Jose M. Portela and Sarita A. Smithee 2018-01-23 08:33:06
Does a party make a general appearance by filing a suggestion of death of a defendant? In a recent opinion, the 5th Court of Appeals in Dallas addressed an issue of first impression in Texas—whether a party makes a general appearance in a case simply by filing a suggestion of death of a co-defendant.1 THE SUGGESTION OF DEATH, GENERALLY In Texas, in order to preserve a claim by or against a decedent or a decedent’s estate when the death of a party occurs during the proceedings, the first step following the death is normally to enter a suggestion of death on the record, notifying the trial court and other parties of the death.2 Texas Rule of Civil Procedure 151 governs suits after the death of a plaintiff: 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 her name. If no such appearance and suggestion is 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 or her 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.3 Therefore, the only proper parties to appear and file a suggestion of death upon the death of a plaintiff are the decedent’s heirs, or the administrator or executor of the decedent’s estate, and those parties may be made parties plaintiff in the suit. Additionally, where a defendant does not apply for a writ of scire facias requiring the heirs to appear and prosecute the suit, a take-nothing judgment entered after the plaintiff’s death is voidable but not void, and a suit in the nature of a bill of review is the proper method to have a judgment set aside after term time and after the judgment becomes final. On the other hand, Rule 152 governs suits after the death of a defendant: Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, 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.4 The legal consequence of a suggestion of death under Rule 152 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.” Unlike Rule 151, Rule 152 places no limitations on who may file a suggestion of death after the death of a defendant. It specifically permits the adverse party-plaintiff to file it, and it commonly occurs that someone other than the plaintiff or the legal representative of the decedent’s estate files the suggestion of death, such as a relative or the decedent’s attorney. The question of first impression before the court in Hegwer v. Edwards was whether a co-defendant who filed a suggestion of death of a defendant pursuant to Rule 152 had made a general appearance and was not required to be served with process in the lawsuit. HEGWER V. EDWARDS The defendant in this lawsuit was the recent widow of a man who owned and controlled numerous companies through which he sold allegedly fictitious oil, gas, and pipeline investments. The plaintiff and his daughter, the trustee of his living trust, initially also sued the defendant’s husband and companies, in addition to the defendant, to recover the millions of dollars the plaintiff claimed to have invested. However, upon the untimely death of the defendant’s husband, the plaintiff voluntarily dismissed all his claims against him and his companies and elected to proceed solely against the defendant.5 The plaintiffs’ suit was filed on December 7, 2012. It was undisputed that only one of the corporate defendants was served with process. The defendant’s husband died on November 29, 2013. On January 16, 2014, the defendant filed a suggestion of death that informed the court of his death. On February 16, 2015, the 116th District Court of Dallas County called the case to trial. The same day, the plaintiffs also requested a post-appearance judgment nihil dicit against the defendant. The defendant’s counsel, who was present in the courtroom, advised the court that the defendant had not been served, entered an appearance, or answered. The trial court did not enter the plaintiffs’ proposed judgment and, instead, set the case for dismissal for want of prosecution on April 1, 2015. On February 18, 2015, the defendant filed her original answer. The case was called for a bench trial on August 24, 2015, and the trustee failed to introduce any evidence against the defendant. In its final judgment, the trial court ordered that the trustee take nothing by way of her claims against the defendant. The trial court also signed an order seven days later, denying the trustee’s request for post-appearance judgment nihil dicit. The trustee appealed both orders, largely on the ground that the defendant had generally appeared in the case when she filed a suggestion of death, so any later answer was untimely. The resolution of trustee’s appeal, and whether the trustee was entitled to judgment nihil dicit, turned squarely on the issue of whether the defendant generally appeared when she filed the suggestion of death. This presented an issue of first impression in Texas. POST-APPEARANCE JUDGMENT NIHIL DICIT Nihil dicit literally means “he says nothing” and carries a harsher penalty than a default judgment. The trustee alleged that the defendant had appeared when she filed her suggestion of death, but did not file an answer, entitling the trustee to a judgment nihil dicit. This issue turned squarely on whether the defendant generally appeared when she filed the suggestion of her husband’s death. A SUGGESTION OF DEATH DOES NOT CONSTITUTE A GENERAL APPEARANCE The trustee argued to the trial court, and on appeal, that the defendant’s filing of a suggestion of death constituted an appearance by the defendant. However, neither the trustee nor the appellate court was able to find any authority for the proposition that a person appears in a case by filing a suggestion of death for a defendant, as opposed to a plaintiff. Rule 151, rather than Rule 152, governs when a plaintiff dies. Under Rule 151, an heir, administrator, or executor of the deceased plaintiff appears by filing a suggestion of death. However, 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.”6 Thus, the filing of the suggestion of death for a defendant could not 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. Furthermore, the Texas Supreme Court in Exito Elec. Co. v. Trejo provided specific indicators of when a party enters a general appearance. A party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.7 Here, the defendant’s filing of the suggestion of death did no more than tacitly acknowledge that information about her husband’s death must be provided to the court; she did not agree to provide additional information, seek additional assistance from the court, or agree to be subject to orders of the court. Therefore, the suggestion of death did not constitute a general appearance, nor was the defendant’s answer untimely filed. The trial court’s judgment was affirmed. Under this ruling, while it is not advisable for a party to file any papers or pleadings with the court unless that party is intending to appear in the case, a suggestion of death of a defendant under Rule 152 may, in some circumstances, be added to the very limited class of pleadings that can be filed without making an appearance. NOTES 1) Hegwer v. Edwards, No. 05-15-01464-CV, 2017 WL 1075608 (Tex. App.—Dallas Mar. 22, 2017, no. pet. h.). 2) See Texas Rules of Civil Procedure 151, 152. 3) Tex. R. Civ. P. 151. 4) Tex. R. Civ. P. 152. 5) By the time the case reached appeal, the trustee was the sole plaintiff. 6) See Tex. R. Civ. P.152 (emphasis added). 7) Exito Elec. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). JOSE M. PORTELA is a partner in the Beckham Group, a civil trial law firm, where he focuses on complex commercial litigation. He has litigated cases in multiple areas, including business disputes; breach of contract; and accounting and attorney malpractice, fraud, defamation, unfair competition, and employment disputes. He can be reached at firstname.lastname@example.org. SARITA A. SMITHEE is an associate of the Beckham Group, where she focuses on complex commercial litigation. She can be reached at email@example.com.
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