    Case: 14-10402   Document: 00513456564     Page: 1   Date Filed: 04/07/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 14-10402                     United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                     April 7, 2016
CHAZ Z. RODGERS, Individually,                                     Lyle W. Cayce
                                                                        Clerk
                                          Plaintiff–Appellant,

versus

LANCASTER POLICE & FIRE DEPARTMENT;
METHODIST DALLAS MEDICAL CENTER; JAMES SKACH, Officer;
BRIAN DORSEY, Supervisor; M. ADAMS;
JEREMY STUCKEY, EMT-P #3082; DANIEL BUFE, EMT-P #3165;
DAVID P. BRYANT, D.O. Physician;
ABI M. FINBERG-PROVINCE, Registered Nurse; MICHAEL ADAMS;
JAMES GRIMES; BRYAN DORSEY; DEVON O. CANDLER,

                                          Defendants–Appellees.



                Appeal from the United States District Court
                     for the Northern District of Texas




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Chaz Rodgers’s son, Anthony Hudson, died from a gunshot wound. Rod-
gers sought to hold the Lancaster police and fire departments, law-
enforcement officers, and a hospital and its medical personnel liable. Without
benefit of the res nova determination that we now make, the district court
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                                        No. 14-10402
dismissed without prejudice. We reverse and remand.

                                               I.
       Hudson was leaving a party when Devon Candler drove by and began
shooting. Lancaster Police Department (“LPD”) dispatched officers, who dis-
covered Hudson lying unresponsive in the street with an apparent gunshot
wound. Lancaster Fire Department (“LFD”) dispatched emergency medical
technicians (“EMTs”), who assisted Hudson and transported him to Methodist
Dallas Hospital (“MDH”), where medical personnel pronounced him dead.

       Rodgers, proceeding pro se and in forma pauperis, sued Candler, LPD,
LFD, MDH, the responding officers and EMTs, and the nurses and doctors at
MDH. She claimed the officers failed properly to respond to the scene and
investigate the crime; the EMTs failed to treat Hudson appropriately and to
transport him timely to a hospital capable of rendering adequate services;
MDH and its medical personnel provided him with negligent medical treat-
ment; and, finally, Candler negligently operated the firearm that killed him.
Rodgers also alleged defendants’ intentional misconduct and an agreement
between them to deprive Hudson of his constitutional rights. By construing
her allegations liberally, 1 we glean that Rodgers asserted claims under federal
civil-rights laws and Texas’s survival and wrongful-death statutes. 2




       1 Rodgers averred, “I intend to prove Civil Rights Violations . . . and action of bias
racial profiling [sic], discrimination, gross negligence’s [sic], . . . [and] intentional miscon-
duct.” We construe her pleadings liberally because she is proceeding pro se. Grant v. Cuellar,
59 F.3d 523, 524 (5th Cir. 1995) (per curiam).
       2 “[N]o heightened pleading rule requires plaintiffs seeking damages for violations of
constitutional rights to invoke § 1983 expressly in order to state a claim.” Johnson v. City of
Shelby, Miss., 135 S. Ct. 346, 347 (2014) (per curiam). “A complaint need not cite a specific
statutory provision or articulate a perfect ‘statement of the legal theory supporting the claim
asserted.’” Smith v. Bank of Am., N.A., 615 F. App’x 830, 833 & n.11 (5th Cir. 2015) (per
curiam) (citing Johnson, 135 S. Ct. at 346–47).
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                                         No. 14-10402
       Because she proceeded in forma pauperis, Rodgers’s complaint was sub-
ject to judicial screening and possible sua sponte dismissal before service of
process. 3 During screening, the district court sua sponte dismissed the survival
action without prejudice: Rodgers had failed to plead facts upon which relief
could be granted because, as a non-lawyer, she could not sue pro se on behalf
of the estate. See 28 U.S.C. § 1915(e)(2)(B)(ii). The court then dismissed the
wrongful-death claims for want of subject-matter jurisdiction, reasoning that
they arose under state law, and there was no diversity. The court did not con-
sider whether Rodgers also stated a claim for relief under any federal civil-
rights laws, such as 42 U.S.C. §§ 1983 4 and 1985. 5 Rodgers appeals pro se.

                                                II.
       We first address the dismissal of the wrongful-death claims because it
implicates subject-matter jurisdiction. 6 That dismissal is reviewed de novo.



