Sun Exploration & Production Co. v. Jackson

• Decision Date: 09 January 1987
• Docket Number: No. 01-85-0240-CV,01-85-0240-CV
• Citation: 729 S.W.2d 310
• Parties: SUN EXPLORATION & PRODUCTION COMPANY and Amoco Production Company, Appellants, v. Ocie R. JACKSON, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 310

729 S.W.2d 310

SUN EXPLORATION & PRODUCTION COMPANY and Amoco Production Company, Appellants, v. Ocie R. JACKSON, et al., Appellees.

No. 01-85-0240-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 9, 1987.

Leo J. Hoffman, Stuart C. Holliman, Strasburger & Price Dallas, for appellants.

Dick Watt, John D. White, Watt & White, Houston, Ernest E. Smith, III, Austin, for appellees.

Before EVANS, C.J., and WARREN and JACK SMITH, JJ.

Opinion on Rehearing

EVANS, Chief Justice.

Both Sun and the Jacksons have filed motions for rehearing. We first consider the Jacksons' motion.

The Jacksons contend, in one point of error, that we erred in holding that the trial court's conditional decree of cancellation imposed an unreasonable burden on Sun. The Jacksons argue that to give Sun any more time to decide whether to fulfill the terms of the conditional decree would, under the circumstances, be unjust and inequitable, particularly in the face of Sun's testimony at trial indicating that it did not intend to do additional drilling. We adhere to the views expressed in our original opinion that the matter should be remanded to the trial court for further consideration. The Jacksons' motion for rehearing is overruled.

Sun's motion for rehearing, which contains 11 points of error, raises a new issue in the case. In its first point of error, Sun contends that the trial judge, the Honorable Carroll E. Wilborn, Jr., was constitutionally disqualified to preside over the case and that his judgment is void. In the alternative, Sun contends that he should be recused and that the cause should be remanded so that Sun may have the opportunity to present its motion for Judge Wilborn's recusal.

Under this point, Sun suggests that Judge Wilborn is a first cousin of Guy C. Jackson, III, one of the Jacksons' attorneys in the case, and therefore is connected to the Jacksons' attorney by consanguinity in the second degree. Sun's motion also asserts that Judge Wilborn is connected to all the Jacksons by consanguinity in the fourth degree, because their common ancestor, Humphrey Jackson, was the great-grandfather of Ocie R. Jackson, the senior living member of the Jackson group and the great-great-grandfather of Judge Wilborn. Sun attaches to its motion copies of a 1934 affidavit of heirship and other probate records, which it alleges are filed of record in the Office of the County Clerk in Chambers County, Texas. Sun further alleges that all of these matters represent "newly-discovered evidence" that was not known to Sun at the time of the trial or at the time of the initial proceedings in this Court.

Tex. Const. art. V, sec. 11 provides, in pertinent part:

No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.

Tex.Rev.Civ.Stat.Ann. art. 15 (Vernon 1969) provides:

No judge or justice of the peace shall sit in any case wherein he may be interested or where either of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been counsel in the case.

A disqualified judge is incapacitated from taking any action in a cause that requires the exercise of judicial discretion, and any order or judgment of a disqualified judge involving judicial discretion is void. Buckholts Independent School District v. Glaser, 632 S.W.2d 146, 148 (Tex.1982); Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 574, 169 S.W.2d 482, 484 (1943). The constitutional disqualification of a judge cannot be waived, and the disqualification issue may be raised either before or after the judge's action. Buckholts, 632 S.W.2d at 148; Fry v. Tucker, 146 Tex. 18, 26-27, 202 S.W.2d 218, 221-22 (1947).

Sun contends that Judge Wilborn was constitutionally disqualified to preside at the trial of the case, because (a) he and one of the Jacksons' attorneys, Guy C. Jackson, III, are first cousins, related within the second degree, and (b) Guy C. Jackson, III, while not a named party in the case, had such a direct and substantial interest in the subject matter that he should, in legal effect, be deemed a party. Sun cites cases holding, in effect, that disqualification exists where the judge, in his discretion, approves or sets attorney's fees for an attorney related to him within the designated degree. See, e.g., Postal Mutual Indemnity, 140 Tex. at 575-76, 169 S.W.2d at 485; Indemnity Insurance Co. of North America v. McGee, 163 Tex. 412, 356 S.W.2d 666 (1962); Dow Chemical Co. v. Benton, 163 Tex. 477, 357 S.W.2d 565, 568 (1962). Compare F.M.C. Corp. v. Burns, 444 S.W.2d 315 (Tex.Civ.App.--San Antonio 1969, no writ) (where the trial judge did not have to pass on the contingent fee contract or set the fee); Dow Chemical Co., 357 S.W.2d at 568; see also Niles v. Dean, 363 S.W.2d 317 (Tex.Civ.App.--Beaumont 1962, no writ).

