Shepherd v. Ledford

• Citation: 926 S.W.2d 405
• Decision Date: 11 July 1996
• Docket Number: No. 2-95-195-CV,2-95-195-CV
• Parties: Richard L. SHEPHERD, M.D., and Allan Graham, M.D., Appellants, v. Lahoma LEDFORD, Individually and as Heir to the Estate of John Ledford, Deceased, Appellee.
• Court: Court of Appeals of Texas

Page 405

926 S.W.2d 405

Richard L. SHEPHERD, M.D., and Allan Graham, M.D., Appellants, v. Lahoma LEDFORD, Individually and as Heir to the Estate of John Ledford, Deceased, Appellee.

No. 2-95-195-CV.

Court of Appeals of Texas Fort Worth.

July 11, 1996.

Rehearing Overruled Aug. 22, 1996.

Wallach & Moore, P.C., Jennifer M. Andrews, Joseph M. Gallagher, Fort Worth, for appellants.

Morgan & Weisbrod, Margaret Henning, William A. Newman, Bruce A. Pauley, Dallas, for appellee.

Before LIVINGSTON, RICHARDS and HOLMAN, JJ.

OPINION

HOLMAN, Justice.

Physicians Richard L. Shepherd and Allan Graham appeal an adverse jury verdict and trial court rulings made during a wrongful death action based on medical malpractice. We sustain appellants' complaint that a biased juror was not struck for cause, sustain appellee's two cross-points, and we reverse and remand.

While recuperating from surgery that replaced his aortic valve, John Ledford died. His common-law wife, Lahoma Ledford, filed suit as a "surviving spouse" under the Texas Wrongful Death Act, TEX. CIV. PRAC. & REM. CODE ANN. § 71.001-.031 (Vernon 1986). She sought damages from the appellants (and other medical care providers who are not parties to this appeal) for her loss of companionship, love, enjoyment, and services, and for her past and future mental anguish, resulting from John's death.

Appellants asked for summary judgment denying damages to Lahoma on the ground that she was barred from prosecuting her suit because she had not proved the existence of her common-law marriage to John within one year from the date of his death as required by TEX. FAM. CODE ANN. § 1.91(b) (Vernon 1993). The trial court denied appellants' motions for summary judgment against Lahoma, and the case was tried to a jury.

The jury verdict was against appellants as well as their respective professional associations, which were co-defendants. The appellants and their professional associations filed a joint motion for judgment notwithstanding the verdict. The trial court partially granted that motion by entering judgment that Lahoma take nothing against the two associations, and they were dismissed from the lawsuit with prejudice. The court partially granted the appellants' part of the motion by granting judgment that Lahoma take nothing on the claims she had asserted on behalf of John's estate against the appellants.

In accord with the jury verdict on her personal claims, the court awarded Lahoma a $150,000 judgment against the appellants. The trial court then subtracted $50,000 as a dollar-for-dollar credit that the appellants had timely elected because Lahoma had compromised and settled with four co-defendants before trial. The net judgment against the appellants, jointly and severally, awarded Lahoma $100,000 in actual damages and $40,440.25 prejudgment interest, plus postjudgment interest and costs of court.

An action to recover damages for wrongful death is for the exclusive benefit of the surviving spouse, children, and parents of the deceased. TEX. CIV. PRAC. & REM. CODE ANN. § 71.004(a) (Vernon 1986). The appellants' first point of error attacks the trial court's denial of their motions for summary judgment and denial of their motion for judgment notwithstanding the verdict.

When a party moves unsuccessfully for summary judgment and subsequently loses on a conventional trial on the merits the denial of that motion is not reviewable on appeal. Harris County v. Dillard, 841 S.W.2d 552, 554 (Tex.App.--Houston [1st Dist.] 1992), rev'd on other grounds, 883 S.W.2d 166 (Tex.1994); Ferguson v. Kelly, 728 S.W.2d 397, 398 (Tex.App.--Beaumont 1987, no writ). Accordingly, we need not address the portion of the first point of error that complains of the denial of summary judgment to the appellants.

Appellants argue that under TEX. FAM. CODE ANN. § 1.91(b) (Vernon 1993), Lahoma had only one year from John's May 4, 1990 death (the date their common-law marriage ended) in which to prove in a judicial, administrative, or other proceeding that their common-law marriage had existed. At the time that John died, and when this suit was filed, section 1.91 was entitled "Proof of Certain Informal Marriages" and read as follows:

(a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been executed under Section 1.92 of this code; or

(2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b) A proceeding in which a marriage is to be proved under this section must be commenced not later than one year after the date on which the relationship ended or not later than one year after September 1, 1989, whichever is later.

