survival claim in Texas

2026While the survival statute generally grants an heir standing to bring a claim, typically, “only the estate’s personal representative has the capacity to bring a survival claim.” Lovato, 171 S.W.3d at 850 .

2025CODE ANN. § 22.028(3) (defining “[p]ersonal property” of the estate to include “a chose in action”);2 Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005) (“In general, only the estate’s personal representative has the capacity to bring a survival claim.”).

2026See Pratho v. Zapata, 157 S.W.3d 832 , 847–48 (Tex. App.—Fort Worth 2005, no pet.) (holding that a widow had standing to bring a survival claim as an heir on behalf of the deceased’s estate without any probate proceedings being opened). 10 3.

2022Even though that claim began as an ordinary personal injury claim, it transformed into a survival claim upon Regino’s death, and both Laguna and Acevedo had capacity to bring those claims at the time they were respectively brought. 12 See Pratho v. Zapata, 157 S.W.3d 832, 842 (Tex. App.—Fort Worth 2005, no pet.) (“Even though the amended petition was filed outside the statute of limitations for the estate’s survival claim, it would have related back to the earlier petition because [decedent’s widow] pleaded and proved standing as an heir at the time of trial.”).

2025While the survival statute generally grants an heir the potential to bring a claim, typically, “only the estate’s personal representative has the capacity to bring a survival claim.” Id. at 850 (citing Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971)).

2024Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971) (“[T]he personal representative . . . is ordinarily the only person entitled to sue for the recovery of property belonging to the estate.”); see also Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex.1998).

2026The well-settled general rule is that “heirs cannot sue in their own right as heirs for property of the estate; the executor or administrator must sue.” Giddings v. Steele, 28 Tex. 732, 748 (Tex. 1866); see Shepherd v. Ledford, 962 S.W.2d 28 , 31–32 (Tex. 1998); see also Gonzalez v. Martinez, No. 01-15-00693-CV, 2017 WL 2255649 , at *4 (Tex. App.—Houston [1st Dist.] May 23, 2017, no pet.) 11 (mem. op.).

2025The well-settled general rule is that “heirs cannot sue in their own right as heirs for property of the estate; the executor or administrator must sue.” Giddings v. Steele, 28 Tex. 732, 748 (Tex. 1866); see Shepherd v. Ledford, 962 S.W.2d 28 , 31–32 (Tex. 1998); see also Gonzalez, 2017 WL 2255649 , at *4.

2021Lovato dealt with the opposite situation—an estate continued to have a justiciable interest in a claim that survived the decedent’s death. 171 S.W.3d at 850 (“Because a decedent’s survival claim becomes part of her estate at death, it follows that the estate retains a justiciable interest in the survival action.” (footnote omitted)); see also Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 786 (Tex. 2006) (“Because legal malpractice claims survive in favor of the decedent’s estate, the estate has a justiciable interest in the controversy sufficient to confer standing.”).

2009Id. at 850 (“Because a decedent’s survival claim becomes part of her estate at death, it follows that the estate retains a justiciable interest in the survival action.”); see also Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 786 (Tex.2006) (“Because legal malpractice claims survive in favor of the decedent’s estate, the estate has a justicia-ble interest in the controversy sufficient to confer standing.”).

2005Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995); see Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

2005Butcher v. Scott , 906 S.W.2d 14, 15 (Tex. 1995); see Nixon v. Mr. Property Management Co. , 690 S.W.2d 546, 548-49 (Tex. 1985).

2005Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995); see Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

2005Butcher v. Scott , 906 S.W.2d 14, 15 (Tex. 1995); see Nixon v. Mr. Property Management Co. , 690 S.W.2d 546, 548-49 (Tex. 1985).

2011And the same day the supreme court decided Lovato , it held in Lorentz v. Dunn that the survival claim was not time-barred because the plaintiff, who was not an heir and did not have capacity to represent the estate *143 at the time of filing the original petition, cured her pre-limitations lack of capacity through her post-limitations appointment as administrator of the estate. [11] 171 S.W.3d 854, 856 (Tex.2005) (relying on Lovato, 171 S.W.3d at 850 ).

2011And the same day the supreme court decided Lovato , it held in Lorentz v. Dunn that the survival claim was not time-barred because the plaintiff, who was not an heir and did not have capacity to represent the estate at the time of filing the original petition, cured her pre-limitations lack of capacity through her post-limitations appointment as administrator of the estate. 11 171 S.W.3d 854, 856 (Tex.2005) (relying on Lovato, 171 S.W.3d at 850 ).

2026The well-settled general rule is that “heirs cannot sue in their own right as heirs for property of the estate; the executor or administrator must sue.” Giddings v. Steele, 28 Tex. 732, 748 (Tex. 1866); see Shepherd v. Ledford, 962 S.W.2d 28 , 31–32 (Tex. 1998); see also Gonzalez v. Martinez, No. 01-15-00693-CV, 2017 WL 2255649 , at *4 (Tex. App.—Houston [1st Dist.] May 23, 2017, no pet.) 11 (mem. op.).

