                                   NO. 07-04-0475-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                SEPTEMBER 29, 2006
                          ______________________________

                           JAMES D. BEVERS, APPELLANT

                                            V.

                          CHERISH BRODBECK, APPELLEE
                        _________________________________

            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2002-519,679; HONORABLE MARVIN MARSHALL, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       The dispositive question presented in this personal injury suit is whether 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 against James D. Bevers to recover for personal injuries

she received in a traffic accident. Bevers answered and the case was tried to a jury in

February 2004. The jury returned a verdict in favor of Bevers but the trial court granted
Brodbeck’s motion for new trial. Shortly before the second trial, counsel for Bevers filed

a suggestion of Bevers’ death. The document recited it was filed by Patsy Bevers,

“surviving spouse and sole surviving heir of James D. Bevers,” and his attorney. It stated

that Patsy Bevers should be substituted as the party defendant in the capacity as sole

surviving heir of James D. Bevers. No action was taken pursuant to the suggestion of

death.


         Patsy Bevers was not present during any part of the second trial.1 The jury returned

a verdict in favor of Brodbeck, and the trial court signed the judgment submitted by her.

It rendered judgment for her “against Defendant, James D. Bevers.” Bevers’ counsel filed

a motion for new trial and for judgment non obstante veredicto for “James D. Bevers, the

named defendant herein, and Patsy Bevers, as sole heir of James D. Bevers, deceased.”

A footnote in the motion recited no order had been entered in response to the suggestion

of death.


         The procedure on death of a party is set out in Rules of Civil Procedure 150 through

156 and differs depending on which party dies and at what point in the proceeding the

death occurs. Rule 150 provides that when the cause of action survives, the suit does not

abate because of the death of a party before the verdict, but “may proceed to judgment as

hereinafter provided.” Rule 152 governs when a defendant dies before verdict. It provides



         1
         Bevers’ counsel advised the court his efforts to contact Patsy before the second
trial were unsuccessful. Statements of counsel indicate that she was a passenger in the
vehicle her husband was driving at the time of the traffic accident, and also had filed a suit
against him. A statement of counsel also indicates she was represented by another
attorney in that suit.

                                              2
that on a suggestion of death, or on 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. 152.2 There is no contention that Rule 152 was complied

with here.


       Appellant’s first issue challenges the validity of the judgment against the deceased

James D. Bevers when no personal representative was served or participated in the trial.

Appellant contends the judgment is void as a matter of law. We agree. See De La Morena

v. Ingenieria E. Maquinaria de Guadalupe, S.A., 56 S.W.3d 652, 655 (Tex.App.–Waco

2001, no pet.) (citing First Nat’l Bank in Dallas v. Hawn, 392 S.W.2d 377

(Tex.Civ.App.–Dallas 1965, no writ));3 Northeast Texas Mun. Water Dist. v. Mims, 389

S.W.2d 347 (Tex.Civ.App.–Texarkana 1965, no writ) (judgment set aside; trial court

committed “fundamental error” by forcing counsel for deceased defendant to trial in

absence of compliance with Rule 152); Trahan v. Roberts, 48 S.W.2d 503, 506

(Tex.Civ.App.–Beaumont 1932, no writ) (in absence of compliance with Rule 152 within

reasonable time, court could take no action other than dismissal).




       2
         This case does not present the circumstances addressed in Rule of Civil
Procedure 156, when a party dies “between verdict and judgment” in a jury case or “after
the evidence is closed and before judgment is pronounced,” in a non-jury case, in which
circumstances the rule provides that “judgment shall be rendered and entered as if all
parties were living.” Tex. R. Civ. P. 156.
       3
      The Dallas court observed in Hawn that “a suit cannot be maintained against a
dead man.” 392 S.W.2d at 379.

                                              3
       Like the plaintiffs in De La Morena and Hawn, despite the filing of a suggestion of

death, Brodbeck failed to comply with the scire facias procedure necessary to permit her

suit to proceed against a representative of the deceased defendant’s estate. Hawn, 392

S.W.2d at 379; Tex. R. Civ. P. 150, 152.


       Significantly, Brodbeck’s brief on appeal does not ask that the trial court’s judgment

be affirmed. She argues the judgment is valid against Patsy in her capacity as Bevers’

sole heir because she had notice of the proceeding and participated in it. Her brief asks

that we modify the judgment to state that it is against Patsy, as sole heir. We find no

support in the record for either prong of Brodbeck’s argument.


       Notice of a suit is a fundamental component of due process to which all litigants are

entitled. Mullane v. Central Hanover Bank & Trust Co., 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 Paso

2005, no pet.). See also Tex. R. Civ. P. 124 (no judgment without service or appearance).

