Preview
Filed: 3/27/2023 11:01 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 74031735
By: Shailja Dixit
3/27/2023 11:06 AM
CAUSE NO. 21-CV-0489
SANTOS BENAVIDES § IN THE DISTRICT COURT
§
Plaintiff, §
v. § 56TH JUDICIAL DISTRICT
§
CIRCLE K STORES, INC. §
§
Defendant. § GALVESTON COUNTY, TEXAS
DEFENDANT’S APPLICATION FOR WRIT OF SCIRE FACIAS AND MOTION TO
DISMISS PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 151 OR, IN THE
ALTERNATIVE, MOTION TO DISMISS FOR WANT OF PROSECUTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Circle K Stores, Inc. (hereinafter “Defendant”) in the above-
numbered and titled cause and, pursuant to Texas Rule of Civil Procedure 151, makes and files
this Application for Writ of Scire Facias and Motion to Dismiss Pursuant to Texas Rule of Civil
Procedure 151 or, in the alternative, Motion to Dismiss for Want of Prosecution, and in support
thereof would respectfully show the Court as follows:
I.
BACKGROUND
1. This matter arises out of an alleged trip-and-fall incident which occurred on April
1, 2021, outside of the Circle K Stores, Inc. located at 1625 W. League City Parkway, League City,
Texas 77573. Plaintiff (hereinafter “Plaintiff”) was alleged to have stepped on misplaced flattened
cardboard box on top of the end of a dolly resulting in alleged personal injuries. Plaintiff filed suit
on March 10, 2022. On May 7, 2021, Defendant filed an Answer with the Court. Plaintiff Counsel
advised recently that Plaintiff had died and indicated that a Suggestion of Death would be filed
thereafter. As of the date of this filing, repeated requests that a Suggestion of Death be filed, have
not resulted in same.
Defendant’s Application for Writ of Scire Facias and
Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 1
2. Despite the above, Plaintiff Counsel has yet to file with this Court a Suggestion of
Death to date.
II.
ARGUMENTS & AUTHORITIES
3. Under Texas Rule of Civil Procedure 151, if a plaintiff dies, a suggestion of death
must be filed and the heirs, administrator, or executor of the estate must appear to prosecute the
suit on the deceased plaintiff’s behalf within a reasonable time. Tex. R. Civ. P. 151. If no such
appearance and suggestion is made within a reasonable time, the defendant may apply to the Court
for an issuance of scire facias for the heirs, administrator, or executor to appear and prosecute the
suit. Id. If an appearance is not made within the time provided in the scire facias, the defendant
may have the suit dismissed. In addition to the Court’s power under Rule 151, the Court also has
the power to dismiss under said scenario for want of prosecution. See In re Coats, 580 S.W.3d
431, 437 n.5 (Tex. App.—Texarkana 2019, no pet.) (“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.”).
4. Under Texas law, only a licensed attorney may represent the interests of a third
party in litigation. See, e.g., In re Guetersloh, 326 S.W.3d 737, 740 (Tex. App.—Amarillo 2010,
no pet.). Although an individual has a right to represent himself in court under Tex. R. Civ. P. 7,
said right does not extend to situations in which a person is acting in a representative capacity,
rather than in propria persona. Id.
5. As such, Defendant asks this Court to formally issue scire facias to Plaintiff’s heirs,
ordering his and/or the heirs, administrator, or executor of Plaintiff’s estate to appear with licensed
counsel within a short period of time as seen fit by the Court, taking into account the fact that
Defendant’s Application for Writ of Scire Facias and
Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 2
Plaintiff’s heirs has already failed to obtain counsel. Immediately upon the expiration of the time
noted in this Court’s scire facias, Defendant further requests that this Court dismiss this case
pursuant to Texas Rule of Civil Procedure 151.
6. In addition, and/or in the alternative, and for the same reasons as noted above,
Defendant further requests that this Court dismiss this case for want of prosecution pursuant to
Texas Rule of Civil Procedure 165a and this Court’s inherent ability to control its docket. See, e.g.,
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (“The trial court’s
authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas
Rules of Civil Procedure; and (2) the court’s inherent power.”).
III.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Circle K Stores, Inc. respectfully
requests that this Court issue scire facias and, immediately upon the expiration of the time noted
in said instrument, for the dismissal of this action with prejudice pursuant to Texas Rule of Civil
Procedure 151. In addition, and/or in the alternative, Defendant further requests that this Court
dismiss this action for want of prosecution, and for such further and other relief to which it may
be entitled, both in law and in equity.
