Plant v. Cleveland Regional Medical Center ( 2012 )

Mandamus Dismissed; Appeal Reversed and Remanded; Majority and Dissenting
Opinions filed May 15, 2012.
In The
Fourteenth Court of Appeals
_____________
NO. 14-11-00526-CV
___________________
IN RE FREEMAN GRAVITT, RELATOR
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
________________________________________________________________________
NO. 14-11-00075-CV
__________________
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.
___________________
On Appeal from the 190th District Court
Harris County
Trial Court Cause No. 2008-52450
MAJORITY OPINION
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
1
Although another minor child was named in the original petition, only James Gravitt remained in
the lawsuit by the time of the relevant events. For clarity’s sake, we will refer to Freeman, Tina, and James
Gravitt simply by their first names.
2
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.
2
The record includes a copy of the notice sent to Cleveland Regional Medical Center as an exhibit
to Dr. Spooner’s supplemental motion to show authority.
3
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.
3
The supplemental filing also included a power of attorney signed by Freeman on April 13, 2004,
purporting to give Dinah Plant authority to act as guardian of James “[f]or medical and all purposes with
James in mind.” The parties disagree about the significance, if any, of this exhibit.
4
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
5
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 writ). At least one court has concluded that
once the trial court finds the challenged attorney has not met his burden of proof, it is
mandatory that the trial court follow Rule 12’s requirements. See In re Salazar, 315
S.W.3d 279, 283 (Tex. App.—Fort Worth 2010, orig. proceeding).
Rule 306a(1) provides that the periods within which parties may file various
post-judgment motions and trial courts may exercise their plenary jurisdiction all run from
the date the judgment is signed. Tex. R. Civ. P. 306a(1). Rule 306a(3) requires clerks to
“immediately give notice to the parties or their attorneys of record” when a final judgment
or other appealable order is signed. Tex. R. Civ. P. 306a(3). If within twenty days after the
judgment or other appealable order is signed, a party adversely affected by it or his attorney
has neither received the notice required by rule 306a(3) nor acquired actual knowledge of
6
the order, then with respect to that party all the periods mentioned in 306a(1) shall begin on
the date that such party or his attorney received such notice or acquired actual knowledge
of the signing, whichever occurred first, but in no event shall such periods begin more than
ninety days after the original judgment or other appealable order was signed. Tex. R. Civ.
P. 306a(4). To take advantage of the extended time periods provided in paragraph (4) of
Rule 306a, the party adversely affected is required to prove in the trial court, on sworn
motion and notice, the date upon which the party or his attorney first either received notice
of the judgment or acquired actual knowledge of its signing, and that this date was more
than twenty days after the date the judgment was signed. Tex. R. Civ. P. 306a(5).
B
A party may bring a restricted appeal if the party: (1) filed notice of the restricted
appeal within six months after the judgment was signed; (2) was a party to the underlying
lawsuit; (3) did not participate in the hearing that resulted in the judgment complained of
and did not timely file any postjudgment motions or requests for findings of fact and
conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P.
26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Here, the
parties dispute elements (1), (2), and (4). We address each in turn.
1
It is undisputed that Freeman’s notice of appeal was filed January 17, 2011, within
six months after the judgment was signed, as required for a restricted appeal. The
defendants contend, however, that this court should dismiss Freeman’s restricted appeal
because Midani, who filed the notice of appeal and the brief in this court, never filed a
motion for substitution of counsel or notice of representation in the trial court. See Tex. R.
Civ. P. Rule 10 (“If the attorney in charge withdraws and another attorney remains or
becomes substituted, another attorney in charge must be designated of record with notice to
all other parties in accordance with Rule 21a.”). Thus, the defendants maintain, the notice
of appeal was “void and untimely.” We disagree.
7
Nothing in Rule 10 requires or even suggests that a motion or notice another
attorney files is void or untimely unless the rule’s procedural requirements are met. See
Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 450 (Tex. App.—Dallas 2002,
no pet.); see also City of Tyler v. Beck, 196 S.W.3d 784, 787 (Tex. 2006) (per curiam)
(holding post-judgment motions filed by new attorney rather than designated attorney in
charge was not ineffective because procedural rule was not followed). Here, Midani
appeared in the trial court on behalf of the plaintiffs when he filed Freeman’s 306(a)
motion after Freeman’s attorneys were removed from the case. Moreover, Freeman’s
affidavit stating that Midani and his law firm were authorized to represent the plaintiffs
supported the motion. Additionally, Midani signed the notice of appeal and included his
state-bar number and contact information in the notice. See Tex. R. App. P. 6.1 (“Unless
another attorney is designated, lead counsel for an appellant is the attorney whose signature
first appears on the notice of appeal.”).
