Shelley Thomson, Acting by and Through Selene Smith, as Next Friend, and Philip M. Ross, Individually and as Trustee of the Shelley Thomson Trust v. Texas Health and Human Services Commission

NUMBER 13-21-00249-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SHELLEY THOMSON, ACTING BY AND
THROUGH SELENE SMITH, AS NEXT
FRIEND, AND PHILIP M. ROSS,
INDIVIDUALLY AND AS TRUSTEE OF
THE SHELLEY THOMSON TRUST, Appellants,

v.

TEXAS HEALTH AND HUMAN
SERVICES COMMISSION, Appellee.

On appeal from the County Court at Law No. 2
of Comal County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva
Memorandum Opinion by Justice Hinojosa

Selene Smith and Philip Ross, individually “and/or” as attorney for Shelly

Thomson, attempt to appeal three orders issued by the trial court in this guardianship
proceeding. We dismiss the appeal. 1

This is the sixth appeal filed by Ross from the underlying cause—purportedly

representing Thomson, himself, or others. We adopt the following background facts from

our earlier memorandum opinion:

The trial court appointed appellee the Texas Health & Human Services
Commission (the Commission) Thomson’s permanent guardian on May 23,
2019, after conducting a hearing regarding Thomson’s health issues. On
June 17, 2019, Ross, an attorney seeking to represent Thomson in these
guardianship proceedings, filed a notice of appearance, asserting that
Thomson had hired him to represent her in this matter and a verified motion
for temporary restraining order and temporary injunction. Ross requested
that the trial court issue an injunction allowing Thomson to access “her
home, income, automobile and her personal property, to prevent
interference with her normal daily activities by her guardian, and to have the
fullest access to supports and services in the social settings that she prefers
in order to fully exercise her rights to health maintenance and restoration.”
Ross also requested that the trial court grant a temporary injunction to allow
Thomson to, among other things, choose her attorney.

On June 20, 2019, Ross filed a motion for new trial and/or
reconsideration on behalf of Thomson requesting an independent medical
exam and for the trial court to set aside its May 23 order. In the motion,
Ross argued, among other things, that there was no evidence to support
the trial court’s determination that Thomson lacked capacity, the
Commission was violating her rights, and she had been misdiagnosed by
the doctor who found her to be incompetent.

....

On July 1, 2019, pursuant to rule 12, the Commission filed a motion
to show authority alleging that Thomson lacked capacity to hire Ross as her
attorney and requesting that the trial court strike Ross’s June 17 pleadings.
See TEX. R. CIV. P. 12. The Commission requested a hearing so that Ross
could appear and show his authority to serve as Thomson’s attorney. Ross
filed a reply to the motion to show authority. The trial court granted the
Commission’s motion in part on July 17, 2019 [based on a determination
that Thomson lacked the capacity to enter a contract]. Specifically, the trial
court ordered “that until such time as an attorney-client contract is submitted
1This case was transferred from the Third Court of Appeals in Austin to this Court pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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 and approved by the Court, the Court finds the current attorney-client
contact void.” However, the trial court did not strike Ross’s pleadings.
Instead, it construed them as a complaint and considered the merits. . . .
On August 19, 2019, the trial court denied Ross’s complaint.

In re Guardianship of Shelley Thomson, No. 13-19-00517-CV, 2021 WL 265372, at *1–2

(Tex. App.—Corpus Christi Jan. 21, 2021, no pet.) (mem. op.) (footnotes omitted).

In appellate cause number 13-20-00379-CV, we concluded that the attempted

appeal of the July 17 order on the motion to show authority was not a final appealable

order. See In the Guardianship of Thomson, No. 13-20-00379-CV, 2021 WL 266611, at

*3 (Tex. App.—Corpus Christi–Edinburg Jan. 21, 2021, no pet.) (mem. op.). In appellate

cause number 13-20-00380-CV, we concluded that Ross’s attempt to appeal the August

19 order was untimely. See In the Guardianship of Thomson, No. 13-20-00380-CV, 2021

WL 266611, at *2 (Tex. App.—Corpus Christi–Edinburg Jan. 21, 2021, no pet.) (mem.

op.). We have previously dismissed an appeal filed by Ross as attorney for Smith because

Smith was not a party in the guardianship proceeding. In Guardianship of Thomson, No.

13-20-00381-CV, 2021 WL 265357, at *2 (Tex. App.—Corpus Christi Jan. 21, 2021, no

pet.) (mem. op.).

On May 10, 2021, the trial court signed an order granting the Commission’s

application to withdraw funds and to purchase prepaid funeral benefits. On June 3, 2021,

the trial court signed two separate orders striking and/or dismissing various pleadings

filed by Ross, as the purported attorney for Thomson. The trial court ordered that

Thomson cease presenting himself as the attorney for Thomson.

In the present case, Ross and Smith attempt to appeal the trial court’s May 10 and

June 3, 2021 orders. On September 1, 2021, we notified Ross and Smith that it appeared

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they were appealing an order which was not a final appealable order and that the appeal

was subject to dismissal for want of jurisdiction. See TEX. R. APP. P. 42.3. We provided

Ross and Smith ten days to cure the defect. On September 13, 2021, we further notified

Ross and Smith that their notice of appeal was defective for failure to comply with rule of

appellate procedure 25.1, which permits only parties to file a notice of appeal. See Id. R.

25.1; In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723 (Tex. 2006) (providing that

only parties of record may appeal a trial court’s judgment). We again provided ten days

for Ross and Smith to cure the defect. Ross and Smith have filed a response to both

defect notices. However, the defects have not been cured.

We first note that neither Ross nor Smith are parties to these orders, and we have

previously dismissed an appeal from the trial court’s order determining that Ross does

not represent Thomson as her attorney. Further, the trial court’s order striking pleadings

did not conclude a discrete phase of the guardianship proceeding; therefore, the order

was interlocutory and not appealable. See In re Guardianship of Thrash, 610 S.W.3d 74,

78 (Tex. App.—San Antonio 2020, pet. denied). Because both defects concern our

jurisdiction over the appeal, we dismiss the appeal for want of jurisdiction. See State v.

Naylor, 466 S.W.3d 783, 787 (Tex. 2015) (explaining that standing to appeal is a

component of subject-matter jurisdiction); Lehmann v. Har-Con Corp., 39 S.W.3d 191,

195 (Tex. 2001) (explaining that a party may only appeal a final judgment absent a statute

allowing an interlocutory appeal). Having dismissed the appeal, no motion for rehearing

will be entertained, and our mandate will issue forthwith. We further dismiss all pending

motions for want of jurisdiction.

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 LETICIA HINOJOSA
Justice

Delivered and filed on the
14th day of October, 2021.

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