Defendant’s Application for Writ of Scire Facias and
Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 3
Respectfully submitted,
/s/ Rebecca M. Gilberg
DAVID W. WHITEHURST
State Bar No. 21357000
REBECCA M. GILBERG
State Bar No. 24077517
SEAN P. DEER
State Bar No. 24117170
WHITEHURST & WHITE, L.L.P.
16300 Addison Road, Suite 100
Addison, Texas 75001
E-mail: dwhitehurst@whitehurstlaw.com
E-mail: rgilberg@whitehurstlaw.com
Email: sdeer@whitehurstlaw.com
(972) 503-5455 Telephone
(972) 503-6155 Facsimile
Attorneys for Defendant
Circle K Stores, Inc.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
was forwarded to all counsel of record pursuant to the Texas Rules of Civil Procedure on the 27th
day of March, 2023.
/s/ Rebecca M. Gilberg
REBECCA M. GILBERG
Defendant’s Application for Writ of Scire Facias and
Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Kristi Mayne on behalf of Rebecca Gilberg
Bar No. 24077517
kmayne@whitehurstlaw.com
Envelope ID: 74031735
Filing Code Description: Motion
Filing Description: Motion Application for Writ of Scire Facias
Status as of 3/27/2023 11:06 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
David WWhitehurst dwhitehurst@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT
Margaret Peter mpeter@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT
Kristi Mayne kmayne@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT
Rebecca M.Gilberg rgilberg@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT
Alma Lira Alira@proactivelegal.com 3/27/2023 11:01:56 AM SENT
Daspit Proactive Legal daspit@proactivelegal.com 3/27/2023 11:01:56 AM SENT
Lora Moriconi lmoriconi@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT
Jaime Holder jholder@proactivelegal.com 3/27/2023 11:01:56 AM SENT
John Daspit e-service@daspitlaw.com 3/27/2023 11:01:56 AM SENT
Caylin Craig ccraig@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT
Associated Case Party: Santos Benavides
Name BarNumber Email TimestampSubmitted Status
Ashlyn Turner ashlyn@daspitlaw.com 3/27/2023 11:01:56 AM SENT
Austin Delgado adelgado@daspitlaw.com 3/27/2023 11:01:56 AM SENT
Preview
Filed: 3/27/2023 11:01 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 74031735 By: Shailja Dixit 3/27/2023 11:06 AM CAUSE NO. 21-CV-0489 SANTOS BENAVIDES § IN THE DISTRICT COURT § Plaintiff, § v. § 56TH JUDICIAL DISTRICT § CIRCLE K STORES, INC. § § Defendant. § GALVESTON COUNTY, TEXAS DEFENDANT’S APPLICATION FOR WRIT OF SCIRE FACIAS AND MOTION TO DISMISS PURSUANT TO TEXAS RULE OF CIVIL PROCEDURE 151 OR, IN THE ALTERNATIVE, MOTION TO DISMISS FOR WANT OF PROSECUTION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant Circle K Stores, Inc. (hereinafter “Defendant”) in the above- numbered and titled cause and, pursuant to Texas Rule of Civil Procedure 151, makes and files this Application for Writ of Scire Facias and Motion to Dismiss Pursuant to Texas Rule of Civil Procedure 151 or, in the alternative, Motion to Dismiss for Want of Prosecution, and in support thereof would respectfully show the Court as follows: I. BACKGROUND 1. This matter arises out of an alleged trip-and-fall incident which occurred on April 1, 2021, outside of the Circle K Stores, Inc. located at 1625 W. League City Parkway, League City, Texas 77573. Plaintiff (hereinafter “Plaintiff”) was alleged to have stepped on misplaced flattened cardboard box on top of the end of a dolly resulting in alleged personal injuries. Plaintiff filed suit on March 10, 2022. On May 7, 2021, Defendant filed an Answer with the Court. Plaintiff Counsel advised recently that Plaintiff had died and indicated that a Suggestion of Death would be filed thereafter. As of the date of this filing, repeated requests that a Suggestion of Death be filed, have not resulted in same. Defendant’s Application for Writ of Scire Facias and Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 1 2. Despite the above, Plaintiff Counsel has yet to file with this Court a Suggestion of Death to date. II. ARGUMENTS & AUTHORITIES 3. Under Texas Rule of Civil Procedure 151, if a plaintiff dies, a suggestion of death must be filed and the heirs, administrator, or executor of the estate must appear to prosecute the suit on the deceased plaintiff’s behalf within a reasonable time. Tex. R. Civ. P. 151. If no such appearance and suggestion is made within a reasonable time, the defendant may apply to the Court for an issuance of scire facias for the heirs, administrator, or executor to appear and prosecute the suit. Id. If an appearance is not made within the time provided in the scire facias, the defendant may have the suit dismissed. In addition to the Court’s power under Rule 151, the Court also has the power to dismiss under said scenario for want of prosecution. See In re Coats, 580 S.W.3d 431, 437 n.5 (Tex. App.