## In the C ourt of Appeals Sec ond Appellate District of T ex as at Fort Worth

___________________________ No. 02

- 19

- 00228

- CV

___________________________

On Appeal from the 431st District Court Denton County, Texas Trial Cour t No. 18

- 7051

- 431

Before Sudderth, C.J.; Gabriel and Wallach, JJ. M e mo randu m Opin ion by Justice Wallach 

### Y EOUNG 

### J IN 

### K IM 

### (Y EON 

### J IN 

### K IM 

### ) AS 

### H EIR 

### , R EPRESENTATIVE AND 

### / OR 

### E XECUTOR OF THE 

### E STATE OF 

### D EOUNG 

### H. K IM 

### , Appellant

V


### . A LBERT 

### K IM 

### , Appel lee2 MEMORANDUM OPINION
The issues in this case turn on one question: whether a party must be give n notice before a trial court dismisses her claims for w a nt of prose cu tio n or renders a
defa ult judgment against her after an answ er has been file d

. We hold that such notice is required. Accordingly, the trial court abused its discretion by not setting aside the default judgment in fa vor of Appellee Albert Ki m (Plain ti ff ) and by not reinsta ting th e

counte rclaims of Appe l lan t Ye oung Jin Kim ( alternatively spelled Yeon Jin Kim ) a s Heir, Representative , a nd/ o r Executor of the Estate o f Deoung H. Kim

. We reverse
the trial court ’ s judgme nt and remand this case for fur ther p roc e edings

. Backgrou nd
In August 2018, Plaintiff su e d Deoun g H. Kim (Defendant) for claims related
to the sale of a business in Flower Mo und, Texas. In Septem ber 2018, Defendant filed
an answer and counterclaims

. On N ovember 9, 2018, P lai n tiff filed a Sugge stion o f
Death asserting that D e fendant had died the month before, on October 12, 2018.
On N o vember 30, 2018, Plaintiff filed a “ Sec on d Amende d U nopposed
Motion for Scire Facias Substitution ” requesting that the cou rt clerk , in a c co rdance

w

ith Tex as Ru le of Civ i l Proc edure 152 , issue s cire facias ord ering Substitute d
Defen d ant “ to come for th and defend this lawsui t as Heir , Representative,
Administ rator and/or Executor ” of Defendant

. See Tex. R. Civ. P. 152. The mo tion

sta te d t h at “ D efendant ’ s co unse l [Jason Cho e] has been app r ised of this motion , and

o n November 30, 2018, stated that they ‘ do not oppose, but do not join in the3 motion. ’ Thus, the motion is uno pp osed. ” However, the motion contained no
indi cation t ha t D e fenda nt ’ s attorney

— who , by Defend ant ’ s death , no l onger

r epr esent ed Defendant

— had the authority to represent Substitute d Defen d ant
. See
Bevers v. Brodbeck , No. 07

- 04

- 0475

- C V, 2006 WL 2795347, at *3 n.6 (Tex. App.

— Amarillo Sept. 29, 2006, pet . de nied ) (mem. op. ) (no t ing that “ death of an a ttorney ’ s client terminate s the at torney

- client relationship, and with it the attorney ’ s authority to appear on behalf of the client ” ) ; see also Gur ko

ff v. Je rsak , No. 2

- 07

- 101

- CV,
2008 WL 1700126, at *4 n. 3 (Tex. App.

— For t Wor th Ap r . 10, 2008, no pe t.) ( m em. op.)

. The trial cour t grante d the motion and ordered that Substitute d Defen d ant be
substituted as the de fendant in the suit

. It further ordered the clerk to issue ci ta tion
for service to Substitute d Defen d ant and “ p ro v i de said citation to P l aintiff for service of pro c ess. ” S ee Tex. R. Civ. P. 154 (requir ing a scire facias to conf o rm to the rule for citations).
Plaintiff served Su bstitute d Defendant with the scire facias on January 31, 2019 , appr oxi mat ely t hr ee m onths after her h usban d ’ s death

. In accord a nc e with the rules
fo r citations, the scire facias stated , Notice to defendant: You h av e been sued. You may employ an atto rney. If you, or your attorney, do not file a written answer wit h the c ler k who issued this citat ion by 10:00 a.m. on the f i rst Mon da y following the expiration of twenty days after you were served this citation and pet i tion, a default judgment may be take n again st you. WHEREAS , in the 431st Judicial District Court, De nton Co unt y , Texas, a sugges tion of death of the defendant, Deoung H. Kim, has been4 entered of record in the above styled and numbe red cause and it appeari ng that Yeoung Jin Kim a/k/a Yeon Ji n Kim, is the executor/executrix or administrator or heir of t he estat e of s aid decedent and said suit shall proceed against such ad min istrator, executor/executrix or heir. THEREFORE , you are req uired to appear by filing a written answer with the c lerk of the 431 st Judicial District Court, at the courthouse of Denton Co unty, D ent o n TX at or before 10:0 0 a.m. on the first Monday followi ng the expiration of 20 days from the date of service and defe nd the said suit. A copy of Plaintiff ’ s petition and suggesti on of d eath accompanies this citation. See Tex. R. Civ. P. 9 9 , 15 4

