Rosell v. Central West Motor Stages, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: Rosenberg
• Citation: Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643 (Tex. App. 2002)
• Decision Date: 22 August 2002
• Docket Number: No. 05-01-00198-CV.,05-01-00198-CV.
• Petition History: pet. denied
• Parties: Brian ROSELL and Annette Kienetz, individually and as representatives of the estate of Chad Rosell, Decedent, Appellants, v. CENTRAL WEST MOTOR STAGES, INC. d/b/a Central West of Texas, Inc., Loyd Earl Rieve, and Karen Bay, Appellees.

89 S.W.3d 643

Brian ROSELL and Annette Kienetz, individually and as representatives of the estate of Chad Rosell, Decedent, Appellants, v. CENTRAL WEST MOTOR STAGES, INC. d/b/a Central West of Texas, Inc., Loyd Earl Rieve, and Karen Bay, Appellees.

No. 05-01-00198-CV.

Court of Appeals of Texas, Dallas.

August 22, 2002.

Rehearing Overruled October 23, 2002.

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Thomas B. Cowart, William J. Dunleavy, Law Office of Windle Turley, P.C., Dallas, for appellants.

Britton Byron Harris, Brown & McCarroll, L.L.P., Houston, Eric Gordon Walraven, Godwin Gruber, P.C., Dallas, Robert Fugate, Fanning, Harper & Martinson, P.C., Dallas, for appellees.

Before Justices O'NEILL, FARRIS,¹ and ROSENBERG.²

OPINION

Opinion by Justice ROSENBERG(Assigned).

In eight issues, Brian Rosell and Annette Kienetz, individually and as representatives of the estate of Chad Rosell, decedent (the Rosells), challenge a takenothing judgment against them in their wrongful death and survival action against Central West Motor Stages, Inc. d/b/a Central West of Texas, Inc. (Central West), Loyd Earl Rieve, and Karen Bay. They contend that the trial judge was constitutionally unqualified to preside at the trial because his law license was suspended due to nonpayment of bar dues; the trial court erred in submitting improper liability and apportionment questions in the charge and refusing to submit instructions regarding the "Good Samaritan" and rescue doctrines; the trial court erred in including Chad in the negligence question; the evidence was factually insufficient to support the jury's apportionment of responsibility; the judgment should have included a punitive damages award; and the verdict was the result of an improper outside influence. For the reasons below, we resolve the Rosells' issues against them and affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of January 31, 1998, Karen Bay's car collided with a retaining wall on Interstate Highway 35. Bay got out of the car and was lying in the lane immediately adjacent to the HOV lane. Chad Rosell was among those who stopped and got out of his car to assist Bay. Loyd Rieve was driving a Central West bus and attempted to pass the accident in the HOV lane. He was driving at least fifty miles per hour as he passed the accident scene. The bus struck Chad in the HOV lane, killing him.

The Rosells alleged that Rieve was negligent in his operation of the bus and that Central West was liable for its own negligence for hiring and retaining an incompetent driver, failing to supervise Rieve properly, and in entrusting the bus to Rieve. The Rosells also sued Bay.

The trial court refused to include Central West in the apportionment question, limiting the question to the negligence of Rieve, Bay, and Chad. The jury found that the Rosells suffered $809,312.96 in actual damages, found Central West guilty of gross negligence, and awarded $1,250,000.00 in punitive damages. The jury apportioned fault for Chad's death as follows: seventy percent to Chad, twenty percent to Rieve, and ten percent to Bay. Pursuant to section 33.001 of the Texas Civil Practice and Remedies Code, the trial court rendered a take-nothing judgment against the Rosells. See TEX. CIV. PRAC. REM.CODE ANN. § 33.001 (Vernon 1997) (comparative responsibility statute). The Rosells moved for a new trial contending, among other issues, that the Honorable Bill Rhea was not qualified to preside at the trial and that the jury was subject to an outside influence. The Rosells' motion for new trial was denied. They appealed.

QUALIFICATION OF THE TRIAL JUDGE

In the Rosells' first issue, they contend that the trial judge was not a judge as required by the Texas Constitution and therefore, the judgment rendered by the judge must be set aside. Appellees respond that the judgment should not be set aside because: (1) the Rosells waived this complaint by failing to object at or before trial; (2) failure to pay bar dues is not a ground for disqualification of a sitting judge under the Texas Constitution; (3) public policy should not allow a trial court's judgment to be nullified for a technical violation of the State Bar's rules on payment of bar dues; and, (4) even if a constitutionally qualified judge were not present at trial, the judgment should not be reversed without evidence that such presence would have brought about a different result.

