In Re Wilhite (Tex.App.- Houston [1st Dist.] Sep. 25, 2009)(Alcala) (mandamus to remove judge
on claim of disqualification denied, judge not disqualified in asbestos case based on his prior firm having
handled such cases)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Higley
01-09-00387-CV In Re Edward and Margie Wilhite
Appeal from 11th District Court of Harris County
Trial Court Judge: Judge Mark D. Davidson
Dissenting Opinion by Justice Jennings in In re Wilhite
O P I N I O N
In this petition for writ of mandamus, relators, Edward and Margie Wilhite, contend that the Honorable
Edward P. Magre, judge of the 20th Judicial District Court in Milam County, Texas, is disqualified from
presiding over the underlying asbestos lawsuit filed against defendant Alcoa, Inc., the real party in
The Wilhites assert that the multidistrict pretrial court (1) erroneously denied their motion to disqualify
Judge Magre because his previous law firm represented Alcoa over a decade ago in two similar asbestos
lawsuits. (2) Although there are similarities between the lawsuit filed by the Wilhites and the two lawsuits
where the law firm represented Alcoa a decade ago, the specifics fail to show that the litigations concern
the same matter in controversy.
We therefore deny the petition for writ of mandamus.
Although he did not personally represent Alcoa, Judge Magre was a partner at Ellet, Camp, Magre &
Glasser, P.C. (the "law firm") when the law firm twice represented Alcoa in suits filed against it for injuries
caused by exposure to asbestos. The law firm represented Alcoa in 1996 in a lawsuit for damages
brought by the estate of Glen Whatley, who died from mesothelioma. Whatley asserted that he was
exposed to asbestos while working as a pipefitter and insulator at the Alcoa Rockdale plant from 1954 to
1990. According to the pleadings in the Whatley lawsuit, Alcoa failed to provide adequate safety
measures to protect against asbestos dust, Alcoa knew of the extreme risk of harm inherent to asbestos
exposure, Alcoa failed to warn its employees about the hazards of asbestos exposure, Alcoa failed to
ensure a safe work environment, and Alcoa intentionally caused the mesothelioma. Although he pleaded
that Alcoa caused his injuries, Whatley dismissed Alcoa from the lawsuit for reasons not shown in the
documents before us. The documents do show, however, that Whatley testified in his deposition that he
believed he was also exposed to asbestos when he worked for two other companies before Alcoa.
The law firm again represented Alcoa in 1997 in a lawsuit resulting in a two million dollar judgment
against Alcoa for damages for Bernice Cavitt's asbestos-related lung cancer. Bernice was exposed to
asbestos by laundering the clothes worn by her husband, Floyd, who worked at the Alcoa Rockdale plant
from 1953 to the early 1980s as a "potliner," carbon setter, and crane operator. The defense at the
Cavitt's trial was that Bernice's lung cancer was caused by exposure to Floyd's cigarette smoking for over
five years; that there was no asbestosis diagnosis; and that there were alternative sources of exposure
Like the Whatley and Cavitt lawsuits, the present lawsuit against Alcoa also concerns allegations of
exposure to asbestos at Alcoa's Rockdale plant during the same period of time. The Wilhite pleadings
assert Edward worked at that plant from 1955 to 1982 in the "potrooms" performing "many different
After Edward was diagnosed with malignant pleural mesothelioma in 2007, the Wilhites filed suit the
following year against Alcoa and numerous other defendants. Like the Whatley lawsuit, the Wilhite
pleadings assert Edward was injured by Alcoa's failure to provide adequate safety measures to protect
against asbestos dust, that Alcoa knew of the extreme risk of harm inherent to asbestos exposure, that
Alcoa failed to warn its employees about the hazards of asbestos exposure, that Alcoa failed to ensure a
safe work environment, and that Alcoa's intentional acts caused the mesothelioma. Applicable Law
Mandamus relief is proper when a trial court erroneously denies a motion to disqualify. See In re
O'Connor, 92 S.W.3d 446, 450 (Tex. 2002). An erroneous ruling on a recusal, however, has historically
not been addressed by mandamus relief, but rather by direct appeal after the rendition of a final,
appealable judgment. In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998).
In Texas, a judge may be removed from a case because he is constitutionally disqualified, subject to a
statutory strike, or recused. See id. The grounds and procedures for each type of removal are
fundamentally different. Id. The pertinent standard for recusal is that a "judge shall recuse himself in any
proceeding in which: (a) his impartiality might reasonably be questioned." See Tex. R. Civ. P. 18b(2).
Recusal must be preserved for appeal or it is waived. Buckholts Indep. School Dist. v. Glaser, 632 S.W.
2d 146, 148 (Tex. 1982); McElwee v. McElwee, 911 S.W.2d 182, 185-86 (Tex. App.--Houston [1st Dist.]
