Defendants complain that this Court is deprived of jurisdiction simply because a representative has not been appointed for an estate. Citing two Texas Supreme Court cases, which will be discussed, a presenter at TexasBarCLE.com disagrees:
If the plaintiff cannot obtain a temporary administrator before the limitations deadline, as a last resort the plaintiff should file suit improperly naming decedent’s estate. Then, if the plaintiff can successfully appoint a personal representative “within a reasonable time” and file an amended petition naming the representative on behalf of the estate, the amended petition will “relate back” to the filing date of the original petition pursuant to the relation back doctrine.
PRICE L. JOHNSON, JR., C.P.A., J.D., and MATTHEW A. BOURQUE, J.D., Probate Pitfalls for PI Lawyers: How to Protect Your Case, Your Clients, and Yourself, State Bar of Texas 36TH ANNUAL ADVANCED PERSONAL INJURY LAW, Chapter 23 Page 7-8. Exhibit 1.
The case upon which the CLE presentations heavily relies is Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 846 (Tex. 2005). The facts cannot be summed up better than the opening paragraphs of the opinion.
On behalf of her deceased mother, Pauline Wilson Lovato filed a survival action against Guadalupe Zamora, M.D., Austin Nursing Center, Inc., and related entities and individuals (collectively “Austin Nursing Center”). In her original petition, filed within the statute of limitations, Lovato asserted that she was the personal representative of her mother’s estate. In actuality, Lovato was not appointed independent administrator until after the statute of limitations on the survival action expired. Austin Nursing Center moved for summary judgment, arguing that Lovato lacked standing to bring the survival action at the time the case was filed, and the trial court granted the motion. The court of appeals reversed, holding that Lovato’s later-acquired status as the estate’s personal representative gave her standing, which related back to the time of the lawsuit’s original filing.
We hold that the standing doctrine’s requirements were satisfied and that the trial court had jurisdiction to hear the case. We further hold that although Lovato may have lacked capacity to bring the survival action at the time the lawsuit was filed, any defect in her capacity was later cured by her appointment as the estate’s administrator. Accordingly, we affirm the court of appeals’ judgment.
Austin Nursing Ctr., Inc 171 S.W.3d at 846. In this case, the probate court appointed Lovato as the administrator nearly two years after the application in the probate court. The court reasoned that the issue was not one of standing, but was one of capacity. (“Although courts and parties have sometimes blurred the distinction between standing and capacity, we believe that the issue presented here is more appropriately characterized as one of capacity.”). Id.
Nonetheless, the Court addressed standing generally and decided that if the estate had a justiciable controversy to bring a suit, the suit was proper. The Court then considered whether Lovato had the capacity to bring the suit. The court reasoned:
Certain individuals are afforded the capacity to bring a claim on an estate’s behalf. In general, only the estate’s personal representative has the capacity to bring a survival claim. Frazier 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). We have acknowledged, however, that under certain circumstances heirs may be entitled to sue on behalf of the decedent’s estate. Shepherd, 962 S.W.2d at 31–32. For example, in Shepherd, we held that “[h]eirs at law can maintain a survival suit during the four- *851 year period the law allows for instituting administration proceedings if they allege and prove that there is no administration pending and none [is] necessary.”3 Id. We also acknowledged that a family agreement regarding the disposition of the estate’s assets can provide support for the assertion that no administration of the decedent’s estate is necessary. Id. at 32–34.
Therefore, a court with concurrent jurisdiction to a statutory probate court, as set out in 32.007 in the estates code may hear a case in which a personal representative has not been appointed. A personal injury case and five other types of cases give rise to concurrent jurisdiction. Otherwise, any cause of action “related to the probate proceeding” must be brought in the statutory probate court. Tex. Est. Code § 32.005.