Court of Appeals of Texas, Sixth District, Texarkana
IN RE VICTORIA COATS, INDEPENDENT EXECUTRIX OF THE ESTATE OF HOBART RUTHERFORD KEY, DECEASED
Submitted: June 26, 2019
Original Mandamus Proceeding
Morriss, C.J., Burgess and Stevens, JJ.
K. Burgess Justice
Rutherford Key passed away during the pendency of Debra
Sims' personal injury lawsuit against him. Counsel for
Key filed a suggestion of death, but a writ of scire facias
did not issue, and the estate representative was not
substituted in place of Key at that time. The case proceeded
to trial, and the jury returned a substantial verdict in
favor of Sims. Only days after the verdict was returned,
defense counsel filed a motion to dismiss the lawsuit on
behalf of "the deceased defendant." The trial court
denied the motion to dismiss and granted Sims' motion for
new trial. This original mandamus proceeding emanates from
(1) the trial court's denial of the defendant's
motion to dismiss the lawsuit and (2) the trial court's
grant of Sims' motion for new trial. Because the trial
court appropriately exercised its discretion in refusing to
dismiss the lawsuit and in granting a new trial, we deny the
September 2014, Sims sued Key for the recovery of damages she
sustained in an automobile accident. Key appeared and
defended the lawsuit. On April 20, 2018, Key's counsel
filed a suggestion of death, advising the trial court that
Key had died and requesting that the court name Key's
heir(s), his wife, or the administrator or executor of
Key's estate as the defendant and order that the suit
proceed in the representative's name. See Tex.
R. Civ. P. 152. A writ of scire facias was not issued, and
a representative of Key's estate was not substituted in
his stead at that time.
30, 2018, the trial court set the case for jury trial on
September 17, 2018, and the case proceeded to trial with Key
as the named defendant. On September 24, 2018, the jury
returned its verdict finding Key negligent in causing the
collision and awarding Sims substantial damages. Three days
later, on September 27, 2018, defense counsel filed a motion
to dismiss for lack of jurisdiction on behalf of the deceased
defendant. Counsel argued in the motion that the trial court
lacked jurisdiction over the suit because Sims did not name
the personal representative of Key's estate as the
defendant following Key's death. The trial court did not
enter judgment on the jury's verdict.
responded, asking the trial court to deny the motion to
dismiss and to enter judgment on the jury's verdict.
Alternatively, she asked the trial court to grant a new
trial. Sims also filed, on the same date, her application for
writ of scire facias, asking the court to issue the writ to
Victoria Coats, the independent executrix of Key's
estate. Following a hearing, the trial court (1) entered an
order directing the clerk to issue the writ of scire facias,
(2) entered an order denying the defendant's motion to
dismiss for lack of jurisdiction, and (3) granted the motion
for new trial. Coats, in her capacity as the independent
executrix of Key's estate, filed a petition for writ of
mandamus asking this Court to order the trial court to (1)
vacate its new trial order, (2) quash the writ of scire
facias, and (3) dismiss the suit.
Standard for Mandamus Relief
is an extraordinary remedy, and to be entitled to such
relief, a petitioner must show that the trial court clearly
abused its discretion and that the petitioner has no adequate
remedy by appeal. In re McAllen Med. Ctr., Inc., 275
S.W.3d 458 (Tex. 2008) (orig. proceeding). A trial court has
no discretion in determining what the law is or in applying
the law to the facts. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992) (orig. proceeding). It is Coats'
burden to show entitlement to the requested relief. See
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917
(Tex. 1985) (orig. proceeding). She must therefore show that
she seeks to compel a ministerial act not involving a
discretionary or judicial decision. See Walker, 827
S.W.2d at 837; In re Pilgrim's Pride Corp., 187
S.W.3d 197, 198-99 (Tex. App.-Texarkana 2006, orig.
trial court and in this mandamus proceeding, Coats claims
that the trial court lacked jurisdiction over the case after
Keys died and no estate representative was substituted in his
stead. She therefore claims that the trial court had no
choice but to dismiss the lawsuit. Coats further claims that
she has no adequate remedy by appeal because the new trial
order and the writ of scire facias were issued by a court
without jurisdiction to proceed. We disagree.
suggestion of death of a defendant notifies a trial court of
the fact that a defendant died." Hegwer v.
Edwards, 527 S.W.3d 337, 339 (Tex. App.-Dallas 2017, no
pet.). "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." Id.;
see Tex. R. Civ. P. 152. "Scire facias
not only abrogates the common-law rule that death abates
suit, but also provides for substitution of any person or
persons succeeding to the rights of the original party,
whether executor, administrator, heir, or person holding the
same practical relation." Estate of Pollack v.
McMurrey, 858 S.W.2d 388, 390 n.2 (Tex. 1993).
"[T]he revived action is merely a continuation of the
original action, and the substituted party stands in the same
shoes as the original party . . . ." Id. And,
when a defendant dies and no personal ...