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In re Coats

Court of Appeals of Texas, Sixth District, Texarkana

June 27, 2019

IN RE VICTORIA COATS, INDEPENDENT EXECUTRIX OF THE ESTATE OF HOBART RUTHERFORD KEY, DECEASED

          Submitted: June 26, 2019

          Original Mandamus Proceeding

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          Ralph K. Burgess Justice

         Hobart 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 requested relief.

         I. Background

         In 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.[1] A writ of scire facias was not issued, and a representative of Key's estate was not substituted in his stead at that time.

         On July 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.

         Sims 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.

         II. Standard for Mandamus Relief

         Mandamus 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. proceeding).

         III. Analysis

         In the 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.[2] 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.

         "A 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 ...


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