Alex Valderas v. John Pennebaker, as Administrator and/or Executor and Representative of Ima Jean Pennebaker, Deceased--Appeal from 14th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-101-CV

ALEX VALDERAS,

Appellant

v.

JOHN PENNEBAKER, AS ADMINISTRATOR AND/OR

EXECUTOR AND REPRESENTATIVE OF IMA JEAN

PENNEBAKER, DECEASED,

Appellee

From the 14th District Court

Dallas County, Texas

Trial Court # 93-5076-A

O P I N I O N

This is an appeal by Appellant (Valderas) from a summary judgment that he take nothing against John Pennebaker on Valderas's claim as set out in Valderas's first amended petition.

Appellant filed suit on May 12, 1993, against Ima Jean Pennebaker, alleging he was injured in an automobile collision on May 13, 1991, caused by her negligence.

This case was filed fifteen months after the death of Ms. Pennebaker. On August 25, 1993, Appellant filed a suggestion of death and caused the district clerk to issue a writ of scire facias directed to "John Pennebaker as Administrator and/as Executor and Representative of Ima Jean Pennebaker," commanding him to answer Appellant's petition.

On September 21, 1993, John Pennebaker "as Administrator and/or Executor and Representative of Ima Jean Pennebaker, Deceased," filed an "original answer," which consisted of a general denial.

John Pennebaker filed his "First Amended Answer" on October 20, 1993, in which he alleged he was not a proper party to this lawsuit "as there had been no administration of Ima Jean Pennebaker's estate; that he had not been appointed the executor, administrator, or representative of Ima Jean Pennebaker's estate by any court in Texas."

On that same day, October 20, John Pennebaker filed a motion for summary judgment together with his affidavit that he had "not been appointed by any court in Texas as administrator, executor, or representative of the estate of Ima Jean Pennebaker; that the estate had not been the subject of an administration; and that he had not taken any property of Ima Jean Pennebaker as an heir."

Thereafter, on November 15, 1993, Appellant filed "plaintiff's first amended original petition" complaining of defendants, "Ima Jean Pennebaker and John Pennebaker, as legal representative of the estate and as administrator and/or executor and representative of Ima Jean Pennebaker, deceased." Appellant then alleged injuries in the automobile collision caused by Ima Jean Pennebaker's negligence.

The trial court granted John Pennebaker's motion for summary judgment and decreed that Valderas take nothing against John Pennebaker as to "Valderas's claims set out in his first amended original petition," (which included his claims against Ima Jean Pennebaker).

Appellant appeals on three points of error.

Point one: The trial court erred in granting John Pennebaker's motion for summary judgment.

Point two: The trial court erred in granting summary judgment because John Pennebaker failed to establish as a matter of law that he lacks the capacity to be sued as legal representative of the estate of Ima Jean Pennebaker.

Point three: The trial court erred in granting summary judgment in this case because John Pennebaker failed to establish that the entire case was void as a matter of law.

The standards for reviewing a summary judgment are: (1) the movant has the burden of showing there is no genuine issue of fact and that it is entitled to a summary judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 458 (Tex. 1985).

Appellant's first amended original petition brings suit against "Ima Jean Pennebaker" and "John Pennebaker, as Legal Representative of the Estate and as Administrator and/as Executor and Representative of Ima Jean Pennebaker, Deceased."

The summary judgment evidence establishes that John Pennebaker is not the legal representative of the estate, administrator, executor, or representative of the estate of Ima Jean Pennebaker, Deceased. However, the summary judgment evidence does not establish, as a matter of law, that Appellant Valderas should take nothing as to his claims against Ima Jean Pennebaker, as set out in plaintiff's first amended petition.

We think the trial court correctly granted John Pennebaker's motion for summary judgment that Appellant take nothing as to him "as legal representative of the estate, administrator and/or executor and representative of Ima Jean Pennebaker"; but that the trial court erred in granting summary judgment that Appellant take nothing against Ima Jean Pennebaker, and in dismissing the case against her.

We overrule Appellant's points that the trial court erred in granting summary judgment that Appellant take nothing as to John Pennebaker, and sustain Appellant's points that the trial court erred in granting summary judgment that he take nothing as to Ima Jean Pennebaker, and in dismissing the case against her. The claims against Ima Jean Pennebaker are severed and remanded to the trial court for further proceedings.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed in part; reversed and remanded in part

Opinion delivered and filed January 30, 1995

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