Summary
The First District Court of Appeals of Texas dismissed the appeal for want of prosecution after Lisa M. Criswell resigned as independent executor of the estate she represented and no successor representative came forward. The court reinstated the appeal to its active docket and granted Catherine Polk’s motion to dismiss under Texas Rule of Appellate Procedure 42.3(b).
Topics
Practice areas
Questions Presented
- Whether the appeal could proceed after the named appellant resigned as independent executor and no successor independent executor came forward to substitute as appellant.
- Whether the appeal should be dismissed for want of prosecution under Texas Rule of Appellate Procedure 42.3(b).
Holdings
- Because Criswell resigned from her representative capacity and no successor independent executor or other interested person came forward to substitute or continue the appeal, the appeal could not proceed in its existing posture.
- The appeal was dismissed for want of prosecution under Texas Rule of Appellate Procedure 42.3(b).
Key quotations
“A civil suit may be maintained only by and against parties having an actual or legal existence.” (at 2)
“A decedent’s estate “is not a legal entity and may not properly sue or be sued as such.”” (at 2)
“This case is reinstated on this Court’s active docket and dismissed for want of prosecution.” (at 5)
Factual background
The appeal arose from a dispute over ownership of Houston real property between the estate of David Ray Angel and the estate of Dolores Sharp. The probate court granted Polk partial summary judgment, declared two correction instruments and a special warranty deed valid, vested title in Polk as dependent administrator, denied Sharp's counterclaim, and awarded Polk attorney's fees. During the appeal, Criswell resigned as independent executor of Sharp's estate, and neither the named successor nor any other person sought appointment as successor representative or notified the appellate court of an intent to continue the appeal.
Procedural history
Polk sued concerning ownership of Houston real property and asserted declaratory, title, trespass, warranty, quiet-title, and fraudulent-claim causes of action. The probate court granted Polk partial summary judgment, entered declarations concerning correction instruments and a special warranty deed, vested title in Polk as dependent administrator, denied Sharp's estate's counterclaim, awarded Polk attorney's fees, and denied reconsideration. After Criswell resigned as independent executor during the appeal and no successor representative came forward, the appellate court abated the appeal, held a hearing was conducted in the probate court, reinstated the appeal, and dismissed it for want of prosecution under Texas Rule of Appellate Procedure 42.3(b).