JOHNSON v. AMCO INS AGENCY, 14-04-00260-CV (Tex.App.-Houston [14th Dist.] 6-2-2005)

ARTHUR JOHNSON, Appellant v. AMCO INSURANCE AGENCY AND GOBIN-BHATIA, Appellees.

No. 14-04-00260-CVCourt of Appeals of Texas, Fourteenth District, Houston.
Memorandum Opinion filed June 2, 2005.

Case Number: 14-04-00260-CV 08/31/2006 Case stored in record room 08/30/2006 Notice sent to Court of Appeals 07/14/2006 Motion for Rehearing – Disposed proceeding denied 06/13/2006 Case forwarded to Court 06/09/2006 Motion for Rehearing – Filed 05/12/2006 M/E/T to file Motion for Rehearing disposed Granted 05/10/2006 M/E/T to file motion for rehearing 04/21/2006 Petition for Review disposed proceeding denied 04/03/2006 Letter Filed 03/21/2006 Case forwarded to Court 03/13/2006 Response to Petition for Review waived 03/02/2006 Appendix Filed 03/02/2006 Petition for Review filed 02/07/2006 Third m/e/t to file petition for review disposed Granted 01/30/2006 Third m/e/t to file petition for review filed 01/10/2006 Second m/e/t to file petition for review disposed Granted 01/04/2006 Second m/e/t to file petition for review filed 11/07/2005 M/E/T to file petition for review disposed Granted 11/04/2005 M/E/T to file petition for review filed 11/04/2005 Affidavit of inability to pay Court costs

On Appeal from County Court at Law No. 3, Harris County, Texas, Trial Court Cause No. 782,394.

Affirmed.

Panel consists of Justices YATES, ANDERSON, and HUDSON.

MEMORANDUM OPINION
JOHN S. ANDERSON, Justice.

In this pro se appeal, appellant appeals a take nothing judgment. In four points of error, appellant complains (1) the trial court abused its discretion in not complying with his motion for recusal; and (2) the trial court erred in not setting and holding a hearing on his motion to reinstate. We affirm.

Motion for Recusal
Appellant argues in his first and fourth points of error that the trial court abused its discretion in “not complying” with his motion for recusal.

To recuse a judge, a party must follow the procedure prescribed by Texas Rule of Civil Procedure 18a. TEX. R. CIV. P. 18a. According to Rule 18a, on the day a motion for recusal is filed, copies must be served on all other parties or their counsel of record, together with a notice that the movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge. TEX. R. CIV. P. 18a(b). Rule 18a additionally requires that a motion to recuse be verified and state with particularity the grounds why the judge before whom the case is pending should not sit. TEX. R. CIV. P. 18a(a). The motion must be made on personal knowledge and set forth such facts as would be admissible in evidence, provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated. Id. If a party fails to follow these mandatory requirements of Rule 18a, he waives the right to complain of a judge’s failure to recuse himself. Carson v. Serrano, 96 S.W.3d 697, 698
(Tex.App.-Texarkana 2003, pet. denied); Gill v. Texas Dept. of Criminal Justice, Insitutional Div., 3 S.W.3d 576, 579
(Tex.App.-Houston [1st Dist.] 1999, no pet.).

Here, appellant filed a general motion for recusal. There is no evidence he gave notice of expectancy of presentment to the judge three days after filing, and there is no evidence the judge was presented with the motion three days after filing. Appellant’s motion to recuse is not verified, does not state with particularity the grounds why the trial judge should not sit, and is not made on personal knowledge or information and belief. Because appellant did not follow the procedures prescribed by Rule 18a, appellant waived his right to complain on appeal and may not complain about the trial judge’s failure to recuse herself.

Accordingly, we overrule points of error one and four.

Hearing on Motion to Reinstate
In points of error two and three, appellant argues the trial court erred in not setting and holding an oral hearing on his motion to reinstate pursuant to Texas Rule of Civil Procedure 165a. TEX. R. CIV. P. 165a. The trial court’s final judgment signed January 28, 2004 states the following:

On January 12, 2004, this case was called for trial. [Appellant] appeared in person and announced ready for trial. [Appellees AMCO Insurance Agency and Gobin-Bhatia appeared and] announced ready for trial.
All matters in controversy, legal and factual, were submitted to the Court for its determination. The Court heard evidence and arguments of the parties and announced its decision for [appellees].

It is therefore ORDERED, ADJUDGED and DECREED that:

1. [Appellant] take nothing by his suit against [Appellees].
2. All costs of court are taxed against Plaintiff.
3. This judgment is final, disposes of all claims and parties, and is appealable; and
4. All relief not expressly granted is denied.

Findings of fact and conclusions of law were not requested or filed, and there is no reporter’s record.

Appellant’s reliance on Rule 165a on appeal as authority for his contention that the trial court was required to conduct a hearing on his motion to reinstate is misplaced; Rule 165a governs dismissals for want of prosecution and does not apply here because this case was disposed of on the merits and was not dismissed for want of prosecution. See TEX. R. CIV. P. 165a(1), (3). Moreover, the record does not show appellant requested a setting or hearing on his motion in the trial court. Having presented nothing for review, we conclude points of error two and three are without merit.

Accordingly, we overrule points of error two and three.

CONCLUSION
We affirm the judgment of the trial court.