In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00228-CV
___________________________
YEOUNG JIN KIM (YEON JIN KIM) AS HEIR, REPRESENTATIVE AND/OR
EXECUTOR OF THE ESTATE OF DEOUNG H. KIM, Appellant
V.
ALBERT KIM, Appellee
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 18-7051-431
Before Sudderth, C.J.; Gabriel and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
The issues in this case turn on one question: whether a party must be given
notice before a trial court dismisses her claims for want of prosecution or renders a
default judgment against her after an answer has been filed. We hold that such notice
is required. Accordingly, the trial court abused its discretion by not setting aside the
default judgment in favor of Appellee Albert Kim (Plaintiff) and by not reinstating the
counterclaims of Appellant Yeoung Jin Kim (alternatively spelled Yeon Jin Kim) as
Heir, Representative, and/or Executor of the Estate of Deoung H. Kim. We reverse
the trial court’s judgment and remand this case for further proceedings.
Background
In August 2018, Plaintiff sued Deoung H. Kim (Defendant) for claims related
to the sale of a business in Flower Mound, Texas. In September 2018, Defendant filed
an answer and counterclaims. On November 9, 2018, Plaintiff filed a Suggestion of
Death asserting that Defendant had died the month before, on October 12, 2018.
On November 30, 2018, Plaintiff filed a “Second Amended Unopposed
Motion for Scire Facias Substitution” requesting that the court clerk, in accordance
with Texas Rule of Civil Procedure 152, issue scire facias ordering Substituted
Defendant “to come forth and defend this lawsuit as Heir, Representative,
Administrator and/or Executor” of Defendant. See Tex. R. Civ. P. 152. The motion
stated that “Defendant’s counsel [Jason Choe] has been apprised of this motion, and
on November 30, 2018, stated that they ‘do not oppose, but do not join in the
2
motion.’ Thus, the motion is unopposed.” However, the motion contained no
indication that Defendant’s attorney—who, by Defendant’s death, no longer
represented Defendant—had the authority to represent Substituted Defendant. See
Bevers v. Brodbeck, No. 07-04-0475-CV, 2006 WL 2795347, at *3 n.6 (Tex. App.—
Amarillo Sept. 29, 2006, pet. denied) (mem. op.) (noting that “death of an attorney’s
client terminates the attorney-client relationship, and with it the attorney’s authority to
appear on behalf of the client”); see also Gurkoff v. Jersak, No. 2-07-101-CV,
2008 WL 1700126, at *4 n.3 (Tex. App.—Fort Worth Apr. 10, 2008, no pet.) (mem.
op.). The trial court granted the motion and ordered that Substituted Defendant be
substituted as the defendant in the suit. It further ordered the clerk to issue citation
for service to Substituted Defendant and “provide said citation to Plaintiff for service
of process.” See Tex. R. Civ. P. 154 (requiring a scire facias to conform to the rule for
citations).
Plaintiff served Substituted Defendant with the scire facias on January 31, 2019,
approximately three months after her husband’s death. In accordance with the rules
for citations, the scire facias stated,
Notice to defendant: You have been sued. You may employ an
attorney. If you, or your attorney, do not file a written answer with
the clerk who issued this citation by 10:00 a.m. on the first Monday
following the expiration of twenty days after you were served this
citation and petition, a default judgment may be taken against
you.
WHEREAS, in the 431st Judicial District Court, Denton County,
Texas, a suggestion of death of the defendant, Deoung H. Kim, has been
3
entered of record in the above styled and numbered cause and it
appearing that Yeoung Jin Kim a/k/a Yeon Jin Kim, is the
executor/executrix or administrator or heir of the estate of said decedent
and said suit shall proceed against such administrator,
executor/executrix or heir.
THEREFORE, you are required to appear by filing a written answer
with the clerk of the 431st Judicial District Court, at the courthouse of
Denton County, Denton TX at or before 10:00 a.m. on the first Monday
following the expiration of 20 days from the date of service and defend
the said suit. A copy of Plaintiff’s petition and suggestion of death
accompanies this citation.
