LORENZO GOMEZ, AS THE EXECUTOR AND REPRESENTATIVE OF THE ESTATE OF AGAPITO GOMEZ v. TEXAS WINDSTORM INSURANCE ASSOCIATION--Appeal from 28th District Court of Nueces County

   NUMBER 13-04-598-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

LORENZO GOMEZ, AS THE EXECUTOR AND

REPRESENTATIVE OF THE ESTATE OF AGAPITO

GOMEZ Appellants,

v.

TEXAS WINDSTORM INSURANCE ASSOCIATION, Appellee.

 On appeal from the 28th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Castillo and Garza

   Opinion by Chief Justice Valdez

Appellant, Lorenzo Gomez, appeals the judgment of the trial court dismissing his claims against appellee, Texas Windstorm Insurance Association (ATWIA@). Lorenzo specifically appeals on three grounds: (1) the trial court erred by determining that Lorenzo was not authorized to bring suit against TWIA on behalf of his deceased father; (2) the trial court does not lose jurisdiction because of a misnomer of the plaintiff; and (3) an insured=s rights under the insurance policy and state law survive the death of the named insured. We conclude that Lorenzo Gomez, as executor of his father=s estate, successfully cured the defect in capacity before the motion to dismiss was heard, and therefore, we hold that the trial court erred by dismissing the case for lack of capacity.

Motion to Dismiss

The underlying suit involves a disputed insurance claim on a policy held by Agapito Gomez, now deceased. The petition in the suit was originally styled as AAgapito Gomez v. TWIA@ though the plaintiff later filed an amended petition styled ALorenzo Gomez, as Executor and Representative of the Estate of Agapito Gomez.@

TWIA filed a motion to dismiss the case, alleging that Agapito Gomez did not have capacity to bring this suit because he was deceased. The trial court granted the motion, specifically on the grounds of the plaintiff=s lack of capacity, and entered an order of dismissal. Lorenzo now appeals this order, claiming that he had capacity to sue on behalf of his deceased father=s estate. We review an order on a motion to dismiss de novo. See Anderson v. City of San Antonio, 120 S.W.3d 5, 7 (Tex. App.BSan Antonio 2003, pet. denied).[1]

A motion to dismiss for lack of jurisdiction involves at least two elements: standing and capacity. A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001). A plaintiff has standing when he is personally aggrieved, regardless of whether he is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy. Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).

In this case, the cause of action was raised on behalf of Agapito Gomez, now deceased. Because a decedent's survival claim becomes part of his estate at death, it follows that the estate retains a justiciable interest in the survival action. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005). In a survival action, the decedent's estate has a justiciable interest in the controversy sufficient to confer standing. See id. Thus, the estate of Agapito Gomez has standing; the remaining question to be resolved is that of capacity, the ground upon which the trial court granted TWIA=s motion to dismiss.

Capacity

When a person is appointed administrator of an estate, he or she acquires the capacity to assert a survival claim on the estate's behalf. See Lorentz v. Dunn, 171 S.W.3d 854, 856 (Tex. 2005); see also Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971) ("The personal representative . . . is ordinarily the only person entitled to sue for the recovery of property belonging to the estate."). If a defendant challenges the capacity of an administrator, the burden is on the defendant to make this challenge via a verified plea, and the trial court should abate the case and give the plaintiff a reasonable amount of time to cure any defect. See Lovato, 171 S.W.3d at 853 n.7 (citing Tex. R. Civ. P. 93(1) (2); Coakley v. Reising, 436 S.W.2d 315, 317 (Tex. 1968); Shiffers v. Estate of Ward, 762 S.W.2d 753, 755 (Tex. App.BFort Worth 1988, writ denied)).

So long as the purpose and the nature of the claim asserted are clear from the outset, the substitution of a personal representative for a party without capacity does not introduce a new or different cause of action and the substitution should satisfy the relation-back doctrine. See id. at 852-53; see also Lorentz, 171 S.W.3d at 856. If capacity is challenged, the plaintiff must overcome the challenge within a reasonable time. Lovato, 171 S.W.3d at 853.