—Texarkana 2019, no pet.) (“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.”). 4. Under Texas law, only a licensed attorney may represent the interests of a third party in litigation. See, e.g., In re Guetersloh, 326 S.W.3d 737, 740 (Tex. App.—Amarillo 2010, no pet.). Although an individual has a right to represent himself in court under Tex. R. Civ. P. 7, said right does not extend to situations in which a person is acting in a representative capacity, rather than in propria persona. Id. 5. As such, Defendant asks this Court to formally issue scire facias to Plaintiff’s heirs, ordering his and/or the heirs, administrator, or executor of Plaintiff’s estate to appear with licensed counsel within a short period of time as seen fit by the Court, taking into account the fact that Defendant’s Application for Writ of Scire Facias and Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 2 Plaintiff’s heirs has already failed to obtain counsel. Immediately upon the expiration of the time noted in this Court’s scire facias, Defendant further requests that this Court dismiss this case pursuant to Texas Rule of Civil Procedure 151. 6. In addition, and/or in the alternative, and for the same reasons as noted above, Defendant further requests that this Court dismiss this case for want of prosecution pursuant to Texas Rule of Civil Procedure 165a and this Court’s inherent ability to control its docket. See, e.g., Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (“The trial court’s authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the court’s inherent power.”). III. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Circle K Stores, Inc. respectfully requests that this Court issue scire facias and, immediately upon the expiration of the time noted in said instrument, for the dismissal of this action with prejudice pursuant to Texas Rule of Civil Procedure 151. In addition, and/or in the alternative, Defendant further requests that this Court dismiss this action for want of prosecution, and for such further and other relief to which it may be entitled, both in law and in equity. Defendant’s Application for Writ of Scire Facias and Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 3 Respectfully submitted, /s/ Rebecca M. Gilberg DAVID W. WHITEHURST State Bar No. 21357000 REBECCA M. GILBERG State Bar No. 24077517 SEAN P. DEER State Bar No. 24117170 WHITEHURST & WHITE, L.L.P. 16300 Addison Road, Suite 100 Addison, Texas 75001 E-mail: dwhitehurst@whitehurstlaw.com E-mail: rgilberg@whitehurstlaw.com Email: sdeer@whitehurstlaw.com (972) 503-5455 Telephone (972) 503-6155 Facsimile Attorneys for Defendant Circle K Stores, Inc. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was forwarded to all counsel of record pursuant to the Texas Rules of Civil Procedure on the 27th day of March, 2023. /s/ Rebecca M. Gilberg REBECCA M. GILBERG Defendant’s Application for Writ of Scire Facias and Motion to Dismiss Pursuant to Tex. R. Civ. P. 151 Page | 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Kristi Mayne on behalf of Rebecca Gilberg Bar No. 24077517 kmayne@whitehurstlaw.com Envelope ID: 74031735 Filing Code Description: Motion Filing Description: Motion Application for Writ of Scire Facias Status as of 3/27/2023 11:06 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status David WWhitehurst dwhitehurst@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT Margaret Peter mpeter@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT Kristi Mayne kmayne@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT Rebecca M.Gilberg rgilberg@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT Alma Lira Alira@proactivelegal.com 3/27/2023 11:01:56 AM SENT Daspit Proactive Legal daspit@proactivelegal.com 3/27/2023 11:01:56 AM SENT Lora Moriconi lmoriconi@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT Jaime Holder jholder@proactivelegal.com 3/27/2023 11:01:56 AM SENT John Daspit e-service@daspitlaw.com 3/27/2023 11:01:56 AM SENT Caylin Craig ccraig@whitehurstlaw.com 3/27/2023 11:01:56 AM SENT Associated Case Party: Santos Benavides Name BarNumber Email TimestampSubmitted Status Ashlyn Turner ashlyn@daspitlaw.com 3/27/2023 11:01:56 AM SENT Austin Delgado adelgado@daspitlaw.com 3/27/2023 11:01:56 AM SENT