Plant v. Cleveland Reg'l Med. Ctr. (In re Gravitt)

• Decision Date: 15 May 2012
• Docket Number: Nos. 14–11–00526–CV, 14–11–00075–CV.,s. 14–11–00526–CV, 14–11–00075–CV.
• Citation: 371 S.W.3d 465
• Parties: In re Freeman GRAVITT, Relator. Dinah Plant and Freeman Gravitt as next Friend and on behalf of James Gravitt, Appellants, v. Cleveland Regional Medical Center and Keith Spooner, M.D., Appellees.
• Court: Texas Court of Appeals

371 S.W.3d 465

In re Freeman GRAVITT, Relator.

Dinah Plant and Freeman Gravitt as next Friend and on behalf of James Gravitt, Appellants,

v.Cleveland Regional Medical Center and Keith Spooner, M.D., Appellees.

Nos. 14–11–00526–CV, 14–11–00075–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 15, 2012.

Mark Omar Midani, Houston, for relator.

Robert G. Smith, Robert Eugene Bell, Randall Jones, Houston, for real party in interest.

Panel consists of Justices BROWN, BOYCE, and McCALLY.

MAJORITY OPINION

JEFFREY V. BROWN, Justice.

In this consolidated petition for mandamus and restricted appeal, Freeman Gravitt contends that the trial court abused its discretion by denying his motion under Texas Rule of Civil Procedure 306a(5) to extend the trial court's plenary power and allow him to pursue post-judgment motions after the trial court granted the defendants' Rule 12 motion, removed Gravitt's attorneys, and dismissed his case without notice to him. We reverse and remand for further proceedings.

I

In 2008, attorneys John Phelps and John Leija of the Law Firm of Phelps & Leija filed a healthcare-liability claim identifying relator/appellant Freeman Gravitt and Dinah Plant as next friends of the minor children of Tina Gravitt, deceased. Leija's name appeared first on the pleadings. The plaintiffs alleged that Tina Gravitt died as a result of the medical negligence of the real parties in interest/appellees Cleveland Regional Medical Center and Keith Spooner, M.D. (collectively, defendants).

In December 2009, Dr. Spooner filed a motion under Texas Rule of Civil Procedure 12 to require Phelps and Leija to show their authority to sue on behalf of one of the minor children, James Gravitt.¹ The Rule 12 motion, along with Dr. Spooner's motion to compel the deposition of James's father, Freeman, was set for submission on January 4, 2010. When no response to the Rule 12 motion was received, the trial court ordered Phelps and Leija to appear before it on February 8, 2010, to show their authority to represent James. The court also ordered Freeman to appear for deposition at his counsel's office. Phelps and Leija did not present him for deposition.

The trial court again considered Dr. Spooner's Rule 12 motion on February 22, 2010, and signed an order that day finding that Phelps and Leija had failed to show authority to act on behalf of James. The order also directed Phelps and Leija to present Freeman for deposition and warned that, if they did not, the court would “likely strike the pleadings of Freeman” as next friend of James as authorized by Rule 12.

Leija presented Freeman for deposition in March 2010. In his deposition, Freeman testified that he did not authorize Dinah Plant, Leija, Phelps, or the Phelps & Leija law firm to pursue claims on behalf of James. He also testified that the first time he spoke to attorneys with the Phelps & Leija law firm was a week or two before his deposition.

About three months later, Dr. Spooner filed a “First Supplemental Motion to Show Authority” along with a notice of oral hearing and a certificate of service. The certificate of service and fax confirmation sheet reflected that the documents were successfully served on Phelps and Leija at the Phelps & Leija law firm.

Dr. Spooner's supplemental motion to show authority was set for hearing on July 19, 2010. Phelps and Leija filed no response and failed to appear at the hearing. That same day, the trial court signed an order finding that the plaintiffs filed no response, the plaintiff's counsel had not appeared despite receiving notice, and the plaintiffs' attorneys did not show authority to act on behalf of James. The trial court also ordered “that John Phelps and John Leija shall not be allowed to appear on behalf of James Gravitt through Dinah Plant as next friend.” The trial court further ordered that if new counsel with authority did not appear by 5:00 p.m. the next day, July 20, 2010, the plaintiffs' pleadings “shall be stricken pursuant to Rule 12.”

On July 21, 2010, the trial court signed an order striking the plaintiffs' pleadings and dismissing the case against the defendants. There is no evidence in the record that the district clerk failed to send notice of the dismissal to the Phelps & Leija law firm.² More than two weeks later, on August 8, 2010, the district clerk received a letter from Phelps requesting that the clerk change his address, phone, and fax numbers in the court's records. Phelps also notified the defendants' attorneys that his contact information had changed.