1995, writ denied). In contrast to recusal, "any orders or judgments rendered by a judge who is
constitutionally disqualified are void and without effect." In re Union Pac. Res. Co., 969 S.W.2d at 428.
In establishing the grounds for judicial disqualification, the Texas Constitution states, "No judge shall sit in
any case . . . when the judge shall have been counsel in the case." Tex. Const. art. V, § 11. Judicial
disqualification is also addressed in the Texas Rules of Civil Procedure, which provide that,
Judges shall disqualify themselves in all proceedings in which: (a) they have served as a lawyer in the
matter in controversy, or a lawyer with whom they previously practiced law served during such
association as a lawyer concerning the matter . . . .
Tex. R. Civ. P. 18b(1)(a). Rule 18b(1)(a)'s reference to the "same matter in controversy" is synonymous
with the Texas Constitution's reference to "the case." Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d
550, 553 (Tex. 2006) (rule 18b(1)(a) "was intended to expound rather than expand the Constitution");
Slaven v. Wheeler, 58 Tex. 23, 25 (1882).
The same "matter in controversy" must be involved, regardless of whether the same lawsuit is involved.
In re O'Connor, 92 S.W.3d at 449. As the Supreme Court of Texas states,
By its own terms, rule 18b(1)(a) is not limited to disqualifying a trial judge only when the "same lawsuit" is
involved. Rather, in plain language, rule 18b(1)(a) requires disqualification when the same "matter in
controversy" is involved.
Id. (citing Tex. R. Civ. P. 18b(1)(a)). The assessment of whether a matter in controversy is similar or the
same must be performed with great care, as noted by the Supreme Court of Texas:
Where the constitution has only prescribed that the judge's professional connection with the case, in the
single instance where he has been "of counsel in the cause," shall disqualify him from presiding upon its
trial, we cannot undertake to say that his professional connection with a similar cause or one involving
the same questions shall have that effect. If we depart from the plain language of the constitution, we
shall be left without a rule for our guidance, and shall countenance a laxity of construction that may prove
both dangerous and inconvenient.
Taylor v. Williams, 26 Tex. 583, 586-87 (1863).
In summary, a judge is disqualified when two prongs are met: first, the judge or the judge's law firm was
the attorney for a party in the case, and second, the matter before the judge is the same matter that was
before the judge or judge's law firm. See In re O'Connor, 92 S.W.3d at 448. A judge will not be
disqualified if only prong one applies. City of Austin v. Cahill, 89 S.W. 552, 552 (Tex. 1905) (judge who
has previously represented one party currently before him on different matter is not disqualified.). Nor will
a judge be disqualified if only prong two applies. See Glasscock v. Hughes, 55 Tex. 461, 468-69 (1881)
(fact that judge has "been connected as counsel at one period with the matters, or a portion of them"
does not disqualify him); Matlock v. Sanders, 273 S.W.2d 956, 957-58 (Tex. Civ. App.--Beaumont 1954,
no writ) (judge not disqualified even if, as attorney, he previously gave his opinion in regard to validity of
title to land in controversy before him, when controversy concerns different parties than any of those
previously represented by judge); Butts v. Davis, 149 S.W. 741, 742 (Tex. Civ. App.--Amarillo 1912, no
writ) (judge who "long prior to the institution of the suit" had rendered legal advice on similar matter to
lawsuit he currently presided over should not be disqualified because it "in no way involved this action.").
Therefore, both prongs must be present for a judge to be disqualified.
If the record shows a judge or his prior law firm represented a party in the same matter in controversy,
the judge is disqualified, even if he did not personally participate in the representation. See State ex rel.
Routh v. Burks, 82 Tex. 584, 585, 18 S.W. 662, 662 (1891). An attorney's knowledge about a matter is
"imputed by law to every other attorney in the law firm." Nat'l Med. Enters., Inc. v. Godbey, 924 S.W.2d
123, 131 (Tex. 1996). Although he did not personally participate in the law firm's representation of Alcoa,
Judge Magre is vicariously disqualified from sitting in the Wilhite lawsuit if the law firm represented Alcoa
in the same matter in controversy presented in this case. See In re O'Connor, 92 S.W.3d at 448. Our
decision in this case, thus, turns on whether this litigation is the same matter in controversy as the Cavitt
and Whatley lawsuits. Analysis
The Wilhites contend their present lawsuit involves the same matter in controversy as the Whatley and
Cavitt lawsuits because they all involve claims of asbestos exposure at the Alcoa Rockdale plant during
the same period of time and the lawsuits share some of the same evidence. The Wilhites intend to use
the deposition of Thomas Bonney, Alcoa's former senior industrial hygienist, that was originally taken in
the Whatley case in 1998, as well as several other depositions taken in that case. Bonney testified that
asbestos use at the Rockdale plant was "ubiquitous" and that Alcoa did not tell its employees about the
dangers of asbestos exposure. The Wilhites also plan to use the deposition of Jack Clark, a former brick
mason at the Alcoa Rockdale plant from 1952 to 1978, that was taken in the Cavitt lawsuit. Furthermore,
the Wilhites contend their present lawsuit involves similar liability theories: that, in each case, the
plaintiffs acquired an asbestos-related disease as a result of exposure to asbestos; and similar defenses:
whether asbestos exposure poses a heath risk, when Alcoa knew that asbestos exposure posed a heath
risk, and whether third parties or the plaintiff himself caused his injuries.
