* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 11 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
RENEE MARKS,

Plaintiff-Appellant,
v. US WEST DIRECT,

Defendant-Appellee,

______________________________ DAVID L. SMITH,

Attorney-Appellant. No. 98-1043 (D.C. No. 95-WM-2781) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO, BARRETT, and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Renee Marks, pro se, and David L. Smith, a disbarred attorney, see In re Smith , 76 F.3d 335, 336 (10th Cir. 1996), appeal following the district court’s grant of summary judgment to Ms. Marks. We dismiss the appeal. Ms. Marks and Mr. Smith filed and signed a joint notice of appeal to this court. See 10th Cir. R. 3.1. Counsel for US West Direct has notifi ed this court that Ms. Marks is deceased. We determined that Ms. Marks’ action would survive her death. See, e.g. , Slade ex rel. Slade v. United States Postal Serv. , 952 F.2d 357, 360 (10th Cir. 1991) (looking to state law to determine whether Title VII action will survive party’s death); Colo. Rev. Stat . § 13-20-101(1) (all actions, except those for slander or libel, survive party’s death though certain identified damages may not be awarded); Smith v. Department of Human Servs. , 876 F.2d 832, 836-37 (10th Cir. 1989) (ADEA action seeking c ertain identified remedies may survive party’s death). Therefore, we entered an order directing Ms. Marks’ next of kin or personal representative to enter an appearance and file a brief on behalf of her estate. See Fed. R. App. P. 43(a). No response to this order has been filed. Therefore, we consider Ms. Marks’ appe al abandoned and dismiss it. Cf. Abercrombie v. City of Catoosa , 896 F.2d 1228, 1231 (10th Cir. 1990) (any-3-

issue not briefed is considered waived); Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992) (court may dismiss claims not properly argued) . Mr. Smith appeals the district court’s denial of hi s motion to intervene in Ms. Marks’ action in that court. The court denied that motion June 21, 1996. Mr. Smith filed his notice of appeal from that orde r February 2, 1998. Mr. Smith’s notice of appeal is untimely as to that issue and the appeal must b e dismissed. See Coalition of Ariz./N.M. Counties for Stable Economi c Growth v. Department of Interior , 100 F.3d 837, 839 (10th Cir. 1996) (order denying intervention is final and subject to immediate appe al if it prevents applicant from becoming party to action). Mr. Smith also appeals the district court’s order g ranting summary judgment to defendants . Mr. Smith was not a party below and, hence, has no standing to appeal that order. See Concorde Resources, Inc. v. Woosley (In re Woosley) , 855 F.2d 687, 687 (10th Cir. 1988) (nonparty lacks standing to appeal absent most extraordinary circumstances); cf. Uselton v. Commercial Lovelace Motor Freight, Inc. , 9 F.3d 849, 854 (10th Cir. 1993) (counsel have standing to appeal orders issued directly against them, but notfrom those applicable only to their clients).-4-

This appeal is DISMISSED. Defendant ’s motion for sanctions is DENIED. Mr. Smith’s motion to transfer this case to the Uni ted States Court of Appeals for the Federal Circuit is DENIED. All remaining outst anding motions are DENIED. The mandate shall issue forthwith.

Entered for the Court

John C. Porfilio Circuit Judge