On August 26, 2010, Phelps filed a “Motion to Substitute Attorney in Charge and Plaintiff's Verified Motion to Reinstate” requesting that Phelps be substituted for Leija as attorney in charge and that the case be reinstated. Accompanying the motions were Phelps' affidavit and an “Attorney/Client Agreement” between Freeman and the Phelps & Leija law firm, purportedly giving the firm authority to pursue a claim for the death of Tina on behalf of James. The agreement was signed by Freeman and Phelps on May 24, 2008.

On September 3, Phelps filed a “First Amended Verified Motion to Reinstate, Substitute Attorney in Charge and Alternative Motions to Appoint an Attorney Ad Litem or Guardian Ad Litem.” Phelps asserted that on August 22, he discovered that a motion to show authority had been filed and that the case had been dismissed on July 21; the next day, August 23, he mailed the motion to substitute attorney in charge and verified motion to reinstate. The motion was supported by Phelps' affidavit certifying that the facts in the motion were true.

On September 22, Phelps supplemented his motion to reinstate with an affidavit executed by Freeman on September 7. In the affidavit, Freeman states that he is the biological father and legal guardian of James, and he has authorized Phelps to pursue his son's case.³ The trial court heard the motions on September 14, 2010. Phelps attended the hearing along with attorney Mark Midani of Midani, Hinkle & Cole, L.L.P. Phelps requested that he substitute for his partner, Leija, who had become ill. Midani also requested that he be allowed to appear as the plaintiffs' counsel, even though Phelps' motion to substitute did not include such a request. At the conclusion of the hearing, Phelps complained that he was the attorney of record and he was being precluded from presenting his case, even though he acknowledged that he had discovered the order removing him from the case on August 22, 2010. After reminding Phelps that he was no longer the attorney of record, the trial court denied Phelps' post-judgment motions.

On September 22, 2010, Midani filed a “Rule 306A(5) Motion and Motion for Emergency Hearing” arguing that the plaintiffs did not receive notice of either the trial court's July 19 order removing their attorneys or the July 21 order dismissing their case until forty-eight days after the dismissal order was signed on July 21. The motion was accompanied by a second affidavit signed by Freeman. In this affidavit, Freeman stated that he learned his son's lawsuit had been dismissed in a conversation with Phelps on September 7, 2010. He also stated that he signed an affidavit the same day authorizing Phelps to represent his son until another attorney could be found, and that on September 16, 2010, he signed an agreement with Mark Midani and the Midani, Hinkle & Cole law firm to pursue the lawsuit against the defendants.

The trial court held a hearing on Midani's motion on September 30, 2010. After hearing the parties' arguments, the trial court acknowledged that it was “troubled” by the fact that notice went to the attorney who had been taken off the case for lack of authority and the parties themselves did not get notice. The trial court requested additional briefing on the issue, and the parties complied.

On October 11, 2010, the trial court signed an order denying the Rule 306a(5)motion to reinstate the case. The trial court's order did not state when it found Freeman or his attorneys first received notice or acquired actual knowledge that the dismissal order was signed. This consolidated petition for writ of mandamus and restricted appeal followed.

II

In the petition for writ of mandamus and restricted appeal, Freeman argues that when the trial court removed his attorneys from the case under Rule 12, he became a pro se plaintiff entitled to receive individual notice that his case was dismissed. The defendants respond that Freeman failed to show that his trial attorneys did not timely receive notice, and therefore notice to Freeman's attorneys is notice to Freeman. To resolve this issue, we must determine whether notice to attorneys removed under Rule 12 may be imputed to the client or if, as Freeman urges, personal notice to him is required because the Rule 12 ruling renders him a pro se plaintiff. On the facts of this case, we conclude that once Freeman's attorneys of record were removed, he was entitled to notice that his claim was dismissed. We therefore grant Freeman's restricted appeal and dismiss his petition for mandamus as moot.

A

Rule 12 provides that a party may, by sworn written motion stating that he believes an attorney is prosecuting or defending a suit or proceeding without authority, cause the attorney to be cited to appear before the court and show his authority to act. Tex.R. Civ. P. 12. At the hearing on the motion, the burden of proof is on the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Id. If the challenged attorney fails to show authority, the court “shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears.” Id.

Rule 12's purpose is to discourage and cause the dismissal of suits brought without authority so as to protect parties from groundless suits. See Sloan v. Rivers, 693 S.W.2d 782, 784 (Tex.App.-Fort Worth 1985, no...