United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.)
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
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
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.
Plaintiffs' Capacity to Maintain a Survival
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).
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.
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 ...