Like a citation, a scire facias brings a person before the court by giving her notice of the

suit. See Tex. R. Civ. P. 154 (scire facias and return governed by rules applicable to

citation). It is unique only in that it is directed to a person authorized to represent an

estate. See Pewthers' Estate v. Holland Page Industries, Inc., 443 S.W.2d 392, 395

(Tex.Civ.App.–Austin 1969, writ ref’d n.r.e.). Acknowledging that no scire facias was

issued for Patsy or served on her, Brodbeck nonetheless argues Patsy had notice of the

proceedings before the trial court, rendering that omission harmless. Brodbeck does not

identify any evidence in the record that Patsy had actual knowledge she was a party to the



                                             4
suit in any capacity. As noted, what the record shows is only that Patsy was not present

during the trial, and that counsel’s efforts 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 position the failure to issue and serve a scire facias can be disregarded

if heirs have an opportunity to participate. Nichols involved the death of the defendant in

a divorce proceeding after judgment, and the heirs of the decedent complained of the trial

court’s granting the plaintiff’s motion for new trial and motion for non-suit without notice to

them. Id. at 10-11. We do not find the applicability of Rule 152 under the facts of that

case to be entirely clear, and in any event do not find it supports a conclusion that Patsy

properly could be bound by the judgment against her deceased husband in this case in the

absence of notice to her.4


       Despite the lack of service, Brodbeck also argues the judgment is valid against

Patsy because she made a general appearance in her capacity as Bevers’ sole heir. See

Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995) (defendant may waive service by

making general appearance before the court); Tex. R. Civ. P. 124 (no judgment against

defendant “unless upon service, or acceptance or waiver of process, or upon an

appearance by the defendant, as prescribed in these rules, except where otherwise

expressly provided by law or these rules”).


       4
         Brodbeck also looks to authority concerning joinder of parties under Rule of Civil
Procedure 39 to argue the failure to join Patsy did not deprive the court of jurisdiction.
Those cases address the effect of non-joinder on a court’s jurisdiction over the parties
before it. See, e.g., Gomez v. Kestermeier, 924 S.W.2d 210,212 (Tex.App.–Eastland
1996, writ denied). Substitution of a personal representative for a deceased party through
scire facias is not governed by the rules concerning joinder of parties.

                                              5
       As evidence Patsy made a general appearance, Brodbeck points to statements

during trial made by counsel and the trial court. Brodbeck’s counsel a few 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 counsel at a bench

conference, referring to Patsy, “She’s a personal representative of his estate, I

understand.”5   During the same discussion, Bevers’ counsel made the ambiguous

statement, “Judge, my client is Mr. Bevers. I know that he is dead and his only heir is Mrs.

Bevers.”6 Later, however, as Bevers’ counsel began his objections at the charge

conference, he stated, “Comes now, James D. Bevers, Defendant in the above and [sic]

entitled and numbered Cause, and/or Patsy Bevers in her capacity as sole heir of James

D. Bevers, deceased, and makes and files these, his/her/their, objections to the . . .

proposed Court’s Charge in this matter.”


       Brodbeck relies on Bernstein v. Portland Savings and Loan Ass’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 Bernstein in 1982,

but he died in 1985 before trial. Although no amended pleadings were filed reflecting his



       5
        There is no evidence, or even a statement by counsel, that Patsy had been
appointed personal representative of her husband’s estate. The only indications that she
was her husband’s “sole heir” come from the suggestion of death and statements of
counsel.
       6
         The statement is technically incorrect, of course, since it ignores the case law
establishing 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. Brooks v. Hale, 457
S.W.2d 159, 164 (Tex.Civ.App.–Tyler 1970, writ ref’d n.r.e.). We note it here only as an
indication that Bevers’ counsel did not view Patsy as his client.

                                             6
death and no formal substitution of parties was made, a suggestion of death was filed and

scire facias was issued. Id. at 700. Bernstein’s brother, who was also a defendant

individually, was named as personal representative in the suggestion of death. The brother

later filed a motion for sanctions “individually and as personal representative” of Bernstein’s

estate. Still later pleadings were filed on behalf of the brother and Bernstein’s estate. Id.

Summary judgment was granted for the brother on the claims against him individually, and

the case proceeded to trial against Bernstein’s estate. Id. at 699. Following trial judgment

was entered against Bernstein and his estate. Id. at 697. Citing the notice given the

personal representative and his participation in that capacity, the appellate court found the

judgment was binding against the personal representative “even though it was incorrectly

entered against the estate.” Id. at 700.


       We disagree the quoted statements are sufficient to support a conclusion Patsy

made a general appearance on behalf of her husband’s estate.7 They do not reflect the

same quality of participation as that of the personal representative 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 administrator’s conduct insufficient

participation); Supak, 56 S.W.3d 794 (evidence decedent’s son was introduced to jury as

“representing that family” and testified as a fact witness insufficient to support the

       7
         Brodbeck also points to the motion for new trial filed by Bevers’ counsel, which
states that it is filed by “James D. Bevers, the named Defendant herein, and Patsy Bevers,
as sole heir of James D. Bevers, deceased.” Even assuming, arguendo, that the filing of
such a pleading at that post-judgment stage constituted a general appearance by Patsy,
it would not be effective retroactively, so as to make the previously-entered judgment
binding on her. See H. L. McRae Co. v. Hooker Const. Co., 579 S.W.2d 62, 65-66
(Tex.Civ.App.–Austin 1979, no writ)

                                              7
conclusion he participated as representative of the estate); Mims, 389 S.W.2d at 348;

Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex.App.–Houston [1st Dist.] 1991, no writ) (holding

a personal representative participated in proceeding based on affidavit of a co-executor

of decedent’s estate verifying the petition rather than the attorney’s signature on the

petition).


       We sustain appellant’s first issue, and find doing so requires that we remand the

cause. Appellant’s other appellate issues assert that attorney misconduct led to an

improper judgment and that no evidence supported some elements of the damages

awarded. Given our disposition of appellant’s first issue, consideration of those issues is

not necessary. Accordingly, we reverse the trial court’s judgment and remand the cause

for a new trial.




                                                 James T. Campbell
                                                     Justice




                                            8
