Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
MICHAEL BALDERAZ ON BEHALF OF THE ESTATE OF JOSEPHINE BALDERAZ, Appellants,
DAN MARTIN, M.D.; SURGICAL ASSOCIATES - CORPUS CHRISTI, L.L.P., Appellees.
appeal from the 28th District Court of Nueces County, Texas.
Justices Benavides, Longoria, and Perkes
M. BENAVIDES, JUSTICE
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. 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
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.
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. Josephine was
survived by her son Michael.
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.
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.
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. Because standing is jurisdictional and
Michael's other arguments are not, we address standing
Standard of Review
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.
Does a Deceased Have Standing to Sue?
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.
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).
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.").
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.
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 ...