       3 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . . (B) the action or
appeal . . . (ii) fails to state a claim on which relief may be granted . . . .” 28 U.S.C. § 1915(e).
       4 “Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .” 42 U.S.C. § 1983.
       5 “If two or more persons in any State or Territory conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal protection
of the laws . . . [and] if one or more persons engaged therein do, or cause to be done, any act
in furtherance of the object of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the recovery of damages occa-
sioned by such injury or deprivation, against any one or more of the conspirators.” 42 U.S.C.
§ 1985.
       6 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (noting that “Article III
generally requires a federal court to satisfy itself of its jurisdiction over the subject matter
before it considers the merits of a case”); Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d
457, 460 (5th Cir. 2004) (“[F]ederal courts are duty-bound to examine the basis of subject
matter jurisdiction sua sponte, even on appeal.”).
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Wagner v. United States, 545 F.3d 298, 300 (5th Cir. 2008) (citation omitted).
We reverse, because, although she appeared to assert only a wrongful-death
claim, Rodgers pleaded a claim under the federal civil-rights laws, so there is
federal-question jurisdiction. 7

       Texas’s wrongful-death statute provides, “A person is liable for damages
arising from an injury that causes an individual’s death if the injury was
caused by the person’s or his agent’s or servant’s wrongful act, neglect, care-
lessness, unskillfulness, or default.” TEX. CIV. PRAC. & REM. CODE § 71.002(b).
“An action to recover damages as provided by this subchapter is for the exclu-
sive benefit of the surviving spouse, children, and parents of the deceased.” Id.
§ 71.004(b). For Rodgers, “Texas wrongful death law provides . . . the right to
recover for her son’s wrongful death and she can recover for injury to herself
caused by her son’s death.” Rhyne v. Henderson Cty., 973 F.2d 386, 391 (5th
Cir. 1992).

       A plaintiff suing under the state statute in federal court generally would
need to satisfy the requirements of 28 U.S.C. § 1367(a) for supplemental juris-
diction or the requirements of 28 U.S.C. § 1332(a) for diversity. Federal civil-
rights laws extend federal-question jurisdiction, however, by incorporating
state wrongful-death statutes.             See Rhyne, 973 F.2d at 391; 42 U.S.C.
§ 1988(a). Thus, an individual may bring a claim under federal civil-rights
laws through Texas’s wrongful-death statute. 8


       7“The district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
       8 See Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004) (citing Rhyne, 973 F.2d at 390–
91; Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961)) (“Standing under the Civil Rights
Statutes is guided by 42 U.S.C. § 1988, which provides that state common law is used to fill
the gaps in administration of civil rights suits. Therefore, a party must have standing under
the state wrongful death or survival statutes to bring a claim under 42 U.S.C. §§ 1981, 1983,
and 1988.” (citations omitted)); Grandstaff v. City of Borger, Tex., 767 F.2d 161, 172 (5th Cir.
1985).
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                                      No. 14-10402
        In Brazier, for example, we held that § 1988 incorporated Georgia’s
wrongful-death statute, thereby conferring federal-question jurisdiction over a
widow’s claims that officers had killed her husband. See Brazier, 293 F.2d
at 402, 407–09. Similarly, in Grandstaff, the Texas wrongful-death statute
allowed a father to assert § 1983 claims based on his son’s wrongful death. See
Grandstaff, 767 F.2d at 167, 172. 9 Then, in Rhyne, we allowed a prisoner’s
mother to sue the county and its sheriff for failing to provide reasonable medi-
cal care in violation of § 1983. See Rhyne, 973 F.2d at 388. Specifically, after
noting her capacity to sue under Texas’s wrongful-death statute, we concluded
that “our decisions allow recovery by Rhyne for her injury caused by the state’s
deprivation of her son’s constitutionally secured liberty interests.” Id. at 391.
         Under Brazier and Grandstaff, Rhyne has standing to recover for
      her own injuries arising out of the wrongful death of her son . . . . Both
      Brazier and Grandstaff hold that § 1988 incorporates [the Texas]
      wrongful death remedy into § 1983, allowing Rhyne to recover under
      § 1983 for her own injuries resulting from the deprivation of her son’s
      constitutional rights.
Id.
        It follows that a litigant such as Rodgers may sue under §§ 1983 and
1985 for injuries to another, because § 1988 incorporates wrongful-death stat-
utes. Rodgers alleged in her complaint, “I intend to prove Civil Rights Viola-
tions . . . and action of bias racial profiling [sic], discrimination, gross negli-
gence’s [sic], . . . [and] intentional misconduct.” Construing her pleadings liber-
ally, we understand Rodgers to allege that she suffered injuries from violations
of Hudson’s rights under §§ 1983 and 1985. Rodgers may sue for her personal


