Mendoza v. Fleming

• Decision Date: 01 March 2001
• Docket Number: No. 13-99-340-CV,13-99-340-CV
• Citation: 41 S.W.3d 781
• Parties: (Tex.App.-Corpus Christi 2001) ROBERT H. MENDOZA, Appellant, v. TOM FLEMING, INDIVIDUALLY, AND FLEMING & OLVERA, Appellees.
• Court: Texas Court of Appeals

Page 781

41 S.W.3d 781 (Tex.App.-Corpus Christi 2001)

ROBERT H. MENDOZA, Appellant, v. TOM FLEMING, INDIVIDUALLY, AND FLEMING & OLVERA, Appellees.

No. 13-99-340-CV

Court of Appeals of Texas, Corpus Christi.

March 1, 2001

On appeal from the 197th District Court of Cameron County, Texas. [Copyrighted Material Omitted]

Before Justices Hinojosa, Rodriguez, and Chavez¹

OPINION

Hinojosa, Justice.

Appellant, Robert H. Mendoza, appeals from the trial court's order granting a motion for summary judgment filed by appellees, Tom Fleming, individually, and Fleming & Olvera. In five issues, appellant complains: (1) the trial judge did not have authority to preside over this case "because there was no order assigning [him] to preside in the 197th District Court"; (2) the trial judge erred in granting the motion because appellees did not prove they were entitled to summary judgment as a matter of law; and (3) the trial judge erred in granting sanctions against appellant because (a) there is no evidence appellant's pleadings were brought in bad faith or for the purpose of harassment, (b) there is no evidence appellant's pleadings were groundless, and (c) the judge "failed to enumerate the particulars of the good cause in the sanctions order." We reverse and remand.

A. Background and Procedural History

On June 7, 1995, Luke Fruia Investments, Inc. ("LFI") obtained an agreed judgment against appellant in Cause No. 96-02-763-C in the 197th District Court of Cameron County. The judgment became final and was not paid. LFI, through its attorney, Tom Fleming, and his law firm, Fleming, Hewitt & Olvera, obtained a writ of garnishment from the 197th District Court, attaching all of appellant's assets held by the International Bank of Commerce ("IBC"). On March 29, 1998, the presiding judge of the 197th District Court signed a judgment disbursing all seized accounts of appellant. On appeal, this Court reversed that judgment and remanded the case to the 197th District Court for a new trial because appellant had not been properly served with notice of the writ of garnishment. See Mendoza v. Luke Fruia Investments, Inc., 962 S.W.2d 650, 652 (Tex. App.--Corpus Christi 1998, no writ).

After we remanded the garnishment action to the 197th District Court, appellant filed Cause No. 98-03-885-A in the 107th District Court of Cameron County against: (1) LFI; (2) Luke Fruia, Individually; (3) Tom Fleming, Individually; (4) Fleming, Hewitt & Olvera;² and (5) IBC, alleging causes of action for wrongful garnishment, conversion, civil conspiracy, intentional infliction of emotional distress, and abuse of process. Fleming & Olvera filed a counter-claim seeking sanctions against appellant. See Tex. R. Civ. P. 13.

On April 20, 1998, Judge Darrell Hester, Presiding Judge of the Fifth Administrative Judicial District, assigned Senior Judge Robert Barnes to the 107th District Court to preside over Cause No. 98-03-885-A. Upon motion by several defendants, Judge Barnes transferred Cause No. 98-03-885-A to the 197th District Court and consolidated it with Cause No. 96-02-763-C (the remanded garnishment case) pursuant to Rule 1.1 of the Cameron County Civil Court Rules.

Appellees filed a motion for summary judgment pursuant to Texas Rule of Civil Procedure 166a. Judge Barnes granted the motion and ordered that appellant take nothing against appellees. He later heard appellees' counterclaim and ordered that Fleming & Olvera recover rule 13 sanctions against appellant for costs and attorney's fees. On May 3, 1999, Judge Barnes granted appellant's motion to non-suit LFI and Luke Fruia and severed appellant's causes of action against the remaining defendants.

B. Trial Judge's Authority to Preside

In his first issue, appellant complains that Judge Barnes did not have authority to preside over Cause No. 98-03-885-A after it was transferred to the 197th District Court "because there was no order assigning Judge Barnes to preside in the 197th District Court." Judge Hester appointed Judge Barnes with the following order:

Pursuant to Section 74.056, Texas Government Code, I hereby assign the Honorable Robert Barnes Senior Judge of the 275th and 93rd District Courts To the 107th District Court of Cameron County, Texas

This assignment is for the period beginning as determined by the assigned judge and continuing thereafter so long as may be necessary for the assigned judge to complete trial of any cause begun during such period, and to pass on motions for new trial and all other matters growing out of any cause heard by the assigned judge during such period.

