Lovato v. Austin Nursing Center, Inc.

• Decision Date: 05 June 2003
• Docket Number: No. 03-02-00505-CV.,03-02-00505-CV.
• Citation: 113 S.W.3d 45
• Parties: Pauline Wilson LOVATO, Independent Administrator of the Estate of Margarita Torres Wilson, Deceased, Appellant, v. AUSTIN NURSING CENTER, INC., d/b/a Austin Nursing Center; Century Care of America, Inc.; Paul Gray; Paul Hanlon; Laura Swarbrick; and Guadalupe Zamora, M.D., Appellees.
• Court: Texas Court of Appeals

113 S.W.3d 45

Pauline Wilson LOVATO, Independent Administrator of the Estate of Margarita Torres Wilson, Deceased, Appellant, v. AUSTIN NURSING CENTER, INC., d/b/a Austin Nursing Center; Century Care of America, Inc.; Paul Gray; Paul Hanlon; Laura Swarbrick; and Guadalupe Zamora, M.D., Appellees.

No. 03-02-00505-CV.

Court of Appeals of Texas, Austin.

June 5, 2003.

Rehearing Overruled July 30, 2003.

Alfonso L. Melendez, Anna N. Marketto, Melendez & Marketto, PC, El Paso, Raul Steven Pastrana, Pastrana Law Firm, Austin, for appellant.

Christopher J. Deeves, Ruth G. Malinas, Cynthia Day Grimes, Ball & Weed, PC, San Antonio, for Austin Nursing Center, Century Care of America, Inc., Hanlon, Gray, Swarbrick.

Peter R. Meeker, David M. Davis, Davis & Wilkerson, P.C., Austin, for Guadalupe Zamora, M.D.

Before Justices KIDD, YEAKEL and PATTERSON.

ON MOTION FOR REHEARING

JAN P. PATTERSON, Justice.

Our opinion and judgment issued on March 27, 2003 are withdrawn, and the following opinion is substituted.

Pauline Wilson Lovato, as independent administrator of the estate of her mother, Margarita Torres Wilson, appeals the dismissal on summary judgment of a medical negligence survival action against Austin Nursing Center, Inc., d/b/a Austin Nursing Center; Century Care of America, Inc.; Paul Gray; Paul Hanlon; Laura Swarbrick; and Guadalupe Zamora, M.D. ("appellees"). In her first issue, Ms. Lovato contends that the district court erred in granting the motion for summary judgment because she had standing as representative of the estate of her mother when she filed the survival action within the limitations period in January 2000. She further contends that, even if she lacked standing when she originally filed the survival action, her amended petition, which she filed as independent administrator after limitations expired, relates back to the original filing of the action. In her second issue, Ms. Lovato contends that the district court erred in dismissing Ms. Swarbrick from the lawsuit because Ms. Swarbrick, who is pro se, did not join in the other defendants' motion for summary judgment. For the reasons that follow, we reverse the district court's judgment and remand this cause to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Margarita Torres Wilson at age ninety-two was a resident at the Austin Nursing Center for approximately a month in mid-1998. While at the center, she developed pressure ulcers. On June 30, 1998, she was discharged from the center and transferred to another nursing home. On August 17, 1998, she was discharged from the second nursing home. She died at home on August 18, 1998. The parties agree that the last possible date for the statute of limitations to expire was November 1, 2000, which was two years and seventy-five days after Mrs. Wilson's death. See Tex. Rev.Civ. Stat. Ann. art. 4590i, §§ 4.01(c), 10.01 (West Supp.2003). Because a limitations defense figured prominently in the motion for summary judgment, a recitation of the procedural history of the case is necessary.

On January 27, 2000, Ms. Lovato filed a survival action, alleging that Mrs. Wilson's pressure ulcers were a result of appellees' medical negligence. Ms. Lovato also alleged in the petition that she was "Personal Representative of the Estate of Margarita Torres Wilson" pursuant to section 71.021 of the civil practice and remedies code and that "[a]t this time, no administrator has been appointed." See Tex. Civ. Prac. & Rem.Code Ann. § 71.021(b) (West 1997) ("personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person"). On March 29, 2000, Ms. Lovato filed an application for independent administration in the Travis County probate court, alleging that her mother died intestate, had no real property, and had personal property of less than $2,000.¹

In her first amended original petition, filed on June 20, 2000, Ms. Lovato added a wrongful death action on behalf of herself and all wrongful death beneficiaries. She alleged that she was entitled to bring the action under section 71.004 of the civil practice and remedies code. See id. § 71.004 (West 1997) (wrongful death action is "for the exclusive benefit of the surviving spouse, children, and parents of the deceased"). Two subsequent amended petitions, filed in August 2000, added several defendants and a death claim. These two petitions also stated that Mrs. Wilson was the mother of the wrongful death beneficiaries. In all of the amended petitions, Ms. Lovato continued to allege that no administrator had been appointed.

