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Balderaz v. Martin

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 21, 2019


          On appeal from the 28th District Court of Nueces County, Texas.

          Before Justices Benavides, Longoria, and Perkes



         Appellant, Michael Balderaz, on behalf of the estate of Josephine Balderaz, challenges the trial court's dismissal of his medical malpractice action against Josephine's doctors on two grounds.[1] The original petition was brought in Josephine's name although she had died five months earlier. Michael argues that he cured any defect in capacity to bring suit by his amended petition, the original petition contained only a misnomer that related back to the original filing, and the trial court erroneously dismissed his petition for lack of subject matter jurisdiction. Michael next challenges the attorneys' fees awarded as sanctions on the grounds that there is no legal basis for sanctions and the amount of the fees awarded is not supported by legally sufficient evidence. We affirm in part and reverse and render in part.

         I. Background

         Dan Martin, M.D. removed Josephine's gallbladder by laparoscopic surgery in July 2014. Before the surgery, Josephine had been diagnosed with gall stones that filled her gall bladder and obstructed her common bile duct. During the surgery, Dr. Martin clipped and transected the common bile duct. The next day, Josephine was transferred to a different hospital and to the care of a hepatobiliary surgeon to undergo reconstruction of her common bile duct. She remained hospitalized until August 6, 2014.

         Two years later, on July 29, 2016, plaintiff's counsel filed the present suit against Dr. Martin and Surgical Associates-Corpus Christi, L.L.P., appellees, (collectively Dr. Martin) on behalf of Josephine. According to her petition, Dr. Martin's failure to protect the common bile duct from damage during surgery was a breach of the standard of care that resulted in additional surgery and two months of long-term care instead of discharge post-surgery. Counsel was unaware that Josephine, who was eighty-five, died in March 2016 from hypertensive cardiovascular disease.[2] Josephine was survived by her son Michael.

         On July 30, 2017, Dr. Martin filed a motion to dismiss on the grounds that the petition did not invoke the jurisdiction of the trial court because Josephine did not have standing to prosecute her claim at the time the petition was filed. The motion also requested attorneys' fees as sanctions.

         On October 11, 2017, Michael filed a suggestion of death pursuant to rule 151. Tex.R.Civ.P. 151. The same day, Michael filed an amended petition naming himself as plaintiff on behalf of the estate of Josephine Balderaz, deceased. By that time, limitations had expired. Tex. Civ. Prac. & Rem. Code Ann. § 74.251. Michael responded to the motion to dismiss. A hearing was held on October 13, 2017. The trial court granted the motion on October 16, 2017, and dismissed the suit with prejudice. This appeal followed.

         II. Standing

         By his first issue and several sub-issues, Michael argues that the issue is one of capacity, not standing, and that the trial court erred by dismissing the case for lack of jurisdiction once the capacity issue had been cured. Michael also argues that Josephine had standing to bring suit through her estate and thus invoked the trial court's jurisdiction. Finally, Michael argues that this is a misnomer case, and his amended petition related back to his original timely filing.[3] Because standing is jurisdictional and Michael's other arguments are not, we address standing first.

         A. Standard of Review

         "As a component of subject matter jurisdiction, we review a claimant's standing de novo." Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004). Standing is a question of law. In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). "In evaluating standing, we construe the pleadings in the plaintiff's favor, but we also consider relevant evidence offered by the parties." Id.

         B. Does a Deceased Have Standing to Sue?

         "A plaintiff must have standing to bring a lawsuit." Wassmer v. Hopper, 463 S.W.3d 513, 523 (Tex. App.-El Paso 2014, no pet.). "Standing concerns whether a party has a sufficient relationship with the lawsuit to have a justiciable interest in its outcome." Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). "In the absence of standing, a trial court lacks subject matter jurisdiction to hear the case." Id. at 849. Because standing is essential to subject matter jurisdiction, Texas courts require "the pleader to allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

         We begin with whether a person who is deceased at the time suit is brought is a "person" who may recover for injuries sustained when she was alive. A claim for personal injuries survives the death of an injured person, but it "survives to and in favor of the heirs, legal representatives, and estate of the injured person." Tex. Civ. Prac. & Rem. Code. Ann. § 71.021(b). Section 71.021 "provides that only a personal representative, administrator, or heir may sue on behalf of an estate." Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998). Immediately upon death, property belonging to a person, including a cause of action, vests in the estate or heirs of the deceased. See Tex. Est. Code Ann. § 100.001(a); Casey v. Kelley, 185 S.W.2d 492, 493 (Tex. App.-Fort Worth 1945, writ ref'd). Thus the suit could be brought on Josephine's behalf after she died only by a person named as representative of her estate or as her heir. When Josephine died, she ceased to exist as a person and thus no longer had standing to assert her claim. See Armes v. Thompson, 222 S.W.3d 79, 83 (Tex. App.-Eastland 2006, no pet.) (holding suit brought in the name of a deceased plaintiff was a nullity because the deceased lacked standing). The suit here, like the suit in Armes, was brought as if Josephine was alive and sought future medical expenses and other forward-seeking damages, but Josephine no longer existed and her claims vested in her beneficiaries or her estate who had the sole right to bring suit to recover for her injuries. Id. As a result, suit brought in Josephine's name did not invoke the trial court's jurisdiction. See id. The trial court properly dismissed Josephine's suit for lack of jurisdiction. See Pluet v. Frasier, 355 F.3d 381, 386 (5th Cir. 2004) (dismissing suit on summary judgment because plaintiff did not have standing to bring suit); Smith v. CDI Rental Equip., Ltd., 310 S.W.3d 559, 567 (Tex. App.-Tyler 2010, no pet.) (dismissing case on sworn account based upon plaintiff's lack of standing).

         Michael argues that the issue is one of capacity, not standing, that he was Josephine's sole heir and he cured the issue of capacity before the trial court dismissed the suit. We agree that capacity issues can be cured. See Lovato, 171 S.W.3d at 853. During the course of the litigation, Lovato filed an application for independent administration of her mother's estate and was appointed after limitations expired. Id. She amended her petition and the Supreme Court held that the amendment related back. Id. at 852; see also Gomez v. Tex. Windstorm Ins. Ass'n, No. 13-04-598-CV, 2006 WL 733957, at *2 (Tex. App.-Corpus Christi-Edinburg Mar. 23, 2006, pet. denied) (mem. op.) ("It is undisputed that the all interested parties knew from the start of the lawsuit that Agapito had died before the suit was filed; thus, it was clear to all involved that the estate of Agapito, not Agapito himself, was filing the suit.").

         The difference between Lovato and Michael is that Lovato originally filed suit as the personal representative of her mother's estate, not as her mother. Id. at 846. That difference is critical. Here the original suit was filed by Josephine and did not invoke the trial court's jurisdiction as we have explained. Michael's amended petition for the first time pleaded claims that he had both standing and capacity to raise but was filed after limitations expired. Michael's claim that the problem here is one of capacity that he cured, does not fit the facts of those cases. See Lovato, 171 S.W.3d at 853; see also Gomez, 2006 WL 733957, at *2.

         Because we hold that Josephine's original petition had a jurisdictional defect, Michael's efforts to cure his claimed capacity and misnomer issues were too late and did not relate back because the first suit preserved nothing. See Pluet, 355 F.3d at 385; Armes, 222 S.W.3d at 83. As a result, his suit was ...

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