In Lovato, the supreme court was faced with a survival action filed by the decedent=s heir who had not been named administrator of the estate. See id. at 846. During the pendency of the suit, however, the heir was named administrator; she then filed a post-limitations petition on behalf of the estate alleging the same causes of action as originally asserted but this time naming herself as administrator. See id. at 847. The supreme court held that, although the heir may have lacked capacity to bring the survival action at the time the lawsuit was filed, any defect in her capacity was later cured by her appointment as the estate=s administrator, and her post-limitations petition related back to the original petition. See id. at 846. As the court stated: AThe estate commenced the suit before limitations expired; [the administrator] cured the defect in her capacity before the case was dismissed. Under those circumstances, the estate had standing and was ultimately represented by a person with capacity to pursue the claim on its behalf.@ Id. at 853.

Thus, defects in capacity are clearly curable. Various courts have gone even further, noting that even when a defect in capacity is not cured before a verdict is reached, a judgment involving the estate is nonetheless valid so long as the personal representative of the estate is served and participates fully in the suit. See Embrey v. Royal Ins. Co., 22 S.W.3d 414, 415 n.2 (Tex. 2000) (citing Bernstein v. Portland Sav. & Loan Ass'n, 850 S.W.2d 694, 699 (Tex. AppBCorpus Christi 1993, writ denied)); see also Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975); In re Fairfield Fin. Group, Inc., 29 S.W.3d 911, 914-15 (Tex. App.BBeaumont 2000, orig. proceeding).

Here, the estate of Agapito Gomez clearly filed the first petition. Although the heading simply stated AAgapito Gomez@ as the plaintiff, the first amended petition clearly stated at the outset that A[p]laintiff is deceased, having died in the course of the adjustment of the claim. Plaintiff is represented by his Executor and son, Lorenzo Gomez.@ 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.[2] The involvement of Lorenzo on his father=s behalf was known to all parties, and Lorenzo appeared throughout all aspects of the litigation B including initial filing of the insurance claim, retaining of an attorney, filing of the petition, discovery, and mediation B in place of his father, thereby fully participating. See Embrey, 22 S.W.3d at 415 n.2.

While neither the estate of Agapito B nor Agapito himself B was a proper party to file suit, TWIA correctly challenged the capacity of the plaintiff by filing a verified plea pointing out the error. Lorenzo then properly responded by amending his petition to identify the plaintiff as ALorenzo Gomez, as the Executor and Representative of the estate of Agapito Gomez.@ We conclude that this action sufficed to cure the defect in the plaintiff=s capacity.[3] See Lovato, 171 S.W.3d at 853. As we do not consider this an example of misnomer, we will not address Lorenzo=s second argument on appeal.

As for Lorenzo=s third argument, that is, the rights of the insured survive the insured=s death, we agree. The policy issued to Agapito provides that, upon the death of the named insured, all rights and duties under the policy are transferred to the legal representative of the insured. The state=s survival statute provides that a cause of action for personal injuries suffered by a person who has died 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) (Vernon 1997). Furthermore, Texas courts have frequently allowed the estate=s representative to pursue survival claims on behalf of the deceased insured party. See Lovato, 171 S.W.3d at 850 (AWe therefore hold that, in a survival action, the decedent's estate has a justiciable interest in the controversy sufficient to confer standing.@); see also Lorentz, 171 S.W.3d at 856;Pratho v. Zapata, 157 S.W.3d 832, 839 (Tex. App.BFort Worth 2005, no pet.).

Conclusion

The trial court erred in granting TWIA=s motion to dismiss for lack of jurisdiction on the grounds of capacity. We therefore reverse and remand to the trial court for further proceedings.

Rogelio Valdez,

Chief Justice

Dissenting Memorandum Opinion by Justice Errlinda Castillo.

Memorandum Opinion delivered and filed

this 23rd day of March, 2006.

[1] Lorenzo also filed a separate motion to determine appellate jurisdiction. We conclude, however, that the order for dismissal was sufficient to serve as a final judgment subject to appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

[2] It may also be irrelevant that the original petition did not refer to the estate of Agapito as the plaintiff, as petitions filed in the name of deceased persons may also be later amended to reflect the party with proper capacity. See Loffler v. Univ. of Tex. Syst., 610 S.W.2d 188, 189 (Tex. Civ. App.BHouston [1st Dist.] 1980, no writ) (while an action may not be maintained by a nonexistent B i.e., deceased B plaintiff, a party with capacity can be substituted for a nonexistent plaintiff).

[3]The dissenting opinion disregards this amended petition because there is no evidence in the record that this amended pleading was filed with leave of court. However, the amended petition was filed within the time allowed by rule 63 of the Texas Rules of Civil Procedure (i.e., more than seven days before trial and so as not to cause surprise to the opposite party), and, therefore, leave of court would not be required. See Tex. R. Civ. P. 63.