Hegwer v. Edwards

• Citation: 527 S.W.3d 337
• Decision Date: 22 March 2017
• Docket Number: No. 05-15-01464-CV.,05-15-01464-CV.
• Parties: Ellen R. HEGWER, as Trustee of the Ray Hegwer Living Trust a/k/a Hegwer Living Trust, Appellant v. Holly EDWARDS a/k/a Holly Ruth Edwards a/k/a Holly Ruth Raines, Appellee
• Court: Court of Appeals of Texas

527 S.W.3d 337

Ellen R. HEGWER, as Trustee of the Ray Hegwer Living Trust a/k/a Hegwer Living Trust, Appellant

v.Holly EDWARDS a/k/a Holly Ruth Edwards a/k/a Holly Ruth Raines, Appellee

No. 05-15-01464-CV.

Court of Appeals of Texas, Dallas.

Opinion Filed March 22, 2017

Andrew R. Korn, The Korn Diaz Firm, David Mizgala, Mizgala Law PLLC, Dallas TX, for Appellant.

Blake L. Beckham, Jose M. Portela, Sarita Smithee, The Beckham Group, P.C., Dallas TX, for Appellee.

Before Justices Bridges, Evans, and Schenck

OPINION

Opinion by Justice Evans

Ellen Hegwer, as trustee of the Ray Hegwer Living Trust a/k/a Hegwer Living Trust (Trustee), appeals the judgment following a bench trial. The Trustee contends that the trial court erred in holding that Holly Edwards's filing of a suggestion of her husband's death did not constitute a general appearance by Holly in the case. The Trustee also asserts that the trial court abused its discretion by denying her request for a post-appearance judgment nihil dicit. We affirm.

I. BACKGROUND

On December 7, 2012, the Trustee and Raymond Hegwer filed a lawsuit against Spencer Edwards, Holly Edwards, Edwards Development Corporation, Edwards Exploration, LLC, and Edwards Operating Company, LLC. Edwards Exploration, LLC was served with the citation and petition but none of the other defendants were served.

Spencer died on November 29, 2013. On January 16, 2014, Holly filed a suggestion of death that informed the court of Spencer's death.

On February 16, 2015, the trial court called the case to trial.¹ Raymond and the Trustee presented a proposed judgment to the trial court. In the proposed final judgment, Raymond stated that he had dismissed all his claims against each of the five defendants. The proposed judgment also stated that the Trustee dismissed all claims against Spencer, Edwards Development Corporation, Edwards Exploration, LLC, and Edwards Operating Company, LLC, and was proceeding solely against Holly. On February 16, 2015, Raymond and the Trustee also filed a trial brief on post-appearance judgment nihil dicit. The trial court heard from counsel for plaintiffs and further "heard from counsel for Defendant Holly Edwards who was present in the Courtroom on February 16, 2015 and advised the Court that Hollye [sic] Edwards had not been served, entered an appearance or answered. Edwards's counsel further advised of intent to accept service and answer."² The trial court did not enter the proposed judgment and, instead, set the case for dismissal for want of prosecution on April 1, 2015. On February 18, 2015, Holly filed her original answer.

On May 5, 2015, the trial court signed an order of nonsuit in which Raymond dismissed his claims without prejudice against all defendants. On August 24, 2015, the Trustee nonsuited her claims against Edwards Development Corporation, Edwards Exploration, LLC, and Edwards Operating Company, LLC.

The case was called for a bench trial on August 24, 2015, and the Trustee failed to introduce any evidence against Holly. In its final judgment, the trial court noted that "the record is devoid of any factually or legally sufficient evidence that would support a verdict against Holly Edwards" and ordered that the Trustee take nothing by way of her claims against Holly. The trial court also signed an order dated August 31, 2015, which denied the Trustee's request for post-appearance judgment nihil dicit. The Trustee then filed this appeal.

II. ANALYSIS

A. Suggestion of Death

A suggestion of death of a defendant notifies a trial court of the fact that a defendant died. The legal consequence of that notice is a jurisdictional defect: that a defendant is beyond the power of the trial court and the case cannot proceed until jurisdiction is acquired over the legal representative of the deceased by service of scire facias. See TEX. R. CIV. P. 152.³ Thus, a judgment is void for lack of jurisdiction when it is entered against the legal representative of the deceased's estate without issuance and return of service of the writ of scire facias or appearance of the legal representative. See Supak v. Zboril , 56 S.W.3d 785, 793–94 (Tex. App.–Houston [14th Dist.] 2001, no pet.) (characterizing trial court's lack of jurisdiction due to lack of issuance and service of a writ of scire facias as fundamental error); see also Henson v. Estate of Crow , 734 S.W.2d 648, 649 (Tex. 1987) (take nothing judgment affirmed where plaintiff merely amended petition to sue estate but scire facias did not issue against legal representative who never appeared in suit); Futrell v. State & Cty. Mut. Ins. Co. , No. 05-95-01052-CV, 1996 WL 479555, at *4 (Tex. App.–Dallas Aug. 19, 1996, no writ) (not designated for publication) (judgment against heirs and legal representatives without service of scire facias or appearance of legal representative is against rule 152's requirement of scire facias).