See Tex. R. Civ. P. 99, 154. The scire facias made no mention of Defendant’s
counterclaims or any obligation of Substituted Defendant to appear and prosecute
them to avoid their dismissal for want of prosecution.
Substituted Defendant did not file any response in the trial court. Accordingly,
on March 22, 2019, Plaintiff filed “Plaintiff’s Motion for Default Judgment and
Motion to Dismiss Defendant’s Counterclaims for Want of Prosecution.” The motion
stated that “[u]nder Texas Rule of Civil Procedure 239, a trial court may render a
default judgment on the pleadings against a defendant who fails to answer” and
requested that the trial court render a default judgment against Substituted Defendant.
The motion further stated, in the only part of the motion addressing Plaintiff’s right
to dismissal of the counterclaims, “As the Substituted Defendant has failed to appear,
Defendant’s counterclaims should be dismissed for want of prosecution.”
Service of the default judgment motion was made on Substituted Defendant on
March 26, 2019, by leaving the motion at her place of business. On the same date, the
trial court sua sponte granted the motion, dismissing the counterclaims and ordering
4
that Plaintiff recover $100,000 in actual damages; $200,000 as treble damages under
the Deceptive Trade Practices Act; and attorney’s fees of $17,025.63. Substituted
Defendant became aware of the judgment on April 1, 2019.
Substituted Defendant then filed a motion to set aside the default judgment
and to reinstate the counterclaims. The trial court denied the motion after a hearing.
On Substituted Defendant’s request, the trial court made findings of fact and
conclusions of law, including the following conclusions:1
3. Pursuant to TEX. R. CIV. P. 152, the Court issued scire facias
requiring Substitute Defendant, as administrator, executor[,] or heir of
Defendant, to appear and defend the suit.
4. TEX. R. CIV. P. 152 is explicit in its requirement that the
administrator/executor/heir must appear and defend the suit.
5. In granting Plaintiffs motions for default judgment and
dismissal of Defendant’s Counterclaims without notice of a hearing date
to Substitute Defendant, no due process concerns of Substitute
Defendant were implicated. Where a defendant fails and, as was the case
with Substitute Defendant in this case, intentionally fails to make an
appearance despite the requirement of TEX. R. CIV. P. 152 to do so,
Substitute Defendant is not entitled to notice and hearing prior to the
entry of a default judgment. Substitute Defendant’s due process rights
were not violated.
1
The trial court found that Substituted Defendant did not make an appearance
in the case prior to judgment and that her failure to make an appearance prior to the
entry of default judgment was not the result of accident or mistake and was the result
of conscious indifference. The trial court further found that “Substitute[d] Defendant
proffered no good excuse for having failed to make an appearance from January 31,
2019 to April 24, 2019,” impliedly finding that the recent death of Substituted
Defendant’s husband was not a good excuse for failing to appear prior to the trial
court’s March 26 rendition of judgment.
5
6. Substitute Defendant cited non-controlling authority in support
of her argument that the answer of the original defendant inures to the
benefit of the substituted defendant after scire facias. This Court does
not decide this issue as it does not control the outcome of this case.
Even assuming this Court were to accept Substitute Defendant’s
argument, this would at most mean only that the substituted defendant
need not file an answer. Even assuming arguendo that Defendant’s
answer inured to the benefit of Substitute Defendant, this would not
absolve Substitute Defendant from the requirement of making an
appearance in the case, as set forth in TEX. R. CIV. P. 152. Even
assuming arguendo that Defendant’s answer inured to the benefit of
Substitute Defendant, Defendant’s appearance nonetheless did not inure
to Substitute Defendant’s benefit. Substitute Defendant was required to
make her own separate appearance in the case following service of the
citation for scire facias, and failed to do so.
7. “No-answer” default judgments are generally not proper after
the defendant has made an appearance, but in this case Substitute
Defendant made no appearance prior to the entry of default judgment
and entry of a “no-answer” default judgment was, therefore, proper.
Where a Defendant has answered, but later dies before judgment, and a
citation for scire facias is issued and subsequently served on a Substitute
Defendant, failure of the Substitute Defendant to make an appearance in
the case in a timely manner as prescribed by law and TEX. R. CIV. P.
