Before Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Burgess OPINIONHobart 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. BackgroundIn 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 ReliefMandamus 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 reMcAllenMed. 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. AnalysisIn 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 representative is served or participates in the trial, the resulting judgment is void as a matter of law. Bevers v. Brodbeck, No. 07-04-0475-CV, 2006 WL 2795347, at *1 (Tex. App.—Amarillo Sept. 29, 2006, pet. denied) (mem. op.).In this case, however, the trial court declined to enter judgment on the jury verdict. Although Key had died, that fact did not deprive the trial court of subject-matter jurisdiction, which “deals with the power of a court to determine an action involving a particular subject matter as between the parties and render a certain judgment.” Kshatrya v. Tex. Workforce Comm ‘n, 97 S.W.3d 825, 829 (Tex. App.—Dallas 2003, no pet.) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)). If the defendant’s death was enough to deprive the trial court of subject-matter jurisdiction, a case would end before a trial court could allow substitution under Rule 152.Instead, when a defendant dies, the trial court only loses personal jurisdiction over the deceased defendant, not subject-matter jurisdiction over the case. Of course, because the trial court lacks personal jurisdiction over a defendant, the suit cannot proceed until the personal representative of the defendant’s estate or some other suitable person is substituted as defendant. Yet, once that substitution is made, the action is revived and the case may proceed. Estate of Pollack, 858 S.W.2d at 390 n.2. Consequently, the remedy provided by Rule 152 is substitution, not dismissal.[3]Coats maintains that Miller v. Estate of Self, 113 S.W.3d 554 (Tex. App.—Texarkana 2003, no pet.), supports her position that the trial court had no jurisdiction over the lawsuit after Key died. In that case, one of the alleged tortfeasors died before the lawsuit was filed. Rather than suing the personal representative of the decedent’s estate, Miller sued the decedent’s estate. Id. at 556. After a jury verdict was returned in favor of Miller, the estate filed a motion to dismiss for lack of jurisdiction, alleging the estate administrator should have been sued rather than the estate. We held that the trial court properly dismissed the suit. Id.Miller is inapposite to this case because the defendant in that case did not die during the pendency of the suit, and no suggestion of death was filed. Rather, the defendant died before suit was ever filed against him. Accordingly, Miller did not involve Rule 152, and we did not reference that rule in our opinion. Yet, Coats’ citation to Miller does raise an interesting question that is relevant to this proceeding.In Miller, we cited Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987). In Henson, the defendant died during the pendency of the suit, and a suggestion of death was filed. Id. “Henson filed an amended petition naming the Estate of Bruce L. Crow as defendant[, and] [t]he attorney who had represented Crow filed an amended answer on behalf of the Estate . . . .” Id. The Texas Supreme Court affirmed the trial court’s judgment that “the Estate of Bruce L. Crow was not a legal entity and cannot be sued as such.” Id. Most significantly, the Texas Supreme Court rejected the plaintiff’s argument that the estate waived any error in failing to name the personal representative, because “[i]nasmuch as no legal entity was named as a defendant, there was no one to except to the pleadings or waive any defect therein.” Id.Logically, if “there was no one to except to the [plaintiff's] pleadings or waive any defect therein,” then there was also no one to move for dismissal. Id. Yet, the trial court in Henson granted the “estate’s” motions to dismiss, and the Supreme Court affirmed that ruling. Accordingly, the question naturally arises how can a trial court grant a motion filed when there was no one with standing to file the motion in the first place?The answer to this question is that “[t]he failure to join a jurisdictionally indispensable party constitutes fundamental error, which an appellate court is bound to notice if the error is apparent from the face of the record.” Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex. App.—Houston [1st Dist.] 1991, no writ)). Accordingly, by the time Henson reached the Supreme Court, it was required to dismiss the actions on its own motion. Yet, the trial court had already dismissed the action. Given the fact that dismissal was the only option available by the time Henson reached the Supreme Court, the trial court’s dismissal was not error.