Opinion issued March = 29,=20 2007
I respectfully dissent. I would =
affirm=20
the trial court's denial of appellants' motion to dismiss =
appellees'=20
health-care-liability claim for failure to timely file an expert =
report. I=20
agree with the trial court that the 120-day expert report deadline =
was=20
tolled until Campbell was appointed Brown's guardian. On November 4, 2005, Campbell =
filed her=20
original petition, alleging that she sued appellants "individually =
and as=20
next friend of . . . Brown, "a nineteen-year old =
suffering from=20
paranoid schizophrenia." On November 30, 2005, appellants filed =
special=20
exceptions alleging that Campbell had not been appointed Brown's =
legal=20
guardian and, therefore, lacked the capacity to sue on his behalf. =
The=20
next day, December 1, 2005, appellants filed an unverified "Motion =
to=20
Determine the Legal Capacity of Cindy Campbell," requesting that =
the trial=20
court order Campbell "to produce evidence of her legal capacity to =
bring=20
this suit . . ." within 10 days or, alternatively, that=20
Campbell's next-friend claims "be dismissed for want of legal =
capacity to=20
sue." The trial court did not immediately rule on appellants' =
motion or=20
special exceptions. While appellants' motion and special =
exceptions were=20
pending, Campbell sought appointment as Brown's legal =
guardian. Campbell filed her first =
amended petition=20
on January 13, 2006, alleging that she brought suit individually =
and as=20
next friend of Brown, "an incapacitated person," under Texas Rule =
of Civil=20
Procedure 44. See Tex. R. Civ. P. 44 ("Minors, lunatics, =
idiots,=20
or persons non compos mentis who have no legal guardian may sue =
and be=20
represented by 'next friend' under the following rules=20
. . . ."). She also alleged that her son was a =
"mentally=20
incapacitated adult." Campbell realleged the same matters relating =
to=20
Brown's claims in her second amended petition, which she filed on =
February=20
15, 2006. Campbell had not cured her lack of capacity to sue on =
Brown's=20
behalf when she filed these petitions. On March 2, 2006, the Madison =
County=20
Court appointed Campbell as Brown's legal guardian. On March 6, =
2006,=20
appellants moved to dismiss Brown's and Campbell's claims against =
them for=20
Campbell's failure to serve an expert report on them within 120 =
days of=20
the claim's filing. On March 20, 2006, Campbell moved the trial =
court to=20
have the guardianship recognized. She also simultaneously filed a =
third=20
amended petition, alleging that her claims were asserted =
individually and=20
on behalf of Brown--both as his guardian and as his next friend. =
On April=20
4, 2006, the trial court signed an agreed order recognizing =
Campbell's=20
guardianship of Brown. As the majority states, =
"[M]inors and=20
incompetents are considered to be under a legal disability and are =
therefore unable to sue or be sued in their individual capacities; =
such=20
persons are required to appear in court through a legal guardian, =
a 'next=20
friend,' or a guardian ad litem." See Here, Under Lovato and=20
Lorentz, Campbell's appointment relates back to the =
filing of=20
Brown's claims to prevent limitations from running on the claims =
while no=20
one was in a position of authority to act on his behalf. See=20
Lovato, 171 S.W.3d at 851, 853 ("The estate commenced the =
suit before=20
limitations expired; [Plaintiff] Lovato cured the defect in her =
capacity=20
before the case was dismissed. Under those circumstances, the =
estate=20
. . . was ultimately represented by a person with =
capacity to=20
pursue the claim on its behalf."); accord Lorentz, 171 =
S.W.3d at=20
856 (following Lovato). It does not follow from =
Lovato=20
and Lorentz, however, that the deadline for filing =
an expert=20
report includes the time it takes to cure a lack of capacity to =
sue that a=20
defendant has brought to the attention of the trial court. If that =
were=20
so, all essential deadlines could run while no one had the actual =
capacity=20
to act on them--just as appellants allege and the majority agrees =
happened=20
here. This would reintroduce the identical problem =
Lorentz and=20
Lovato cured: the problem of deadlines running on claims =
no=20
one is in a position to make. See Lovato, 171 S.W.3d =
at 851=20
("We must . . . consider whether Lovato's claims are barred =
because she=20
did not cure the defect in her representative capacity until after =
limitations had expired."); Lorentz, 171 S.W.3d at 856=20
("Lorentz's late-acquired capacity cured her pre-limitations lack =
thereof,=20
and the trial court therefore erred in dismissing the case."). =
Lovato and =
Lorentz hold=20
that lack of capacity can be cured even after deadlines have run. =
See=20
Lovato, 171 S.W.3d at 852-53; Lorentz, 171 S.W.3d at =
856.=20
They do not hold that because the plaintiff's capacity to =
sue=20
relates back to the date of filing of a claim and cures the =
failure to=20
meet that deadline it also relates back to all interim dates and=20
creates opportunities for dismissal for failure to meet =
all the=20
other deadlines that elapsed while the plaintiff was in the =
process of=20
curing her lack of capacity at a defendant's insistence. Rather, =
as the=20
supreme court stated in Lovato, in a case brought by a =
claimant=20
who lacks capacity to sue, "[t]he burden is on the defendant =
to=20
challenge capacity via verified plea, and the trial court should =
abate the=20
case and give the plaintiff a reasonable time to cure any =
defect."=20
Lovato, 171 S.W.3d at 853, n.7 (emphasis added); see=20
also Tex. R. Civ. P. 93(1)-(2); Coakley v. Reising, =
436=20
S.W.2d 315, 317 (Tex. 1968); Shiffers v. Estate of Ward, =
762=20
S.W.2d 753, 755 (Tex. App.--Fort Worth 1988, writ denied). =
The trial court did just as=20
Lovato directs. It carried appellants' motion to dismiss =
with the=20
case until Campbell had been given a reasonable opportunity to =
cure the=20
defect in capacity raised by defendants and then denied the motion =
to=20
dismiss. It thus implicitly tolled the running of deadlines on =
Brown's=20
claims during that time. Rather than holding Campbell to deadlines =
that=20
all parties acknowledge she lacked the capacity to meet at the =
time they=20
elapsed, I would hold that those deadlines were tolled by the =
trial=20
court's decision to withhold its ruling on appellants' motion to =
dismiss=20
for the reasonable time it took Campbell to cure her lack of =
capacity.=20
Even though the majority =
recognizes that=20
the trial court's order denying appellants' motion to dismiss =
effectively=20
tolled those deadlines that ran during the time appellant was =
attempting=20
to cure her lack of capacity to sue, the majority nevertheless =
requires an=20
express ruling by the trial court in the record in response to a=20
defendant's special exceptions and/or motion to dismiss for lack =
of=20
capacity, in advance of its final ruling, expressly =
ordering the=20
plaintiff to cure her lack of capacity, abating the case, and =
tolling all=20
other deadlines while the lack of capacity is cured. And the =
majority=20
refuses to recognize the implicit tolling effect of a trial =
court's=20
carrying a motion to dismiss for lack of capacity until the lack =
of=20
capacity is cured. I can find nothing in the Texas =
Rules of=20
Civil Procedure or Texas case law to support the strict bifurcated =
procedure required by the majority to toll the running of =
deadlines while=20
a defect in capacity raised by a defendant is cured. Rather, in my =
view,=20
the majority's reading of the Texas Rules of Civil Procedure =
serves=20
neither the letter nor the spirit of the law. It prohibits the =
trial court=20
from implicitly tolling deadlines while a defect in capacity to =
sue is=20
addressed by delaying its ruling on a motion to dismiss raising =
the defect=20
in capacity to allow a reasonable time for the plaintiff to cure =
the=20
defect. Effectively, the majority's opinion undoes Lovato =
and=20
Lorenz and places in the hands of defendants the =
arbitrary power=20
to enforce deadlines running against a plaintiff that all parties =
and the=20
court acknowledge she lacks the capacity to meet. Because the majority's opinion =
encourages=20
the resolution of legal suits on a strict reading of rules of =
procedure=20
subject to arbitrary and capricious enforcement at the expense of =
"a just,=20
fair, equitable and impartial adjudication of the rights of =
litigants=20
under established principles of substantive law," I respectfully =
dissent.=20
Tex. R. Civ. P. 1. I would hold that, under Lovato and=20
Lorenz, deadlines running on a claim brought by a party =
whose=20
capacity to sue is challenged are implicitly tolled by the trial =
court's=20
decision to delay ruling on a motion to dismiss pending a =
reasonable=20
attempt by the plaintiff to cure the defect, and they begin to run =
from=20
the date the defect is cured. See Lorenz, 171 S.W.3d at =
856;=20
Lovato, 171 S.W.3d at 851. I would affirm the trial =
court's order=20
denying the dismissal of Brown's claims. Justice Panel consists of Justices =
Taft, Keyes,=20
and Hanks. Justice Keyes,=20
dissenting.