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CAUSE NO. 2016
FIRST BANK IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
KOPPER FUNDING CORPORATION and
NICOLAS M. BAZAN, P.C. 165TH JUDICIAL DISTRICT
MOTION TO DISMISS WITH PREJUDICE
COME NOW, KOPPER FUNDING CORPORATION, NICOLAS M. BAZAN, P.C.
and NICOLAS M. BAZAN, individually by and through BRENDA W. BAZAN in her capacity
as Heir, Representative, Administrator or Executor of the Estate of Nicolas M. Bazan, Defendant, and
this Motion to Dismiss with Prejudice Plaintiff’s claims against the Estate of Nicolas M. Bazan
and in support of respectfully show as follows:
Nicolas M. Bazan, attorney for Defendants and Counter Plaintiffs, in addition to
being a named Defendant, died on May 11, 2019. On May 14, 2019, the undersigned filed a
Suggestion of Death with this Court. At this time, while a probate proceeding has been opened
there has been no administrator or executor of his estate appointed by court order
On February 19, 2020, or days after the Suggestion of Death was filed
Plaintiff filed its Application for Scire Facias Substitution, seeking to have Mr. Bazan’s widow,
Mrs. Brenda Bazan, served to come forward and defend this lawsuit as heir to Mr. Bazan. For
those reasons set forth herein, Defendants move to dismiss Plaintiff’s Application.
It is established case law that upon filing suggestion death, a plaintiff
must act diligently in seeking a writ of scire facias Clark v. Turner 505 S.W.2d 941, 946
(Tex.Civ.App. Amarillo 1974, no pet.) ("There is no express period of time within which the
representative of a deceased defendant must be made a party in order that the suit may proceed ...;
however, an unreasonable delay after the decedent’s death would defeat the right of revival by the
statutory method."). Therefore, upon appearing in the suit, the personal representative could argue
that due to the unreasonable delay in substitution, the plaintiff is not entitled to revival under Rule
152. Clark, 505 S.W.2d at 946. The personal representative could also argue that the plaintiff
abandoned the suit by failing to diligently substitute under Rule 152. Clark, 505 S.W.2d at 946.
Also, the personal representative could raise the defense of laches by virtue of an untimely
substitution. Clark, 505 S.W.2d at 946. At some point, if the plaintiff does not substitute the
personal representative at all, the trial court may dismiss the action for want of prosecution. See
TEX. R. CIV. P. 165a; Clark, 505 S.W.2d at 946 ("Although there has been a suggestion of death
of the defendant in a case, in the event that proper diligence is not used by the plaintiff to revive
the action, the court would be authorized in dismissing the suit for want of prosecution."). Texas
appellate courts have used language indicating that, depending upon the circumstances of a
particular case, an unreasonable delay in making the representative of a deceased defendant a party
in order that a suit may proceed and the parties be bound by the adjudication may defeat the right
to revive the cause of action. Hermann v. Higgins Oil & Fuel Co., 260 S.W. 1094, 1099
(Tex.Civ.App. -Galveston 1924, writ ref'd); Clark v. Turner, 505 S.W.2d 941, 946-8
(Tex.Civ.App.-Amarillo 1974, no writ).
4. Since the filing of the Suggestion of Death, there has been nothing that would have
reasonably prevented Plaintiff from filing its Application for Scire Facias sooner than it did. There
have been no pending Motions before the Court, no extensive discovery proceedings, and nothing
else of consequence that would have taken precedence and had to be performed or completed prior
to the filing of the Application. In other words, Plaintiff waited an unreasonable period of time
between the filing of the Suggestion of Death which placed Plaintiff on notice of Mr. Bazan’s
passing and the filing of the Application seeking to have Mrs. Bazan substituted in. Such delay is
fatal to Plaintiff’s Application and the naming of Mrs. Bazan as the substitute party and constitutes
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evidence of Plaintiff’s abandonment of its claims against Mr. Bazan, individually and now his
estate also. Consequently, Plaintiff’s Application must be denied and Nicolas M. Bazan and his
estate must be dismissed as parties to this lawsuit.
WHEREFORE, PREMISES CONSIDERED, Defendants KOPPER FUNDING
CORPORATION, NICOLAS M. BAZAN, P.C. and NICOLAS M. BAZAN, individually by
and through BRENDA W. BAZAN in her capacity as Heir, Representative, Administrator or
Executor of the Estate of Nicolas M. Bazan pray that this Court grant their Motion to Dismiss with
Prejudice as to Plaintiff’s claims against Defendant Nicolas M. Bazan and his estate. Defendants
further pray that they be granted whatever other relief, both in law and equity, to which they may
be justly entitled.
Respectfully submitted,
LAW OFFICES OF KEVIN R. MICHAELS,
P.C.
By: /s/ Kevin R. Michaels
Kevin R. Michaels
State Bar No.: 00784598
16000 Barkers Point Lane, Suite 208
Houston, Texas 77079
Telephone: 281-496-9889
Facsimile: 281-496-4211
kmichaels@michaelslaw.net
ATTORNEY FOR DEFENDANTS/COUNTER-
PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
upon all counsel of record by facsimile/email/electronic filing on the 21st day of March 2020.
