Court of Appeals of Texas, Fifth District, Dallas
ELLEN R. HEGWER, AS TRUSTEE OF THE RAY HEGWER LIVING TRUST A/K/AHEGWER LIVING TRUST, Appellant
HOLLY EDWARDS A/K/A HOLLY RUTH EDWARDS A/K/A HOLLY RUTH RAINES, Appellee
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-12-14298.
Justices Bridges, Evans, and Schenck
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
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.
died on November 29, 2013. On January 16, 2014, Holly filed a
suggestion of death that informed the court of Spencer's
February 16, 2015, the trial court called the case to
trial. 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." 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.
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.
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.
Suggestion of Death
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. 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).
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
Suggestion of Death is not an Appearance
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 ...