        9See also Grandstaff, 767 F.2d at 173 n.* (Garwood, J., dissenting) (“Section 1983
recovery is limited to ‘the party injured,’ the ‘citizen’ whose federal rights have been in-
vaded. However, in [Brazier] we relied on 42 U.S.C. § 1988 as authority to look to state sur-
vival and wrongful death statutes in section 1983 actions because ‘in a very real sense’ this
‘does not do more than create an effective remedy’ and ‘merely assures that there will be a
remedy.’ (quoting Brazier, 293 F.2d at 409)).
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                                       No. 14-10402
injuries resulting from those alleged violations, because § 1988 incorporates
the wrongful-death statute, under which Rodgers has capacity to sue as Hud-
son’s surviving parent.         See TEX. CIV. PRAC. & REM. CODE §§ 71.002(b),
71.004(b). Rodgers’s claims did not arise solely under state law; at least some
stem from the federal civil-rights laws.              Accordingly, there was federal-
question jurisdiction, and the claims should not have been dismissed.

                                             III.
       Texas provides for survival actions: “A personal injury action survives
to and in favor of the heirs, legal representatives, and estate of the injured
person. The action survives against the liable person and the person’s legal
representatives.” TEX. CIV. PRAC. & REM. CODE § 71.021(b). 10 That is, “The
Survival Statute provides that only a personal representative, administrator,
or heir may sue on behalf of an estate.” Shepherd v. Ledford, 962 S.W.2d 28,
31 (Tex. 1998). “[A] decedent’s estate is not a legal entity and may not properly
sue or be sued as such . . . . [T]he law therefore grants another party the
capacity to sue on their behalf.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d
845, 849 (Tex. 2005) (quotation marks and citations omitted).

       Rodgers’s survival action raises two interrelated issues. We must deter-
mine whether a pro se litigant may ever represent an estate in a survival
action—an issue of first impression in this circuit. If so, there is the question
whether Rodgers established her capacity to sue under Texas’s survival
statute.




       10 Section 1988 incorporates the Texas survival statute, so federal-question jurisdic-
tion extends to Rodgers’s survival action as well. Rhyne, 973 F.2d at 390 (“This court held
that 42 U.S.C. § 1988 incorporated both [the state’s] survival statute and [the] wrongful death
statute to provide full remedies for violations of constitutional rights.”).
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                                        No. 14-10402
                                               A.
       It is axiomatic that an individual may proceed pro se in civil actions in
federal court, see 28 U.S.C. § 1654, but it is equally certain that those not
licensed to practice law may not represent the legal interests of others, see
Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978). 11 Relying on Weber, the
district court dismissed Rodgers’s pro se survival action because she was not
authorized to practice law. We review that dismissal de novo. 12

       We have not addressed whether a person who has capacity to represent
an estate under a survival statute may do so pro se. 13 The circuits that have
addressed that issue tend to refuse to hear pro se survival claims where there
are multiple beneficiaries or creditors. 14 Two circuits, going further, affirma-
tively hold that an individual with capacity under state law to represent the


       11See also Guajardo v. Luna, 432 F.2d 1324, 1324 (5th Cir. 1970) (per curiam) (“An
ordered society has a valid interest in limiting legal representation to licensed attorneys.”).
       12 Harper v. Showers, 174 F.3d 716, 718 n.3 (5th Cir. 1999) (“[T]he de novo standard
applies [] to dismissals for a failure to state a claim on which relief may be granted pursuant
to § 1915(e)(2)(B)(ii).”).
       13 Some district courts in this circuit have recently addressed such claims. See
Shamsid-Deen v. Texas, 2014 WL 1917579, at *2 (N.D. Tex. May 13, 2014) (“To the extent
that Plaintiff seeks to pursue claims on behalf of . . . the estate pro se, those claims should be
dismissed without prejudice.”); Chapman v. Baylor Univ. Med. Ctr., 2012 WL 6866935, at *2
(N.D. Tex. Oct. 1, 2012) (“Plaintiff may not bring this pro se case on behalf of her deceased
mother’s estate.”); City Bank v. Compass Bank, 2009 WL 4775104, at *1 (W.D. Tex. Dec. 10,
2009) (“Individuals appearing in representative capacities, such as executors of estates, may
not proceed in litigation on a pro se basis, especially when the estate or entity being repre-
sented has third party beneficiaries or creditors.”).
       14  See Hunter v. Pepsico, Inc., 2015 WL 6774134, at *1 (7th Cir. Nov. 6, 2015) (unpub-
lished) (citing Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) (“[I]f the administrator is
not the sole beneficiary of the estate, then he or she may not represent the estate in court.”));
Johnson v. Marberry, 549 F. App’x 73, 75 (3d Cir. 2013) (per curiam); Sykes v. United States,
507 F. App’x 455, 459–60 (6th Cir. 2012); Jones ex rel. Jones v. Corr. Med. Servs., Inc.,
401 F.3d 950, 952 (8th Cir. 2005) (“In this case, [Plaintiff] is not the only beneficiary/creditor
of [the decedent’s] estate. Thus, as a non-attorney, [he] may not engage in the practice of law
on behalf of others.”); Pridgen v. Andresen, 113 F.3d 391, 392–93 (2d Cir. 1997) (“We now
hold that an administratrix or executrix of an estate may not proceed pro se when the estate
has beneficiaries or creditors other than the litigant.”); cf. Reshard v. Britt, 839 F.2d 1499,
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                                       No. 14-10402
estate may do so pro se if he is the estate’s sole beneficiary and there are no
creditors. See Bass v. Leatherwood, 788 F.3d 228, 230–31 (6th Cir. 2015); Guest
v. Hansen, 603 F.3d 15, 19–21 (2d Cir. 2010). 15 Those decisions are persuasive.

