Ludlow v. DeBerry

• Decision Date: 10 July 1997
• Docket Number: No. 14-93-01090-CV,14-93-01090-CV
• Parties: Howard LUDLOW, Appellant, v. Scott H. DEBERRY, Individually, Scott DeBerry Interest, Inc., and Falcon Products, Inc., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 265

959 S.W.2d 265

Howard LUDLOW, Appellant, v. Scott H. DEBERRY, Individually, Scott DeBerry Interest, Inc., and Falcon Products, Inc., Appellees.

No. 14-93-01090-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 10, 1997.

Opinion OverrulingRehearing Jan. 29, 1998.

Jon P. Bohn, Cecilia H. Docloux, A. Glenn Diddell, III, Houston, appellant.

Michael Mazzone, J.W. Beverly, Houston, for appellees.

Before MURPHY, C.J., and ANDERSON and HUDSON, JJ.

OPINION

ANDERSON, Justice.

Howard Ludlow appeals the denial of his motion to recuse the trial judge, certain discovery rulings, and a post-verdict order granting summary judgment in favor of appellees. Appellant raises seven points of error. We affirm in part and reverse and remand in part.

Ludlow filed suit against Scott DeBerry ¹, Scott DeBerry Interests, Inc. ("SDI") (formerly known as Falcon), and Falcon Products, Inc. alleging breach of contract, quantum meruit, unjust enrichment, breach of the duty of good faith and fair dealing, breach of fiduciary duty, and fraudulent and negligent misrepresentation. Following the presentation of evidence, the jury found in favor of Ludlow on his claims of breach of contract and quantum meruit. The jury awarded Ludlow $124,051.00 in actual damages plus attorney's fees for the contract claim. On the quantum meruit claim, the jury found the reasonable value of Ludlow's services to be $25,000.00. The jury found in favor of DeBerry on the claims of breach of fiduciary duty and fraud.

According to one of the jurors, when they left the courtroom, the trial judge, Judge Eugene Chambers, angrily told the dismissed jurors they had delivered "the worst verdict that he had heard in eight and a half years...." Upset by the judge's outburst and criticism, the presiding juror called Ludlow's counsel and advised him about the incident. Ludlow's counsel contacted other jurors who confirmed the presiding juror's account of the incident. After obtaining several affidavits, Ludlow filed a motion to recuse Judge Chambers. On the same day, Deberry filed motions for new trial and for judgment n.o.v. Judge Chambers refused to recuse himself and the recusal was referred to a visiting judge, Judge Curt Steib.

During the recusal hearing, Judge Steib refused to allow Ludlow to call Judge Chambers to the stand. Judge Steib later admitted talking with Judge Chambers before the recusal hearing. Judge Steib denied the recusal motion on May 13, 1993.

Ludlow filed a motion for leave to file a petition for writ of mandamus in this court, which this court initially granted, but later withdrew leave to file and overruled the motion, stating that Ludlow had an adequate remedy by appeal. The trial court granted Deberry's motion for new trial and set aside a prior order denying Deberry's motion for partial summary judgment. On June 11, 1993, Deberry dropped his counterclaim and moved for summary judgment. Judge Chambers granted final summary judgment for DeBerry and assessed court costs against Ludlow. Ludlow moved to re-open the recusal hearing and moved the court to reconsider its prior rulings. The trial court denied these motions.

I. Recusal Issues

In point of error three, appellant contends Judge Steib committed reversible error in refusing to allow appellant to call Judge Chambers as a witness at the recusal hearing. In point of error four, appellant claims the trial court erred in refusing to re-open the recusal hearing after Judge Stovall, the chief administrative judge, produced a letter from Judge Steib stating he had talked with Judge Chambers prior to the recusal hearing about the necessity for Judge Chambers' testimony.

On August 17, 1995, this panel issued an order sustaining point of error three and holding it was error to refuse to allow the testimony of Judge Chambers. Accordingly, we abated the appeal and ordered the trial court to hold another hearing on appellant's motion to recuse during which appellant could question Judge Chambers. The hearing ordered by this court was never held. On November 28, 1995, appellant filed a motion for en banc reconsideration of our August 17, 1995 order. In that motion, appellant argued that, because Judge Chambers is no longer on the bench, the issue of whether the district court should recuse Judge Chambers was now moot. Therefore, appellant asked that we vacate our August 17, 1995 order. We granted the motion and withdrew our August 17, 1995 order by order dated December 7, 1995.