Although the Wilhites accurately show that their lawsuit shares with the prior lawsuits some of the
evidence, liability theories, and defenses, these similarities are insufficient to show that these three law
suits are the same matter in controversy. First, the plaintiffs in these three cases are complete strangers,
not legally joined in their lawsuits in any way. Each of these plaintiffs is suing for his or her own personal
injury, unrelated to the injuries sought by the other plaintiffs.
Second, nothing in the documents before us shows that the injuries arose from the same incident or the
same exposure to asbestos. The record shows, at most, that the plaintiffs are suing the same defendant
for injuries caused by asbestos exposure at the same general location during the same period of time,
but the documents do not show that these injuries arise from the same incident or the same exposure.
The Cavitts' lawsuit, which concerns Bernice's exposure from washing her husband's clothes following his
shifts at the Rockdale plant, plainly does not involve the same incident or same exposure as the present
lawsuit that alleges direct exposure to asbestos while Wilhite worked in the potrooms.
The Whatley and Wilhite cases are dissimilar in that the pleadings in the Whatley case assert the
exposure occurred during work as a pipefitter and insulator, and the pleadings in the Wilhite case assert
the exposure occurred during work in the potrooms. The documents do not show whether the employees
in the Wilhite and Whatley lawsuits worked at the same or a similar part of the plant, did the same or
similar type of job, or were exposed to the same or similar substance.
Third, an examination of the identities of the other defendants sued in addition to Alcoa in each of the
three lawsuits suggests the liability theories and defenses would be different in each of the litigations. Of
the ten defendants sued by the Whatleys and 14 defendants sued by the Wilhites, the only two
defendants they share in common are Aluminum Company of America (Alcoa's predecessor company)
and Alcoa Power Marketing, Inc. Of the 35 defendants sued by the Cavitts, only six defendants are in
common with the Wilhites: Aluminum Company of America; Alcoa Power Marketing, Inc.; Garlock Inc.;
Guard-Line Inc.; Rapid-American Corporation Corp.; and Uniroyal Holding, Inc. This lack of commonality
in the named defendants suggests these are not the same cases because the specific liability theories
and defenses will be different in light of the differences in the parties involved in each of the lawsuits.
Moreover, because the record does not show why Whatley dismissed his lawsuit, the dismissal raises the
question whether Whatley could prove his liability theory that Alcoa caused his injury, further showing
that the Whatley lawsuit is different from the present lawsuit that asserts Alcoa caused the injuries
claimed in the Wilhite suit.
Fourth, these same pleadings and defenses can likely be found in hundreds, if not thousands, of lawsuits
in Texas against Alcoa and other companies. The issue is not whether the cases have the same or
similar pleadings, but rather whether they are the same matters.
Fifth, the present situation is completely unlike the situation that required disqualification in O'Connor.
See In re O'Connor, 92 S.W.3d at 447-48. O'Connor challenged the judge because the judge's law firm
had represented her against her ex-husband when temporary orders concerning custody of her child
were made. Id. The Supreme Court of Texas held that the judge presiding over the modification
proceeding was disqualified because the modification proceeding concerned the same matter in
controversy--namely the custody, visitation, and right to determine the child's residence. Id. at 449. In
O'Connor, the lawsuits were continuing disputes between the same plaintiff and same defendant over the
exact same subject. Id. at 447-48. Here, the situation is like O'Connor in that one of the parties then is
the same as one of the parties now. But this situation is unlike O'Connor because
* •the plaintiffs are each suing for separate injuries unrelated to each other;
* •the record does not show that the plaintiffs worked at the same part of the plant, did the same (or even
similar) type of job for the defendant, or were injured by the same (or even similar) type of exposure to
* •in addition to suing Alcoa, the plaintiffs each sued different defendants, which means each of the
lawsuits concerns different liability theories and defenses, and
* •this is not a continuing dispute between the same plaintiff and same defendant over a series of
lawsuits concerning the exact same subject, such as custody of the same child.
