Plant v. Cleveland Regional Medical Center
371 S.W.3d 465
Tex. App.2012Background
- Consolidated petition for mandamus and restricted appeal regarding Rule 12 authority issues and Rule 306a(5) timing.
- Trial court removed Freeman Gravitt’s attorneys of record for lack of authority under Rule 12 and dismissed the case without notice.
- Freeman later obtained substitute counsel and moved to reinstate; the trial court denied these post‑judgment motions.
- Rule 306a(5) motion sought to extend plenary power to pursue post‑judgment motions after dismissal.
- Question presented: whether notice to removed attorneys can be imputed to Freeman or whether Freeman was entitled to personal notice.
- This led to a restricted appeal, which the majority granted, reversing and remanding; mandamus petition dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice to removed attorneys can impute to Freeman | Freeman | Defendants | Freeman entitled to personal notice; notice to removed attorneys not imputable. |
| Whether Freeman remained a party after Rule 12 dismissal | Freeman remained a party to the underlying suit | The case was effectively never pursued after dismissal | Freeman was a party to the underlying lawsuit during the relevant period. |
| Whether Rule 306a(3) notice requirement was violated | Rule 306a(3) required personal notice to Freeman | Notice to counsel suffices as notice to party | Error on the face of the record; due process violation found. |
| Whether restricted appeal was appropriate to review the Rule 12/Rule 306a issues | Freeman satisfied restricted-appeal criteria | Procedural defects barred review | Restricted appeal granted; mandamus moot; remand ordered. |
| Whether the procedural handling of substitution/notice affected due process | Notice must reach the actual parties, not just counsel | Counsel notice suffices by imputation | Due process violation found due to lack of personal notice. |
Key Cases Cited
- Sloan v. Rivers, 693 S.W.2d 782 (Tex.App.—Fort Worth 1985) (Rule 12 goals and authority to prosecute a suit)
- In re Salazar, 315 S.W.3d 279 (Tex.App.—Fort Worth 2010) (Authority to prosecute; dismissal when no authorized party appears)
- Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (Notice to former attorney not binding on party under due process)
- LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (Pro se party entitled to notice of dispositive settings)
- Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) (Notice requirements when party lacks counsel)
- Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809 (Tex. 2012) (Due process when no notice of trial setting or default judgment)
- Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006) (Attorney notice, client awareness, and record implications)
- Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269 (Tex. 1997) (Face-of-record concept for restricted appeals)
- Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (U.S. 1988) (Due process and notice requirements in health care context)