. T he sc i re facias made no ment ion of Defendant ’ s

counter c laims o r an y obligation of Substitute d Defendant to appear and prosecu te them to avoid their dismissal for want of prosec ut ion

. S ubstitute d Defen d ant did not file any response in the trial co urt
. Ac co rdi n gly,

o n March 22, 2019 , Plaintiff filed “ Plainti f f

’ s Mot ion for Def ault Judgment and
Motion to Dismiss Defendant ’ s Cou nterclaims for Want of Prosec ut ion. ” The mot ion

stat ed that “ [u]nder Texas Rule of Civ il Procedure 239, a trial co urt may re nde r a default judgme nt on the pleadings against a d e fendant who fails to answ er ” and requested that the trial court render a default judgment against Subs tituted Defendant.
Th e motion further stated, in the only part of the motion addre ssin g Pl ai nti f f

’ s right
to dism issal of the counterclaims , “ As the Sub stituted Defendant has fa il ed to appear, Defendant ’ s counterclai ms should be dismissed for want o f prosecution. ”
Serv ice of the default judgment motion was made on Subs tituted De fend ant on Ma r ch 26, 2019 , by l eaving the motion at her place o f busine ss . On the same date , the
trial co urt sua sponte granted the motion, dismissing the counterclaims an d ordering5 that Plain tiff recov er $100, 000 in actual damages ; $200,000 as tr eble damag es u nder
the D eceptive T r ade P ra ctices A ct ; and attorney ’ s fees of $17,025.63

. Substituted
Defendant bec ame aware of the judgment on April 1, 2019.
Substituted Defendant then filed a motion to set aside the default judgment
and to r einstate t he c oun t erclaims

. The tr ial court denied the mot io n after a hear ing.
On Substituted Defendant ’ s request, the t rial cou rt made findings of fact and
conclusions of law , including the following conclusions: 1
3. Pu rsuant t o TEX. R. CIV. P. 1 52, the Co urt iss u ed scire facias r equirin g Substitute Defendant, as adminis trator , executor [,] or heir of Defendant, to appear and defen d th e suit. 4. TEX. R. CIV. P. 1 52 is explicit in its requirement that the administrator/execut or/heir must appear and defend the su i t
. 5

. In granting Plai nt iffs mo tions for default judgment and dis missal of Defendant ’ s Counterclaims with out notice of a he aring date to Substitute Defendant, no due process concerns of Substitute Defendant were implic ated. W here a defendant fails and , a s was t he case with Sub st itute D efendant in this case, int e ntional ly fai ls to make an appearance despite t he requirement of T EX. R. CIV. P. 152 to do so, Substitute Defendant is not entitled to notice and hearing prior to the
e ntry of a defaul t judgment

. S ubst it ute Defendant ’ s du e proce ss rights were not violate d

.

1 The trial court found that Substituted Defendant did not make an app earance in the case prior to judgme nt a nd that her failure to mak e an appearance prior to the ent ry of def ault judgment was not the result of accident or mistake and w a s the result of conscious indifference

. The trial court further found t hat “ Substitute [d ] Defendant pr offered no good excus e fo r having fai led to make an appearance from J an uar y 31 , 2019 to April 24, 2019 , ” impliedly finding that the recent death of Substituted De fendant ’ s husband was not a good excus e for failing to appear pr i or to the trial court ’s Ma rch 26 rendition of judg ment
.6 6. Su bstitu te Defendant cited non

- controlling authority in suppor t of her argument that the answer of the original defendant inures to the benefit of the subs tituted defendant after scire faci as. Thi s Court does not d ec ide thi s issue as it does not con t rol the outco me of this case. Even assuming this C ourt were to accep t Substitute Defendant ’ s argument, this would at most mean only that the substituted def en d ant need not file an ans wer. Even as s umin g arguendo that De fe ndant ’ s answer inured to the bene f it of S ubstit ute Defendant, this would not absolve Substitute Defendan t from the requirement of making an appearance in the case, as set forth in TEX. R. CIV. P

. 152. Even assuming ar guendo tha t D e fend an t ’ s answer inure d to the benefit of Substitute Defe n dant, D efenda nt ’ s appearance nonetheless did not inu re to Substitute De fendant ’ s benefit. Substitute Defendant was required t o make her own separate appearance in the case following s ervice of the cita ti on for scire fac ia s, and failed to do so. 7. “ No

- an s wer ” de fault judgments are generally not proper afte r the defendant has made an appearance, but in this case Substitute Defendant made no appearance prior to th e entry of default judgm ent and en try of a “ no

- answer ” default judgme nt was, therefore, proper. Where a Defe ndant has answered, but later dies before judgment, and a ci tation for scire facias is issued and subsequently served on a Substitute Defendant, fa ilure of the Substitute Defendant to m ake an appearance in t he cas e i n a timely manner as presc r ibed by law a nd TEX. R. CIV. P. 1 52 permits the Court to issue what is co mmonly referred to as a “ no

answer ” default judgment. Alternatively, and as a separate and ind ependent basis f or the Cou rt ’ s jud gm ent, the Court c on clu des that it had the inherent p o wer 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 Judgmen t and for New Tr ial. 9. TE X. R

