                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-16-00187-CV

R. SCOTT PHELAN,
                                                             Appellant
v.

H. SCOTT NORVILLE,
                                                             Appellee



                          From the 237th District Court
                             Lubbock County, Texas
                          Trial Court No. 2015-516,400


                          MEMORANDUM OPINION


      R. Scott Phelan sought a bill of review to set aside a final judgment against H. Scott

Norville. The trial court denied the bill of review, and Phelan appeals. We affirm.

                                   Background Facts

      Phelan was an assistant professor in the Department of Civil Engineering at Texas

Tech University, and Norville was the Chair of the Department of Engineering. Phelan

brought suit against Norville for assault and defamation. Texas Tech University was
originally a party defendant, but was dismissed by summary judgment. In November

2012, a jury found that Norville assaulted and libeled Phelan and awarded $590,000 in

damages. During the trial, Texas Tech School of Law offered the trial judge who presided

over the original lawsuit a position as an adjunct professor at the law school. The judge

accepted the offer. In January 2013, the judge granted Norville’s motion for judgment

N.O.V in part and set aside the jury award of $250,000 for mental anguish.

        The case was appealed to the Amarillo Court of Appeals, and the court held oral

argument in the courtroom of the Texas Tech School of Law on October 10, 2013. On

August 12, 2014, while the case was pending on appeal, all four justices of the Amarillo

Court of Appeals signed agreements to be adjunct professors at Texas Tech School of

Law. On September 22, 2014, the Amarillo Court of Appeals issued an opinion that

rendered judgment that Phelan take nothing on his libel claim. That reduced the damages

from $590,000 to $15,000. Texas Tech University paid the judgment on Norville’s behalf.

        In May of 2015, Phelan learned that Texas Tech School of Law hired the judge and

justices as adjunct professors, and Phelan filed the bill of review on June 26, 2015 seeking

to set aside the rulings that reduced his recovery. The trial court denied the bill of review,

and Phelan appealed to the Amarillo Court of Appeals. The case was transferred to this

Court for review.




Phelan v. Norville                                                                      Page 2
                                       Bill of Review

        In the first issue, Phelan argues that the trial court erred in denying his bill of

review because he proved the three required elements. In the second issue, Phelan

contends that the trial court erred in denying his bill of review because he required Phelan

to show “conscious” wrongdoing. In the fifth issue, Phelan argues that the trial court

erred when it left “undisturbed” the judgment in the prior case.

        A bill of review is an equitable proceeding brought by a party seeking to set aside

a prior judgment that is no longer subject to challenge by motion for new trial or appeal.

Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004); Baker v. Goldsmith, 582 S.W.2d 404, 406

(Tex.1979). To set aside a judgment by bill of review, a petitioner must ordinarily plead

and prove (1) a meritorious claim or defense to the cause of action alleged to support the

judgment, (2) that he was prevented from making by the fraud, accident, or wrongful act

of his opponent, or official mistake, and (3) unmixed with any fault or negligence of his

own. Caldwell v. Barnes, 154 S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d at 406-7.

        In our review of a trial court's ruling on a bill of review, we indulge every

presumption in favor of the trial court's determination, and will not disturb it absent an

abuse of discretion. Singh v. Trinity Marketing & Distributing Company, Inc., 397 S.W.3d

257, 262 (Tex.App.-El Paso 2013, no pet.). A trial court abuses its discretion if it acts in an

arbitrary or unreasonable manner, or without reference to guiding rules and principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).


Phelan v. Norville                                                                       Page 3
        The trial court found that Phelan did not meet the second requirement for a bill of

review: that he was prevented from making a meritorious claim by the fraud, accident,

or wrongful act of his opponent or by official mistake. Phelan argues on appeal that he

showed wrongdoing, or official mistake by providing evidence that the judge and justices

were hired by Texas Tech School of Law prior to rendering decisions favorable for

Norville. The trial court found that there was “no evidence or other reasonable basis to

conclude that the opportunity to supplement income for services rendered over a

semester was sufficient to cause these judges to violate their oaths of office.” After

reviewing the entire record, we agree that Phelan did not establish that he was prevented

from making a meritorious claim based upon the wrongdoing or official mistake of the

judges. The record does show that the trial judge as well as the appellate justices were

hired as adjunct professors by Texas Tech School of Law. However, that evidence alone

does not show wrongdoing or official mistake by the judge or justices. There is nothing

in the record to suggest that the acceptance of the offer from Texas Tech School of Law to

serve as adjunct professors influenced the decisions in the underlying case.