And tellingly, the defendants do not contend any failure to follow the procedures for
formal substitution in the trial court somehow prejudiced or harmed them. We conclude
that even if the procedural requirements of Rule 10 were not followed, the plaintiffs’ notice
of appeal is not untimely or void.
2
The defendants next contend that Freeman cannot satisfy the requirement that he
was a party to the underlying lawsuit. They argue that when the trial court determined that
Phelps and Leija lacked authority to bring suit on the plaintiffs’ behalf and concomitantly
struck the plaintiffs’ pleadings and dismissed the case, the trial court’s actions “effectively
ameliorated the underlying lawsuit, rendering it as if it had never been filed.” As support
for this proposition, the defendants cite In re B.E.A.R., No. 05-02-01493-CV, 2003 WL
21544507 (Tex. App.—Dallas 2003, July 10, 2003, no pet.) (mem. op.).
In B.E.A.R., an attorney without authority filed suit on behalf of a minor as next
friend to request the trial court to name a person other than the minor’s biological father as
8
his legal father. Id. at *1. The minor’s biological father brought a Rule 12 motion
challenging the attorney’s authority to bring suit on the minor’s behalf. Id. The trial court
granted the biological father’s Rule 12 motion, struck the attorney purporting to act as next
friend, struck the pleadings the unauthorized attorney filed, and dismissed the case. Id. On
appeal, the court affirmed the trial court’s ruling because (1) the unauthorized attorney
failed to carry his burden at the hearing to show sufficient authority to prosecute the suit
and (2) no one authorized to prosecute the suit appeared at the hearing. Id. at 2. Of
significance here, the court went on to hold that the trial court did not abuse its discretion
by failing to appoint a guardian ad litem for B.E.A.R. and dismissing the case to adjudicate
parentage, noting that “after the trial court struck B.E.A.R.’s pleadings pursuant to rule 12,
there was no suit in which B.E.A.R. was a party.” Id. at *3; see also Sloan, 693 S.W.2d at
784–85 (noting that unauthorized attorney’s admission that he lacked authority of either
party named in pleading he filed “vitiates the petition in its entirety.”).
Freeman responds that B.E.A.R. is distinguishable in at least one critical aspect: in
that case, once the unauthorized attorney was removed, there remained no additional
parties to the lawsuit that could appear to prosecute the minor’s claim as next friend. Here,
the trial court’s July 19 order complies with Rule 12’s conditional mandate that pleadings
should be stricken and the case dismissed only if “no person who is authorized to prosecute
or defend appears.” See Tex. R. Civ. P. 12. The court found Phelps and Leija were
unauthorized to pursue the lawsuit, but the court made no such finding as to Freeman or
Dinah Plant. Thus, the trial court’s findings as to Phelps and Leija did not retroactively
remove Freeman or Plant as parties to the lawsuit. See Tex. R. Civ. P. 7 (“Any party to a
suit may appear and prosecute or defend his rights therein, either in person or by an
attorney of the court.”). Thus, from July 19 until July 21, when the trial court struck the
pleadings and dismissed the case, Freeman and Plant were still parties to the lawsuit.
Moreover, the defendants and the trial court were aware that Freeman had testified
concerning the medical-negligence claims arising out of the death of James’s mother. The
9
defendants deposed Freeman at length about his son’s claims, and used some of his
statements to support Dr. Spooner’s supplemental motion to show authority. When Phelps
and Leija failed to respond to Dr. Spooner’s motion and no evidentiary hearing was held,
the trial court granted the motion, but nevertheless voiced its concerns about the fact that
the parties were not given notice, particularly when a minor’s claims were involved. This
case is thus distinguishable from B.E.A.R. and other cases in which unauthorized attorneys
file pleadings naming as parties people or entities with no relationship to the attorneys or
any claim sought to be prosecuted. For these reasons, we conclude that Freeman satisfies
the requirement that he was a party to the underlying lawsuit.