152 permits the Court to issue what is commonly referred to as a “no-
answer” default judgment. Alternatively, and as a separate and
independent basis for the Court’s judgment, the Court concludes that it
had the inherent power to grant default judgment under the facts of this
particular case.
8. For these reasons, the Court denies Substitute Defendant’s
Motion to Set Aside Default Judgment and for New Trial.
9. TEX. R. CIV. P. 151 controls the situation arising from the
death of a plaintiff and states that “. . . 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 suit the dismissed.”
10. As the Defendant raised counterclaims, Defendant is also
properly characterized as a Counter-Plaintiff. TEX. R. CIV. P. 151, thus,
applies to Counter-Plaintiffs claims, e.g., his counter-claims.
6
11. As this Court has held that Substitute Defendant failed to
timely make an appearance, the Counter-Defendant (Plaintiff Albert
Kim) may have the Counter-Plaintiff’s suit (counterclaims) dismissed
pursuant to TEX. R. CIV. P. 151.
12. The Court, thus, holds that it was proper to dismiss the
counterclaims in this action due to Substitute Defendant’s failure to
comply with TEX. R. CIV. P. 151. Alternatively, and as a separate and
independent basis for the Court’s judgment, the Court concludes that it
had the inherent power to dismiss the counterclaims under the facts of
this particular case.
13. Accordingly, the Court denies Substitute Defendant’s Motion
to Reinstate the Counterclaims.
Substituted Defendant now appeals.
Standard of Review
We review for abuse of discretion a trial court’s refusal to set aside a default
judgment and a trial court’s dismissal for want of prosecution and denial of a motion
to reinstate. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Anambra
State Cmty. in Houston, Inc. (ANASCO) v. Ulasi, No. 14-16-01001-CV,
2018 WL 1611644, at *1 (Tex. App.—Houston [14th Dist.] Apr. 3, 2018, no pet.)
(mem. op.). A trial court abuses its discretion if it acts without reference to any
guiding rules or principles, Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004), or if it fails to analyze the law
correctly or misapplies the law to established facts. In re Dawson, 550 S.W.3d 625,
628 (Tex. 2018); Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). A trial court’s erroneous
7
legal conclusion, even in an unsettled area of law, is an abuse of discretion. In re United
Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex. 2010) (orig. proceeding).
Discussion
I. The trial court’s grant of default judgment was improper, and the court
abused its discretion by refusing to set it aside.
In her first issue, Substituted Defendant challenges whether the trial court’s
findings of facts are legally and factually supported by the record and whether its
conclusions of law are proper legal analysis given (1) “the entirety of all the
circumstances,” (2) “the limited underlying record of evidence,” (3) “the [t]rial
[c]ourt’s erroneous determination that it granted a no[-]answer default judgment when
it granted default judgment post-answer,” and (4) “the fact that [Substituted
Defendant]’s claims were [dismissed for want of prosecution] and [Kim] was given
[d]efault [j]udgment without notice to Appellant.” In her second issue, she asserts
that “the [t]rial [c]ourt erred, abused its discretion, and/or violated United States
and/or Texas law—including the 14th Amendment [r]ight to [d]ue [p]rocess of [l]aw”
by granting Plaintiff’s motion for post-answer default judgment despite Substituted
Defendant’s (1) not being provided any notice of pending default, (2) not receiving
the motion until the day the trial court granted the default, (3) not being ordered to
“appear” by the trial court, and (4) satisfying the Craddock factors. We address
together her second issue and the part of her first issue related to the default
judgment.
8
A suggestion of death of a defendant notifies a trial court that the party has
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”—the deceased party “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.
Texas Rule of Civil Procedure 152 provides the mechanism for bringing the
deceased’s legal representative into the suit:
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.
Tex. R. Civ. P. 152.
A scire facias issued under Rule 152 does not begin a new action,2 but rather
“is ‘a process in the nature of an ordinary citation to an action previously instituted.”’
Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 911 n.9 (Tex. App.—
Houston [14th Dist.] 2016, no pet.) (quoting Clark v. Turner, 505 S.W.2d 941,
945 (Tex. App.—Amarillo 1974, no writ)). The legal representative substituted as
defendant in the action stands in the shoes of the deceased defendant, and as such, if
For a history of Texas’s use of scire facias for this purpose, see Boone v. Roberts,
2
1 Tex. 147, 157–58 (1846) and Chaffin v. Wm. J. Lemp Brewing Co., 248 S.W. 715, 717–
18 (Tex. App.—El Paso 1923, no writ); see also John E. Quarles Co. v. Lee, 58 S.W.2d 77,
79 (Tex. [Comm’n Op.] 1933).
9
a deceased defendant had filed an answer in the case, that answer inures to the benefit
of the substituted defendant, and the substituted defendant need not file another. Id.;
Gripon’s Estate v. Bostick, 610 S.W.2d 541, 542 (Tex. App.—Houston [1st Dist.] 1980,
no writ); Clark, 505 S.W.2d at 945; Pewther’s Estate v. Holland Page Indus., Inc.,
443 S.W.2d 392, 393, 395–96 (Tex. App.—Austin 1969, writ ref’d n.r.e.) (stating that
the deceased’s answer inures to the benefit of a defendant substituted by scire facias
and that as such, the writ of scire facias issued for the defendant’s representative
“should command the person to whom it is directed to ‘appear and defend’ the suit
described in the writ rather than to appear by filing a written answer”); see also Estate of
Pollack v. McMurrey, 858 S.W.2d 388, 394 n.2 (Tex. 1993) (Gonzalez, J., concurring).
Because an answer is on file, a trial court may not grant a no-answer default judgment,
even if the substituted defendant does not file a separate answer or otherwise make an
appearance. See Pewther’s Estate, 443 S.W.2d at 393, 396; see also Maxx Builders, LLC v.
Story, No. 01-15-00850-CV, 2016 WL 3544495, at *2 (Tex. App.—Houston [1st Dist.]
June 28, 2016, no pet.) (mem. op.) (providing that a trial court cannot render a no-
answer default judgment against a defendant who has filed an answer).
Here, the trial court concluded that Rule 152 authorizes a no-answer default
judgment on the basis that Substituted Defendant had not made an appearance of
some sort. The trial court’s conclusion was erroneous. Rule 152 does not mention
default judgments, and under long-established law, the trial court could not properly
grant a no-answer default judgment. See Pewther’s Estate, 443 S.W.2d at 396; see also
10
Estate of Pollack, 858 S.W.2d at 394 (Gonzalez, J., concurring) (stating that “[i]f the
deceased’s legal representatives fail to file new pleadings, they are deemed to have
adopted the pleadings filed by and on behalf of the deceased” and that because there
was an answer on file in the case, “the trial court should not have rendered a default
judgment” against the deceased’s estate); Gillespie v. Thomas, No. 05-99-00168-CV,
2000 WL 62289, at *1 (Tex. App.—Dallas Jan. 26, 2000, no pet.) (not designated for
publication) (holding that the trial court erred by entering a default judgment on the
basis that defendant substituted by scire facias had not filed a separate answer).
We point out, however, that although the trial court characterized the judgment
rendered as a no-answer default judgment, because an answer was on file, the trial
court rendered “what is in effect a post-answer default judgment.” See Estate of Pollack,
858 S.W.2d at 395 (Gonzalez, J., concurring). “Judgment after a post-answer default
‘cannot be entered on the pleadings, but, rather, a plaintiff must offer evidence and
prove his case as in a judgment on trial,’” and “[b]efore entering a post-answer default
judgment, the trial court must hold a hearing on the plaintiff’s evidence, and the
defendant must be given notice of the hearing.” Maxx Builders, 2016 WL 3544495, at
*2. “A party that has filed an answer is entitled to notice of the trial setting as a matter
of due process under the Fourteenth Amendment to the United States Constitution.”
Tunad Enters., Inc. v. Palma, No. 05-17-00208-CV, 2018 WL 3134891, at *4 (Tex.