The Rosells do not dispute that the trial judge was qualified to hold the office of judge at the previous election. Subsequently, the trial judge's license to practice law was suspended on September 1, 2000 for failure to pay bar dues. The suspension lasted until October 30, 2000, when he was restored to good standing with the State Bar retroactive to September 1, 2000. This case was litigated from October 2, 2000 until the verdict was returned on October 10, 2000. The final judgment was signed by the judge on November 16, 2000. No objection to the trial judge was made until the motion for new trial, in which the Rosells complained that the "jury verdict was improper in that the presiding judge at trial was not qualified by law to preside in that at the time of trial, the presiding judge did not possess a valid license to practice law in the State of Texas as required under the Texas Constitution."

The Texas Constitution states that a district judge:

shall be elected by the qualified voters at a General Election and shall be a citizen of the United States and of this State, who is licensed to practice law in this State and has been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election, who has resided in the district in which he was elected for two (2) years next preceding his election, and who shall reside in his district during his term of office and hold his office for the period of four (4) years....

TEX. CONST. art. V, § 7 (emphasis added). Judges may be removed from a particular case because: (1) they are constitutionally disqualified, TEX. CONST. art. V, § 11³; (2) they are subject to a statutory strike, TEX. GOV'T CODE ANN. § 74.053(d) (Vernon 1998); or, (3) they are recused under rules promulgated by the Texas Supreme Court, TEX.R. CIV. P. 18a, 18b; TEX.R.APP. P. 16. In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex.1998) (orig. proceeding). If a judge is disqualified under the Constitution or subject to disqualification under section 74.053(d) of the government code, he is absolutely without jurisdiction in the case, and any judgment rendered by him is void, without effect, and subject to collateral attack. Id.; Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex.App.-Beaumont 1993, writ denied) (citing William W. Kilgarlin & Jennifer Bruch, Disqualification and Recusal of Judges, 17 ST. MARY'S L.J. 599, 601-02 (1986)); see Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex.1982). However, the existence of statutory grounds for recusal of a judge does not void or nullify subsequent proceedings before that judge and can be waived if not raised by proper motion. In re Union Pac. Res. Co., 969 S.W.2d at 428; Gulf Maritime Warehouse Co., 858 S.W.2d at 559.

However, none of these provisions for removal are implicated in this appeal. Instead, the Rosells challenge the authority of a duly elected judge to preside over this trial because he lacked a law license during the period of the trial. In essence, the complaint was that the trial judge was no longer qualified to hold office. It is his authority to function as a district judge that is challenged. Contrary to the Rosells' contention, the authority of the person presiding over a court cannot always be attacked by way of appeal. Davis v. State, 956 S.W.2d 555, 559 (Tex. Crim.App.1997); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 854-55 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). When a judge is holding office under the color of law and discharging his duties of office, his acts are conclusive as to all parties and cannot be attacked in an appeal, even though the person acting as judge lacks the necessary qualifications and is incapable of legally holding the office. Ex parte Lefors, 171 Tex.Crim. 229, 347 S.W.2d 254, 254-55 (1961); Texaco, Inc., 729 S.W.2d at 854. An appeal is not the proper procedure to challenge the authority of a judge to hold office and perform his duties. Texaco, 729 S.W.2d at 854; see Snow v. State, 134 Tex.Crim. 263, 114 S.W.2d 898, 901 (1937) (op. on reh'g) (de jure judge or de facto judge claiming office by color of law, and actually performing duties of such officer, cannot be ousted, or his official acts successfully challenged, except in direct proceeding to which he is party). The recognized procedure for determining whether an elected judge or other public official has done any act that by law works a forfeiture of his office is through a quo warranto proceeding brought in the name of the State of Texas by the Attorney General or the district or county attorney of the proper district or county. Texaco, Inc., 729 S.W.2d at 854 (citing Lewis v. Drake, 641 S.W.2d 392, 393 (Tex.App.-Dallas 1982, orig. proceeding)). This Court has endorsed this procedure for public policy reasons:

Public officers should be free to perform their duties without having their authority questioned incidentally in litigation between other parties. They should not be called on to defend their authority unless a proper legal officer of the State has determined that the question raised is serious and deserves judicial consideration....

Lewis, 641 S.W.2d at 395. Further, a judge who holds office under color of title of election is considered a de facto official even if all the legal requirements for holding office are no longer met. See Snow, 114 S.W.2d at 901. "A...