Salvador Robledo v. Victor Hernandez and Guillermo Martinez

REVERSE AND REMAND; Opinion Filed April 23, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00956-CV
BALTASAR D. CRUZ, Appellant
V.
VICTOR HERNANDEZ AND GUILLERMO MARTINEZ, Appellees
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-15879
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Schenck
Baltazar D. Cruz was appointed guardian ad litem for three minors in their
suit against appellees Victor Hernandez and Guillermo Martinez, in which the
minors and two adults sought to recover for their injuries sustained in a motor vehicle
accident. Cruz appeals pro se the trial court’s orders appointing a new guardian ad
litem, approving fees for Cruz’s services as guardian ad litem, and the amended final
judgment. In his first issue, Cruz argues the trial court erred by conducting further
proceedings after the case was abated and without first entering order reinstating the
case. We agree. For the following reasons, we reverse the judgment of the trial
court and remand for further proceedings. Because all dispositive issues are settled
in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4.
BACKGROUND
On December 10, 2010, Salvador Robledo, Jacquelyn Robledo on behalf of
Jesse Robledo, and Veronica Robledo, individually and on behalf of Jack Jaynes and
Claudia Jaynes (collectively, the plaintiffs), filed suit against Old American County
Mutual Insurance, Guillermo Martinez, and Victor Hernandez.
On May 29, 2012, a Rule 11 agreement was filed with the trial court that
purported to confirm the plaintiffs agreed to settle their claims against Martinez and
Hernandez.1 On May 30, 2012, Hernandez filed an agreed motion for appointment
of guardian ad litem for the minor. On June 2, 2012, the trial court signed an
amended order appointing Cruz as guardian ad litem to represent all three minors.
On June 4, 2015, Hernandez filed an agreed motion to abate the case until the
resolution of a separate suit against the underinsured motorist carrier pending in a
different district court. The next day, the trial court signed an order granting the
motion to abate until the named other suit was resolved.
No further action took place in this case until the trial court set the case for a
status conference on May 18, 2018. On June 28, 2018, Hernandez and Martinez
filed a motion to appoint a new guardian ad litem, alleging Cruz was nonresponsive
1
The record reflects an April 28, 2011 order nonsuiting plaintiffs’ claims against American County
Mutual Insurance.
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to requests for updates in the case and did not appear at the May 18 status conference.
The record contains a notice of hearing that was sent to Cruz, setting another status
conference for August 23, 2018. On September 5, 2018, the trial court signed an
order appointing a new guardian ad litem and relieving Cruz of his responsibility as
of that date.
On May 29, 2019, Cruz filed an application for compensation for his services
and expenses as guardian ad litem. On May 31, 2019, the trial court signed an order
that awarded fees to the new guardian ad litem and a final judgment, which among
other things, reflected the fees awarded to the new guardian ad litem. After
conducting a hearing on Cruz’s application, the trial court signed an order awarding
fees to Cruz. Cruz filed a motion to modify the judgment to reflect his fee award,
and on July 10, 2019, the trial court filed an amended final judgment from which
Cruz now appeals.
DISCUSSION
In his first issue, Cruz argues the trial court erred by conducting further
proceedings after the case was abated without first entering order reinstating the
case.
An abatement is a present suspension of all proceedings in a suit. Campbell v.
Kosarek, 44 S.W.3d 647, 650 (Tex. App.—Dallas 2001, pet. denied). The case is
held in suspended animation and may be revived when the reason for abatement is
removed. Id. During abatement, the court and the parties are prohibited from
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proceeding in any manner. Id. Further, unless otherwise specified in the abatement
order, any action taken by the court or the parties during the abatement is a legal
nullity. See Amrhein v. La Madeleine, Inc., 206 S.W.3d 173, 174–75 (Tex. App.—
Dallas 2006, pet. denied). To end an abatement where, as here, the abatement order
does not specify, an order of reinstatement must be entered. See id. Per our earlier
decision in Amrhein, we have rejected implied cessation of abatement by the court’s
or parties’ conduct, such as entering a judgment or otherwise proceeding with the
case are all ineffective to end an abatement. See id.Here, on June 5, 2015, the trial court signed the order granting agreed motion
to abate “until the suit against the underinsured motorist carrier . . . is resolved.” No
further action took place in this case until the trial court set the case for a status
conference on May 18, 2018. The trial court subsequently signed orders appointing
a new guardian ad litem, on guardian ad litem fees, a final judgment, and amended
final judgment. The record does not contain any order reinstating the case, nor does
the docket indicate such order was ever signed. Because an order was never entered
after the trial court’s June 5, 2015 order of abatement, all proceedings after that time
are a nullity. See Amrhein, 206 S.W.3d at 174–75. We sustain Cruz’s first issue and
pretermit discussion of his remaining issues on appeal in light of our disposition of
his first two issue. See TEX. R. APP. P. 47.1.
We are reluctant to remand this case for further proceedings on this basis
because we do not believe it is in the best interest of the parties or the courts to have
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proceedings continue for years without resolution—as in this case. But, absent an
intervening change in the law by the legislature, a higher court, or this Court sitting
en banc, we are bound to follow this Court’s precedent. MobileVisionImaging
Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.—
Dallas 2008, no pet.).
CONCLUSION
We reverse the judgment of the trial court and remand for further proceedings
consistent with this opinion.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
190956F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BALTASAR D. CRUZ, Appellant On Appeal from the 44th Judicial
District Court, Dallas County, Texas
No. 05-19-00956-CV V. Trial Court Cause No. DC-10-15879.
Opinion delivered by Justice
VICTOR HERNANDEZ AND Schenck. Justices Smith and Garcia
GUILLERMO MARTINEZ, participating.
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant BALTASAR D. CRUZ recover his costs of
this appeal from appellees VICTOR HERNANDEZ AND GUILLERMO
MARTINEZ.
Judgment entered this 23rd day of April, 2021.
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