The Jacksons respond to Sun's first point of error with allegations that (1) their attorney, Guy C. Jackson, III, did not participate in the trial of the case and merely provided logistical support for their trial attorneys and the Jacksons; (2) his name was added to the pleadings only so that he would be kept apprised of the progress in the case; (3) the Jacksons' trial attorneys, Watt & White, and their local attorney, Guy C. Jacksons, III, would regularly bill the Jacksons for their respective services during the course of the case, and were paid on a regular basis; (4) Guy C. Jackson, III, would have been fully paid regardless of the action of the trial judge or the outcome of the case; (5) the Jacksons' pleadings sought an award to the Jacksons for the amount of attorney's fees expended, and asked that the Jacksons, not the attorneys, be awarded such fees; (6) Sun's counsel knew that the attorney's fees awarded to the Jacksons did not include any fees attributable to the services of Guy C. Jackson, III, or any other counsel except the trial counsel, Watt & White; and (7) Sun knew, or should have known, through its attorneys and local employees, of the relationship between Judge Wilborn and the Jacksons, and that its motion was devoid of any explanation regarding its failure to raise the disqualification issue at an earlier time.

Attached to the Jacksons' motion is the affidavit of John D. White, one of the Jackson's trial attorneys, and the affidavit of their local counsel, Guy C. Jackson, III.

In White's affidavit, he states that Guy C. Jackson, III, along with Hubert Oxford, III, of Beaumont, and William G. Rosch, III, of Houston, appeared on the pleadings in the case as attorneys for the Jacksons for notice purposes so that they would be properly apprised of all the proceedings and so that they could convey information to various members of the Jackson family. He stated that none of these attorneys participated in the trial or in any of the pretrial activities, and that Guy C. Jackson, III, assisted in providing logistical support for the parties, witnesses, and attorneys in Anahuac during trial, and also assisted in reviewing the jury panel list. White stated that following the jury's verdict, he discussed the amount of attorney's fees with Sun's counsel, and an agreement was reached on the amount of attorney's fees that each side would ask the judge to award and on the reasonableness of such amounts. According to White, it was agreed that neither side would consider attorney's fees incurred by either local counsel or other attorneys assisting in the litigation and that the Jacksons would submit the Watt & White fees, and Sun would submit the Strasburger & Price fees in computing the amounts they would respectively submit to the judge. White stated that the attorney's fee of $284,232 awarded by the court reflected the Watt & White fees actually incurred and estimated to be incurred prior to the entry of judgment, and did not include any attorney's fees charged by Guy C. Jackson, III, or any of the other non-trial attorneys. White further stated that this fact was known to opposing counsel prior to the hearing for entry of judgment.

The affidavit of Guy C. Jackson, III, similarly states his role as an attorney for the Jacksons. He denied that he was pecuniarily interested either in the outcome of the case or in the specific award of attorney's fees. He said he regularly billed the Jackson family for his services and that he would have been fully paid for those services regardless of how the trial judge might rule in the case. He said it was well-known in Anahuac and Chambers County that he was related to the Jackson family and to Judge Wilborn, and that this fact was known to Sun employees in Chambers County and to one of Sun's Beaumont attorneys employed in the case. He had assumed that the relationship was known by Sun, and he expressed his view that it would have been simple for Sun's attorneys to ascertain the relationship by any sort of reasonable inquiry.

Sun concedes that Guy C. Jackson, III, was not one of the Jacksons' lead trial attorneys, but it argues that he was obviously an attorney in the case and that he had a direct pecuniary interest in the outcome of the case. Thus, the question is whether Sun demonstrated that Guy C. Jackson, III, was "so directly interested in the subject matter of the lawsuit as to make him a 'party' within the meaning of the constitution and statute." Winston v. Masterson, 87 Tex. 200, 27 S.W. 768 (1894); Dow Chemical Co., 357 S.W.2d at 568. The resolution of this question requires a factual determination, which unfortunately was not done at the trial court level. The record before us reflects some facts that appear to be uncontroverted: (1) Judge Wilborn and Guy C. Jackson, III, are first cousins; (2) Guy C. Jackson, III,...