App.—Dallas June 27, 2018, no pet.) (mem. op.) (citing In re K.M.L., 443 S.W.3d 101,
118–19 (Tex. 2014) and LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–
11
91 (Tex. 1989) (per curiam)). Substituted Defendant had no notice before the trial
court granted the post-answer default judgment, and the default judgment therefore
should not have been granted. See id.; see also Maxx Builders, 2016 WL 3544495, at *2;
In re K.B.A., 145 S.W.3d 685, 692 (Tex. App.—Forth Worth 2004, no pet.) (stating
that when a party received no notice of the trial setting at which a post-answer default
judgment was granted, the party is entitled to a new trial); Gripon’s Estate, 610 S.W.2d
at 541–42 (reversing default judgment rendered after substitution of defendant by
scire facias).
Plaintiff attempts to distinguish several cases relied on by Substituted
Defendant in her brief and in the trial court. He argues that Pewther’s Estate does not
control because it was based on a now-repealed rule of civil procedure and on a
disapproved case that relied on the same rule. 3 Part of Pewther’s Estate rests on the
repealed rule of civil procedure relating to trial settings, but the opinion’s statements
about the adoption of previously-filed pleadings by a legal representative does not.
Plaintiff “does not dispute that, once a scire facias defendant appears in a case,
the deceased defendant’s answer inures to her benefit.” However, citing Pewther’s
Estate and Hegwar, he asserts that a substituted defendant must make an appearance
before the deceased defendant’s answer works to prevent a no-answer default
Plaintiff notes that the part of the cited case that was later disapproved by the
3
Texas Supreme Court is not the part relied on by the Pewther’s Estate court, but he
argues—without explaining why—that the disapproval is “nonetheless informative.”
12
judgment. See Pewther’s Estate, 443 S.W.2d at 395 (“If the appellant had been accorded
his right to appear and defend this suit, it would certainly be held that he adopted the
answer of his decedent.”). We disagree. In Pewther’s Estate, the opinion indicates that
the default judgment was granted before the defendant’s legal representative made an
appearance, and the court of appeals stated that “the default judgment cannot stand
since there was an answer, timely filed, before the [trial court] when the default
judgment was taken” and that “the answer of the decedent inures to the benefit of his
legal represented and prevented a valid judgment by default under the facts of this
case.” Id. at 393. The part of Hegwar cited by Plaintiff addressed whether the filing of
the suggestion of death for a defendant by the deceased defendant’s legal
representative can be interpreted as a general appearance. Hegwer, 527 S.W.3d at 340.
The court of appeals held that the suggestion of death is not a general appearance.
The court pointed out that under Rule 152, when a suggestion of death has been filed,
the court must issue a scire facias requiring the legal representative to appear on
behalf of the deceased defendant—an unnecessary act if the filing of the suggestion of
death itself constituted an appearance. Neither case stands for the proposition
asserted by Plaintiff.
Plaintiff argues that a no-answer default judgment was proper because “[t]he
command to appear and defend cannot reasonably be read as a command to do
nothing.” He further asks us to graft words onto Rule 152, arguing that because Rule
151, the rule governing the substitution of a plaintiff by scire facias, allows for the
13
dismissal of a deceased plaintiff’s claims when the deceased plaintiff’s legal
representative fails to make an appearance within the time provided in the scire facias,
“it stands to reason that [Plaintiff] should likewise be able to obtain a default
judgment against [Substituted Defendant] due to her failure to appear after receiving
service of scire facias.” Although we decline Plaintiff’s invitation to add words to Rule
152, we do not hold that Plaintiff was prohibited by the law related to scire facias
from obtaining a default judgment. However, because an answer was on file, in order
to take a default judgment, Plaintiff had to comply with the requirements for post-
answer default.
In summary, a legal representative substituted under Rule 152 for a deceased
defendant stands in the shoes of the deceased. Thus, if the deceased defendant filed
an answer before his or her death, the plaintiff is not entitled to a no-answer default
judgment. Rule 152 does not prohibit the taking of a post-answer default judgment,
but the law requires notice and an opportunity to be heard before the trial court may
grant a post-answer default judgment. No notice or hearing was provided here, the
granting of the default judgment was improper, and the trial court abused its
discretion by denying Substituted Defendant’s motion for new trial. We sustain
Substituted Defendant’s second issue and the part of her first issue addressing the
default judgment.
