Cooper v. Coe, 188 S.W.3d 223 (Tex. App.—Tyler 2005, pet. denied).
Plaintiff filed a survival action against Defendant, a doctor whose
malpractice allegedly caused Decedent’s death. Plaintiff claimed to be
the “representative” of the estate of Decedent but she had not been
formally appointed by a court. Instead, she was bringing the action
based on her determination that no administration of Decedent’s
intestate estate was necessary because a family settlement agreement
resolved all issues relating to the distribution of the estate and the
payment of debts. Defendant claimed that she lacked authority to bring
the action because she was not a legally appointed personal
representative and that administration of the estate was necessary
because of the outstanding debts. Accordingly, Defendant claimed that
the action was now barred by the statute of limitations. The trial court
agreed.
The appellate court reversed. Citing Austin Nursing Center, Inc v.
Lovato, 171 S.W.3d 845, 849 (Tex. 2005), the court explained that in a
survival action, a decedent’s estate has a justiciable interest in the
controversy sufficient to confer standing. Although a court-appointed
personal representative normally has the capacity to bring the survival
action, the heirs may bring the action if they prove that there is no
administration pending and that none is necessary. In this case, there
was no administration pending and none was necessary because of the
family settlement agreement. Because Plaintiff’s original petition was
filed within the statutory period, Plaintiff’s claim was not barred by
limitations.
Moral: A family settlement agreement may act to show that no
administration is necessary allowing heirs to bring a survival action
directly without the necessity of the appointment of a personal
representative.