Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Webb v. Livingston

United States District Court, S.D. Texas, Houston Division

May 16, 2017

EDNA WEBB, et al, Plaintiffs,
BRAD LIVINGSTON, et al, Defendants.



         Pending before the Court are two motions for partial summary judgment filed by the University of Texas Medical Branch and Owen Murray (“UTMB Defendants”), and the Texas Department of Criminal Justice, Brad Livingston, Rick Thaler, William Stephens, Robert Eason, and Tommie Haynes (“TDCJ Defendants”). (Doc. Nos. 281 & 282.) Defendants have also filed a joint partial motion to dismiss. (Doc. No. 280). Additionally, Plaintiffs have filed a motion to substitute, for Plaintiff Kevin Webb, Edna Webb, Kasey Akins, and Christian Jackson as personal representatives of his estate. (Doc. No. 288.) Finally, TDCJ Defendants have filed a motion for leave to file an amended answer. (Doc. No. 326.) Plaintiffs have moved to strike this amended answer. (Doc. No. 334.) The motions have been fully briefed. Upon careful consideration of the parties' arguments and the relevant statutes and caselaw, the Court finds that it must deny UTMB Defendants and TDCJ Defendants' motions for partial summary judgment; grant Defendants' motion to dismiss; deny Plaintiffs' motion to substitute; deny TDCJ Defendants' motion for leave to amend; and grant Plaintiffs' motion to strike. The reasons for these rulings are explained below.

         I. BACKGROUND

         Plaintiffs filed this lawsuit against TDCJ, UTMB, and the individual defendants in June of 2013. Plaintiffs allege that unconstitutional and illegal conditions in TDCJ's Hodge Unit led to the death of their son and father, Robert Allen Webb. (Doc. No. 83.) Plaintiff Edna Webb, Robert Webb's mother, brought suit in her individual capacity as a statutory beneficiary of the Texas Wrongful Death Act. (Id. at 3.) Plaintiff Kevin Webb, Robert Webb's son, sued as a statutory beneficiary under the Texas Wrongful Death Act and as representative of Robert Webb's estate. Plaintiffs Casey Akins and Christian Carson, also children of Robert Webb, sued as statutory beneficiaries of the Texas Wrongful Death Act and as heirs-at-law of the Robert Webb's estate.

         Defendants' motions have been filed as a result of the tragic murder of Kevin Webb, Robert Webb's son who sued as representative of Robert Webb's estate. Defendants seek dismissal of Plaintiffs' survival claims, arguing that Plaintiffs now lack capacity to those claims. (Doc. Nos. 281 & 282.) Defendants also move to dismiss Plaintiff Kevin Webb, asserting that he no longer has standing to pursue the wrongful death claim regarding his father's death. (Doc. No. 280.)

         Plaintiffs contest both issues. They argue that the remaining plaintiffs maintain capacity to sue on behalf of the estate of Robert Webb, because no administration was necessary for Robert Webb's estate. As support for this contention, they have submitted a Family Settlement Agreement that has been executed by all of Robert Webb's heirs, and provides for payment of debts and the disposition of any potential assets. (Doc. No. 286 at 1.) Plaintiffs also assert that they should be substituted as representatives of Kevin Webb's estate, allowing Kevin Webb's wrongful death claim to remain, despite his death. (Doc. No. 288.)


         Because Plaintiffs brought suit under Texas's wrongful death and survival statutes, the Court turns to Texas law to determine whether they have capacity to maintain the lawsuit. Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985). A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001). Courts and parties often conflate or blur the distinction between standing and capacity, so a short review is necessary.

         “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest' in its outcome, whereas the issue of capacity ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.'” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005) (citing 6A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, at 441 (2d ed.1990)). Texas courts have distinguished between these two threshold requirements as follows: “A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.” Id. (citing Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996)).

         In their motions for partial summary judgment, Defendants allege that the remaining plaintiffs do not have capacity to maintain the survival claim on behalf of Robert Webb's estate. In their motion to dismiss, they argue that Kevin Webb does not have standing to maintain his own wrongful death claim. Because these are distinct issues, the Court will discuss them separately.

         A. Plaintiffs' Capacity to Maintain a Survival Claim

         At common law, a person's claims for personal injuries did not survive her death. Austin Nursing Ctr., 171 S.W.3d at 849. In 1895, the Legislature abrogated this rule by enacting the survival statute, which now provides: “A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person . . . A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.” Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (West).

         Although the statute provides that “[t]he proper plaintiff in a survival action is the estate's personal representative, administrator, or an heir of the decedent, ” . . . [t]ypically, a personal representative of the decedent's estate is the only person entitled to recover estate property. Martinez v. Foster, No. 4:13CV59, 2016 WL 816089, at *4 (E.D. Tex. Mar. 2, 2016). Texas courts have acknowledged, however, that “under certain circumstances heirs may be entitled to sue on behalf of the decedent's estate.” Austin Nursing Ctr., 171 S.W.3d at 850. “Heirs at law can maintain a survival suit during the four-year period the law allows for instituting administration proceedings if they allege and prove that there is no administration pending and none necessary.” Here, there is no question that Plaintiffs brought the survival claim within four years of Robert Webb's death. Furthermore, Plaintiffs argue that no administration was necessary for Robert Webb's estate, because the estate's sole asset consists of a share in possible proceeds from this lawsuit. Instead, they have submitted a family settlement agreement, executed by all of Robert Webb's heirs.[1]

         A family settlement agreement “is an alternative method of administration in Texas that is a favorite of the law.” Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex. 1998). Section 201.001 of the Texas Probate Code dictates that, when a person dies without a will or a spouse, the estate descends immediately to the person's children and the children's descendants. Tex. Est. Code Ann. § 201.001 (West); see also Rennie v. Young, No. 05-14-01109-CV, 2015 WL 4600214, at *3 (Tex. App. July 31, 2015). The heirs are then responsible for paying any debts of the estate. However, “[e]ach heir is liable only for a proportional share of the debt, and the extent of the liability is limited to the property received from the estate.” Thus, if an estate has debts but no assets, the heirs are not responsible for paying the debts. See Potts v. W. Q. Richards Mem'l Hosp., 558 S.W.2d 939, 943 (Tex. Civ. App. 1977) (holding that “the creditor is not entitled to recover from ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.