Dale Sue Jones and Stanley Ray Jones v. Ted Scott, M.D. ( 2010 )

NO. 07-04-0077-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 7, 2010

______________________________

DALE SUE JONES AND STANLEY RAY JONES, APPELLANTS

V.

TED SCOTT, M.D., APPELLEE

_________________________________

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO.2001-513;918; HONORABLE J. BLAIR CHERRY, JR., JUDGE[1]

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER

            This case has a long and contorted procedural history encompassing two pro se plaintiffs, seven defendants, several interrelated legal theories, numerous claims of damages, four bankruptcies, three opinions written in two separate appeals, two abatements, two reinstatements, and, at least, one critically significant death.  This legal saga began on May 16, 2001, when Appellants, Dale Sue Jones and her husband, Stanley Ray Jones, residents of Oklahoma, proceeding pro se, filed Plaintiffs' Original Petition, alleging a health care liability claim related to a weight loss procedure against seven defendants: Ted Scott, M.D., Sandra Dickerson, M.D., Chanda Dihania, M.D., Rolf Gorhamer, Susan Bickel, Covenant Health Systems, and New Reflections in Lubbock, Texas.  Based upon their negligence cause of action, Dale Sue sought the recovery of damages for her physical pain, suffering, mental anguish, loss of earnings, consortium and household services, and costs of future medical monitoring and prevention, while Stanley sought recovery of damages for his loss of consortium and mental anguish. On November 13, 2001, Appellants filed their Voluntary Nonsuit, dismissing all claims and causes of action as to Dickerson, Dihenia,[2] Gordhamer, Bickel, and Covenant Health Systems.  Thereafter, the only remaining defendants were Dr. Scott and New Reflections. 

            Claims Against Dr. Scott

            Trial of Appellants' claims against Dr. Scott was originally stayed when Dr. Scott filed a Chapter 7 bankruptcy in the United States Bankruptcy Court, Northern Division of Texas, on July 2, 2003, in Cause No. 03-50775.  That stay was, however, lifted by an order of the Bankruptcy Court entered on September 2, 2003, specifically allowing Appellants to continue their cause of action in the trial court.  On November 10, 2003, Appellants filed their Amendment to Petition, adding DTPA claims against Dr. Scott.  Trial was scheduled to commence on November 17, 2003. On that day, by teleconference, Stanley made an oral motion for continuance contending that Dale Sue was hospitalized in Oklahoma.  The trial court denied the motion but delayed the trial for six hours to allow Appellants to travel to Lubbock.  When Stanley arrived in court without Dale Sue, opposing counsel argued that Stanley could not represent Dale Sue because he was not a licensed attorney.  The trial court agreed and announced that "Mrs. Jones' claim against Dr. Scott will be dismissed for want of prosecution."   An order memorializing the trial court's ruling against Dale Sue was entered.  Trial proceeded as to Stanley's claims.  After voir dire was conducted and a jury seated, the trial was recessed until the following day.  The next morning, Stanley did not appear.  He subsequently advised the trial court by phone that he had returned to Oklahoma City and would not appear.  In light of the circumstances, Dr. Scott requested, and was granted, a directed verdict as to all remaining claims and causes of action.  The trial court entered a final judgment against Stanley which was signed on November 18, 2003.  Appellants filed a Motion for New Trial on December 8, 2003, which was eventually overruled by operation of law.  On February 20, 2004, Appellants timely perfected this appeal to challenge the final judgment as to Stanley and the order dismissing Dale Sue's claims for want of prosecution.

            Claims Against New Reflections

            On May 30, 2002, Appellants filed their Amendment to Petition, adding DTPA claims against New Reflections.  On December 13, 2002, as to New Reflections, the trial court dismissed Appellants' health care liability claims, for failure to file an expert report meeting the requirements of Section 13.01(d) of former article 4590i.[3]  On December 17, 2002, Appellants attempted to appeal that dismissal.  By an opinion dated June 17, 2003, in Cause No. 07-03-0043-CV, this Court dismissed that appeal for want of jurisdiction based on the fact that the order being appealed did not dispose of all claims and causes of action against all parties and was, therefore, not a final appealable order. See Jones v. Scott, No. 07-03-0043-CV, 2003 Tex.App. LEXIS 5168 (Tex.App.--Amarillo, June 17, 2003, no pet.).  On November 6, 2003, the trial court disposed of the remaining claims against New Reflections when it granted summary judgment in favor of New Reflections as to the Appellants' DTPA claims.  Because that order disposed of all remaining claims against New Reflections, the subsequently entered orders pertaining to Appellants' claims against Dr. Scott caused all orders to become final and appealable.  Appellants did not, however, give notice of appeal as to their claims against New Reflections, and based upon the notice of appeal filed in this cause, they are not appealing the trial court's disposition of their claims against New Reflections.[4]

            Stanley's Bankruptcy

            On November 19, 2004, after the appellate record was filed and extensions were granted in which to file Appellants' brief, Notice of Bankruptcy was filed in this Court reflecting that Stanley had filed for bankruptcy protection in the United States Bankruptcy Court, Western District of Oklahoma, on August 12, 2004, in Case No. 04-18791 NLJ.  On December 3, 2004, this Court entered a Notice of Bankruptcy abating the appeal pursuant to Rule 8.2 of the Texas Rules of Appellate Procedure.  See Jones v. Scott, No. 07-04-0077-CV, 2004 Tex.App. LEXIS 10964 (Tex.App.--Amarillo Dec. 3, 2004, no pet.). 

On January 14, 2005, Dr. Scott filed a Motion to Reinstate pursuant to Rule 8.3(a) with supporting exhibits showing that Stanley's bankruptcy had been dismissed with prejudice on December 17, 2004.  The appeal was reinstated by this Court on January 27, 2005, with a briefing schedule.

