NO. 07-04-0475-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B SEPTEMBER 29, 2006

______________________________ JAMES D. BEVERS, APPELLANT

V. CHERISH BR ODBECK, APPELLEE

_________________________________ FROM THE 237 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2002-519,679; HONORABLE M ARVIN MARS HALL, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION
The dispositive question presented in this personal injury suit is w he ther the plaintiff’s failure to follow the procedure established in the Rules of Civil Procedure upon death of the defendant led to a void judgment. Finding it did, we reverse the trial court’s judgment and remand the cause.
Cherish Brodbeck filed suit agains t James D. Bever s to recover for

personal inj uries she rece ived in a traf fic a ccid ent. Bever s ans wered and t he ca se was tried to a ju ry i n Februar y 2004. The jury

returned a verdict in favor of Bevers but the trial court gr an te d1 Bevers’ counsel advised the court his effo rts to contact Patsy before the second

trial were unsuccessful. Statements of counsel indicate that she was a pass enger in the vehicle her

husband was driving at the time of the traf fic accident, and also had f iled a suit against him. A statement of counsel also i ndicates she w as represented by another attorney i n that suit. 2 Brodbeck’s motion for new tri al. Shortly before the second tr ial, counsel for Bevers filed
a suggestion of Bevers’ death. The docu ment re cited it was filed by Patsy Bevers, “survi ving spouse and sole surv iving heir of James D. Bevers,”and his attorn ey. It stated that Patsy Bev ers should be substituted as th e party defendant in the capacity as sole
sur vivi ng h eir of James D. Bevers. N o action was taken pursuant to the sugg estion of death. PatsyBevers w

as not present during any part of the secon d trial. 1 The jury r eturned
a verdict in favor of Br

odbeck, and the trial court s igned the judg ment submitted by her

. Itrendered judgment fo r her “against Defendant, Jam es D. Bevers.” Bevers’ counsel filed
a motion for new trial and for j udgment non obstante veredicto for “James D. Bevers, t he named defendant herein, and Patsy Bevers, as sol e heir of JamesD. Bever s, deceased.” Afootnote in the motion recited no or der had been entered in r esponse to the suggesti on of death.
The procedure on death of a party is set out in Rules ofCivil Procedu re 150 th rough 156 and differs depending on which party dies and at what p oint in t he proceeding the death occurs. R ule 150 prov ides that w hen the cause of action survives, the suit does not abate because of the death of a par ty before the verdict, but “ may proceed tojudgment as hereinafter

provided.”Rule 152 g overns w hen a defendant dies before verdict. It provides2 This case does n ot presen t the circumstances addressed in Rule of Civil

Procedure 156, when a par ty dies “ between verdict and ju dgment” in a j ury case or “after the evidence is closed and before judgmen t is pronounced,” in a non-jury case, in which circumstances

the rule prov ides that “j udgment shall be rendered a nd ent ered as if all parties were liv ing.” Tex . R. Civ . P. 156.

3 T he Dallas co u rt observed in Hawnthat “a suit cannot be maintain ed against a dead man.” 392 S.W.2d at 379. 3 thaton a suggestion of death, or on pe tition of the plaintif f, “the cl erk shall i ssue a scire facias for the administr

ator or executo r or heir requiri ng him to appear and def end the suit and upon the return of such service, the suit shall proceed against such a dministrator, or executor or heir.” Tex. R. Civ . P. 152. 2 There is no co ntention that Rul e 152 was co mplied with here

. Appellant’s first issue challenges the validi ty of the judg ment against th e deceased James D. Bever s when no pe rson al rep rese ntat ive was served or participated in the trial. Appellant

c o n t e n d s t h e j u d g m e n ti s v o i d a s a m a t t e r o f l a w . We agree. See De La Moren a
v. Ingenie ria E. Maquinari a de Guadalupe, S.A. , 56 S.W .3d 652, 655 (Tex.App. –W aco 2001, no pet. ) (citing First Nat’l Bank in Dallas v . Hawn , 392 S.W.2d 377 (Tex.Civ.App.–Dall as 1965, no writ)); 3 North east Texa s Mun . Wa ter Di st. v. Mims , 389 S.W.2d 347 (Tex.Civ .App.–Texarkana 196 5, no writ) (judgment set aside; trial court committed “fundamenta l error” by fo rcing counsel for deceased def endant to trial in absence of compliance w ith Rule 152) ; Trahan v. Robe rts , 48 S.W.2d 503, 506 (Tex.Civ .App.–Beau mont 193 2, no writ) (in absence of compliance with Rule 152 within reasonable time, court cou ld take no action other than dismissal).4