Appellant claimed in his motion for reconsideration that his "third point of error is moot to the extent it seeks as an alternative remedy a remand to the district court for a new recusal hearing...." Appellant's third point of error alleged reversible error in Judge Steib's refusal to allow appellant to call Judge Chambers as a witness at the recusal hearing. The statement of facts for the recusal hearing reflects that appellant requested the recusal judge to call Judge Chambers as a witness, and that request was denied. After a brief discussion of the holding in Joachim v. Chambers, 815 S.W.2d 234 (Tex.1991), appellant's counsel acquiesced in the court's ruling stating, "In light of the Court's ruling that you're not allowing me to put on Judge Chambers ... I'll have to put on myself."

Rule 103(a)(2) of the Texas Rules of Civil Evidence provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and the substance of the objection was made known to the court by offer of proof. The primary purpose of the offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful. GOODE, WELLBORN & SHARLOT, GUIDE TO THE TEXAS RULES OF EVIDENCE, § 103.3 at 21 (2nd ed.1993). A secondary purpose is to permit the trial judge to reconsider his ruling in light of the actual evidence. Id. An offer of proof is sufficient if it apprised the court of the substance of the testimony and may be presented in the form of a concise statement. Chance v. Chance, 911 S.W.2d 40, 51-52 (Tex.App.--Beaumont 1995, writ denied). We have examined the record of the recusal hearing and have not found an offer of proof. When the trial court excludes evidence, failure to make an offer of proof waives any complaint about the exclusion on appeal. Porter v. Nemir, 900 S.W.2d 376, 383 (Tex.App.--Austin 1995, no writ). See also Hibbler v. Walker, 593 S.W.2d 398, 400 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ) (holding there can be no refusal to admit evidence that has not been offered). Accordingly, we overrule point of error three.

In points of error one and two, Ludlow claims Judge Steib committed reversible error by refusing to recuse Judge Chambers under Rule 18b(2)(a)-(b). Rule 18b requires a judge to "recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned [or] (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding...." TEX.R. CIV. P. 18b(2)(a)-(b).

DeBerry argues that both bases for recusal require a showing of extrajudicial bias. Ludlow contends that a showing of extrajudicial bias is not required to show impartiality under Rule 18b(2)(a). In support of his argument, Ludlow cites Canon 3 of the Code of Judicial Conduct, entitled "Performing the Duties of Judicial Office Impartially and Diligently." This Canon sets forth the standards that apply to a judge in performing his adjudicative or administrative responsibilities. For example, Canon 3, pt. B(4) requires a judge to be "patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity...." TEXAS SUPREME COURT, CODE OF JUDICIAL CONDUCT, Canon 3, pt. B(4) (1994) [hereinafter TEX.CODE OF JUDICIAL CONDUCT, Canon 3 (1994) ]. A judge must also perform his duties without bias or prejudice. TEX.CODE OF JUDICIAL CONDUCT, Canon 3, pt. B(5) (1994). Ludlow contends that violation of any of the standards set out in Canon 3 is impartiality per se.

Canon 8 describes the intent of the Code:

The code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the test and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.

TEX.CODE OF JUDICIAL CONDUCT, Canon 8, pt. A (1994). Thus, a judge may be disciplined for violating one of these rules, but a violation does not necessarily mean that the judge should be recused.

In Grider v. Boston Co., Inc., 773 S.W.2d 338, 346 (Tex.App.--Dallas 1989, writ denied), appellants claimed error in the trial judge's refusal to recuse himself because the judge "exhibited an antagonistic attitude toward them and ... his rulings were consistently unfair." The Dallas court held that a party attempting to require a judge to recuse himself must show that the judge's bias was extrajudicial and not based on in-court rulings. Id. The court added that appellants' remedy was to assign error concerning the adverse rulings. Id.

In Liteky v. U.S., 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), the United States Supreme Court discussed the "extrajudicial source" doctrine. Although the Court was construing the federal...