        Phelan argues that the trial court imposed an additional standard to require him

to show “conscious” wrongdoing in the hiring of the judges. In its findings of fact, the

trial court stated “No conscious wrongdoing. Any suggestion of conscious wrongdoing

(by the University or by the judges) is emphatically rejected.” The trial court further

stated in its conclusions of law:


Phelan v. Norville                                                                   Page 4
        4. Core issues. Thus the core issues for decision, each being essential to
        Phelan’s bill of review, are:
              A. Should the judges have disclosed their hiring as adjunct
              professors;
              B. If they had done so, would they have been recused; and
              C. If they had been recused and replaced by other judges, would
              their replacements have reached different decisions and affirmed all
              or part of Phelan’s libel verdict.

The trial court noted that there was no conscious wrongdoing and discussed what it

termed “core issues” in reaching a decision. However, the record does not show that the

trial court required Phelan to show “conscious” wrongdoing, but only that the trial court

found that there was no conscious wrongdoing in making his determination that Phelan

did not establish that he was prevented from making a meritorious defense based upon

the wrongdoing or official mistake of the judge or justices. The trial court followed the

elements set out in Baker v. Goldsmith for setting aside a judgment by bill of review, and

did not abuse its discretion in denying the bill of review. We overrule the first and second

issues. Because the trial court did not abuse its discretion in denying the bill of review,

the trial court did not err in leaving the judgment “undisturbed” in the prior case. We

overrule the fifth issue.

                                         Recusal

        In the third issue, Phelan argues that the trial court erred in making findings of

fact and conclusions of law that had Phelan learned that Texas Tech School of Law had

hired the judge and justices and filed recusal motions, those motions would have been

denied. In the fourth issue, Phelan argues that the trial court erred in denying the bill of
Phelan v. Norville                                                                    Page 5
review by concluding there was no basis for disqualifying the judge and justices in the

prior case rather than considering whether there was a basis for recusing the judge and

justices.

        Conclusions of law are reviewed de novo. Perez v. Old West Capital Company, 411

S.W.3d 66, 75 (Tex.App.-El Paso 2013, no pet.). The trial court's findings of fact have the

same weight as a jury verdict, and we review the legal and factual sufficiency of the

evidence as we would a jury's findings. Perez v. Old West Capital Company, 411 S.W.3d at

74. If there is more than a scintilla of evidence supporting a finding of fact, we will

overrule a legal sufficiency challenge. Id. In reviewing a factual sufficiency challenge,

we consider all of the evidence and will set aside a finding only if it is so against the great

weight and preponderance of the evidence as to be clearly wrong and unjust. Id.

        In its finding of fact, the trial court stated, “While the case was pending in the trial

court, if Phelan had learned about the adjunct professorship and filed a recusal motion,

that motion would have been denied.” The trial court included a footnote that stated:

                 Pursuant to Rule 18a, [the trial judge] would have referred the
        motion to [the Presiding Judge of the Ninth Administrative Judicial
        Region]. [The Presiding Judge] would have either heard the motion himself
        or assigned another judge to hear it. A hearing would have been scheduled.
        In all likelihood, the judge hearing the recusal motion would have denied
        it; that denial would have been well within the court’s broad discretion and
        would have withstood any appellate challenge. Therefore, [the trial judge]
        would have remained on the case and would have made the same judgment
        n.o.v. rulings. (Phelan’s suggestion that recusal would be mandatory or
        automatic in these circumstances is respectfully rejected. See Conclusion of
        Law 5-A.)


Phelan v. Norville                                                                        Page 6
        In its findings of fact, the trial court noted that Texas Tech University and Texas

Tech School of Law were not parties to the underlying case and that it is common for law

schools to employ judges as adjunct professors. The trial court further noted that the

relationship between Texas Tech University and Norville “does not mean that the Law

School officials that hired the judge and justices as adjunct professors felt comradeship

with anyone else in the system or that it had an interest in the outcome of the case.” The

trial court further found that the money paid to the judge and justices were not gifts or

contributions, but rather payments for services rendered and that neither the status of the

judge or justices as adjunct professors would cause them to lean toward Norville. The

trial court concluded that there was no basis for disqualifying the judge or justices and

that Phelan did not establish that they would have been recused if there had been

disclosure.