       In Guest, the administrator of an estate brought a survival action. The
administrator retained counsel in the district court but appealed an adverse
summary judgment pro se. Id. The Second Circuit allowed the administrator
to proceed pro se after other beneficiaries had disclaimed any interest in the
estate and the administrator had filed a supplemental brief that the estate had
no creditors. Id. at 19–20. The court addressed the perils of lay representation:
    The law contains so many esoteric pitfalls for an untrained advocate
    . . . that the risk of inadvertent waiver or abandonment of an issue is
    too high for us to allow a pro se litigant to represent another person.
    This rule exists to serve not only the interests of the represented party
    but also the interests of the adversaries and the court, because the
    entire judicial system benefits from the professional knowledge of prac-
    ticing attorneys . . . .
Guest, 603 F.3d at 20 (quotation marks and citations omitted). The court
allowed the pro se appeal because the administrator, as the sole beneficiary of
an estate without creditors, was essentially representing his own interests.
Id. at 21. 16




1499–1500 (11th Cir. 1988) (en banc) (evenly divided court affirming, by operation of law,
order refusing to allow lay personal representatives to proceed pro se on behalf of estate).
       15 Another circuit seemed to favor that approach, though in an unpublished opinion
and only by implication. See Witherspoon v. Jeffords Agency, Inc., 88 F. App’x 659, 659 (4th
Cir. 2004) (remanding for a determination “whether [pro se plaintiff] is a beneficiary . . .
whether there are other beneficiaries, and whether there are any creditors involved”).
Another circuit has merely noted that such pro se representation presents an open question.
See Malone, 474 F.3d at 937 n.2 (stating it had “not decided whether an administrator or
executor who is the sole beneficiary of an estate without creditors may appear pro se on its
behalf”).
       16  “Because the administrator is the only party affected by the disposition of the suit,
he is, in fact, appearing solely on his own behalf. This being so, the dangers that accompany
lay lawyering are outweighed by the right to self-representation . . . .” Guest, 603 F.3d at 21.
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                                        No. 14-10402
       In Bass, “authorized representatives” of two separate estates sued on
behalf of their respective estates, alleging fraud by financial institutions. The
district court dismissed the claims because a non-attorney could never appear
pro se on behalf of an estate. The Sixth Circuit reversed and held that the
representatives could bring the pro se claims because they were the sole benefi-
ciaries of the estates, and there were no creditors. Bass, 788 F.3d at 230.
    The rule against non-lawyer representation protects the rights of those
    before the court by preventing an ill-equipped layperson from squander-
    ing the rights of the party he purports to represent. The purpose of the
    rule, then, is to protect third parties. But that purpose has no role to
    play when the only person affected by a nonattorney’s representation is
    the nonattorney herself.
Id. (quotation marks and citations omitted).
       It was error for the district court―ruling without benefit of our decision
on this issue of first impression―to dismiss Rodgers’s survival action solely
because she was proceeding pro se on behalf of the estate. A person with capa-
city under state law to represent an estate in a survival action may proceed
pro se if that person is the only beneficiary and the estate has no creditors.

       We must remand, however, for further determination whether Rodgers
is the sole beneficiary. She averred that Hudson died without a will, that he
had no spouse and no children, that she was his sole surviving parent, and that
he died with no debts, no real property, and no taxes. There is, however, no
indication whether Hudson had any living siblings when he died. Under Texas
intestacy law, if he had siblings, then Rodgers might not be the sole benefici-
ary. 17 We leave that determination to the district court on remand.



