This case began as a straightforward personal injury car accident lawsuit. Plaintiffs were allegedly rear-ended by an 18-wheeler operated on behalf of Midstream Transportation Company. But things took a tragic turn when, only a few months after the complaint was filed, the plaintiffs’ attorney, Scott Ogle, passed away in December 2023. Just two months later, the defendants asked for a continuance because of Ogle’s death — meaning the defense was well aware of his passing — which the trial court granted.
But at the same time, the defendants filed a no-evidence motion for summary judgment, listing 63 separate points where they claimed the plaintiffs lacked evidence. And instead of ensuring the plaintiffs were properly notified — or that someone was actually representing them — the motion and hearing notice were served on Ogle’s office, even though the defense knew he had died.
Indeed, in the defense’s summary judgment motion, they acknowledge “I have attempted to conduct a conference with Plaintiffs’ counsel, but I have been informed that he is deceased. When I place calls to his office, there is no answer and the voice mail is full. When I have written to his office by email, I get no response. As best I know, Plaintiffs are not represented by counsel at this time.” Yet notice of the hearing on the summary judgment motion was only sent to the dead attorney.
Two days before the summary judgment motion hearing, a new lawyer entered an appearance for the plaintiffs, along with a motion for continuance of the summary judgment hearing. Defendants opposed the motion, and the hearing went forward. Unsurprisingly, since the death of Ogle and hiring of a new attorney left no opportunity for discovery, summary judgment was granted.
On appeal, the court basically looked at the record, sighed heavily, and said: Absolutely not. In a crisp bit of judicial side-eye, Judge Katy Boatman wrote, “The Defendants may very well show on remand that they are entitled to a no-evidence motion for summary judgment. But they are not entitled to one when the motion and hearing notice were both knowingly served on a dead attorney, leaving the plaintiffs without adequate time for discovery.”
The court went on to admonish the defendants for failing to take even minimal steps: like reaching out to the plaintiffs directly, recognizing them as pro se after their lawyer’s death, or asking the court to intervene. Instead, they barreled ahead like everything was fine, which it very much was not.
It’s a reminder the tragedy shouldn’t be weaponized, not even in a adversarial process like litigation.
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Read the appellate court’s decision below.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].