14
II. Rule 151 did not permit the dismissal of the counterclaims without
notice.
In her third and final issue, Substituted Defendant challenges whether “the
[t]rial [c]ourt erred, abused its discretion, and/or violated United States and/or Texas
law—including the 14th Amendment [r]ight to [d]ue [p]rocess of [l]aw”—by granting
Plaintiff’s motion for dismissal for want of prosecution. The trial court concluded that
its dismissal of the counterclaims without notice was proper under both Rule 151 and
the court’s inherent authority. Rule 151 provides,
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 their name. If no such appearance and suggestion be 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 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.
Tex. R. Civ. P. 151.
Substituted Defendant points out that Plaintiff’s dismissal motion did not
assert any basis for having the counterclaims dismissed, stating only that “[a]s the
Substituted Defendant has failed to appear, Defendant’s counterclaims should be
dismissed for want of prosecution.” She asserts that the trial court could only have
dismissed her counterclaims under its inherent authority or Rule of Civil Procedure
165a and that either basis required notice. Construing her argument to assert that Rule
15
151 does not provide any procedure for dismissing a plaintiff’s claims and that the law
governing dismissal of plaintiff’s claims requires notice and a hearing, 4 we agree. Rule
151 does not set out a specific procedure or rules that must be followed when seeking
dismissal of a plaintiff’s claims when the deceased plaintiff’s legal representative has
been served with scire facias but has not appeared and prosecuted the plaintiff’s
claims. However, every person is entitled to the constitutional protection of due
process, and a fundamental requirement of due process is “notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.” Armstrong v.
Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 1190 (1965) (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct., 652, 657, (1950)); see also Peralta
v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899 (1988); Trans-State Pavers,
Inc. v. Haynes, 808 S.W.2d 727, 735 (Tex. App.—Beaumont 1991, writ denied); Barton
v. Pac. Emp. Indem. Co., 532 S.W.2d 128, 131 (Tex. App.—Corpus Christi 1975, writ
ref’d n.r.e.) (Nye, J., concurring) (noting that every person is entitled to due process of
law and there cannot be due process without proper notice).
4
Plaintiff argues that “[a] Rule 151 dismissal is not technically a dismissal for
want of prosecution—at least not as that term i[s] used in the case law.” However,
Plaintiff specifically requested that the trial court grant a dismissal of the
counterclaims for want of prosecution. If Plaintiff does not consider a dismissal under
Rule 151 to be one for want of prosecution, then Plaintiff’s motion cannot be
construed as seeking dismissal under Rule 151.
16
Due process thus requires notice before a plaintiff’s claims are dismissed in a
final judgment, Armstrong, 380 U.S. at 550, 85 S. Ct. at 1190; Smith v. McKee,
145 S.W.3d 299, 302 (Tex. App.—Fort Worth 2004, no pet.), and a trial court “may
not dismiss on any ground other than those for which it gave notice of an intent to
dismiss.” Sellers v. Foster, 199 S.W.3d 385, 391 (Tex. App.—Fort Worth 2006, no pet.).
Neither Rule 151 nor a trial court’s inherent powers authorizes a trial court to deprive
a litigant of due process.
The scire facias issued here complied with the rules for citations and informed
Substituted Defendant that she had been sued and could face a default judgment if she
did not defend the claims against her. It said nothing about the counterclaims and did
not inform her that the claims could be dismissed under either Rule 151 or the trial
court’s inherent power if she failed to appear and prosecute them. See id. She therefore
never received any notice that she needed to take action to prevent dismissal of the
counterclaims. Consequently, the dismissal deprived Substituted Defendant of due
process.
Plaintiff argues that Rule 151 does not require notice before dismissal because
“notice of the need to ‘enter appearance’ has already been provided when the
deceased plaintiff’s administrator, executor, or heir was served with the writ of scire
facias.” However, as we note, the scire facias did not inform Substituted Defendant of
the need to appear to prevent dismissal of the counterclaims or that the trial court was
considering dismissing her claims for want of prosecution.
