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Click here for the full text of this decision FACTS:Sandra Miller and John C. Self were involved in an automobile accident near the intersection of Jefferson Avenue and Interstate 30 in Texarkana, Ark. On Nov. 13, 2000, Miller filed suit against Phase One Concrete and Self in Bowie County, Texas. Phase One Concrete is a Texas business and is the owner of the truck Self was driving at the time of the accident. On Aug. 13, 2001, the trial court granted summary judgment in favor of Phase One Concrete. Before the suit was filed, Self died from causes unrelated to the accident. On Dec. 5, 2001, Miller filed an amended petition naming the Estate of John C. Self as the defendant. The amended petition was served on David Carter, who was the temporary administrator of Self’s estate. After a jury trial June 4, 2002, a verdict of $125,000 was returned in favor of Miller. On June 7, 2002, the Estate of Self filed a motion to dismiss for lack of jurisdiction, alleging the temporary administrator should have been sued, not just the estate. The trial court granted the motion to dismiss July 9, 2002. Miller appeals. HOLDINGAffirmed. It has long been settled that the “estate” of a decedent is not a legal entity and may not sue or be sued as such. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex. 1975). A suit seeking to establish the liability of an estate should be filed against the personal representative or, in certain circumstances, the heirs or beneficiaries. Miller maintains, however, the Estate of Self waived this issue because the estate failed to plead by verified pleading under Texas Rule of Civil Procedure 93 that there was a defect in the parties. Rule 93 requires certain pleadings to be verified by affidavit, including claims 1. that the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued; 2. that the plaintiff is not entitled to recover in the capacity in which he or she sues, or that the defendant is not liable in the capacity in which he or she is sued; and 3. that there is a defect of parties, plaintiff or defendant. In Estate of C.M. v. S.G., 937 S.W.2d 8 (Tex. App. � Houston [14th Dist.] 1996, no writ), the Houston court held that not naming the personal representative of an estate in a suit was a matter of fundamental jurisdiction that cannot be waived. The analysis in Estate of C.M.was based on the Texas Supreme Court case of Henson v. Estate of Crow, 734 S.W.2d 648 (Tex. 1987), which concluded that, when no legal entity is named in a suit, there is no one to except to the pleadings or waive any defect therein. In Henson, the plaintiff sued the defendant for rental payments due under an oral lease. The defendant died shortly before the trial. Henson amended his petition and named the Estate of Bruce L. Crow as the defendant. The trial was had on those pleadings. The Texas Supreme Court concluded that the dispositive issue of the case was whether the trial court was correct in holding the Estate of Bruce L. Crow was not a legal entity and could not be sued as such. The court affirmed the trial court’s decision. Like this case, Henson argued the Estate of Crow had waived the error by failing to except to the defect in Henson’s pleadings. The Texas Supreme Court rejected that argument, saying, “This merely begs the question. Inasmuch as no legal entity was named as a defendant, there was no one to except to the pleadings or waive any defect therein.” The reasoning of the Texas Supreme Court in Hensonis controlling over Miller’s first point of error. The Estate of Self is not a legal entity. Because no legal entity had been named as defendant in the suit, there was no one to except to Miller’s pleadings or to waive any defect found within them. This point of error is overruled. Miller also contends the trial court erred in granting the motion to dismiss because the personal representative of the estate participated in this action. As discussed above, a suit seeking to establish the liability of an estate should be filed against the personal representative of the estate because the estate itself is not a legal entity and may not be sued as such. In fact, a court’s jurisdiction over an indispensable party is as essential to the court’s right and power to proceed to judgment as is jurisdiction of the subject matter. Dueitt v. Dueitt, 802 S.W.2d 859 (Tex. App. � Houston [1st Dist.] 1991, no writ). However, in those instances where the suit names the estate, rather than the personal representative of that estate, the trial court will be vested with jurisdiction if the personal representative is served with citation and participates in the suit in his or her capacity as the personal representative of the estate. In R:e Fairfield Fin. Group Inc., 29 S.W.3d 911 (Tex. App. � Beaumont 2000, orig. proceeding). In such circumstances, the resulting judgment will be valid even if it names the estate rather than the personal representative in his or her official capacity. In this case, there is no dispute as to whether David Carter, the personal representative, was served. The dispositive issue is whether he participated in the suit. As there is no dispute that Carter was served in this case, what the court must determine is whether he participated in this suit. No one disputes Carter did not attend the trial in this case. Carter did attend the hearing on the motion to dismiss, where he testified as a fact witness as to his involvement in the case. According to Carter’s testimony, after he was served, he faxed the papers to the defense attorney in the suit and requested that an answer be filed. Carter testified he later telephoned the defense attorney to verify that an answer had been filed. Although the record reflects an answer was filed, it appears it was filed only on behalf of the estate, without any mention of the personal representative. Carter was served in this suit; however, there is no indication in the record that Carter participated in this suit. He did not attend the trial in this case, and no documents were filed either by him or on his behalf in this case. Because Carter did not participate, this point of error is overruled. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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