Like the plaintiff s in De La Morena and Hawn , despite the fili ng of a sugg estion of death, Brodbeck failed to comp ly with the scire faciasprocedure neces sary to permit her suitto pro ceed again st a re pres enta tive of the deceased defendant’sestate. Hawn , 392 S.W.2d at 379; Tex. R. Civ . P. 150, 152. Signi fica ntly, Brodbeck’s brief on appeal does not ask that the trial court’s judg ment be affirmed. She argu es the judgment i s valid again st Patsy in her capacity as Bevers’ sole heir because she had notice of the proceeding and particip ated in it. Her brief asks thatwe modify the judgment to s tate that it i s against P atsy, as s ole heir. We find no support in the record for eit her prong of Br odbeck’s arg ument.
Notice of a suit is a fundamenta l component of d ue process to which all litigants are entitled. Mullane v. Central Hanover Bank & Trust C o. , 339 U.S. 306, 313 -14, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ; Dickerson v. Doyle , 170 S.W.3d 713, 721 (Tex.App. –El Pas o 2005, no pet.). See also Tex. R. Civ. P. 124 (no judgment without service or appearance). Like a citation , a s cire facias brings a pers on before the court by giv ing her noti ce of the suit. See Tex. R. Civ. P. 154 (scire facias and return gov erned by r ules applicabl e to citation). It is uniq ue only in that it is di rected to a per son author ize d to represent an estate. See Pewthers' Est ate v. Holla nd Page Industri es, Inc ., 443 S .W.2 d 392, 395 (Tex.Civ.App.–Austin 1969 , wr it ref’d n.r.e.) . Acknowl edging that no scire faci as was issued for Patsy or served on her, Brodbeck nonetheless ar gues Patsy

had notice of the procee dings before the trial court, rendering that omis sion harmless . Brodbeck does not iden tify any evi dence in the record that Patsy had actual knowledg e she was a party to th e4 Brodbeck als o looks to authority concerning joinder of part ies under Rul e of Civil Procedure 39 to argue the f ailu re to join P atsy d id no t deprive the court of jur isdiction. Those cases address

the effect of non-joinder on a court’sjurisdic

tion over the parties before it. See, e.g., Gom ez v . Kesterm eier

, 924 S.W.2d 210,2 12 (Tex.App.–East land 1996, writ denied ). Substi tution of a pe rsonal re presen tative f or a dece ased pa rty through scire facias is not governed by the rules concerning joinder of pa rties. 5 suit in any capaci ty. As noted, what the record s hows is only that Pat sy was not present during the trial, and that counsel’s eff orts to contact Patsy before trial were unsuccessful.
Brodbeck cites Nichols v. Nichols , 907 S.W .2d 6 (Tex .App.–Tyler 1995, writ denied),
as authority

for her positi on the failure to i ssue and serve a scire faci as can be disr egarded if heirs have an opport unity toparticipate. Nichols involved the death of the def endant in
a divorce proceeding after judgment, and th e heirs of the dece dent complained of the t rial court’s granting the plaintiff’s moti on for new trial and motion for non-sui t without notice to them. Id . at 10-11. W e do not find the ap plicabili ty of Rule 152 under the facts of that case to be entir

ely clear , and in any

event do not find it supports a con clusion that Patsy properlycould be bound by the judgment ag ainst her decea sed husband in this case in the absence of notice to her. 4 Despite the lack of ser vice, B ro dbeck also argues the judgment is valid against Patsybecause she made a gene ral appearance in her capacity as Bevers’ sole heir. See Werner v. Colwell , 909 S.W.2d 866, 869-70 (Tex. 1995) (defendant may w

aive serv ice by making general appear ance before the cour

t); Tex. R . Civ. P . 124 (no judg ment ag ainst defendant“unless upon s ervice, or acceptance or waiver of process, o r upon a n appearance by the defendant, as prescribed in these rules, except where otherwise expressl y prov ided by law or these rul es”).5 There is no evidence, or even a s tatement by couns el, that Patsy had been appointed personal repr esentative of her husband’s estate. The only indi cations that s he was her husband’s “sole heir ” come from the sug gestion of dea th and statements of counsel.

6 The statement is te chnically incorrect , of course, si nce it ign ores the cas e la w establishing that death of an atto rney’s client termi nates the attorney -client r elationship, and with it

the attorney ’s autho rity to appear on behal f of the client. Brooks v. Hale , 457 S.W .2d 159, 164 (Tex.Civ.App.–T yler 1970, writ ref’d n.r.e.)

