Moore v. Johnson, 143 S.W.3d 339 (Tex. App.—Dallas 2004, no pet.).
Patient brought a medical malpractice against Doctor and subsequently
died while the lawsuit was pending. The court admitted Patient’s will to
probate and appointed her children as independent executors. They filed
a suggestion of death, requested that they be named as plaintiffs, and
that the suit continue in their names. Without specifying any grounds,
the trial judge granted Doctor a summary judgment on all claims. The
independent executors appealed.
The appellate court reversed. The court examined Doctor’s claim that the
independent executors lacked standing because they did not file letters
testamentary when they make the request to be substituted as plaintiffs
in the malpractice action. The court also reviewed Doctor’s claim that
the substitution was inappropriate because one of the independent
executors took the oath of office after filing the substitution request.
The court rejected these claims. Both independent executors were duly
qualified years before Doctor filed the summary judgment motion. The
court also explained that the issuance of letters is a ministerial act
under Probate Code § 182. Texas law does not require that letters
testamentary be filed along with the suggestion of death.
Moral: To avoid this type of suit, a personal representative may find it
helpful to promptly file the oath, give any necessary bond, and obtain
letters before filing a suggestion of death. A copy of the letters may
then be filed along with the suggestion of death.