Damaris McCalley v. Dr. Clifton Lyndell Cox II, Methodist Southlake Hospital, and Dr. Olefemi Abiodun

                                  In the
                             Court of Appeals
                     Second Appellate District of Texas
                              at Fort Worth
                             ___________________________
                                  No. 02-20-00411-CV
                             ___________________________

                           DAMARIS MCCALLEY, Appellant

                                               V.

   DR. CLIFTON LYNDELL COX II, METHODIST SOUTHLAKE HOSPITAL,
               AND DR. OLEFEMI ABIODUN, Appellees




                          On Appeal from the 17th District Court
                                 Tarrant County, Texas
                             Trial Court No. 017-312809-19


                            Per Curiam Memorandum Opinion 1

       1
         Pursuant to Rule 2, the requirements of Rule 47.2(a) are suspended from operation in this
case. See Tex. R. App. P. 2, 47.2(a).
                             MEMORANDUM OPINION

       Pro se Appellant Damaris McCalley’s brief was originally due on March 8,

2021. On March 24, 2021, we notified Appellant by letter that her brief had not been

filed and that if she desired to continue her appeal, she would need to file on or

before April 5, 2021, her brief along with a motion reasonably explaining the failure

and the need for an extension.

       On March 26, 2021, we received a document from Appellant entitled

“Amended Appeal in State Case,” which we construed as her brief. On March 29,

2021, we notified Appellant that she needed to file a motion in accordance with Texas

Rule of Appellate Procedure 10 and Local Rules 1.B. and 3 and to file an amended

brief because the document that she had submitted failed to comply with Texas Rules

of Appellate Procedure 9.4(i); 9.9; and 38.1(a), (b), (c), (d), (f), (g), (h), (i), (j), and (k);

and Local Rule 1.A. We instructed Appellant that her motion for extension and

amended brief needed to be filed by April 8, 2021, and that the failure to do so could

result in striking the brief she had filed and dismissal of her appeal.

       In response, on the evening of March 29, 2021, Appellant filed a document

entitled “Request For An Attorney In Accordance With the Americans With

Disabilities Act.” We notified Appellant twice that her document did not contain a

certificate of conference and requested that she submit a certificate of conference for

her motion. Appellant responded on April 6, 2021, with an “Updated Request For

An Attorney In Accordance With the Americans With Disabilities Act” that contained

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a section requesting a conference. The following day, Appellant filed a “Motion of

Continuance With Note to Whichever Clerk Is Attempting to Play Judge, Jury[,] and

Defense Attorney in Favor of the Defendants And At Odds With The Americans

With Disabilities Act With Request For Hearing.”

      On April 12, 2021, we abated the case to the trial court to conduct a hearing to

determine whether Appellant desired to continue her appeal; whether Appellant was

indigent; and whether counsel should be appointed to represent Appellant and to

appoint counsel, if necessary. We also granted Appellant an extension of time to file

her brief, ordering it due thirty days after the supplemental record from the abatement

hearing was filed.

      On April 28, 2021, the trial court held a hearing and found that Appellant was

indigent but that she “ha[d] not demonstrated a legal basis for the appointment of

counsel and that [Appellant] ha[d] not provided sufficient evidence to meet her

burden of proof for appointment of counsel.” The trial court denied Appellant’s

request for appointed counsel. The supplemental record from the abatement hearing

was filed on May 12, 2021.

      Three days prior to our receipt of the supplemental record from the abatement

hearing, Appellant submitted a document entitled “Notice Of Removal To Federal

Court.” We notified Appellant that her document lacked relevant information about

the suit’s alleged removal to federal court and requested that she provide the

following by May 21, 2021: (1) the title of the document that she had filed to remove

                                          3
the suit to federal court, (2) the case number in which the document was filed, and

(3) the date that the document was filed. Appellant has not provided the requested

information, and we have not found a federal case that includes the same parties as

this appeal. Accordingly, based on the language in our April 12, 2021 abatement

order, the appeal was automatically reinstated, and the due date for Appellant’s

amended brief was set for June 11, 2021.

      However, on May 20, 2021, Appellant filed a document entitled “REQUEST

(Demand, it’s really a Demand) For Leave to CHANGE APPEAL.” In it, she again

stated her need for a court-appointed attorney and asked for leave to add additional

issues to the appeal. On May 25, 2021, we granted the motion in part: We permitted

Appellant to raise additional issues in her amended brief, but we denied Appellant’s

request for a court-appointed attorney. We also denied Appellant’s requests that we

waive the appellate briefing rules. See Mansfield State Bank v. Cohn, 573 S.W.2d 181,

184–85 (Tex. 1978) (stating that there is not a separate set of rules for litigants

representing themselves and requiring pro se litigants to comply with the applicable

procedural rules).

      We ordered Appellant to file, on or before June 23, 2021, an amended brief

complying with the briefing rules and including all issues that she intended to raise in

her appeal. We warned that her failure to do so could result in striking the brief that

was filed and dismissing the appeal or in a waiver of noncomplying points. See Tex.

R. App. P. 38.8(a), 38.9(a), 42.3. Appellant has not filed an amended brief.

                                           4
       Because Appellant failed to file a compliant amended brief even after we

afforded ample opportunities to do so, we strike the brief filed March 26, 2021, and

we dismiss this appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b),

43.2(f), 44.3.2

                                                      Per Curiam

Delivered: July 29, 2021




       2
         Appellant has filed numerous documents in this court. To the extent that any
of those documents remain pending and request affirmative relief, such requests for
relief are denied as moot.

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