        The Texas Rules of Civil Procedure provide that a judge must recuse in any

proceeding in which “the judge’s impartiality might reasonably be questioned” or “the

judge has a personal bias or prejudice concerning the subject matter or a party.”

TEX.R.CIV.P. 18b (b) (1) (2). A party seeking recusal must satisfy a "high threshold" before

a judge must be recused. See Liteky v. United States, 510 U.S. 540, 558, 114 S.Ct. 1147, 127

L.Ed.2d 474 (1994); Ex parte Ellis, 275 S.W.3d 109, 116 (Tex.App.-Austin 2008, no pet.). In

determining whether recusal is proper the proper inquiry is whether a reasonable

member of the public at large, knowing all the facts in the public domain concerning the


Phelan v. Norville                                                                    Page 7
judge and the case, would have a reasonable doubt that the judge is actually impartial.

Kniatt v. State, 239 S.W.3d 910, 915 (Tex.App.--Waco 2007, order).

        Texas Tech was not a party to the underlying case, although the record shows that

Texas Tech paid the judgment on behalf of Norville. Texas Tech School of Law was not

a party to the underlying case and there is nothing in the record to suggest that the

employment of the judge or justices as adjunct professors influenced the outcome of the

case. The record shows that Texas Tech School of Law had previously hired judges as

adjunct professors. We find that the evidence supports the trial court’s findings that a

recusal motion would have been denied.

        The trial court distinguished between recusal and disqualification. The trial court

correctly concluded that there was no basis for disqualifying the judge or justices. See

TEX.R.CIV.P. 18b (a). However, the trial court further set out the procedure for recusal

and concluded that Phelan did not establish that the judge or justices would have been

recused if there had been disclosure of their employment as adjunct professors. We

overrule the third and fourth issues.

                                        Judicial Ethics

        In the sixth issue, Phelan complains that the trial court erred in failing to find that

the judge or justices violated ethical standards by engaging in ex parte communications

and by accepting employment from Texas Tech School of Law prior to rendering

decisions in the prior case. In the seventh issue, Phelan argues that the trial court erred


Phelan v. Norville                                                                       Page 8
in making a finding of fact that there was no evidence to conclude that the judge or

justices employment by Texas Tech School of Law was sufficient to cause them to violate

their oaths of office.

        In setting out the evidence relating to the recusal of the judge and justices, the trial

court found that there was “no evidence or other reasonable basis to conclude that the

opportunity to supplement income for services rendered over a semester was sufficient

to cause these judges to violate their oaths of office.” The trial court was not called upon

to determine any ethical violations by the judge or justices in determining the bill of

review, but rather was determining whether Phelan met his burden to prove: (a) a

meritorious claim, (b) which he was prevented from making by the fraud, accident, or

wrongful act of the opposite party, or by official mistake, (c) unmixed with any fault or

negligence of his own. Caldwell v. Barnes, 154 S.W.3d at 96. The trial court’s finding was

in relation to whether a motion to recuse would have been granted had Phelan known

about the employment by Texas Tech School of Law and filed a motion to recuse. As

previously stated, the trial court's findings of fact have the same weight as a jury verdict,

and we review the legal and factual sufficiency of the evidence as we would a jury's

findings. Perez v. Old West Capital Company, 411 S.W.3d at 74.

        After reviewing all of the evidence, we find that the evidence supports the trial

court’s finding. The issue of whether the judge or justices violated ethical standards was

not before the trial court. We overrule the sixth and seventh issues.


Phelan v. Norville                                                                       Page 9
                                       Conclusion

        We affirm the trial court’s judgment.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
*(Chief Justice Gray dissenting with note)
Affirmed
Opinion delivered and filed July 26, 2017
[CV06]

*(Chief Justice Gray dissents to the opinion and judgment of the court. A separate
opinion will not issue.)




Phelan v. Norville                                                               Page 10
