Lorentz v. Dunn, 112 S.W.3d 176 (Tex. App.—Fort Worth 2003), rev'd, 171 S.W.3d 854 (Tex. 2005).
Click here for a summary of the reversal by the Supreme Court of Texas.
Days before the statute of limitations was to run on Decedent’s
negligence claim, Administrator filed to be appointed as Decedent’s
personal representative. Before being appointed, Administrator filed a
survival action falsely stating that she had already been properly
appointed by the court. Administrator was later appointed but by that
time, the statute of limitations had already run. The trial court
dismissed the survival action because Administrator did not have
standing when she filed the case.
The appellate court affirmed. Civil Practice & Remedies Code § 71.021
provides standing for survival actions to the personal representative
and, in some case, an heir. Administrator was not an heir and had not
yet been appointed either at the time she filed the survival action or
when the statute of limitations had run. The court indicated that her
standing once being appointed did not relate back to the time of filing.
Moral: A person anticipating bringing a survival action must be
appointed as the personal representative prior to filing suit.