Marian Wallis Spigener v. Danny Ray Lee, Et Ux, Polly Miller Lee

IN THE TENTH COURT OF APPEALS No. 10-08-00280-CV Marian Wallis Spigener, Appellant v. Danny Ray AND Polly Miller Lee, Appellees From the 249th District Court Johnson County, Texas Trial Court No. C200700216 ORDER Before the Court is a document captioned “Notice and Demand for copies (from various indigent defense, elderly, disabled, low income cases).” This “Notice and Demand” is signed by Rose McCullough who has signed other documents as “legal assistant” on behalf of Appellant Marian Wallis Spigener. In this document, McCullough “demands” that the Clerk of this Court “filemark and return filemarked copies” of various documents enclosed with the “Notice and Demand.” McCullough’s “Notice and Demand” and its accompanying documents present four issues which are the subject of this Order: · whether McCullough may sign documents on behalf of Spigener in this appeal; · whether this appeal includes both Spigener’s “interlocutory appeal” and her “general appeal”; · whether Spigener has the complete appellate record; and · what Spigener must do to obtain copies of documents filed with this Court. Signing of Documents “If a party is represented by counsel, a document filed on that party’s behalf must be signed by at least one of the party’s attorneys.” Tex. R. App. P. 9.1(a). “A party not represented by counsel must sign any document that the party files.” Id. 9.1(b); see Elwell v. Mayfield, No. 10-04-00322-CV, 2005 Tex. App. LEXIS 6356, at *8-11 (Tex. App.—Waco Aug. 10, 2005, pet. denied) (mem. op.) (a non-attorney cannot sign pleadings on behalf of a pro-se litigant). Spigener is not represented by counsel. It appears that she has personally signed most of her appellate pleadings but McCullough has signed the certificates of service and other documents as Spigener’s “legal assistant.” Rule of Appellate Procedure 9.5(e) provides that a “certificate of service must be signed by the person who made the service.” Id. 9.5(e). By comparison, Rule of Civil Procedure 21 provides that the certificate of service must be signed by “[t]he party or attorney of record.” Tex. R. Civ. P. 21; see also id. 21a. (“The party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument.”). Rule 9.5(e) uses the term “person” rather than the more explicit “party or attorney of record” of Rule 21 in describing who may sign a certificate of service. However, there does not appear to be any logical basis for having a different signature requirement applicable to certificates of service on trial pleadings than to certificates of service on appellate pleadings.[1] Therefore, we construe the term “person” as used in Rule 9.5(e) to mean the party or attorney of record, consistent with Rule 21. Cf. Univ. of Tex. Health Science Ctr. v. Gutierrez, 237 S.W.3d 869, 873 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (plaintiff must serve expert report in accordance with Rule 21a to satisfy service requirement of section 74.351 of the Civil Practice and Remedies Code); Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex. App.—Eastland 2005, pet. denied) (same). Accordingly, we direct that all future pleadings and certificates of service filed in this Court on behalf of Spigener must be personally signed by Spigener or her attorney of record if she later retains counsel. We apply Rule of Appellate Procedure 2 to all pleadings and certificates of service filed to date and suspend this requirement for such documents. See Tex. R. App. P. 2. However, if McCullough or another non-attorney signs and tenders for filing any further pleading or certificate of service on Spigener’s behalf, the matter will be referred to the Unauthorized Practice of Law Committee. See Tex. Gov’t Code Ann. § 81.104 (Vernon 2005). In addition, the Court may, after notice, strike the document for failure to comply with the Rules of Appellate Procedure. See Tex. R. App. P. 9.4(i). Scope of Appeal Spigener has repeatedly sent correspondence and pleadings raising the issue of whether her “interlocutory appeal” of the trial court’s post-judgment denial of her motion to disqualify the local administrative judge, Judge William Bosworth, is separate from her “general appeal” of the trial court’s February 2008 dismissal order. The Court attempted to address this issue in a letter dated August 27, 2008, in which the Clerk of this Court stated: Spigener requests clarification regarding whether the docketing statement should address her “interlocutory appeal” of the trial court’s denial of her motion to disqualify the local administrative judge or her “final appeal.” To answer, the Court is treating this as a restricted appeal arising primarily from the trial court’s February 2008 dismissal order. See Tex. R. App. P. 30. The appeal includes within its scope any post-dismissal orders signed by the trial court. To clarify further, Spigener has only one appeal pending in this Court which is styled Marian Wallis Spigener v. Danny Ray and Polly Miller Lee and which bears the cause number 10-08-00280-CV. In this appeal, Spigener may present complaints[2] regarding the