Dale Sue's Bankruptcy

On March 2, 2005, Notice of Bankruptcy was filed in this Court reflecting that Dale Sue had filed a Chapter 13 Plan in the United States Bankruptcy Court, Western District of Oklahoma, on February 9, 2005, in Case No. 05-11191 NLJ.  On March 7, 2005, this Court again entered a Notice of Bankruptcy abating the appeal pursuant to Rule 8.2 of the Texas Rules of Appellate Procedure. See Jones v. Scott, No. 07-04-0077-CV, 2005 Tex.App. LEXIS 1775 (Tex.App.--Amarillo March 7, 2005, no pet.).  On March 10, 2006, the United States Bankruptcy Court for the Western District of Oklahoma entered an Order of Dismissal with respect to Case No. 05-11191 NLJ; however, this Court did not reinstate the appeal, pending receipt of a certified copy of that order.

 Before this appeal could be reinstated, Dale Sue filed a second Notice of Bankruptcy reflecting that she had filed a second Chapter 13 bankruptcy in the United States Bankruptcy Court, Western District of Oklahoma, on May 18, 2006, in Case No. 06-11087 NLJ.  Due to the abated status of the appeal, no action was taken by this Court. 

In January 2010, the Clerk of this Court made inquiry into the status of the bankruptcy proceeding and discovered that Dale Sue's bankruptcy in Case No. 06-11087 NLJ had been discharged on November 14, 2007.  By letter dated January 7, 2010, all parties were advised that the appeal had been reinstated and that Appellants' brief was due not later than February 8, 2010.   

Dale Sue's Certificate of Death

On February 9, 2010, Stanley provided a Death Certificate reflecting that Dale Sue had passed away a year earlier on February 8, 2009.  If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appellate court may proceed to adjudicate the appeal as if all parties were alive.  Tex. R. App. P. 7.1(a).  The appellate court is, however, obligated to determine, sua sponte, that an appellant is legally and properly represented because an estate may appear and be represented only by a licensed attorney.  See 7 Tex. Jur.3d Attorneys At Law § 111 (2006).   See also In re Murphy, 2009 Tex.App. LEXIS 3934, at *14-15 (Tex.App.--Houston [14th Dist.] March 5, 2009, no pet.) (holding that only a licensed attorney may represent the interests of third-party individuals or entities).

Dr. Scott's Motion to Dismiss for Failure to Prosecute

On June 3, 2010, Dr. Scott filed a Motion to Dismiss for Failure to Prosecute.  On June 18, 2010, Stanley filed a response thereto, purportedly on behalf of both himself and "as next of kin to Dale Sue Jones, deceased."   Because Dr. Scott's motion was overruled by letter dated June 24, 2010, we need not address the status of Dale Sue's legal representation as it pertains to Dr. Scott’s Motion to Dismiss.

Appellants' Brief and Dale Sue's Legal Representation

On May 3, 2010, Stanley filed Appellants' Brief in Chief which again purports to be filed on behalf of both himself and Dale Sue. Because Stanley is an unlicensed layperson, unauthorized to represent the interest of another party, by Order of this Court, Appellants' Brief in Chief is stricken as it relates to any issues being prosecuted on appeal on behalf of Dale Sue Jones and / or her estate.   

Because Dale Sue Jones is deceased, this Court finds that a licensed attorney is required to represent the interests of her estate in this appeal.  Therefore, persons interested in the estate of Dale Sue Jones are hereby granted the time herein provided to engage legal counsel to represent the interests of her estate. Once engaged, new lead counsel may be designated in this Court by filing a notice of representation stating counsel's name, mailing address, telephone number, fax number, if any, and State Bar of Texas identification number.  See Tex. R. App. P. 6.1(c).  The notice of representation must be filed in this Court on or before September 3, 2010.  Failure to timely file a notice of representation in compliance with this Court’s directive will result in dismissal of that portion of the appeal as to Dale Sue Jones's issues pursuant to Rule 42.3(b) and (c) of the Texas Rules of Appellate Procedure.

Additionally, a brief presenting the merits of Dale Sue Jones's claims in substantial compliance with Rule 38.1 of the Texas Rules of Appellate Procedure is due to be filed in this Court on or before October 4, 2010.  Failure to file a brief on her behalf will also result in dismissal of that portion of the appeal as to Dale Sue Jones's issues pursuant to Rule 38.8(a)(1) of the Texas Rules of Appellate Procedure.

By Order of the Court, Appellee, Ted Scott, M.D., is sua sponte granted an extension of time in which to file his brief until thirty days after Dale Sue Jones's brief is filed.  If an attorney does not enter an appearance on behalf of the estate of Dale Sue Jones, or if Dale Sue's brief is not filed within the time allotted herein, Appellee's brief shall be due on or before November 3, 2010.

It is so ordered.

                                                                                                Per Curiam

---

[1]Hon. Richard Dambold, (Ret.), sitting by assignment.  Tex. Gov=t Code Ann. '75.002(a)(3) (Vernon 2005).

[2]Plaintiffs' Original Petition named Chanda Dihania, as a defendant; whereas, Plaintiffs' Voluntary Nonsuit named Chanda Dihenia, as a defendant.  For purposes of this appeal, we will assume that the spelling difference is merely a misnomer. 

[3]Repealed by Act of June 2, 2003, 78^th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884, now codified at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2009).

[4]The Notice of Intent to Appeal filed February 20, 2004, specifically states the intent of Appellants to appeal the November 18, 2003, Order Dismissing Plaintiff Dale Sue Jones' Claims for Want of Prosecution and the November 20 2003, Final Judgment as to Plaintiff Stanley Ray Jones.  New Reflections is, therefore, not a party to this proceeding.