[4] In short, while it would be improper for a trial court to dismiss a lawsuit while it is still possible to substitute in the proper party,[5] if, by the time the case reaches the appellate court, it is impossible to do so, then dismissal was not error.[6]While this explains the Supreme Court’s ruling in Henson, it should be noted that the present case presents the mirror image of the facts in Henson. In this case, the trial court did not grant the motion to dismiss, it denied it. And, we are not asked to affirm the trial court’s dismissal on appeal, but instead are asked to compel the trial court to make the opposite ruling by mandamus. Therefore, the procedure utilized by the Supreme Court in Henson is not applicable in this case.Moreover, “the deceased defendant” filed the motion to dismiss in this case prior to Coats’ entry into the lawsuit. Once a defendant dies, the defendant is, for purposes of the law, a nonentity due to death. See Hegwer, 527 S.W.3d at 339 (“The legal consequence of [a suggestion of death] is a jurisdictional defect: that a defendant is beyond the power of the trial court . . . .”). Although Key’s attorneys later represented Coats when she entered the litigation, the attorneys were not parties to the action themselves, and they had no standing to assert the dismissal motion individually. And, until Coats entered the litigation, the defense attorneys had no client on whose behalf they could move for dismissal. Finally, even after she made her appearance, Coats did not file her own motion to dismiss.Therefore, at the time the trial court denied “the deceased defendant’s” motion to dismiss, there was no one before the trial court who could move for dismissal. To hold otherwise would eviscerate Rule 152. As noted, the remedy under Rule 152 is substitution, not dismissal. Death of the defendant does not divest the trial court of subject-matter jurisdiction, only personal jurisdiction over the deceased defendant. Rule 152 suspends the proceedings to allow for substitution of the proper party. Trial courts may dismiss cases for other reasons, such as for want of prosecution.[7] However, Rule 152 does not provide that after a reasonable time to substitute an appropriate party for the deceased defendant, the trial court may dismiss the action; rather, it only authorizes substitution.[8] Therefore, so long as substitution of the appropriate party for the deceased defendant is possible, dismissal is not appropriate under Rule 152.[9]For this reason, the motion to dismiss filed by “the deceased defendant” in this case was essentially no motion at all. Because this is not an appeal and because we are not presented with a record where the trial court dismissed the case anyway—as was the case in Henson—we cannot say that dismissal was proper. And because there was essentially no motion to dismiss pending before the trial court, we cannot say that the trial court clearly abused its discretion in refusing to grant “the deceased defendant’s” motion to dismiss.When “the trial court reaches a decision ‘so arbitrary and unreasonable as to amount to a clear and prejudicial error of law,’” it is correctable by mandamus. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding) (quoting Walker, 827 S.W.2d at 839). “In determining whether the trial court clearly abused its discretion, an appellate court may not substitute its judgment for the trial court’s determination . . . . Mandamus relief is only appropriate in such cases when the relator establishes that the trial court could have reached only one conclusion . . . .” Id. (citations omitted). Yet, here, the trial court followed the procedures set forth in Rule 152.[10]Accordingly, we cannot say that the trial court clearly abused its discretion in refusing to dismiss the lawsuit, in granting the new trial, and in ordering the clerk to issue the writ of scire facias.[11] The writ of scire facias was properly issued, and Coats answered.[12] The trial court acted within its reasonable discretion in permitting the substitution of Coats for Key and in refusing to dismiss the lawsuit. See Clark, 505 S.W.2d at 946-47 (no abuse of discretion in failing to dismiss case for failure to exercise reasonable diligence in seeking scire facias and substituting estate representative); see also Valence Operating Co. v. Anadarko Petroleum Corp., 303 S.W.3d 435, 444 (Tex. App.—Texarkana 2010, no pet.) (decision to grant or deny motion to dismiss for failure to prosecute within the trial court’s discretion); Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 680 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) (dismissal for failure to prosecute may be reversed only on a showing of clear abuse of discretion).IV. ConclusionFor the above-stated reasons, we deny mandamus relief. See Tex. R. App. P. 52.8(a).Ralph K. Burgess JusticeDate Submitted: June 26, 2019Date Decided: June 27, 2019