. CI V. P. 151 c ontrols t he situ ation arising from the dea t h of a plaint iff and states that “

. . . after service of such scire facias , should such heir or administrator or executor fail to enter appearance within the ti me provi ded, the defenda nt may hav e s u it t he dismissed. ” 10. A s the D efendant raised countercla i ms, Def endant is also properly characterized as a Counter

- Plaintiff. TEX. R. CIV. P. 151, thus, applies to Counter

- Plaintiffs claims, e.g., his counter

- claims.7 11. As this Court has h eld that S ubs t itut e Defendant failed t o timel y make an appearance, the C ounter

- Defend ant (Plaintiff Albert Kim) may have the Counter

- Plaintiff ’ s su it (counterclaims) dismissed pursuant to TEX. R. CIV. P. 15 1. 12. The Court, thus, hol ds that it was proper t o dismiss t he count er claims in this a ct ion due to Substitute Defendant ’ s failure to co mply with TEX. R. CIV. P. 151. Alternatively, and as a separa te and independent basis for the Court ’ s judgment, the Court concludes that it had th e inhere nt power to dis miss the co unt ercla im s under the fact s of this particular case. 13. Acco r dingly, the C ourt denies Substitute Defendant ’ s Motion to Reinstate the Cou nterclaims. Substituted D efendant now appeals.
Standard of Review
We revi ew for a buse of discret ion a trial co urt ’ s r efusal to set as id e a def ault judgment and a trial c ourt ’ s dismis sal for want of prosecution and denial of a motion

to re instate

. Dolgencor p of Tex., Inc. v. Lerma , 288 S.W.3d 922, 926 (Tex. 2009) ; A nambra
State Cmty. i n Houston, Inc. (ANASCO) v . U lasi , N o. 14

- 16

- 01001

- C V,
2018 W L 1611644, at *1 (Tex. A pp . — Housto n [14t h Dist.] Apr. 3, 2018, no pet.) (mem. op.). A trial court abuses its discre tion if it acts without reference to any guiding rules or principles , L ow v. He nry , 221 S.W.3d 609, 614 ( Tex . 200 7) ; Cire v.
Cummin gs , 134 S .W.3d 835, 838

– 39 (Tex. 20 0 4) , o r if it fails to analyze the law correctly or misapplies the law to establish ed fact s . In re Dawson , 550 S.W.3d 625,
628 (Tex. 2018) ; Iliff v. Iliff , 339 S.W.3d 7 4, 78 (Tex. 201 1)

. A tria l c ourt ’ s erroneous8 legal c o nclusio n, even in an unsettled ar e a of la w, is an abuse of discretion. In re United Scaffolding, Inc. , 301 S.W.3d 661, 663 (T ex. 2010) (orig. proceeding)

. Discussion
I. The trial court ’ s grant of default judgment was i mproper, and the court abused i ts discr etion by refusing to set it asi d e . In h er first issue, Substituted Defendant challenges whether the trial court ’ s findings o f facts are legally and factually supported by the record and whether it s

c on clusions of l a w are pro pe r l eg al analysis given (1 ) “ the ent irety o f all the
circumst a n ces , ” ( 2) “ the limited underlying record of evide nce , ” (3) “ the [ t ] rial [ c ] ourt ’ s erroneous determination that it granted a no [

- ] answer default judgment when it granted default ju dgmen t p ost

- answer , ” a nd (4 ) “ th e fac t that [Substituted Defendant] ’ s c laims w e re [ dism iss ed for w a nt of prosecution ] and [ Kim ] was g iven [ d

] efault [ j ] udgment without no tice to Appellant. ” In her second issue, she asserts
that “ the [ t ] rial [ c ] ourt erred, abuse d its discr etion, and/ or viola ted United States and/or Te xas law

— including t he 14 t h Amendme nt [ r

] igh t to [ d ] ue [ p ] rocess of [ l ] aw ” by granting P laint iff ’ s m otion fo r post

- answer default judgment despite Substituted
Defendant ’ s (1) n ot being provided any notice of pe nding def aul t, (2) n ot recei ving
the motion u ntil the d ay the trial c our t gr ante d the def ault, (3) not being ordered to

“ appea r ” by th e t ri al c ourt, and ( 4) sa tisfying the Craddock factors

. We address together her secon d issue and the part of her first issue relat ed to the d efa ult j udgment.9 A sugges tion of de ath of a defendant notifie s a tria l court that the party has
died. Heg wer v. Edwards , 527 S.W.3d 337 , 339 (Tex. App.

— Dallas 2017, no pet.)