trial court’s February 2008 order dismissing her lawsuit against the Lees and the court’s “interlocutory” order denying her motion to disqualify Judge Bosworth “as local administrative judge or any other kind of judge.” Appellate Record In the documents tendered by Spigener, she complains that she has not yet received the “court reporter’s transcript” or the clerk’s record for either her “interlocutory appeal” or her “general appeal.” As we have stated, there are not two separate appeals, and so there are not two separate appellate records. According to this Court’s records, Spigener withdrew the clerk’s record and the reporter’s record on September 29, 2008 and has them in her possession. Tex. R. App. P. 12.4. If she believes that any pleadings or other documents have been omitted from the clerk’s record, then she should specifically identify the omitted item(s) and “by letter direct the trial court clerk” to prepare a supplemental clerk’s record with the omitted item(s). Id. 34.5(c)(1). In like manner, if Spigener believes that the court reporter made a record of a hearing which has not been included in the reporter’s record, she should “by letter direct the official court reporter” to prepare a supplemental reporter’s record with the omitted hearing(s). Id. 34.6(d). Copies of Pleadings Spigener has on some occasions asked that the Clerk of this Court make and return file-marked copies of her pleadings even though she filed only the originals and provided no additional copies. Such requests will be denied. The Court does not ordinarily make copies for parties whether indigent or not. Copies of pleadings will be provided for a fee of 10 cents per page. See Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals and Before the Judicial Panel on Multidistrict Litigation, Tex. R. App. P. app. A (Vernon Supp. 2008). Spigener specifically requests that the Court provide copies of “all papers” filed in certain other proceedings, at least one of which she is not a party to. Such requests will likewise be denied. If Spigener desires copies of documents on file with this Court in cases in which she is not a party, then she must file an appropriate request under Rule of Judicial Administration 12. Tex. R. Jud. Admin. 12, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (Vernon 2005). If Spigener desires copies of documents on file with this Court in cases in which she is a party, then she must identify those documents with specificity and pay the required fee. Spigener has requested a copy of the docket sheet for this appeal. That document is four pages long. It will be provided to Spigener upon receipt of the applicable fee of forty cents ($0.40). Conclusion Spigener is hereby again notified that her brief is overdue.[3] To avoid dismissal for want of prosecution, Spigener must, within fourteen days after the date of this Order, file her appellant’s brief or a written response showing grounds for continuing the appeal. If she believes supplementation of the appellate record is required, she must notify this Court of that fact, in addition to taking the steps necessary to obtain a supplemental record. Any request for supplementation of the record must identify with specificity the item or items claimed to have been omitted. In addition, Spigener is notified that, if she does not timely comply, the Court may dismiss this appeal under its inherent authority. See Brager v. State, No. 0365-03, 2004 Tex. Crim. App. LEXIS 2203, at *5-9 (Tex. Crim. App. 2004) (not designated for publication); State v. Bissing, 169 S.W.3d 729, 730 (Tex. App.—Waco 2005, no pet.). PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray does not join this order)* Order issued and filed December 3, 2008 Do not publish [CV06] * (Chief Justice Gray does not join this order. Portions of it, such as the suggestion that a Rule 12 request is necessary to obtain copies of adjudicative records in case files, are erroneous and other portions are simply unnecessary, in particular because there were documents received that are unrelated to this proceeding but are nevertheless discussed in the order.) [1] Rule 9.5 does in other contexts use the terms “party” and “counsel.” See, e.g., Tex. R. App. P. 9.5(a) (“the filing party must serve a copy on all parties to the proceeding”); id. 9.5(b) (“Service on a party represented by counsel must be made on that party’s lead counsel.”). We consider the use of the term “person” in subsection (e) to be a shorthand reference to either the “party” or “counsel” who is responsible for serving a document, depending on whether the party is represented by counsel. Id. 9.5(e). [2] While we say that Spigener may “present” these complaints, she is not excused from Rule of Appellate Procedure 33 and similar rules which require that complaints be preserved for appellate review by timely request, objection, or motion in the trial court and an adverse ruling by the trial court on the request, objection, or motion. See Tex. R. App. P. 33.1(a). [3] Spigener was previously notified that her brief was overdue by letter from the Clerk of this Court dated October 9, 2008.