17
Our holding here is narrowly applied to the particular facts of this case and the
application of the civil procedure rules to those facts. Rule 151 states that if a plaintiff
dies, then at the defendant’s request, the clerk must issue a scire facias for the
deceased plaintiff’s legal representative “requiring him [or her] to appear and prosecute
such suit.” Tex. R. Civ. P. 151 (emphasis added). The defendant may have the suit
dismissed if the legal representative fails to appear within the time provided after
service of “such scire facias”—that is, after the scire facias requiring the legal
representative to “appear and prosecute” the suit. Id. Notwithstanding the language of
Rule 151, however, Rule 154 states, “The scire facias and returns thereon, provided
for in this section, shall conform to the requisites of citations and the returns thereon,
under the provisions of these rules,” with no separate requirements for substituting
plaintiffs and defendants. Tex. R. Civ. P. 154. The rule governing citations requires a
citation to contain a specific notice to the defendant, including notice that the defendant
must appear by a specific date or face default. Tex. R. Civ. P. 99(c). The rule does not
require a citation to contain any notice to a plaintiff requiring the plaintiff to appear
and prosecute his or her claims. Thus, a scire facias that conforms strictly to the
requisites of Rule 99, as Rule 154 indicates it should, does not direct a plaintiff’s legal
representative to appear and prosecute the suit, as Rule 151 says it should. The record
does not disclose what the district clerk of Denton County usually includes in a scire
facias issued to a deceased plaintiff’s legal representative. What we do know is that the
scire facias here, in conformity with Texas Civil Procedure Rule 99 and Rule 154, did
18
not notify Substituted Defendant that she had an obligation to appear and prosecute
the counterclaims within a specified time.
We need not and do not decide exactly what the contents of a scire facias
issued under Rule 151 must include, whether one must strictly conform to Rule
99 (and inform a substituted plaintiff they he or she has been sued and must appear
and defend), or whether a clerk should modify the language when substituting a
plaintiff. However, we do hold that before a defendant may seek dismissal under Rule
151, the substituted plaintiff—like any other plaintiff—must have notice that her
claims will be dismissed if she fails to appear and prosecute the deceased plaintiff’s
claims. There was no such notice here.
As we noted above, parties substituted by scire facias stand in the shoes of
those they replace. Estate of Pollack, 858 S.W.2d at 390 n.2 (“Logically, the revived
action is merely a continuation of the original action, and the substituted party stands
in the same shoes as the original party, whatever that may have been.”). We therefore
assume for purposes of this opinion that the scire facias issued was sufficient to
substitute Substituted Defendant as both defendant and counter-plaintiff, even
though the scire facias issued by the clerk did not warn Substituted Defendant that
she must prosecute that counterclaims, Plaintiff’s motion for scire facias did not
request that scire facias issue to substitute her as counter-plaintiff, and the trial court’s
order on substitution stated only that she had been substituted as a defendant.
However, even if the scire facias was not sufficient to substitute Substituted
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Defendant as counter-plaintiff, our result would be the same 5 because in that case
Plaintiff could not seek dismissal of the counterclaims under Rule 151, and the
dismissal could only be upheld if it was proper under the trial court’s inherent
authority. We have already held that it was not. Because Substituted Defendant was
entitled to notice of the trial court’s intent to dismiss her counterclaims, but she
received none, the trial court’s dismissal of her claims deprived her of due process.
