Pratho v. Zapata, 157 S.W.3d 832 (Tex. App.—Fort Worth 2005, no pet.).
Decedent died from a heart attack. Heirs asserted that his death was
hastened by Doctor’s failure to diagnose his heart condition. The suit
was, however, not brought by the personal representative of Decedent’s
estate as would normally be the case. Instead, Decedent’s widow and
children brought the action. The jury determined that Doctor was
negligent. However, the court granted a judgment notwithstanding the
verdict in favor of Doctor on the survival claim (Decedent’s pain and
suffering before death) because Widow lacked standing. Widow appealed.
The appellate court reversed. Typically, the personal representative of
a decedent’s estate is the proper person to bring a survival action. See
Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998). However, the court
explained that Widow had standing because (1) an administration of
Decedent’s estate was not pending and (2) no administration was
necessary. It was true that Widow had requested letters of
administration while the trial was taking place but her request was not
granted until two months after the jury’s verdict. The court held that
an estate is not pending until a personal representative is actually
appointed. Thus, at the time of the trial, Decedent’s estate was not
pending so there was no personal representative who could have brought
the suit.
The court was not troubled by the fact that after the trial but before
the trial court rendered judgment, Widow received letters. The court
determined that the trial court should have granted Widow’s post-trial
motion to change the plaintiff, even though it was filed outside the
statute of limitations. The amended petition would relate back to the
earlier petition because Widow had plead and proved standing as an heir
at the time of trial. [This principle was later confirmed by the Supreme
Court of Texas in Austin Nursing
Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005).]
The court was, however, initially concerned with Widow’s compliance with
the requirement that no probate was necessary. Widow was making
conflicting assertions. At the trial, she stated that no administration
was necessary (that is, estate debts were paid and there was an
agreement regarding the distribution of estate assets) but at the same
time she was asserting in probate court in her application for letters
that a necessity existed. The court determined that the conflicting
assertions were not relevant – what was important was the situation that
actually existed at the time of trial. The court reviewed the evidence
which showed that at the time of the trial, no need for an
administration of Decedent’s estate existed – the debts had been paid
and the heirs had agreed to a distribution of his estate.
Note: A concurring justice in a lengthy opinion advocated that “[t]he
requirement that heirs must plead and prove no administration is pending
and none is necessary should not be applied to statutory survival
actions.” Pratho at 855.
Moral: An heir may bring a survival action if (1) an administration of
the decedent’s estate is not pending and (2) no administration is
necessary. However, to avoid the type of litigation which occurred in
this case, it may be better practice to have a personal representative
appointed to bring the action.