. “ The legal consequence of that notice is a jurisdictional defect ”

— th e deceased par ty “ i s beyond the powe r of the t rial c ourt [,] and the case cannot proceed until jurisdiction is

ac quire d over the legal representative of the deceased by service of scire facias. ” I d.
Texas Rule of Civ il Procedure 152 provides the mechanism for bringi ng the
d eceased ’ s le gal r epresentat ive in to the suit:
Where t h e defen dant shall die, upon the suggest ion o f death being entered of record i n open court, or upon petition of the plaintiff, the clerk shall issue a s cire facias for the administrato r or execut or or he ir requiring him to appear and de fend the suit and up o n the r eturn of such service, the suit shall proceed against such administrat or or executor or heir. Tex. R. Civ. P. 152

. A scire facias issued under Rule 152 does not begin a new act ion, 2 but r ath er

“ i s ‘ a process in the natu re of a n ordinary citat ion to an acti on previously instituted

. ” ’
Have n Cha pel United Methodist Church v. Le ebron , 496 S.W.3d 893, 91 1 n.9 (Tex. App.

— Houston [14th Dist.] 2016, no pet.) ( quoting Clark v. Turner , 50 5 S.W.2d 94 1,
945 ( Tex. App.

— Amaril lo 1974, no wri t) ). T he legal repres e ntative substituted as defendant in the acti on stands in the shoes of the dece ased defendant , and a s such, if

2 For a history of Texas ’s use of s cir e facias for this purpose , see Boone v. R ober ts

, 1 Tex. 147, 157

– 58 (1846) and Cha ffin v. Wm. J. Lemp Brewing Co. , 248 S.W. 71 5, 717

– 18 (Tex. App.

— El Pa s o 1 923, no writ ) ; see also Jo hn E. Quar les Co. v. Lee , 58 S. W.2d 7 7, 79 (Tex. [Comm’n Op.] 1933)

.10 a deceas ed defendant had filed an answer in the cas e , that answer inures to the bene fit
of t he substituted d efendant , a nd t he substituted defenda n t need not file an other

. Id. ; Gripon ’ s Esta te 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. Hollan d Page Indu s., Inc. , 443 S.W.2d 392 , 39 3 , 395

– 96 ( Te x. App.

— Austin 1 969, wr it ref ’ d n.r.e.) (stating that

t he de ceased ’ s answer inures to the benef it of a de fe ndant substituted by scire facias and that as such, the writ of scire facias issued for the defendant ’ s re prese ntative

“ should command the per so n to whom it is dire c ted to ‘ appear and defend ’ the suit
des cribe d in the writ rather than to appear by filing a written answer ” ) ; s ee also Estate of Pollack v. McMurrey , 858 S.W.2d 388, 394 n.2 (Tex. 199 3) (Gonzalez, J., concurring)

. Becaus e a n ans wer is on file, a trial cou rt m ay not grant a no

- answer de f ault judgment , even if the s ubst itute d defendant does not file a separate a nswer or otherwise make an
appearance. See Pewther ’ s Estate , 443 S.W.2d at 393, 396 ; see also Maxx Bui lders, LLC v . Sto ry , No. 01

- 1 5

- 00 85 0

- CV, 201 6 WL 3544495, at *2 (Tex

. A pp.

— Hou ston [1st Dist.] June 28, 2016, no pet. ) ( mem. op .) (provid ing that a trial court cannot render a no

answer default judgment against a defendant who has filed an answer )

. H ere, t he trial co u rt co ncluded that Rul e 152 autho ri ze s a no

- answer default j udgment on the basis that Substituted Defendant had not made an ap pearance of

some sort
. The trial court ’ s conclusion was erroneous . Rule 152 does not mention
defaul t judgments , and u nder long

- e s ta bli shed law, the tr ial court c ou ld not properly grant a n o
- answe r default judgment

. See Pewther ’ s Estate , 443 S.W.2 d at 39 6 ; se e also11 Estate of Pollack , 858 S.W.2d at 394 (Gonzalez, J., concurring) (stating that “ [i]f the
d ec eased ’ s legal re presentativ e s fai l to file new pl eadings, th ey a re deemed to have adop t ed the pleading s filed by and on behalf of the deceased ” an d that bec ause there
was an answer on file in the case , “ the trial court should not have rendered a default ju dgment ” against the decease d ’ s es tate ) ; Gillespie v. Thomas , No. 05

- 99

- 00168

- CV,
2000 W L 62289 , at *1 (Tex . App.

— Dallas Jan. 26, 2000, no pet.) (n ot designa ted for publication) (ho lding that the trial court erred by entering a default judg ment on the
bas is that defendant substituted by sc ire facias had n ot filed a sepa rate answer)

. We point out, h o wever, that altho ugh the trial court characterized t he judgmen t rendered as a no

- answer de fault judgment, because an answer wa s o n file, the trial

court rendered “ what is in effe ct a p ost

- a n sw e r default judgment

. ” See Est ate of Pollack , 858 S.W.2d at 39 5 (Gonzale z , J., concurring)

. “ Judgment after a post

- an swer defau lt

‘ ca nnot be entered on the pleadings, but, rather, a plaintiff must offer evidence and prove his case as in a ju dgme nt on t r ia l , ’ ” and “ [b] efore entering a p ost

- answer default judgmen t , the t rial c ourt must hold a hearing on the plaintiff ’ s evi dence, and th e de fendant must be given notic e of the hearing. ” Maxx Builders , 2016 WL 3544495, at
*2

. “ A party that has fi led an answ e r is entitled to not ice of the tr ial setting as a matter
of due pro c ess u nder the Fourteenth Amendment to the United State s Constitu tion. ”
Tunad Enter s . , Inc. v. Palma , No. 05

- 17

- 00208

- CV, 2018 WL 3134891, at *4 (Tex. App.