3
Lastly, we turn to the requirement that the party must show error on the face of the
record. Review by restricted appeal affords the appellant a review of the entire case, just as
in an ordinary appeal, with the only restriction being that any error must appear on the face
of the record. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.
1997) (per curiam); Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.w.3d
666, 670 (Tex. App.—Houston [14th Dist.] 2002, no pet.). For purposes of a restricted
appeal, the face of the record consists of all the papers on file in the appeal, including the
reporter’s record. See Norman Commc’ns, 955 S.W.2d at 270; Osteen v. Osteen, 38 S.W.3d
809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Rule 306a requires that the court give notice of a dismissal order “to the parties or
their attorney of record.” See Tex. R. Civ. P. 306a(3); Hubert v. Ill. State Assistance
Comm’n, 867 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ). A trial
court’s failure to give notice of a dismissal order is a denial of due process under the
Fourteenth Amendment to the U.S. Constitution. See Hubert, 867 S.W.2d at 163 (citing
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)).
Freeman contends that he did not receive notice of the trial court’s July 21 order
dismissing his case in accordance with the requirements of Rule 306a. According to
10
Freeman, once the trial court removed Phelps and Leija as his attorneys of record, the trial
court should have treated him as an unrepresented, pro se plaintiff entitled to notice.
Freeman acknowledges that there is no legal precedent from Texas appellate courts
supporting his conclusion. Freeman maintains, however, that the legal effect of the trial
court’s order prohibiting Phelps and Leija from appearing was to leave James, a minor,
unrepresented by counsel who could prosecute his claim or protect his legal interests. See
Am. Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 492 (Tex. 1995) (holding that
the courts must evaluate whether a minor’s interests have been properly protected and
whether a deficiency in notice or due process has been shown when determining whether a
trial court has obtained personal jurisdiction over a minor).
The defendants respond that Freeman cannot show error on the face of the record
because the record does not affirmatively show that Freeman’s attorneys did not receive
notice. At most, the defendants assert, the record is silent regarding whether the trial court
sent notice of the July 21 order dismissing the case to Leija or the Phelps & Leija law firm.
Silence of the record is insufficient to show error on the face of the record. See Ginn v.
Forrester, 282 S.W.3d 430, 433 (Tex. 2009); Gen. Elec Co. v. Falcon Ridge Apartments,
Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991). The defendants further contend that
notice to the Phelps & Leija law firm is notice to the client, Freeman, because an attorney’s
knowledge or notice that is acquired during the existence of the attorney-client relationship
is imputed to the client. See, e.g., Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584
(Tex. 2006) (per curiam); McMahan v. Greenwood, 108 S.W.3d 467, 480–81 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied); Lehrer v. Zwernemann, 14 S.W.3d 775,
778 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).
The defendants’ arguments hinge on the existence of an attorney-client relationship
between Freeman and the attorneys Phelps and Leija. They assert that, assuming the
validity of the attorney/client agreement Freeman signed on May 24, 2008, that agreement
evinces a contractual attorney/client relationship. They further argue that even after the
11
trial court removed Phelps and Leija from the case, their duties to their client continued.
The defendants note that a withdrawing attorney must notify the client in writing of any
additional settings or deadlines of which the attorney has knowledge at the time of the
withdrawal and has not already notified the party. See Tex. R. Civ. P. 10; Sims v.
Fitzpatrick, 288 S.W.3d 93, 100–101 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
Here, however, Phelps and Leija did not merely seek to withdraw; the trial court’s
orders and actions consistently treated these attorneys as removed from the case and no
longer Freeman’s attorneys of record. The trial court’s July 19 order on Dr. Spooner’s
motion to show authority removed them from the case, and the trial court specifically
ordered that Phelps and Leija “shall not be allowed to appear” on behalf of James. At the
hearing on Phelps’ post-judgment motions, Phelps attempted to argue his position, but the
trial court denied his motions and admonished Phelps that he was “not the attorney of
record.” The trial court also reminded Phelps that “the attorneys of record were stricken
from the case.”
Freeman argues that any conclusion that notice to “former attorneys of record” is
notice to the party would be inconsistent with Mathis v. Lockwood, 166 S.W.3d 743 (Tex.