. We note it here only as an indication tha t Bevers’ counsel did not view Patsy as h is client. 6 As evidence Pat

sy made a g eneral ap pea rance, Brodbeck points to statements during trial made by counsel and the trial court. Brodbe ck’s counsel a f ew times made references to Patsy as “his client,” referring to Bevers’ counsel, who did not always object to the references. The trial court once made the comment to coun sel at a bench conference, referring to P atsy, “She ’s a personal representati ve of his esta te, I understand.” 5 During the same discuss ion, Bever s’ couns el ma de the ambiguous statement, “Judge, my client is Mr. Bevers. I know t hat he is dead and his only heir is Mrs. Bevers.” 6 Later, however, as Bevers’ counsel began his obje ctions at the cha rge conference, he stated, “C omes now, James D. Bevers, Defendant in the ab ove and [sic] entitled and numbered Cause, and/or Patsy Bevers in her capacity assole heir of J ames D. Bevers, deceased, and makes a nd files these, his/her/th eir, obje ctions to th e . . . proposed Court’s Charge in this matter.”
Brodbeck relies on Bernstein v. Po rtl an d S av in gs an d L oa n A ss’n , 850 S.W.2d 694 (Tex.App.–Corpus Christi 1993, writ denied), overruled on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). In that case, Portland sued B ernstein in 1 982, buthe died in 1985before trial. Although no amended ple adings were filed reflecting his7 Brodbeck als o points to the motion f or new trial filed by Bevers’ counsel, which

states that it is filed by

“James D. Bev

ers, the named Defend ant herein, and Patsy Bevers, as sole heir of J ames D. Bever s, deceased.” Even assuming , arguendo, tha t the filing of such a pleading at that post-j udgment stage constituted agene ral ap pea ranc e by Pa tsy, itwould not b e effecti ve retroac tively , so as to make t he previous ly-enter ed judgment bin ding on he r. See H. L. McR ae Co. v. Hook

er Const. Co. , 579 S.W.2d 62, 65-66 (Tex.Civ.App.–Austin 1979, no writ) 7 death and no formal substi tution of partieswas made, a s uggestion of death was filed and scire facia s w as issued. Id . at 700. Berns tein’s brothe r, who w as also a defendant indi vidua lly, was named as personal repr esentative i n the suggesti on of death. The brother later file d a mo tion for s anct ions “in div idua lly

and a s per

sona l re pres enta tive” o f B e rnstein’s estate. Still l ater

pleadings w

ere filed on behalf of the brother a nd Bernstein’s estate. Id

. Summary judgment was granted for the brother on t he claims ag ainst him indi vidually , and the case proceeded to trial ag ainst Bernstei n’s estate. Id . at 699. Fol lowing trial judg ment
was entered against Bernstein and h is estate. Id

. at 697. Citi ng the notice given th e personal representati ve and his p articipati on in that capaci ty, the appel late court found the judgment

was bindi ng against

the personal representative “even though it was incorrectly entered against the estate .” Id . at 700.
We disagree t he quoted statements are sufficient to sup port a conclusion Patsy made a general appearance on behal f of her husband’s esta te. 7 They do not r eflect the
same quality of participation as that of th e personal repre sen tative in Bernstein . 850 S.W.2d at 700. See also Miller v. Estate of Self , 113 S.W.3d 554, 558 (Tex.App.–Texarkana 2003, no pet.) ( temporary admi nistrator’ s conduct insu fficient participation); Supak , 56 S.W.3d 794 (evide nce decedent’s s on was int roduced to jury as “re pre senting that family”and testified as a fact witnes s insufficient to support the8

conclusion he part ici pated as repres entative of the es tate); Mims , 389 S.W.2d at 348; Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex.A pp.–Houston [1st Dist.] 1991, no wr it) (holdi ng a personal representative participated in proceeding based on aff idavit of a co-execu to r of decedent’s estate verifying the petition rath er than the attorney’s si gnature on the petition).
We sustain appella nt’s fir st issue, and fin d doing s o requires that we r

emand the
cause. Appellant’s other appel late issues assert that attorney misconduct led to an improper judgment a nd that no evidence s upported some elements of the damages awarded. Given our disposi tion of appellant’s first issue, considerat ion of those issues is notnece ssary. Accor dingl y, we reverse the tri al court’s judgment and remand the cause for a new trial.

James T. Campbell Justice