— Dallas June 27, 2018, no pe t .) (m em. op.) (citin g In re K.M.L

. , 443 S.W.3d 101,
118

– 19 ( Tex. 20 14) an d LBL Oil Co. v. Int ’ l Power Servs., Inc. , 777 S.W.2d 390, 390

–12 9 1 (Tex. 1989) (per curiam) )

. Substituted D efendant had no notice before the trial court granted the post

- a nswer defau l t jud gment, a nd t he default judgm ent therefore
should not h a ve been granted

. See id. ; see also Max x Builders , 2016 WL 3544495, a t *2 ; In r e K .B.A. , 145 S. W .3d 685 , 692 (Tex. App.

— Forth Worth 2 004, no pet.) (stating that when a party received n o notice of th e t rial setting at which a post

- answer defau lt judgment w a s grant ed, the party is entitled to a new trial) ; Gripon ’ s Estate , 61 0 S.W.2d

a t 541

– 42 (reversing defa ult jud gment rendered after substitution of defenda nt by scire facias)

. Plainti ff attempts to di stinguish sev er al cases reli ed on by Substituted
De fen d ant in her brief and in the trial court. He argues that Pewther ’s Estat e does not
control because it was based on a now

- repealed rule of civil procedure and on a disapproved case that r elied on t he sa me rule. 3 Part of Pewther ’s Estate rests on the repealed rule o f civil procedure relating to trial settings, b ut the opinion ’ s statements about the adoption of previously

- filed pleadings by a legal representative do es not
. Plaintiff “ d o e s n ot dispute that , once a scir e facias defendant appears in a ca se, the deceased defendant’s answer inures to her benefit. ” H owever, citing Pewth er ’ s Estat e and Hegwar , he as serts that a substituted defendant must make an appearance before the dece ase d d e fe ndant ’ s answer works to prev ent a no

- answer default

3 P lai ntiff notes that the part o f the cited case that was late r disapproved by the T exas Supreme Court is not the part relied on by the Pewther ’s Estate cour t , b ut he argues

— without ex pla ining why

— that the disapproval is “ no net heless informative

. ”13 ju d gment. See Pewther ’ s Estate , 443 S.W.2d at 39 5 ( “ If the appellant had been accorded
his r ight to ap pear and defend this suit, it would certainly be held that he adopted the

ans wer of his deceden t
. ” ). We disagree. In Pewther ’ s Estate , the opinion indica t es that
the default judgment was granted before the defendant ’s legal representative made a n appe aranc e , and the court of appeals stated that “the default judgment cannot stand
since t here was an an swe r, tim e ly filed , before the [trial court ] when the def a ult judgment was taken ” and that “the answer of the decedent inures to the benefit of his
le gal re pres ented and prevented a valid judgment by default under the facts of this

case. ” Id

. at 393. T he pa rt of Hegwar ci ted by Plaint iff addressed wh ether the f iling of
the suggestion of death for a defendant by the deceased defend ant ’ s legal represent at ive can be interpreted as a general appearance

. Hegwer , 527 S.W.3d at 340

. T he court of appeal s hel d t hat the suggestion of death is not a general appearance.
The court pointed out that under Rul e 152, when a suggestion o f death has b een filed,
the court m ust issue a scire facias requiring the l egal representative to appear on behalf of the deceased de f en dan t

— an unnecessary act if the filing of the suggestion of
death itself constitu ted an appeara nce. Neither case stands f or the propo sition asserted by Plai ntiff.
Pla intiff argues that a no

- ans we r de fault judgment was proper because “ [t]he
command to a pp ear a nd defend cannot reas onably be read as a command to do nothing. ” He furthe r asks us to graft words o n to Rule 15 2, arguing that because Rule
151 , the rul e governing the s ubstitut ion of a plaintiff by scire facias, allows fo r the14 dismi s sa l o f a deceased plaintiff’s claims when t he deceas ed plaintiff’s legal
represen tative fails to make an appearance within the time pro vide d in the scire facias,

“ it stands t o reason th at [Plaintiff] should l ikewise be able to obtain a default judgment ag a in st [S ub stituted Defend ant] due to her failure to appear after receiving
service of scire facia s. ” Althoug h we decline Plaintiff ’ s invi tation to add words to Rule 152, w e do not hold t hat Plaintiff was prohi bited by the law rela ted to scir e f aci as from obtaining a default judgment. However, because an answer was on file, in order

to take a default judgment, P l a intiff had to comply with the requirements for post

an swer default

. In summar y, a legal representative substituted under Rule 152 f o r a d eceased
defendant stands in the shoes of the deceased. Thus, i f th e dec eased defendant fil ed
an answer before his or her death, t he plaintiff is not entitled to a no

- answer default judg ment
. Rule 152 does not prohibit the tak ing of a pos t

- answer de f au lt judgment,
but the law requires notice and an opportunity to be heard bef ore the trial court may grant a post