/s/ Kevin R. Michaels
Kevin R. Michaels
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CAUSE NO. 2016 FIRST BANK IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS KOPPER FUNDING CORPORATION and NICOLAS M. BAZAN, P.C. 165TH JUDICIAL DISTRICT MOTION TO DISMISS WITH PREJUDICE COME NOW, KOPPER FUNDING CORPORATION, NICOLAS M. BAZAN, P.C. and NICOLAS M. BAZAN, individually by and through BRENDA W. BAZAN in her capacity as Heir, Representative, Administrator or Executor of the Estate of Nicolas M. Bazan, Defendant, and this Motion to Dismiss with Prejudice Plaintiff’s claims against the Estate of Nicolas M. Bazan and in support of respectfully show as follows: Nicolas M. Bazan, attorney for Defendants and Counter Plaintiffs, in addition to being a named Defendant, died on May 11, 2019. On May 14, 2019, the undersigned filed a Suggestion of Death with this Court. At this time, while a probate proceeding has been opened there has been no administrator or executor of his estate appointed by court order On February 19, 2020, or days after the Suggestion of Death was filed Plaintiff filed its Application for Scire Facias Substitution, seeking to have Mr. Bazan’s widow, Mrs. Brenda Bazan, served to come forward and defend this lawsuit as heir to Mr. Bazan. For those reasons set forth herein, Defendants move to dismiss Plaintiff’s Application. It is established case law that upon filing suggestion death, a plaintiff must act diligently in seeking a writ of scire facias Clark v. Turner 505 S.W.2d 941, 946 (Tex.Civ.App. Amarillo 1974, no pet.) ("There is no express period of time within which the representative of a deceased defendant must be made a party in order that the suit may proceed ...; however, an unreasonable delay after the decedent’s death would defeat the right of revival by the statutory method."). Therefore, upon appearing in the suit, the personal representative could argue that due to the unreasonable delay in substitution, the plaintiff is not entitled to revival under Rule 152. Clark, 505 S.W.2d at 946. The personal representative could also argue that the plaintiff abandoned the suit by failing to diligently substitute under Rule 152. Clark, 505 S.W.2d at 946. Also, the personal representative could raise the defense of laches by virtue of an untimely substitution. Clark, 505 S.W.2d at 946. At some point, if the plaintiff does not substitute the personal representative at all, the trial court may dismiss the action for want of prosecution. See TEX. R. CIV. P. 165a; Clark, 505 S.W.2d at 946 ("Although there has been a suggestion of death of the defendant in a case, in the event that proper diligence is not used by the plaintiff to revive the action, the court would be authorized in dismissing the suit for want of prosecution."). Texas appellate courts have used language indicating that, depending upon the circumstances of a particular case, an unreasonable delay in making the representative of a deceased defendant a party in order that a suit may proceed and the parties be bound by the adjudication may defeat the right to revive the cause of action. Hermann v. Higgins Oil & Fuel Co., 260 S.W. 1094, 1099 (Tex.Civ.App. -Galveston 1924, writ ref'd); Clark v. Turner, 505 S.W.2d 941, 946-8 (Tex.Civ.App.-Amarillo 1974, no writ). 4. Since the filing of the Suggestion of Death, there has been nothing that would have reasonably prevented Plaintiff from filing its Application for Scire Facias sooner than it did. There have been no pending Motions before the Court, no extensive discovery proceedings, and nothing else of consequence that would have taken precedence and had to be performed or completed prior to the filing of the Application. In other words, Plaintiff waited an unreasonable period of time between the filing of the Suggestion of Death which placed Plaintiff on notice of Mr. Bazan’s passing and the filing of the Application seeking to have Mrs. Bazan substituted in. Such delay is fatal to Plaintiff’s Application and the naming of Mrs. Bazan as the substitute party and constitutes 2 evidence of Plaintiff’s abandonment of its claims against Mr. Bazan, individually and now his estate also. Consequently, Plaintiff’s Application must be denied and Nicolas M. Bazan and his estate must be dismissed as parties to this lawsuit. WHEREFORE, PREMISES CONSIDERED, Defendants KOPPER FUNDING CORPORATION, NICOLAS M. BAZAN, P.C. and NICOLAS M. BAZAN, individually by and through BRENDA W. BAZAN in her capacity as Heir, Representative, Administrator or Executor of the Estate of Nicolas M. Bazan pray that this Court grant their Motion to Dismiss with Prejudice as to Plaintiff’s claims against Defendant Nicolas M. Bazan and his estate. Defendants further pray that they be granted whatever other relief, both in law and equity, to which they may be justly entitled. Respectfully submitted, LAW OFFICES OF KEVIN R. MICHAELS, P.C. By: /s/ Kevin R. Michaels Kevin R. Michaels State Bar No.: 00784598 16000 Barkers Point Lane, Suite 208 Houston, Texas 77079 Telephone: 281-496-9889 Facsimile: 281-496-4211 kmichaels@michaelslaw.net ATTORNEY FOR DEFENDANTS/COUNTER- PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served upon all counsel of record by facsimile/email/electronic filing on the 21st day of March 2020. /s/ Kevin R. Michaels Kevin R. Michaels 3