The motion was served on Respondent because she agreed to service on January 12 of 2021. The Respondent then appeared on February 3rd, 2021. The mandamus was an objection to the visiting Judge. The visiting Judge denied the objection to the visiting Judge and heard the underlying proceeding on February 3rd, 2021. Then
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