- answer d e fault judgme nt. No notice or hearing was provided here, t he granting of the defa ult judgment was impr oper , and the trial court abus e d its discretion by denying Substituted De fe ndant ’ s motion for new trial. We sus tain
Substitute d Defendant ’ s second issue and the part of her first issue addressing t he
d efault judgment

.15 II. R ule 151 did not permit th e dismissal of the count erclaim s wi t ho ut notice. In h er third and final issue, Substituted Defendant cha llenges whet her “ the [ t

] rial [ c ] ourt erred, abused its di s cre tion, and/or violated United Sta te s and/ o r Texas
la

w

— including the 14 th Amend ment [ r

] igh t to [ d ] ue [ p ] r ocess of [ l ] aw ”

— by gran ting
Plaint i ff ’ s motion for dismissal for want of prose cution

. The trial court concluded that
it s dismissal of the co unterclaims w ith o ut notice was pro per under both Rule 151 and
the court ’s inher ent authori ty
. Rule 151 provides, If the plaintiff di es, the heirs, o r the administra tor or executor of such decedent may appear and upon suggesti on of such death be ing entered of record in o p en co ur t, may be made plaintiff, and the suit shall proceed in h is or their name. If no such appearance and suggestio n b e made with i n a r easonable t ime after the death of the plaintiff, the clerk upon the appl ication of defendan t, his agent or attorney, s hal l is sue a scir e facias for the heirs or the administrator or e xe cutor of such decedent, requiring him to appear and pr osecute suc h s uit

. After se rvice of such scire facias, should such heir or administrator or executor fail t o enter appearance within t he ti me provided, the defendant may have the suit dismissed. Tex. R . Civ. P. 151

. Substituted Defendant point s out that P lai n tiff ’ s d is mis sal motion did not assert any basis for having the counterclaims dismiss ed, stating on ly th at “ [a] s the
Substituted D e fen dant has failed t o appear, Defendant ’ s counterclaims should be
dismissed f or want o f prosecution. ” She assert s that the t ri al court could only have
dismiss ed her counterclaims under its inherent aut hority or Rule of C ivil Procedure
165a and th a t e ither basis required notice

. C onstru ing her argument t o assert that Rule16 151 does n ot provide any procedure for dismi ssing a pla i nt iff ’ s claims a nd that the law
gover n ing dismissal of plaintiff ’ s claims req uire s notice and a hearing , 4 w e agree. Rule
1 51 does not set out a specific procedure or rules that must be followe d when seeking
dismissal of a plaintiff ’s claims w hen the deceased plaintiff’s lega l represent a ti ve has
been s erved with scire facias but has not a ppeared and prosecuted th e plaintiff’s
claim s. However, every person i s e ntitled to the constitutional protection of due
process , and a fundamental requirement of due process is “ notice reaso nably
calcu l at ed, under all the circumstances, to apprise interested parties of the pende ncy of the action a nd afford them an opportun i ty to present their objections

. ” Armstrong v. Manzo , 380 U.S. 545, 550, 8 5 S. Ct. 1187, 1 190 (1965) (quoting Mullane v. Central
Han o ve r B ank & Trus t Co. , 339 U.S. 306, 314, 70 S. Ct ., 652, 657, (1950)) ; see al so Peralta v. Heigh ts Med. Ctr., Inc. , 485 U. S . 8 0, 84, 108 S. Ct. 896, 899 (1988) ; Trans

- State Pavers, Inc. v. Haynes , 808 S .W.2d 727, 735 (Tex. App.

— Beaumont 1991, w rit denied) ; B art on v. Pac. Emp. Indem. Co. , 532 S.W .2d 128, 131 (Tex. App.

— Corpus C hristi 1975, writ

r ef ’ d n.r.e.) (Nye, J., con c urr ing) ( no ti ng that every person is entitled to due process of
law and there cannot be due pro cess without proper notice )

.

4 Plaintiff argues that “ [a] Rule 151 dismissal is not technically a dismissal f or want of prosecution

— at least not as that ter m i [ s ] used in the case law

. ” However, P lai ntiff specifically requested that the tr ial court grant a dis mi ssal o f the counterclaims for want of prosecution. If Plaintiff does not consider a dismiss al under Rule 151 to be one for want of prosecu tion, then Plaintiff ’s mot i on cannot be construed a s s eek ing dismissal un der Rule 151.17 D ue pr o ce ss th us requires notice before a plaint iff’s claims are dismissed in a
fina l judgment , Armstro ng , 380 U.S. at 5 5 0, 85 S. Ct. at 1190 ; S mith v. McKee , 145 S .W.3d 299, 302 (Tex. App.

— Fort Worth 2004, no pet.) , and a t ria l co urt “ may not dismiss o n any gro u nd ot her than those for which it gave notice of an intent to
dismiss

. ” Sellers v. F ost er

, 199 S.W.3d 385, 391 (T e x. App.