Generally, “[t]he failure to provide adequate notice of the trial court’s intent to
dismiss for want of prosecution requires reversal.” Villarreal v. San Antonio Truck &
Equip., 994 S.W.2d 628, 630 (Tex. 1999). Courts of appeals, however, have held that
in some cases due process concerns are obviated if the trial court holds a hearing on
the plaintiff’s motion to reinstate at which “the dismissed party . . . receives the same
hearing with the same burden of proof it would have had before the order of
5
Of course, if the scire facias did not replace Substituted Defendant as the
counter-plaintiff, that situation would raise the interesting question of to whom notice
of the trial court’s intent to dismiss should have been given: the original counter-
plaintiff is deceased, the deceased counter-plaintiff’s attorney therefore no longer
represents the original counter-plaintiff, and no legal representative has been
substituted. But see Gracey v. West, 422 S.W.2d 913, 914–15 (Tex. 1968) (noting that the
trial court provided notice of its intent to dismiss by placing the case on its dismissal
docket, which warned that the cases listed on the docket would be dismissed on a
certain date “unless written motion stating good reasons why same should remain on
the docket” was filed by a week before the dismissal date, and the docket was posted
in various public places in the courthouse and given to the Daily Court Review for
publication). That question, however, is not before us. Notice is required before trial
court renders judgment dismissing a plaintiff’s claims, and none was provided.
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dismissal was signed.” Sellers, 199 S.W.3d at 396; Franklin v. Sherman Indep. Sch. Dist.,
53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied).
Here, though, the reinstatement hearing did not cure the due process violation.
The order dismissing Substituted Defendant’s counterclaims said merely that the
claims had been dismissed “for want of prosecution” and did not provide notice of
the trial court’s belief that Rule 151 allowed it to dismiss the counterclaims without
notice. The issue was raised, however, at the reinstatement hearing, with the trial court
declaring that if dismissal is permitted under Rule 151, “it really doesn’t matter if there was
notice or not. If she was served with the citation and failed to answer, at least as to her
counterclaims, Rule 151 would allow their dismissal. . . .” [Emphasis added.] The trial
court’s conclusion about the rule was incorrect; even under Rule 151, a trial court
must provide notice of intent to dismiss.6 If the trial court based its dismissal on this
conclusion, the dismissal was based on an incorrect conclusion of law and cannot
stand. In re United Scaffolding, 301 S.W.3d at 663 (stating that an erroneous legal
conclusion is an abuse of discretion). Further, while the Plaintiff acknowledged in
discussing the default judgment that a trial court has inherent authority to render a
default judgment—thus raising the idea of the trial court’s inherent power—at no
point in the hearing did the trial court state that it had dismissed Substituted
The trial court’s conclusions of law do not discuss notice with respect to the
6
dismissal of the counterclaims. If the trial court based its dismissal on a finding that
Substituted Defendant had notice, no evidence supports that finding.
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Defendant’s counterclaims under its inherent authority. Thus, Substituted Defendant
did not have the opportunity to address this ground at the hearing, and she did not
receive “‘the same hearing with the same burden of proof [she] would have had
before the order of dismissal was signed.’” 7 Sellers, 199 S.W.3d at 396 (quoting
Franklin, 53 S.W.3d at 403). Because the trial court’s dismissal under Rule 151 was
based on an erroneous conclusion of law or on a finding with no support in the
record, and because Substituted Defendant did not receive notice that the trial court
would dismiss her counterclaims under its inherent authority and had no opportunity
to argue against that basis, the notice of the dismissal and the subsequent hearing on
Substituted Defendant’s reinstatement motion did not cure the lack of notice of the
trial court’s intent to dismiss. See id.; see also Johnson-Snodgrass v. KTAO, Inc., 75 S.W.3d
84, 90 (Tex. App.—Fort Worth 2002, pet. dism’d). We sustain Substituted
Defendant’s third issue and the part of her first issue addressing the dismissal for want
of prosecution.
Conclusion
Having sustained Substituted Defendant’s three issues, we reverse the trial
court’s judgment granting default judgment and dismissing the counterclaims for want
7
At the hearing, Substituted Defendant did argue (correctly) that Rule 165a
requires notice before dismissing claims for want of prosecution, but the trial court’s
findings of fact and conclusions of law do not indicate that it dismissed the claims on
that basis. See Sellers, 199 S.W.3d at 390 (stating in reviewing a trial court’s refusal to
reinstate, “we must first look to the court’s basis for dismissal”).
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of prosecution, order the counterclaims reinstated, and remand this case for further
proceedings consistent with this opinion.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: August 27, 2020
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