CONDITION(S) OF ASSIGNMENT (IF ANY):

This assignment shall be for purposes of presiding in Cause No. 98-03-885-A styled: Robert Mendoza vs Tom Fleming, et al, and such other matters as may come on for hearing.

* * * * *

Appellant argues that once Judge Barnes transferred Cause No. 98-03-885-A to the 197th District Court, he no longer had authority to hear it because there was no order in place assigning him to preside in the 197th District Court.

Appellant overlooks several important provisions of the Texas Government Code relating to the authorities and powers of judges. A judge assigned under the provisions of the Texas Court Administration Act has all the powers of the judge of the court to which he is assigned. Tex. Gov't Code Ann. § 74.059(a) (Vernon 1998); Herrod v. State, 650 S.W.2d 814, 817 (Tex. Crim. App. 1983)(op. on reh'g); Alexander v. State, 903 S.W.2d 881, 883 (Tex. App.--Fort Worth 1995, no pet.). Furthermore,

In any county in which there are two or more district courts, the judges of those courts, may, in their discretion, either in term time or vacation, on motion of any party or on agreement of the parties, or on their own motion, transfer any civil or criminal case or proceeding on their dockets to the docket of one of those other district courts. The judges of those courts may, in their discretion, exchange benches or districts from time to time.

Tex. Gov't Code Ann. § 24.303(a) (Vernon 1988). This provision is derived from the Texas Constitution, which provides that "District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law." Tex. Const. art. V, § 11. These statutes and rules generally rely on the principle of judicial restraint to prevent district courts within the same county from fighting one another for jurisdiction over a case. Excel Corp. v. Valdez, 921 S.W.2d 444, 448 (Tex. App.--Corpus Christi 1996, orig. proceeding [leave granted, mand. denied]); R.J. Gallagher Co. v. White, 709 S.W.2d 379, 381 (Tex. App.--Houston [14th Dist.] 1986, orig. proceeding). The trial court has discretion to decide when to transfer a case to another district, and a litigant does not have a protected, proprietary interest in having his case heard by a particular judge or in a particular court. Excel Corp., 921 S.W.2d at 447; European Crossroads Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 51 (Tex. App.--Dallas 1995, writ denied).

Texas courts have interpreted these provisions as allowing a judge properly assigned to one district court to preside in other district courts of the same county. See Peach v. State, 498 S.W.2d 192, 194 (Tex. Crim. App. 1973), overruled on other grounds, Jackson v. State, 548 S.W.2d 685 (Tex. Crim. App. 1977); Pendleton v. State, 434 S.W.2d 694, 697 (Tex. Crim. App. 1968); Ex parte Dharmagunaratne, 950 S.W.2d 140, 142 (Tex. App.--Fort Worth 1997); Tart v. State, 642 S.W.2d 244, 246 (Tex. App.--Houston [14th Dist.]1982, no pet.). Furthermore, a judge sitting by assignment may preside over a court regardless of whether the regular district judge of that court was present and trying another case at the same time. Hughes v. State, 897 S.W.2d 285, 306 (Tex. Crim. App. 1994); Zamora v. State, 508 S.W.2d 819, 823 (Tex. Crim. App. 1974); Dharmagunaratne, 950 S.W.2d at 142.

The order appointing Judge Barnes to the 107th District Court clearly states that he was to hear Cause No. 98-03-885-A "and such other matters as may come on for hearing." The standard of review for a judge's decision to transfer a case, exchange benches, or hold court for each other is abuse of discretion. Excel Corp., 921 S.W.2d at 448; European Crossroads, 910 S.W.2d at 51. We find no abuse of discretion in Judge Barnes' decision to transfer Cause No. 98-03-885-A to the 197th District Court.

We hold Judge Barnes had authority to hear this case after it was transferred to the 197th District Court. Appellant's first issue is overruled.

C. Motion for Summary Judgment

In his second issue, appellant contends that Judge Barnes erred in granting the motion for summary judgment because appellees did not prove they were entitled to summary judgment as a matter of law.

When reviewing a traditional summary judgment brought under rule 166a, an appellate court must follow these well-established rules:

(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and

(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant.

See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a. A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When a defendant moves for summary judgment on an affirmative defense, he must...