— Fort Worth 2006, no pet .).
Neither Rule 151 nor a trial court ’s inherent powers authoriz e s a trial cour t to deprive
a lit ig ant of du e p roc ess. The scire facias issued here complied with the rules for citations and i nfo rmed
Substituted Defendant tha t she had been sued and could face a default judgment if she
did not defend the claims against h er. It said not hing about the co unterclai m s and did
not inform her that the claims could be dismissed under ei ther Rule 151 or th e trial court’s inherent p o wer if she failed to appear and prosecute them

. See id. She therefore never received any notice that she needed to take action t o prevent d i sm iss al of the
counterclaims. Consequently, the dismissal deprived Substituted Defe nda nt of due
process. Plainti f f a rgues that Rule 151 does not require notice before dismissal because

“ notice of the need to ‘ enter a ppearance ’ has already been p ro vided w h en th e deceased plaintiff’s administrator, executor, or heir was ser ved with the wri t o f scire
facias .” However, as we note, the scire facias did not inform Substituted Defendant of the need to appear to prevent dismi ssal of the co u n terclai m s or that the trial court was considering d ismissing her claims fo r want of prosecut ion

.18 Our holding here is narr o wly applied to the particular facts of this case and the application of th e civil procedure rules to those facts. Rule 151 states tha t if a p la int iff dies, then at the defendant’s request, the clerk must issue a scire facia s for the deceased plaintiff’s l ega l representative “ requiring him [or her] to appear and prosecute
such suit. ” Tex. R. Civ. P. 151 (emphasis added). T he defend an t ma y hav e t he suit dismissed if the legal representative fails to appear with in the time provide d after
service of “such s c ire facias”

— that is, after the scire facias requiring the legal representative to “appear and prosecute” the suit. Id. N o twi ths tandi ng t he la ngu age of Rule 151, however, Rule 154 states, “ The scire facias and returns th ereon, p rovided
for in this sectio n , s hall conform to the requisites of citations and the returns thereon, under the provisions of these rules , ” with no separ ate re quire m ent s f or su bstituting plaintiff s and defendant s . Tex. R . Civ. P. 154. The rule governing cit ations requires a citation to contain a specific notice to the defendant , including notice that the defendant must appear by a specific date or face def ault

. Tex. R. C iv . P . 99(c). The rule does not require a c itatio n to contain an y notice to a plaintiff requiring the plaintiff t o ap pear and prosecute his or her claims. T hus , a scire facias that conforms strictly to the requis ites of Rule 99, as Rule 154 i ndicates i t sh oul d , does not direct a plaintiff’s legal
repres entative to app ear and prosecute the s uit , as Rule 151 says it s h oul d. The record
does not disclose what the district clerk of Denton County usually includes in a scire
facias i ssued to a decea sed plainti f f’ s l egal representative. What we do know is that the
sci re fac i as here , in conformity with Texas Civil Proce d ure Rule 99 and Rule 154 , did19 not notify Substituted Defendant that she had an obligation to appear and prosecute
the counter claims w i thin a spe c if ie d time

. We need not and do not decide exactly what the conte nts of a scire fac ias
issued under Rule 151 m ust include, whether one must strictly conform to Rule
99 (and inform a substituted plaintiff they he or she has been sued an d must a ppe ar and d e fe nd ) , or whether a clerk should modify the language when su bstit uting a plaintiff

. However, we do hold that b e for e a defendant may seek dismissal under Rule 151, the substituted plaintiff

— like any other plaint iff

— must have notice that her
cla ims will be d i s mi ss ed if she fail s to appear and prosecute the deceased plaintiff’s
claims

. Ther e was no such notice here.
As we noted above, parties substituted by scire facias stand in the shoes of those they replac e . Estate of Pollack , 858 S.W .2d at 3 90 n.2 ( “ Lo g ic all y, t he revived action is merely a continuation of the o riginal acti on, and the s ubstituted 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 sci re faci as i s su ed w as s ufficient to
substitute Substituted Defendant as b oth defendan t and counter

- plaintiff, even though t h e s c ire facias issued by the clerk did not warn Substituted Defendant that
she must prosecute that counterclaims , Plaintiff ’s motion for sci re f a ci as d id n ot request that scire facias issue to substitu te h er as counter

- p laintiff, and the trial cour t ’s
orde r on substitut ion stated only that she had been substituted as a defendan t
. How ever, even if the scire facia s was not suff icient to substitu te S ub sti tu ted20 Defendant as counter

- plaintiff, our result would be the same 5 because in that case Plaintiff could not s eek dismissal of the counterclaims under Rule 151 , and the
dismissal could on ly be upheld if it was proper unde r the trial court’ s inhere nt

a ut hor it

y . W e have already held that it was not

. Becau se Substituted Defendant was
entitled to notice of the tri al court’s intent to dismiss her counterclaims , but she received none, the trial court ’s dismissal of her cl aims deprived her of du e process. G ene rall y, “ [t ] he failure to provide adequate notice o f the trial court ’ s intent t o dismiss for want of pros e cut ion requires reversal. ” Villarreal v. San Ant onio Truck & Equip. , 994 S.W.2d 628, 630 (Tex. 1999)

. C ourts of appeals , ho wever , ha ve held tha t i n s ome c ase s du e process concerns are ob vi ated if the trial court holds a hearing on the plain tiff ’ s motion to reinstate at which “ the dismissed party

