Searching over 5,500,000 cases.


searching
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.

Shaw v. Daybreak, Inc.

Court of Appeals of Texas, Fifth District, Dallas

September 20, 2017

PATRICIA SHAW, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DELOIS SHAW, Appellant
v.
DAYBREAK, INC., WESTBRIDGE NURSING & REHABILITATION, AND TRACY WAYMIRE, Appellees

         On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-00603

          Before Justices Lang-Miers, Brown, and Boatright.

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE.

         Appellant Patricia Shaw, as personal representative of the estate of Delois Shaw, appeals the trial court's judgment. In three issues, Patricia[1] 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.

         Background

         Delois 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 medical negligence.

         The 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.

         Patricia 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[.]"

         The trial court granted the Daybreak Parties' motion to dismiss Patricia's claims with prejudice. Patricia then filed this appeal.[2]

         Standing

         In her 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.

         Applicable Law and Standard of Review

         The 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.

         We 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. 2005).

         The 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).

         Arguments ...


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.