Sloan v. Rivers
| Decision Date | 17 July 1985 |
| Docket Number | No. 2-85-134-CV,2-85-134-CV |
| Citation | 693 S.W.2d 782 |
| Parties | Denise E. SLOAN and Patricia Ruffin, Relators, v. Mickey RIVERS, Respondent. |
| Court | Texas Court of Appeals |
Law Offices of George S. Henry and Ernest A. Laun, Dallas, for relators.
Joe Shannon, Jr., Fort Worth, for respondent.
Before ASHWORTH, BURDOCK and HOPKINS, JJ.
On the 6th day of June, 1985, Ernest A. Laun, purportedly as attorney for Denise E. Sloan and Patricia Ruffin, filed a petition for temporary restraining order and injunction naming Mickey Rivers as respondent. The petition alleged that injunctive relief was necessary in order for this Court to protect its jurisdiction and preserve the subject matter of the appeal in Cause No. 02-85-095-CV now pending in this Court. That appeal is from an order of the 236th Judicial District Court denying a post-judgment application for turnover in which Denise E. Sloan and Patricia Ruffin were movants and Mickey Rivers was judgment debtor.
It having appeared to the Court from the verified application that a temporary injunction was necessary to preserve our jurisdiction and the subject matter of the appeal in Cause No. 02-85-095-CV, we ordered a writ of temporary injunction to issue on June 6, 1985.
Subsequently, a hearing was held on June 18, 1985, upon the motion of Mickey Rivers to rescind and dissolve our temporary injunction. Before a ruling was made on that motion, Mickey Rivers filed, on June 21, 1985, his Motion to Strike Attorney of Record, alleging that Ernest A. Laun had admitted in writing that he did not represent Denise E. Sloan and therefore Ernest A. Laun and the law office of George S. Henry, in which Laun was an associate, should be stricken as attorneys of record. Although such motion was not verified as required by TEX.R.CIV.P. 12, its substance sufficiently put the Court on notice of a possible irregularity worthy of further inquiry by the Court. No exception having been taken, the requirement of verification is deemed waived. See TEX.R.CIV.P. 90.
On June 28, 1985, we held a hearing on the motion to strike attorneys. Although, for scheduling convenience, the hearing date had been set without the full ten days notice usually allotted in such cases, Mr. Laun appeared without objection or motion for continuance. At that time he freely admitted in open court that he did not have the authority of either Denise E. Sloan or Patricia Ruffin to prosecute the action for injunction. Mr. Laun did state that he represented an undisclosed assignee of the judgment and that the assignment of the judgment had not been recorded to protect the confidentiality of his client. No other person authorized to represent the named relators appeared nor was there any suggestion that those persons, or either of them, wished to proceed pro se.
Under these circumstances, we agree with Respondent Rivers that the provisions of TEX.R.CIV.P. 12 apply. The rule is here set out in its entirety:
A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act. The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion. At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such 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. The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing.
As would be expected from the very nature of the rule, there has not been developed a large body of precedent as to the application of its provisions. This Court has previously noted that the rule's purpose is to discourage and cause dismissal of suits brought without authority so as to...
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Air Park-Dallas Etc. v. Crow Billingsley
...S.W.2d 417, 423 (Tex.1964) (Rule 12 applies to challenges in the trial court or the court in which the action2 is commenced); Sloan v. Rivers, 693 S.W.2d 782, 784 (Tex.App.-Ft. Worth 1985, no writ) (Rule 12 properly considered in appellate court where case is an original proceeding). The pu......
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Hemphill v. Hummell, No. 13-05-00515-CV (Tex. App. 7/31/2008)
...not request a continuance, and fully participated in the hearing, any deficiencies in service or notice were waived) (citing Sloan v. Rivers, 693 S.W.2d 782, 784 (Tex. App.-Fort Worth 1985, no writ)). We agree with appellee that appellant waived any error with regard to notice as to the dat......
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Plant v. Cleveland Reg'l Med. Ctr. (In re Gravitt)
...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 writ). At least one court has concluded that once the trial court finds the challenged attorney has......
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In re T.H.
...by Chapter 155, B.D. waived any complaint thereof by failing to object and by participating through counsel. See Sloan v. Rivers , 693 S.W.2d 782, 784 (Tex. App.—Fort Worth 1985, no writ) (party waived complaint about lack of full ten days' notice of hearing by appearing and participating i......