Rule 152 does not restrict who may file a suggestion of death of a defendant by using the passive voice, "upon the suggestion of death being entered of record in open court," and specifically permits the adverse party-plaintiff to file it by the alternative, "or upon the petition of the plaintiff." See TEX. R. CIV. P. 152. It commonly occurs that someone other than the plaintiff or the legal representative of the deceased's estate files the suggestion of death, such as a relative or the deceased's attorney. See, e.g., DeGeorge v. Luedike/Fabel , No. 09-14-00517-CV, 2016 WL 1719118, at *1 n.1 (Tex. App.–Beaumont Apr. 28, 2016, no pet.) (mem. op.) (widow of defendant filed suggestion of death); Coven v. Dailey , 652 S.W.2d 527, 529 (Tex. App.–Austin 1983, writ ref'd n.r.e.) (deceased's counsel filed suggestion of death).

B. Suggestion of Death is not an Appearance

The Trustee argued to the trial court and on appeal that Holly's filing of a suggestion of her husband's death constitutes an appearance by Holly. The trial court specifically found it did not. We agree with the trial court. Because there are no factual disputes and the issue relates to the trial court's jurisdiction over Holly, we will use the standard of review for a jurisdictional issue that presents only a question of law: de novo review. See Searcy v. Parex Res., Inc. , 496 S.W.3d 58, 66 (Tex. 2016) (de novo standard of review of special appearance presenting only jurisdictional question of law) (citing Am. Type Culture Collection, Inc. v. Coleman , 83 S.W.3d 801, 805–06 (Tex. 2002) ).

In her brief, the Trustee generally asserts that for "over 100 years, Texas Courts have recognized that a person appears in a case by virtue of a suggestion of death." In support of this assertion, the Trustee cites two early 1900s Texas cases, one West Virginia case, and one Wisconsin case.⁴ None of these cases cited by the Trustee, however, concludes that filing a suggestion of death after the death of a defendant constitutes a general appearance by the person filing the suggestion of death.⁵ The Trustee does not cite any case law, nor have we located any, which stands for the proposition that a person appears in a case by filing a suggestion of death for a defendant.

We further note that the cases cited by the Trustee involve a suggestion of death filed upon the death of a plaintiff, not a defendant. See Parriss v. Jewell , 57 Tex.Civ.App. 199, 122 S.W. 399, 400 (1909, writ ref'd) (suggestion of death filed upon death of plaintiff); Mosley v. Parkersburg , 185 W.Va. 278, 406 S.E.2d 709, 713 (1991) (suggestion of death filed by defense counsel upon death of plaintiff); Schwister v. Schoenecker , 258 Wis.2d 1, 654 N.W.2d 852, 858 (2002) (suggestion of death filed upon death of plaintiff). Rule 151 governs when a plaintiff dies and rule 152 applies when a defendant dies. See TEX. R. CIV. P. 151, 152 ; Roper v. CitiMortgage, Inc. , No. 03-11-00887-CV, 2013 WL 6465637, at *16 (Tex. App.–Austin Nov. 27, 2013, pet. denied) (mem. op.). As stated above, rule 152 does not restrict who may file a suggestion of death but, upon its being entered, the "clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear." See TEX. R. CIV. P. 152 (emphasis added). Thus, the filing of the suggestion of death for a defendant cannot of itself be interpreted as a general appearance because the court is required to issue a scire facias requiring the administrator, executor or heir to appear on behalf of the deceased defendant. Rule 151, however, provides as follows:

If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name. If no such appearance and suggestion be made within a reasonable time after the death of the plaintiff, the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias for the heirs or the administrator or executor of such decedent, requiring him to appear and prosecute such suit. After service of such scire facias, should such heir or administrator or executor fail to enter appearance within the time provided, the defendant may have the suit dismissed.

See TEX. R. CIV. P. 151 (emphasis added). Under rule 151, an heir, administrator, or executor of the deceased plaintiff appears by filing a suggestion of death. Thus, rules 151 and 152 have different requirements for appearances based on whether the deceased party is a plaintiff or defendant. To the extent that the Trustee has provided case law only for the proposition a person appears in a case by virtue of filing a suggestion of death for a plaintiff, we find such precedent distinguishable and unpersuasive.

In this case, the trial court concluded that Holly's suggestion of her husband's death was filed solely for the purpose of notifying the trial court of Spencer's death. The Trustee argues that this characterization is contrary to Holly's own treatment of the pleading.⁶ The Trustee also...