The First District Court of Appeals released a memorandum opinion today in Clark v. Clark, No. 01-15-00615-CV which is a combined appeal and petition for writ of mandamus. The opinion essentially doubles down on the Court’s opinion in April in Gerke v. Kantara requiring orders signed by an associate judge to also be signed by the presiding judge or to include a waiver of de novo review.
Raymond and Wendy were divorced in Fort Bend in November 2009. They were both named JMCs in the decree over the child, with Raymond as primary. The matter was transferred to Brazoria County after Raymond moved.
In 2013, Raymond moved to modify the parent-child relationship, seeking to terminate Wendy’s rights. Wendy countered, seeking SMC. A four-day trial was held in November 2014 before Associate Judge Bradshaw. On the record at the beginning of the trial the parties waived their rights to de novo review by the presiding judge, Judge Hufstetler. AJ Bradshaw announced his ruling on the record at the conclusion of trial and stated his ruling would “be in the form of a final order on modification since the parties have waived de novo.” On February 20, 2015, AJ Bradshaw signed an order appointing Wendy as JMC with primary. Raymond filed a MNT.
On May 6, 2015, AJ Bradshaw issued an “Associate Judge’s Report,” which was a letter sent to the parties and stated there was a clerical error in the order and instructed Wendy to submit “an order nunc pro tunc” by June 12, 2015. Judge Bradshaw also recommended denial of Raymond’s MNT. The record does not show Judge Hufstetler took any action on the AJ’s report and no “order nunc pro tunc” was in the appellate record.
On May 18, 2015 Raymond filed his first petition for writ of mandamus, asking the Court of Appeals order the judge to vacate the final order and order a new trial. But because the Court of Appeals lacks mandamus jurisdiction over an AJ’s actions, the mandamus was dismissed for lack of jurisdiction.
On July 13, 2015 Raymond sent a letter to the presiding Judge Hufstetler, asking him to take some action on the order. The next day, he filed a notice of appeal. Then, on August 27, 2015, he filed the mandamus under consideration, contending Judge Hufstetler abused his discretion by failing to take any action as to the order signed by the AJ. Wendy responded, arguing the order is a final, appealable order because, according to her, the parties executed a waiver of their right of appeal.
In April, the First District Court of Appeals faced similar issues and ruled in Gerke v. Kantara, No. 01-14-00082-CV, 2016 WL 1590847 (Tex.App.–Houston [1st Dist.] Apr. 19, 2015, no pet. h.) that an order signed only by an associate judge was not a final appealable order. This has caused a controversy in the Houston-area family law bar because it appears to mean that any order–past and future–would need to either be signed by the presiding judge or would possibly need to include a written waiver of de novo review to be a final and appealable order. With this one opinion, the Court of Appeals cast a doubt as to the finality of hundreds if not thousands of orders and cases that the parties believed to be final and closed.*
Relying upon and citing Gerke, the Court of Appeals found that because the order at issue in this case is signed only by AJ without any action by the presiding judge, there is no final, appealable order and the Court of Appeals lacks jurisdiction over the appeal and the appeal is dismissed.
The Court of Appeals next turned to the petition for writ of mandamus in which Raymond alleged the presiding judge abused his discretion by refusing to take any action to the order after Raymond brought it to the trial court’s attention.
The Court of Appeals found that, based on the statutory scheme creating the rights and duties of associate judges, “Judge Hufstetler has a non-ministerial duty to take some action on Associate Judge Bradshaw’s order” and that ten months was an unreasonable amount of time for Raymond to wait for Judge Hustetler to take action. Further, by taking no action, Judge Hufstetler “has effectively deprived Raymond of an appellate remedy” because there is no final, appealable order for Raymond to appeal and he cannot file a writ of mandamus as to the AJ’s actions. As such, the Court of Appeals conditionally granted the petition for writ of mandamus.
This ruling would appear to indicate that not only must an order be signed by the presiding judge or possibly include a waiver of de novo reviewto be final and appealable, per Gerke v. Kantara, but a presiding judge may be mandamused for failing to act on the order within a reasonable time.
In other words, the Court of Appeals is extending its Gerke v. Kantara holding by holding it is an abuse of discretion for a presiding judge to not take action on an AJ’s order when the order has been brought to the attention of the presiding judge. These are interesting developments, to say the least. Will this lead to an onslaught of mandamus petitions filed by disgruntled litigants whose presiding judge has not taken action on their AJ’s order? Perhaps the First District felt its docket was a little too light?
*I did not blog about the case at the time because my firm and specifically my colleague Ashley Tomlinson represent one of the parties in that matter.