After receiving a notice from the probate court that the application for independent administration was to be dismissed for want of prosecution, Ms. Lovato filed a motion to retain in September 2001 and an amended application for independent administration in October 2001. Also in October 2001, all defendants, except for Ms. Swarbrick, filed motions to dismiss the wrongful death claim for failure to file adequate expert reports and for severance of the claim from the survival action. On April 10, 2002, the district court granted appellees' motions to dismiss the wrongful death claim, severed that claim from the survival action, and ordered that the wrongful death claim be dismissed with prejudice and that only the survival action remain.²

On April 22, 2002, all defendants in the survival action, except for Ms. Swarbrick, filed a motion for summary judgment, seeking to dismiss the suit on the ground that Ms. Lovato lacked standing to maintain the survival action because she was not the personal representative of her mother's estate and thus that the district court did not have subject matter jurisdiction. The motion also alleged that the survival action was barred by the statute of limitations because it was never brought by a proper party before limitations expired on November 1, 2000. At approximately the same time, these defendants filed amended answers, raising—for the first time—the affirmative defense of limitations.

On April 26, 2002, Ms. Lovato filed a second amended application for independent administration in the probate court, alleging that: there were no debts owed by the estate; Mrs. Wilson had personal property not to exceed $2,000; and a medical malpractice case was pending. Ms. Lovato filed an application for temporary administration on the same day, asserting that a temporary administration was needed immediately because of a pending medical malpractice claim "with a statutory period required by law." On May 9, 2002, the probate court issued an order appointing Ms. Lovato the independent administrator. The order stated that an administration was necessary and that the estate owed no debts and had personal property worth no more than $2,000.

Ms. Lovato filed a first supplemental petition in the survival action on May 20, 2002, alleging that: she was the proper party to bring the claim; the last amended petition relates back to the original petition; she fulfilled the purpose and intent of section 10.01, to give the defendants notice and the nature of the claim; at the time of filing the original petition, no administration was pending and none necessary; that the heirs had an agreement about dividing the estate property; and "[t]here existed an emergency requiring that an heir of Margarita Torres Wilson, Deceased file this claim in order to preserve the rights and property of the Estate." On the same day, Ms. Lovato, as independent administrator of the estate of Mrs. Wilson, filed a fourth amended petition.

On May 21, 2002, Ms. Lovato filed a response to defendants' motion for summary judgment. Included in the response were affidavits by Ms. Lovato and her brother, Joe Bob Wilson, averring that the estate owed no debts. Ms. Lovato further stated in her affidavit that the family had reached an agreement about the distribution of the personal property and any proceeds of the lawsuit, that she had filed the lawsuit as an heir and representative of the estate to preserve the claim for the benefit of the estate, and that there was no administration pending until she was appointed independent administrator on May 9, 2002.

The defendants filed a supplement to their motion for summary judgment on June 10, 2002, which included an assertion that Ms. Lovato had no standing as an heir because she had brought the action as a personal representative, never alleging in the petitions that she was an heir. On July 18, 2002, the district court granted defendants' summary judgment, without stating the grounds therefor, and dismissed the survival action.

Ms. Lovato appeals the dismissal of the survival action, raising two issues. In her first issue, she asserts that the district court erred in granting defendants' motion for summary judgment because she had standing as representative of the estate of her mother when she filed the survival action within the limitations period in January 2000. She further asserts that even if she did not have standing when she originally filed the survival action, her amended petition, brought as independent administrator after limitations expired, relates back to the original filing of the action. In her second issue, Ms. Lovato contends that the district court erred in dismissing Ms. Swarbrick from the survival action because Ms. Swarbrick did not join in the other defendants' motion for summary judgment.

STANDARD OF REVIEW

The standards for review of a traditional summary judgment are well established: the movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. See Tex.R. Civ. P. 166a(c); ...