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Click here for the full text of this decision FACTS:Vincent Lazard died intestate and was survived by three children. Daughter Patricia Lazard Covington was appointed independent administrator of his estate by the probate court. Lazard also was survived by a sister, Elizabeth Roberts, who filed suit against the appellees, Sisters of Charity of the Incarnate Word, Christus Health Southeast Texas d/b/a Christus St. Elizabeth Hospital and Paul D. Wesolow, M.D. The suit asserted medical negligence claims based on Lazard’s treatment at the hospital. Roberts filed her original petition “individually and on behalf of Vincent Lazard, deceased.” Roberts later filed a first amended petition alleging claims only “on behalf of the Estate of Vincent Lazard, Deceased.” Appellees filed amended answers challenging Roberts’ standing and her capacity to act on behalf of her brother’s estate, and filed a traditional motion for summary judgment. Roberts then filed a second amended petition adding Covington as a plaintiff and alleging her to be the administrator of Lazard’s estate. Appellees followed with an amended motion for summary judgment, asserting as grounds that Roberts’ survival cause of action should be dismissed because she had no standing or capacity to sue on behalf of the estate, and that Covington’s survival action was barred by limitations. The trial court later signed a final judgment dismissing Roberts’ and Covington’s claims with prejudice, without stating in the judgment the grounds for the dismissal. Both Roberts and Covington appealed from that judgment. HOLDING:The court affirms the trial court’s judgment. Roberts and Covington present two issues on appeal, contending the trial court erred first, “in dismissing the case on the basis that Roberts’ pleading was a nullity, because the pleading, which sought damages on behalf of the estate for the decedent’s injuries was sufficient on its face to invoke the court’s jurisdiction and was sufficient to put defendants on notice of the survival claim that was being made”; and second, “in refusing to allow the amended pleading naming the administrator of the estate to relate back to the prior pleading because the claim in the amended pleading was not based on a wholly new, distinct cause of action.” The court notes that appellants’ health care liability claims based on medical negligence are subject to the two-year limitations period. The court points out that a personal representative of a decedent’s estate generally is the only person entitled to bring suit for the recovery of estate property, and that the question of a plaintiff’s authority to bring an action under the survival statute is to be treated as one of capacity rather than standing. The court states that the requirements of the standing doctrine are satisfied by “the estate’s” justiciable interest in the action seeking redress for the injuries suffered by the decedent before his death. The court holds that because a challenge to the right of a plaintiff to assert a survival action addresses capacity rather than standing, it does not implicate the court’s subject matter jurisdiction. Therefore, an original pleading containing the allegation of the correct capacity “should suffice for limitations purposes, provided that capacity, if challenged, is established within a reasonable time.” The court finds that Roberts is neither personal representative of Lazard’s estate nor one of his heirs. Roberts never pleaded she was the personal representative of Lazard’s estate, and the court notes that her case does not present an issue whether the original plaintiff’s post-limitations capacity cured her pre-limitations lack of capacity. Consequently, the court finds that the viability of the survival action depends on the efficacy of the post-limitations amended pleading naming Covington as a plaintiff. An estate’s personal representative generally is the only person authorized to bring a survival action, but heirs may bring the action directly under some circumstances. Covington’s appointment as independent administrator required the probate court to find that there existed a necessity for an administration of her father’s estate. Absent other circumstances, the court holds that the probate court’s finding and Covington’s appointment established Covington as the only person entitled to bring a survival claim. Consequently, the court holds that the amended pleading adding Covington to the suit did not relate back to Roberts’ original pleading. The court reasons that permitting a suit brought by her to toll limitations until Covington took action as administrator runs counter to the requirement that such suits be brought by the personal representative when administration is necessary. Even assuming the existence here of circumstances that would have permitted an heir of Lazard to pursue the survival action while an administrator is serving, the court holds that there is no evidence Roberts was acting as a representative for any of Lazard’s children who were his heirs. Therefore, the court holds that the trial court properly dismissed Roberts’ claims because she lacked capacity to pursue an action under the survival statute, and properly dismissed Covington’s claims as barred by limitations. OPINION:Campbell, J.; Reavis and Campbell, JJ.

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