Opinion
04-23-00836-CV
01-26-2024
Maryvel SUDAY and The Estate of Olga Tamez de Suday, Appellants v. Jesus Lozano SUDAY, Appellee
From the County Court at Law, Val Verde County, Texas Trial Court No. 3625CCL The Honorable Stephen B. Ables, Judge Presiding
ORDER
Rebeca C. Martinez, Chief Justice
On July 25, 2023, appellants Maryvel Suday ("Suday") and the Estate of Olga Tamez de Suday (the "Estate") filed a notice of appeal. Suday is the independent executor of the Estate. The notice of appeal was signed by counsel representing both Suday and the Estate.
On January 16, 2024, Suday, acting pro se, filed "Appellant's Motion for Emergency Relief or in the Alternative Emergency Motion for a 30-Day Extension, and Motion to Withdraw of Counsel." Suday purported to file the motion individually and as independent executor of the Estate. The motion requests a stay of this appeal until a related mandamus proceeding, Cause No. 04-23-00921-CV, has been resolved. Further the motion states: "Appellant is respectfully asking that her attorney, Mr. J Hamilton McMenamy, withdraws as counsel ...." Suday represents that she and McMenamy discussed the motion and "both approve th[e] Motion."
On January 21, 2024, McMenamy filed a letter and a motion to withdraw as counsel. The letter states that, after Suday filed her motion, McMenamy confirmed by telephone that Suday wanted McMenamy to withdraw. By his motion, McMenamy requests his withdraw as counsel for both Suday and the Estate in this cause and in Cause No. 04-23-00921-CV.
"A client can discharge an attorney at any time, with or without cause." In re Users Sys. Servs., Inc., 22 S.W.3d 331, 335 (Tex. 1999) (orig. proceeding). "A formal motion to withdraw is not required to effectuate the client's intentions in this regard." Steele v. McDonald, 202 S.W.3d 926, 928 (Tex. App.-Waco 2006, order) (per curiam). From recent filings, it is apparent that Suday, individually and as executor of the Estate, has discharged McMenamy as her attorney and as the Estate's attorney. Therefore, we GRANT counsel's motion to withdraw. See TEX. R. APP. P. 6.5. It is ORDERED that McMenamy is withdrawn as counsel of record for Suday and the Estate in this appeal.
This order applies only to this appeal and does not apply to Cause No. 04-23-00921-CV.
Because McMenamy has withdrawn as counsel, Suday is now proceeding pro se. We DENY her motion for a stay of this appeal until resolution of Cause No. 04-23-00921-CV because Cause No. 04-23-00921-CV was resolved on December 6, 2023, when we denied Suday's petition for a writ of mandamus. In re Suday, No. 04-23-00921-CV, 2023 WL 8446344, at *1 (Tex. App.-San Antonio Dec. 6, 2023, orig. proceeding) (per curiam).
Because of counsel's withdraw, the Estate is not currently represented in this appeal. Rule 7 of the Texas Rules of Civil Procedure states: "Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court." TEX. R. CIV. P. 7 (emphasis added). Rule 7 “allows a person to represent himself or herself pro se only to litigate rights on his or her own behalf, not to litigate rights in a representative capacity.” Swain v. Dobbs, No. 13-22-00199-CV, 2023 WL 7783396, at *5 (Tex. App- Corpus Christi-Edinburg Nov. 16, 2023, no pet. h.). "[C]ourts in other [states] which have addressed this issue have virtually all concluded that the representative of an estate may not appear pro se in behalf of the estate." Steele, 202 S.W.3d at 928 (collecting cases). Likewise, all Texas appellate courts that have addressed the issue have concluded that a representative may not appear pro se in behalf of the estate. See Swain, 2023 WL 7783396, at *5; Estate of Maupin, No. 13-17-00555-CV, 2019 WL 3331463, at *2 (Tex. App.-Corpus Christi-Edinburg July 25, 2019, pet. denied) ("our sister courts have established that Rule 7 only applies when a person is litigating his rights on his own behalf, as opposed to litigating certain rights in a representative capacity."); Steele, 202 S.W.3d at 928. We have applied Rule 7 to affirm a trial court's ruling prohibiting a nonattorney from representing a corporation. See Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.-San Antonio 2002, no pet); see also Kunstoplast of Am., Inc. v. Formosa Plastics Corp., U.S.A., 937 S.W.2d 455, 456 (Tex. 1996) (holding nonlawyer corporate officer could perform "specific ministerial task of depositing cash with a clerk in lieu of a cost bond" but could not represent corporation in court). Therefore, consistent with our precedent and the weight of authority, Suday, a non-lawyer, cannot represent the Estate in this appeal, and the Estate is currently unrepresented in this appeal.
Last, Suday asserts in her motion, "This case is pending payment to the court reporter, Lisa Blanks." Suday further asserts that Banks returned payments representing costs "to cover the 50% that [Banks] was requesting to start working on the transcript." To clear any confusion, we remind Suday that, on October 17, 2023, we ordered appellants to file proofs (1) that they have requested the reporter's records, which request must designate the portions of the proceedings and the exhibits to be included, and (2) that either the reporter's fee has been paid or arrangements have been made to pay the reporter's fee, or appellants are entitled to appeal without paying the reporter's fee. We extended the deadline for appellants to respond with proofs by our order dated November 21, 2023. The extended deadline for appellants to respond was December 18, 2023. Appellants failed to respond by the extended deadline. Consequently, pursuant to our order dated November 21, 2023, appellants' briefs were due on January 16, 2024, which is thirty days from the date the clerk's record was filed. Further, pursuant to our order dated November 21, 2023, we will consider only those issues or points raised in appellants' briefs that do not require a reporter's record for a decision. See TEX. R. APP. P. 37.3(C).
Because appellants' briefs are past-due and because appellants may seek to secure new counsel, we sua sponte extend the deadline for appellants to file their briefs. It is ORDERED that appellants' briefs are due on or before February 29, 2024.