. . . rece ives the same hearing with the same burden of proof it would h ave had before the order of

5 O f course, if the scire faci as di d not replace Substituted Defen d ant as the counter

- plaintiff, that situation would raise the interesting question of to whom notice
o f the trial court ’s inte nt to di s miss sh ould have b e e n given: the original counter

plaintiff is deceased, the dece ased c ou nt er

- plaintiff’s attorney there fore no longer represents the original counter

- p lain tiff , and no legal representative has been substit uted. But see Gracey v. W e st , 422 S.W.2 d 913, 914

– 15 (Te x. 1968) ( noting th at the trial court provided notice of it s in te nt t o dis miss by plac ing the case o n its dismissal docket , which warned that the ca ses listed on the docket would be dismissed on a certa in date “ unless written mo t ion stating g ood reasons wh y same should remain on the docket ” wa s filed by a week b ef ore th e di sm iss al date, and the docket wa s p osted in various public places in the courtho use and given to the Daily Court Review for publicatio n )

. That question, howeve r , i s not befo re us. Not ice is required before trial court renders judgment dismissin g a pla in ti ff ’ s claims, and none was provi ded.21 di s mi ssa l was si gned

. ” Sellers , 199 S.W.3d a t 396 ; Franklin v. Sherman Indep. Sch. Di st. , 53 S.W.3d 398, 403 (T e x. App.

— Dallas 2001, pet. denied). Here, though, th e reinstatement hear ing did not cure the due p rocess vi olation

. T he order dismis sing Substi t ut ed D efend an t ’s coun terclaims said merely that the
claims had been dismissed “for want of prosecution ” and d i d n ot provide notice of
the trial court ’s belief that Rule 1 51 allowed it to dismiss the counter cla ims without
noti ce. The issue was raised , how e ve r, a t the r einst atem ent hearing, with t h e trial court declaring that if dismissal is permitted under Rule 1 5 1, “ it really doesn ’ t matter if there was
notice or n ot

. If she was served with the citation and f ailed to answer, at least as to her
countercla i ms , R ule 151 would allo w their dismissal

. . . . ” [ Emphasis added .] The t rial

court ’ s conclusion ab o ut the rule was incorrect; even under Rule 151, a tri al court must provide notice of intent to d ism iss

. 6 If the trial court based its dismissal o n thi s conclusion, t he dismissa l wa s based on an incorrect conclusion of law and ca nnot stand

. In re United Scaffolding , 301 S.W.3d at 663 (stating that an erroneous legal conclusion is an abuse of discretion)

. Further, whil e th e P laintiff ac know ledged in discussing the defau lt judgment tha t a trial court h a s inherent autho ri ty to render a
default ju dgment

— t hus raising the idea of the trial court ’s inherent power

— at no point in the hearin g did the tr ial court state that it ha d di smissed Substi tute d

6 The trial court ’s conclusion s of law do not discuss notice with re spect to the dismissal of th e c ounterclaims. I f the t r ial court bas ed its dism iss al on a finding that Substituted Defendant had notice, no eviden ce s u p p ort s that finding

.22 Defen dan t ’s counterclaims un der its inh eren t authority

. Thu s, Substituted De fe nda nt did not have the op portunit y to address this ground at the hearing , and she did not
receive “ ‘ the same hearing with the s ame burden of proof [ s he] w oul d have had
bef ore the ord er of dismissal was sign ed

. ’ ” 7 Sell ers , 199 S.W.3d at 396 (quoting
Fran kl in , 53 S.W.3d at 403 ). B ecause t he 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 b ecause Subs tit uted Defendant did not receive not ic e that the trial court
would dismis s h er count erclaims under i ts inh erent authority and had no opportunity

to argue against that basis, the notice of the dismissa l and the subsequent heari n g o n Substituted Defendant ’s re instatement motion did not cure th e la ck of notice of the
trial court ’s in tent to dismis s . See id

. ; see also Johnson

- Snodgrass v. KTAO, Inc. , 75 S.W.3d 84, 90 (Tex. Ap p.

— Fort Worth 2002, pet. dism ’ d)

. We sustain Substitute d
De fendant ’ s thir d issue and th e part of her first issu e addressing the dismissal for want of prosec ut ion

. Conc lusion Having su staine d Substituted Defendant’s three issues , we reverse the trial

court ’ s judgment granting default judgment and dismissing t h e c ounterclaims f or want

7 At t he hearing, Substituted Defendant did ar gue (correctly) that Rule 165a requires notice before dismi ssing claims for want of prosecu t ion , but the trial court ’s findings of fact and conclusions of la w do not indicate that it di smi s s e d the claims on that basis. See Sellers , 199 S.W.3d at 390 (stating i n reviewi ng a trial court ’ s refusal to reinstate, “ we must f irst look to the court ’ s b a sis for dismi ssal ” )

.23 of pro secution , order the count er claims re in sta t ed, and remand this case fo r f ur ther proceedi ngs consist ent wi th th is opinion

.

/s/ Mike Wallach M ike Wal lach Justice
Deliver ed: August 2 7 , 2020