Court of Appeals of Texas, Fifth District, Dallas
PATRICIA SHAW, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DELOIS SHAW, Appellant
DAYBREAK, INC., WESTBRIDGE NURSING & REHABILITATION, AND TRACY WAYMIRE, Appellees
Appeal from the 68th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-00603
Justices Lang-Miers, Brown, and Boatright.
ELIZABETH LANG-MIERS JUSTICE.
Patricia Shaw, as personal representative of the estate of
Delois Shaw, appeals the trial court's judgment. In three
issues, Patricia argues that the trial court erred in
granting partial summary judgment on the ground that she had
no standing individually to pursue the claims in this
lawsuit, the trial court erred in dismissing the lawsuit for
failure to serve an expert report in a health care liability
claim, and she had inadequate notice of the hearing on the
motion to dismiss. We affirm.
Shaw and Patricia Shaw, appearing pro se, sued appellees
Daybreak, Inc., Westbridge Nursing & Rehabilitation, and
Tracy Waymire (Daybreak Parties) for allegedly improperly
transferring Delois as a patient to Westbridge without
authorization, illegally possessing Delois's social
security check, and causing Delois to suffer injuries while
at Westbridge. Delois and Patricia asserted claims of abuse
of the elderly (financial), breach of contract rights of the
elderly, fraudulent inducement of contract, fraud, fraud by
nondisclosure, statutory fraud, deceptive trade practices,
conversion, vicarious liability-respondeat superior,
vicarious liability-corporate veil, conspiracy, and gross
Daybreak Parties filed a traditional motion for summary
judgment against Patricia Shaw's claims on the ground
that she did not have standing to assert the claims. The
trial court granted the motion for summary judgment and
dismissed all of Patricia's claims against the Daybreak
Parties and also ordered that the summary judgment did not
affect any claims made by Delois.
then filed a first amended petition as personal
representative of Delois alleging that Delois "succumbed
to the injury" and had died. The Daybreak Parties moved
to dismiss for failure to file an expert report in a health
care liability claim under Chapter 74 of the civil practice
and remedies code. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351 (West Supp. 2016). Patricia responded
that the lawsuit did not include a health care liability
claim and that she provided a "Letter of Demand with the
expert report, and invoices of financial liabilities, etc.,
before the filing of the Original Petition[.]"
trial court granted the Daybreak Parties' motion to
dismiss Patricia's claims with prejudice. Patricia then
filed this appeal.
first issue, Patricia argues that the trial court erred in
granting a partial summary judgment dismissing her claims on
the ground that she did not have standing individually to
pursue the claims for injuries to Delois.
Law and Standard of Review
legal doctrine of standing concerns whether a party is the
proper person to bring a lawsuit. Webb v. Voga, 316
S.W.3d 809, 812 (Tex. App.-Dallas 2010, no pet.). The general
test for standing in Texas requires that there is a real
controversy between the parties that will actually be
determined by the judicial declaration sought. Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993). "[T]he standing inquiry begins
with the plaintiff's alleged injury." Heckman v.
Williamson Cty., 369 S.W.3d 137, 155 (Tex. 2012).
"The determination of whether a plaintiff possesses
standing to assert a particular claim depends on the facts
pleaded and the cause of action asserted." Aubrey v.
Aubrey, 523 S.W.3d 299, 311 (Tex. App.-Dallas 2017, no
pet.) (quoting Mazon Assocs., Inc. v. Comerica Bank,
195 S.W.3d 800, 803 (Tex. App.-Dallas 2006, no pet.)).
"The plaintiff must be personally injured-he
must plead facts demonstrating that he, himself (rather than
a third party or the public at large), suffered the
injury." Heckman, 369 S.W.3d at 155. The
standing inquiry requires careful judicial examination of a
complaint's allegations to determine whether the
particular party is entitled to an adjudication of the
particular claims asserted. Id. at 156.
review a trial court's grant of summary judgment de novo.
Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). The
movant must show that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter
of law. Sommers v. Sandcastle Homes, Inc., 521
S.W.3d 749, 754 (Tex. 2017). When we review a summary
judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and
resolve any doubts in favor of the nonmovant. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
record does not contain a response by Patricia and Delois to
the Daybreak Parties' motion for summary judgment.
Although a nonmovant need not respond to a motion for summary
judgment, the failure to file a response limits the issues
that the nonmovant may assert on appeal. Analytical Tech.
Consultants, Inc. v. Axis Capital, Inc., No.
05-16-00281-CV, 2017 WL 2628087, at *2 (Tex. App.-Dallas June
19, 2017, no pet.) (mem. op.). Because Patricia and Delois
did not file a response to the motion for summary judgment,
they can only challenge on appeal the legal sufficiency of
the grounds presented by the Daybreak Parties. Id.;
see McConnell v. Southside Indep. Sch. Dist., 858
S.W.2d 337, 343 (Tex. 1993).