2005) (per curiam). In that case, the supreme court held that Mathis’s non-appearance for
trial on a petition for declaratory judgment was not intentional or the result of conscious
indifference. Id. at 744–45. Therefore, once Lockwood failed to prove that he had effected
service of the trial setting on her and she denied receiving notice, Mathis was entitled to
have the default judgment against her set aside. Id. at 745. Among other things, the court
concluded that notice to the defendant’s former attorney was no longer notice to her after
her attorney withdrew. Id. The court explained that even if litigants had a duty to keep the
court and parties apprised of their correct and current address, unless noncompliance was
intentional rather than a mistake, “due process requires some lesser sanction than trial
without notice or an opportunity to be heard.” Id. at 746 (citing Peralta v. Heights Med.
Cntr., 485 U.S. 80, 85–86 (1988)).
12
According to Freeman, Mathis is analogous with respect to the question whether
notice to a party’s former attorney of record is legally sufficient to provide notice to the
party for the purpose of satisfying Rule 306a(3), particularly when the party is a minor and
the trial court never notified his next friend of the dismissal of his case. On the facts of this
case, we conclude that notice to the removed attorneys should not be imputed to the party
they purported to represent. As noted above, Rule 306a(3) requires that the court clerk
immediately give notice of a dismissal order “to the parties or their attorney of record.” See
Tex. R. Civ. P. 306a(3). At the time of the July 21 dismissal order, Phelps and Leija had
already been removed as the plaintiffs’ attorneys of record. Therefore, given that the trial
court and the parties were aware that real plaintiffs with viable claims were parties to the
lawsuit at the time of dismissal, and there were no “attorneys of record” to receive notice at
that time, the persons who should have received notice under Rule 306a(3) were the
plaintiffs directly.4
We agree that Phelps and Leija had a duty to keep their clients informed of the
course of the proceedings in the trial court, particularly when the motion to show authority
had been filed and pending for over six months before it was ultimately granted and the
case was dismissed as Rule 12 requires. But the trial court’s order rendered these attorneys
without authority to represent the plaintiffs in that court and prohibited them from
appearing on the plaintiffs’ behalf. We conclude that this circumstance is more analogous
to cases in which a party is not represented or the party’s attorney has withdrawn, as in
Mathis. In these cases, the supreme court instructs that unrepresented parties are entitled to
notice of dispositive settings in their cases as a matter of due process. See LBL Oil Co. v.
Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (holding failure to give pro
se defendant notice of trial setting deprived him of due process); Lopez v. Lopez, 757
S.W.2d 721, 722–23 (Tex. 1988) (holding party who received no notice of trial setting after
4
We note that if the defendants had really wanted to make sure that Freeman received notice of the
dismissal, they easily could have served him personally. His home address appears both in his original
petition and his deposition testimony.
13
her lawyer withdrew from representing her but continued to represent another party in the
same case was not required to show a meritorious defense to obtain a new trial after
post-answer default judgment because such a requirement would violate her due process
rights); see also Mabon Ltd. v. Afri-Carib Enters., Inc., No. 09-0715, ___ S.W.3d ___,
2012 WL 539385, at *1, 5 (Tex. Feb. 17, 2012) (holding due process requires that once
bill-of-review plaintiff proves it had no notice of trial setting or default judgment, it need
not establish that it diligently monitored the status of its case).
Although we express no opinion on the status of the attorney-client relationship
between the plaintiffs and Phelps and Leija, it is undeniable that the trial court’s order
prohibited these attorneys from representing the plaintiffs in that court. And, because
neither Phelps nor Leija were Freeman’s “attorneys of record” for purposes of Rule 306a
notice after July 19, 2010, any notice to them on or after that date cannot be imputed to
Freeman. Moreover, the trial court stated affirmatively on the record that the plaintiffs,
who were appearing on behalf of a minor, were not given notice of the dismissal.
Therefore, error is apparent on the face of the record.
***
Because Freeman has satisfied the requirements for a restricted appeal, we grant his
restricted appeal, reverse the trial court’s judgment, and remand this case for further
proceedings consistent with this opinion.5 We dismiss Freeman’s mandamus as moot.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Brown, Boyce, and McCally. (McCally, J., dissenting).
5
The dissent's concerns about the analysis and disposition of this case are unwarranted. It is apparent that
the plaintiffs in this case believed they had a valid, pending lawsuit until it was dismissed without notice to
them. On the narrow facts presented here, that dismissal both violated Rule 306(a)(3) and deprived the
plaintiffs of due process.
14