2025The well-settled general rule is that “heirs cannot sue in their own right as heirs for property of the estate; the executor or administrator must sue.” Giddings v. Steele, 28 Tex. 732, 748 (Tex. 1866); see Shepherd v. Ledford, 962 S.W.2d 28 , 31–32 (Tex. 1998); see also Gonzalez, 2017 WL 2255649 , at *4.

2021The Texas Supreme Court was clear in Certified EMS, Inc. v. Potts that an expert report meets the requirements of the MLA if the report supports at least one theory of recovery. 392 S.W.3d 625, 630 (Tex. 2013).

2016Ince responds that because Providers’ objections should be overruled, at least as to the survival claim, under Certified EMS, Inc. v. Potts, he need not show that the report is independently sufficient as to the wrongful death claim, and none of the claims are subject to dismissal. 392 S.W.3d 625, 626 (Tex. 2013).

2016See,Gross v. Kahaneh, 3 S.W.3d 518, 521 (Tex.1999) (per curiam) (applying *491 article 4590i’s limitations provisions to survival action). 3.

2015See, e.g., Gross v. Kahanek, 3 S.W.3d 518, 520 (Tex. 1999) (interpreting former art. 4590i); Brown v. Shwarts, 968 S.W.2d 331, 334 (Tex. 1998) (same). 17 Any suggestion that the legislative history of the tolling provision provides support for Appellee is unfounded.

2011See Lorentz v. Dunn, 112 S.W.3d 176, 179 (Tex. App.-Fort Worth 2003, pet. granted), rev'd, 171 S.W.3d 845 (Tex.2005) ("Appellant further concedes that she did not qualify as an heir to the estate."). [12] In this regard, we note that although Bell had the obligation to secure a jury finding on its limitations defense, Bell did not submit a proposed jury question inquiring whether a representative of Gloria's estate sought appointment as administrator within a reasonable time.

2011See Lorentz v. Dunn , 112 S.W.3d 176, 179 (Tex. App. C Fort Worth 2003, pet. granted), rev = d , 171 S.W.3d 845 (Tex. 2005) ( A Appellant further concedes that she did not qualify as an heir to the estate. @ ). [12] In this regard, we note that although Bell had the obligation to secure a jury finding on its limitations defense, Bell did not submit a proposed jury question inquiring whether a representative of Gloria = s estate sought appointment as administrator within a reasonable time.

2010See Palacios , 46 S.W.3d at 879 .

2010See Palacios, 46 S.W.3d at 879 .

2005See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991) (stating that a court may render a JNOV if a directed verdict would have been proper); see also Prudential Ins.

2005See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991) (stating that a court may render a JNOV if a directed verdict would have been proper); see also Prudential Ins.

1993Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992) (citations omitted) (emphasis added.) Here, the majority correctly found the evidence sufficient to sustain the $100,000 damages award to Gonzales and her estate under the survival claim.

1993Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992) (citations omitted) (emphasis added.) Here, the majority correctly found the evidence sufficient to sustain the $100,000 damages award to Gonzales and her estate under the survival claim.

2023See, e.g., Covington v. Sisters of Charity of Incarnate Word, 179 S.W.3d 583, 587 (Tex. App.—Amarillo 2005, pet. denied) (concluding that “although [the original petition] may have served the purpose of timely notifying the defendants that a survival claim was being asserted on behalf of the estate,” the relation-back doctrine did not apply because decedent’s sister was a “stranger to the suit” and did not have capacity to bring the survival cause of action).

2011Covington, 179 S.W.3d at 587-88 .

2006Palmer v. Coble Wall Trust Co. , 851 S.W.2d 178 , 181–82 (Tex. 1992).

2005Palmer v. Coble Wall Trust Co., 851 S.W.2d 178, 181-82 (Tex.1992).

2016Id. at 521 .

2015See, e.g., Gross v. Kahanek, 3 S.W.3d 518, 520 (Tex. 1999) (interpreting former art. 4590i); Brown v. Shwarts, 968 S.W.2d 331, 334 (Tex. 1998) (same). 17 Any suggestion that the legislative history of the tolling provision provides support for Appellee is unfounded.

2018Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001) (“Although the parties have argued the issue before us and below as one of standing, the real issue is [appellant’s] capacity to sue.”).

2018See Aguirre v. Vasquez , 225 S.W.3d 744 , 753 (Tex. App.-Houston [14th Dist.] 2007, no pet.).

2018See RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264 , 270–74 (Tex. App.—Corpus Christi 2009, pet. denied).

2018And if any liability theory has been adequately covered, the entire case may proceed.”); see, e.g., Bay Oaks SNF, LLC v. Lancaster, 555 S.W.3d 268 , 278–84 (Tex. App.—Houston [1st Dist.] 2018, pet. filed) (concluding that the expert report satisfied section 74.351’s requirements as to a survival claim; therefore, the trial court did not abuse its discretion by denying the healthcare providers’ motion to dismiss the wrongful death claim, and the entire case could proceed); SCC Partners, Inc. v. Ince, 496 S.W.3d 111 , 114–15 (Tex. App.—Fort Worth 2016, pet dism’d) (providing that “if at least on