       17 “ESTATE OF AN INTESTATE NOT LEAVING SPOUSE. (a) If a person who dies
intestate does not leave a spouse, the estate to which the person had title descends and passes
in parcenary to the person’s kindred in the order provided by this section. . . . (d) If only the
person’s father or mother survives the person, the person’s estate shall: (1) be divided into
two equal portions, with: (A) one portion passing to the surviving parent; and (B) one portion
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                                       No. 14-10402
                                              B.
       Texas authorizes survival actions by the estate’s personal representa-
tives and heirs at law. See TEX. CIV. PRAC. & REM. CODE § 71.021(b). Usually
only a personal representative may bring a survival action, but “[h]eirs at law
can maintain a survival suit . . . if they allege and prove that there is no admin-
istration pending and none necessary.”               Shepherd, 962 S.W.2d at 31–32.
Whether Texas law authorized Rodgers to maintain this survival action as
Hudson’s legal heir (i.e. whether administration is necessary) is tightly bound
up with whether Rodgers is the estate’s sole beneficiary and there are no credi-
tors. See id. at 31–33; Stewart v. Hardie, 978 S.W.2d 203, 207 (Tex. App.—
Fort Worth 1998, pet. denied).

       In Shepherd, a wife sued on behalf of her deceased husband’s estate. The
husband died intestate, so his estate vested immediately in the wife as his
surviving spouse. The wife alleged that the husband had no children, owned
no real property, had no outstanding debts, and that the family had agreed she
would take the husband’s entire estate. The court concluded the wife had
“capacity” 18 to pursue the survival action: “The evidence shows that the family
had resolved the estate’s disposition and that all debts were paid. Accordingly,
no administration was necessary for it would have served no purpose.” Shep-
herd, 962 S.W.2d at 33.

       Stewart reinforces Shepherd. In Stewart, a husband asserted a survival
action on behalf of his deceased wife. The court concluded the husband lacked
capacity to assert the claim because he was not the estate’s personal


passing to the person’s siblings and the siblings’ descendants; or (2) be inherited entirely by
the surviving parent if there is no sibling of the person or siblings’ descendants.” TEX. EST.
CODE § 201.001.
       18Shepherd refers to this as “standing” to sue, but Austin Nursing Center, 171 S.W.3d
at 851 n.3, later clarifies that this discussion more accurately relates to “capacity” to sue.
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                                  No. 14-10402
representative and, as an heir, had not proved that administration was
unnecessary:
   Unlike the situation in Shepherd, . . . Stewart was not the only benefi-
   ciary of Mrs. Stewart’s estate. In Shepherd, an administration was not
   necessary as a matter of law because the surviving spouse was the only
   heir of the estate and there was evidence that the family had resolved
   the estate’s disposition. There is no such evidence in this case. Stewart
   . . . did not prove that no administration of Mrs. Stewart’s estate was
   pending and that none was necessary. The parties stipulated that the
   estate had debts at the time of Mrs. Stewart’s death. Further, there is
   no stipulation that the family had reached an agreement as to the dis-
   position of the estate. Thus, an administration was necessary in this
   case, and the proper party to bring suit on behalf of the estate was the
   estate’s personal representative.
Stewart, 978 S.W.2d at 207 (citations omitted).

      Rodgers is Hudson’s legal heir. See TEX. EST. CODE § 201.001(d). As
described above, however, it remains uncertain whether she is the estate’s sole
heir. So, it is unclear whether administration is necessary and, thus, whether
she has capacity to maintain a survival action as a legal heir. See Stewart,
978 S.W.2d at 207. The district court did not address Rodgers’s capacity, and
the record is insufficient to resolve the issue. Therefore, we remand for a deter-
mination of her capacity to sue under the Texas survival statute.

                                       IV.
      We express no view on the merits of Rodgers’s claims. “Experience
teaches us that we should reiterate that nothing said or unsaid, expressed or
implied is a determination, holding or intimation, one way or the other, on the
merits of the cause.” Brazier, 293 F.2d at 409–10. The district court allowed
Rodgers to amend her complaint to assert only her personal claims, and she
has not been afforded the opportunity to amend her pleadings to address any
substantive deficiencies. We leave any determination as to the adequacy of her
pleadings to the district court on remand in further proceedings pursuant to
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                                    No. 14-10402
28 U.S.C. § 1915(e)(2). We place no limitations on the matters that the court
may consider and decide on remand.

     The judgment of dismissal is REVERSED and REMANDED. 19




     19   Rodgers’s motion to amend the caption is GRANTED.
                                          12