TEX. FAM. CODE ANN. § 1.91 (Vernon 1993). Dannelley v. Almond, 827 S.W.2d 582, 583 (Tex.App.--Houston [14th Dist.] 1992, no writ) held that this version of section 1.91(b) did not violate either article I, section 13 (open courts clause) or section 3 (equal protection clause) of the Texas Constitution. ¹

That Lahoma did not comply with any part of section 1.91 is undisputed.

Appellants contend that because she did not comply, Lahoma never lawfully acquired the status of a "surviving spouse" and therefore had no standing to sue under the Wrongful Death Act.

Appellants submit that Villages of Greenbriar v. Torres, 874 S.W.2d 259, 261, 264 (Tex.App.--Houston [1st Dist.] 1994, writ denied) supports their contention that because Lahoma did not comply with section 1.91(b) within one year after John's death, she is estopped or barred from claiming to be a common-law spouse in order to qualify for relief under the Wrongful Death Act or any other law in which the standing of "surviving spouse" is essential to the relief sought. In Torres, the appeal was from a summary judgment granted by the probate court, and the parties argued on appeal the question whether section 1.91(b) applied to the wrongful death and survival statutes when determining who can sue and recover under those statutes. Id. at 265. However, the Torres court declined to answer, saying that issue "was neither before the probate court or this Court." Id.

Nevertheless, the effect of section 1.91(b) was addressed in Mossler v. Shields, 818 S.W.2d 752, 754 (Tex.1991):

Once the limitation pursuant to this statute has run, a party's subsequent claim of the existence of a common-law marriage stemming from the original relationship is barred--achieving the same result as estoppel on the basis of a dismissal with prejudice.

Mossler was a divorce action in which a woman sued to end her alleged common-law marriage. However, she had claimed the same common-law marriage in an earlier divorce action that she had filed against the same man in another county. Before the parties' common-law marriage could be proved in the prior suit, it had been dismissed with prejudice for discovery abuse.

Mossler does not disclose whether the one-year limitation period of section 1.91(b) had expired by the time the same common-law marriage was asserted in the second divorce suit. The Supreme Court merely held that once the first trial court dismissed with prejudice the common-law wife's claim about common-law marriage, the dismissal was equivalent to a final judgment on the issue of whether such a marriage existed. Id.

Although the Supreme Court devoted much of its Mossler opinion to an explanation of the public policy rationale for its support of trial court sanctions for discovery abuse, the opinion leaves no doubt that once the limitation period of section 1.91(b) has expired, a subsequent claim of the existence of a common-law marriage is barred. Id. The opinion does not limit that effect only to divorce actions, and we conclude that unless negated by the conflicting language of another statute, a plea based on the limitation of section 1.91(b) could be available in any legal proceeding to bar proof that a common-law marriage had existed.

The statute of limitations applicable to a plaintiff who sues for wrongful death on a theory of medical negligence is TEX. REV. CIV. STAT. ANN. art. 4590i, § 10.01. See Bala v. Maxwell, 909 S.W.2d 889, 891, 893 (Tex.1995). The pertinent part of the statute as it applies to this suit is:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or hospitalization for which the claim is made is completed....

TEX. REV. CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Pamph.1996) (emphasis added). The Supreme Court has held that the words "notwithstanding any other law" confirm the Legislature's unequivocal intent that, when the time limitations of section 10.01 conflict with another law, section 10.01 governs. Bala, 909 S.W.2d at 892-93.

Here, appellants contend that article 4590i, section 10.01 and section 1.91(b) have no conflict, and are in harmony. They argue that although section 1.91(b) is a statute of limitations, its effect should not be interpreted as shortening the two years available under article 4590i, section 10.01 for filing a wrongful death suit. Instead, appellants ask that we construe section 1.91(b) as simply a formality that a common-law spouse must comply with in order to acquire a standing that is prerequisite to bringing a wrongful death or survivorship suit. Plainly, section 1.91 provides a mechanism to acquire that standing, but it is equally clear that the 1989 version of section 1.91(b) would have the effect of a one-year statute of limitations if applied to a wrongful death or survivorship suit brought by a surviving common-law spouse who did not comply with section 1.91 within one year of the injured spouse's death.

We conclude that the version of section 1.91(b) in...