See id. Though there are general similarities between the Cavitt, Wilhite, and Whatley matters, the
specifics fail to show that the litigations concern the same matter in controversy.
The dissenting opinion relies on the federal rule for disqualification, but that rule is different from the
Texas standard for disqualification because, unlike Texas, the federal rule includes disqualification for
the appearance of impropriety. As the Supreme Court has stated, "Title 28 U.S.C. 455 provides in
relevant part: '(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.'" Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 858, 108 S. Ct. 2194, 2202 (1987). This part of the federal rule for
disqualification matches the Texas rule for recusal that states that a "judge shall recuse himself in any
proceeding in which: (a) his impartiality might reasonably be questioned." See Tex. R. Civ. P. 18b(2).
Because federal cases discussing recusal and disqualification often use the terms interchangeably,
those cases are of limited guidance in interpreting Texas's rule for disqualification that does not include
the appearance of impropriety as a basis for disqualification. See, e.g., In re Chevron U.S.A., Inc., 121 F.
3d 163, 165 (5th Cir. 1997); Health Servs. Acquisition Corp. v. Liljeberg, 796 F.2d 796, 802 (5th Cir.
1986); William W. Kilgarlin & Jennifer Bruch, Disqualification and Recusal of Judges, 17 St. Mary's L.J.
599, 601, 652 (1986).
If we were to determine Judge Magre was disqualified under the facts presented, that decision would
place every future judgment in peril because none of those judgments will be final until a party, post-
judgment, conducts a full investigation for similarities between the present lawsuit and any lawsuits
handled by the judge's prior law firm. A party could litigate all the facts at trial and say nothing about any
concerns he may have about the judge's law firm's prior representation of one of the parties in the
lawsuit. After receiving an unfavorable judgment, the losing party could then compare all the facts of his
present lawsuit to all the cases of all the prior lawsuits handled by the judge and all the law firms where
the judge previously worked to see what similarities factually exist. If, within the decades of the time when
the judge was an attorney, the judge's law firm represented a defendant in a case with the same general
subject matter for the same general complaint, all the actions taken by the judge would be void. For
example, assuming a future plaintiff won a substantial verdict, the unhappy defendant could conduct
discovery into the judge's prior law firm's clients over decades of time to find similarly situated plaintiffs
who sued the same defendants and make all the judge's actions void. An unhappy future plaintiff faced
with a take-nothing judgment could act similarly to avoid the judgment. The concept of a final judgment
would become a thing of the past. Judges should not remove themselves from cases "where
disqualification would put power in the hands of litigants to frustrate our judicial system." Gaines v.
Gaines, 677 S.W.2d 727, 731 (Tex. App.--Corpus Christi 1984, no writ).
Departure from "the plain language of the constitution" would prove to be "dangerous" and leave courts
"without a rule" for guidance. See Taylor, 26 Tex. at 586-87. We hold the general similarities between the
Cavitt, Wilhite, and Whatley matters are insufficient to show that the litigations concern the same matter
We note that the Wilhites have not moved to recuse Judge Magre, and thus we express no opinion on
the matter of recusal.
We deny the petition for mandamus.
Panel consisted of Justices Jennings, Alcala, and Higley.
En banc consideration was requested. Tex. R. App. P. 41.2(c).
A majority of the justices of the Court voted in favor of considering the case en banc.
The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Alcala, Hanks, Higley,
Bland, Sharp, and Massengale.
Justice Alcala, writing for the majority of the en banc court, joined by Chief Justice Radack and Justices
Keyes, Hanks, Bland, and Massengale.
Justice Jennings, dissenting, joined by Justices Higley and Sharp.
1. See Tex. R. Jud. Admin. 13; Tex. Gov't. Code Ann. §§ 74.161-.164 (Vernon Supp. 2008).
2. The underlying lawsuit is titled Edward Wilhite Individually and Margie Wilhite, Individually, v. Able
Supply Co., Alcoa, Inc., Ametek, Inc., Aqua-Chem, Inc., A.W. Chesterton Co., Certainteed Co., Coltec
Industries, Inc., Garlock Inc., Garlock Sealing Technologies, LLC, Guard-Line, Inc., LGS Technologies,
LP, Rapid American Co., Sepco Co., and Uniroyal Holding, Inc., No. 2008-15687, in the 11th Judicial
District Court of Harris County, Texas, the Hon. Mark Davidson, presiding.
The Wilhites filed the underlying lawsuit in Dallas County Court at Law Number 2, and it was transferred
to the multidistrict pretrial court for pretrial proceedings. The pretrial court granted Alcoa's motion to
transfer venue to Milam County and set a trial date. The Wilhites then moved to disqualify Judge Magre,
who declined to remove himself from presiding over the case.