Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
JUDITH ANN NEUSE AND ALL OCCUPANTS OF 2115 ICHBOD LN, EDINBURG, TEXAS 78539 Appellants,
NATIONSTAR MORTGAGE, LLC D/B/A CHAMPION MORTGAGE COMPANY, Appellee.
appeal from the County Court at Law No. 8 of Hidalgo County,
Chief Justice Valdez and Justices Contreras and Hinojosa
October 26, 2017, this Court issued an Order of Abatement and
ordered the trial court to conduct a hearing and make and
file appropriate findings of fact and conclusions of law.
November 28, 2017, the Clerk of this Court sent
correspondence to the trial court inquiring as to the status
of the findings and conclusions.
date, no findings and conclusions have been filed.
February 13, 2018, appellee NationStar Mortgage, LLC d/b/a
Champion Mortgage Company filed a motion to dismiss the
appeal for want of prosecution. As this case is currently
under abatement, this Court is not in a position to entertain
appellee's motion to dismiss. Appellee's impatience
with the case has been registered with the Court, and its
attempt to stymie appellant's attempt to invoke appellate
review, its filing of a motion to dismiss while this case is
under abatement, and its failure to appreciate the
jurisdictional concerns expressed in the abatement order, as
further detailed below, are looked upon with disfavor.
appellee's motion to dismiss, it appears that appellee
believes that this Court's October 26, 2017 Order of
Abatement placed the onus on appellant to initiate a hearing
in the trial court and that this Court is solely concerned
with appellant's standing to proceed pro se.
Appellee misapprehends this Court's order of abatement.
onus to initiate the hearing was placed on the trial court.
Moreover, this Court is not only concerned with its
jurisdiction, but also that of the lower courts.
"Appellate court jurisdiction over the merits of a case
extends no further than that of the court from which the
appeal is taken." Ward v. Malone, 115 S.W.3d
267, 269 (Tex. App.-Corpus Christi 2003, pet. denied);
see also Hopes v. Buckeye Retirement Co., LLC, No.
13-07-00058-CV, 2009 WL 866794, at *1 (Tex. App.-Corpus
Christi Apr. 2, 2009) (mem. op.). Therefore, if the lower
courts lacked jurisdiction, we may only set aside the
judgments and dismiss the case. Ward, 115 S.W.3d at
269. As part of this Court's check on its and the lower
courts' jurisdiction, we must know whether Judith Ann
Neuse was alive at the time judgments were rendered against
her in the justice court and the county court at law.
law provides that a decedent may not sue or be sued. See
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849
(Tex. 2005) (noting that a decedent's estate is not a
legal entity and may not properly sue or be sued as such);
see also Tex. R. Civ. P. 152 (providing that upon
notice of the death of the defendant the clerk shall issue a
scire facias for the administrator or executor or heir
requiring him to appear and defend the suit and upon the
return of such service, the suit shall proceed against such
administrator or executor or heir). Moreover, the Texas
Estates Code allows a creditor to initiate probate
proceedings in order to create an estate administration and
for the appointment of an administrator to serve as a proper
defendant. Compare Tex. Est. Code Ann. §
22.018(1) (defining interested person to include a creditor)
with § 301.051 (authorizing an interested
person to apply for letters of administration) (West, Westlaw
through 2017 1st C.S.).
Court respectfully requests that the trial court comply with
the provisions of its October 26, 2017 Order of Abatement. As
an added measure to ensure that this Court's order of
abatement is followed and this case proceeds as expeditiously
as possible, the Court LIFTS THE ABATEMENT for the limited
purpose of ordering that:
• the trial court shall convene the hearing as soon as
• all counsel and pro se parties must attend
the hearing in person and telephonic attendance is
• proposed findings of fact and conclusions of law, as
discussed in our abatement order, and any briefing that the
parties deem necessary shall be filed with the trial court