Bruno Garcia v. Beatrice Garcia Elizondo, Individually and as a Person Interested in the Estate of Alexandria Garcia, Deceased--Appeal from 166th Judicial District Court of Bexar County

No. 04-00-00077-CV

Bruno GARCIA,

Appellant

v.

Beatrice Garcia ELIZONDO, Individually

and as Executrix of the Estate of Alexandria Garcia, Deceased,

Appellee

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 97-CI-16867

Honorable David Peeples, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 7, 2001

AFFIRMED

This is an appeal following the trial court's denial of a motion to strike pleadings and allocate a wrongful death settlement to the decedent's estate. The trial court did not abuse its discretion in denying the motion, and we affirm.

BACKGROUND

In July 1996, the decedent, six-year-old Alexandria Garcia, died from injuries she suffered as a result of being hit by a truck while she was attempting to cross a street. In November 1997, Alexandria's mother, Beatrice Elizondo, filed suit individually and as executrix of Alexandria's estate. Beatrice sought damages for loss of companionship, mental anguish and emotional distress; loss of the care, maintenance, and support she would have received from Alexandria had Alexandria lived; and exemplary damages. On behalf of Alexandria's estate, Beatrice sought damages only for the conscious physical pain and mental anguish Alexandria suffered before her death.

In April 1998, Alexandria's father, Bruno Garcia, intervened, seeking damages for loss of companionship, mental anguish and emotional distress; loss of the care, maintenance, and support he would have received from Alexandria had Alexandria lived; and exemplary damages. Bruno also alleged he was entitled to be compensated for the conscious physical pain and mental anguish Alexandria suffered before her death.

No funeral expenses on behalf of the estate were sought, because Beatrice paid those expenses. No medical expenses on behalf of the estate were sought, because Beatrice's health care insurer paid those expenses. As to the only damages sought on behalf of the estate, the parties were unable to present any evidence that Alexandria suffered conscious physical pain or mental anguish before her death.

On December 2, 1999, Beatrice and Bruno each settled their claims against the defendants. Beatrice settled her claims individually and as "a person with an interest in the Estate of Alexandria Garcia." On December 28, 1999, Beatrice filed an amended petition, stating her capacity as "individually and as a person with an interest in the Estate of Alexandria Garcia, Deceased." On January 4, 2000, Bruno filed a motion to Strike Pleadings, Enforce Settlement Agreement, and Order Division of Settlement Proceeds, contending a portion of Beatrice's settlement should be allocated to Alexandria's estate. On January 5, 2000, Beatrice again amended her petition, stating her capacity only as "a person with an interest in the Estate of Alexandria Garcia, Deceased." The trial court denied Bruno's motion, and a final judgment was signed on January 10, 2000.

DISCUSSION

On appeal, Bruno asserts the trial court erred in denying his motion. He complains that, up until the settlement, Beatrice stated she was representing the interests of Alexandria's estate. Bruno alleges that, at settlement, Beatrice concealed the fact that all proceeds she intended to recover were being acquired solely for herself and that she intended to waive and abandon all claims on behalf of the estate. Bruno contends that when Beatrice filed her December 28 petition, she attempted to disavow her representative capacity and, therefore, the interests of the estate were never settled. Bruno does not indicate what estate interests were left unsettled, he merely contends the post-settlement amendment of Beatrice's petition was not appropriate and constituted a breach of Beatrice's fiduciary duty to Alexandria's estate.

Survival actions and wrongful death actions are separate and distinct causes of action. Landers v. B.F. Goodrich Co., 369 S.W.2d 33 (Tex.1963). An action for wrongful death is conferred by Section 71.02 of the Texas Civil Practice & Remedies Code upon the surviving husband, wife, child, and parents of a decedent. A survival action, on the other hand, is a common law action for damages sustained by the decedent and her estate as a result of injuries inflicted by the defendant. Under Section 71.021 of the Texas Civil Practice & Remedies Code, a decedent's action survives her death and may be prosecuted in her behalf. The survival action is wholly derivative of the decedent's rights. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992). The actionable wrong is that which the decedent suffered before her death. Id. The damages recoverable are those which the decedent sustained while alive and not any damages claimed independently by the survival action plaintiffs (except that funeral expenses may also be recovered if they were not awarded in a wrongful death action). Id. Any recovery obtained flows to those who would have received it had she obtained it immediately prior to her death-that is, her heirs, legal representatives and estate. Id.

Here, the only damages Beatrice sought on behalf of Alexandria's estate were those attributable to any conscious physical pain or mental anguish Alexandria may have suffered before her death. Bruno sought similar damages on his own behalf. On appeal, Bruno does not contend there were other damages recoverable by the estate, nor does he contend there was evidence that Alexandria suffered conscious physical pain or mental anguish before her death. Because the parties could not prove Alexandria suffered conscious physical pain or mental anguish before her death, and because medical and funeral expenses were paid by Beatrice, there were no other damages to be recovered by the estate. Thus, the trial court did not abuse its discretion in denying Bruno's motion to allocate a portion of Beatrice's settlement to the estate.

We affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH