This is an interlocutory appeal =
from the=20
partial denial of a motion to dismiss health-care-liability claims =
for=20
failure timely to file an expert report. See Tex. Civ. =
Prac.=20
& Rem. Code Ann. =A7=A7 51.014(9) (Vernon Supp. 2006). =
Appellee, Cindy=20
Campbell, filed the relevant health-care-liability claim on behalf =
of her=20
adult son, Frank Brown, as his next friend. Campbell was later =
appointed=20
Brown's guardian, after which time she amended her petition to =
assert the=20
claims as Brown's guardian. Campbell filed an expert report more =
than 120=20
days from the filing of her claims asserted as Brown's next =
friend, but=20
fewer than 120 days from the amendment of her petition to show =
that she=20
was Brown's guardian. We determine whether the trial court erred =
in=20
determining, in effect, that the 120-day expert-report deadline =
was tolled=20
until Campbell was appointed Brown's guardian. We reverse the =
order in=20
part and remand the cause for further proceedings consistent with =
this=20
opinion.
According to Campbell's =
petition, on=20
August 13, 2004, Brown, who suffered from paranoid schizophrenia, =
was=20
transferred from the facilities of appellant IntraCare Hospital =
North=20
("IntraCare") to another adult supervisory facility. Brown escaped =
while=20
at the new facility. He was found just over two days later, =
disoriented,=20
dehydrated, hungry, sunburned, scratched, and bruised. On November 4, 2005, Campbell =
filed her=20
original petition against, among others, appellants IntraCare and =
Terry=20
Bauske (together, "appellants"), upon whose advice Campbell =
alleged that=20
Brown had been transferred. On November 30, 2005, =
appellants=20
specially excepted on the ground that Campbell lacked the capacity =
to sue=20
as the next friend of Brown, whom she had also alleged was an =
adult,=20
because Campbell was not his legal guardian. On December 1, 2005,=20
appellants filed an unverified "Motion to Determine the Legal =
Capacity of=20
Cindy Campbell," in which they requested that the trial court =
order=20
Campbell "to produce evidence of her legal capacity to bring this =
suit=20
. . ." within 10 days or, alternatively, that Campbell's =
next-friend claims "be dismissed for want of legal capacity to =
sue."=20
Appellants did not plead lack of capacity in their answer. On January 13, 2006, Campbell =
filed her=20
first amended petition, in which she alleged that she brought suit =
individually and as next friend of Brown, "an incapacitated =
person," under=20
Texas Rule of Civil Procedure 44. See Tex. R. Civ. P. 44=20
("Minors, lunatics, idiots, or persons non compos mentis who have =
no legal=20
guardian may sue and be represented by 'next friend' under the =
following=20
rules . . . ."). She also alleged that her son was =
a=20
"mentally incapacitated adult." Campbell realleged the same =
matters=20
relating to Brown's claims in her second amended petition, which =
she filed=20
on February 15, 2006. On March 2, 2006, the Madison =
County=20
Court appointed Campbell as Brown's legal guardian. On March 20, =
Campbell=20
moved the trial court in the present case to have the guardianship =
recognized. She simultaneously filed a third amended petition, =
alleging=20
that her claims were asserted individually and on behalf of =
Brown--both as=20
his guardian and his next friend. On April 4, 2006, the trial =
court signed=20
an agreed order recognizing Campbell's guardianship of =
Brown. On March 6, 2006--after =
Campbell had been=20
appointed Brown's guardian, but before she had amended her =
petition to=20
allege that guardianship--appellants moved to dismiss Brown's and=20
Campbell's claims against them for Campbell's failure to serve an =
expert=20
report on them within 120 days of the claim's filing. In contrast, appellants =
responded that=20
the 120-day deadline should be calculated from the date of the =
filing of=20
Brown's claims, regardless of whether Campbell had capacity to =
assert=20
those claims at that time, because Campbell later cured her lack =
of=20
capacity through the guardianship proceeding. Analogizing to case =
law on=20
the statute of limitations--in which courts have held that claims =
filed=20
without capacity, but before limitations runs, are considered =
timely even=20
when capacity is not cured until after limitations =
runs--appellants argued=20
that the curing of capacity did not restart the 120-day deadline, =
but=20
required instead that the timeline for filing the report "relate =
back" to=20
the date of the claim's original filing. Appellants also argued =
that, even=20
if the guardianship extended the time to file an expert report on =
Brown's=20
behalf, the guardianship could have had no effect on Campbell's =
claims=20
brought in her individual capacity. After a hearing, the trial =
court rendered=20
an order granting the motion to dismiss all of Campbell's =
individual=20
claims against appellants with prejudice, but denying the motion =
to=20
dismiss with respect to Brown's health-care-liability claims =
against=20
appellants. Appellants appeal the portion of the ruling denying =
their=20
motion to dismiss Brown's health-care-liability claims that =
Campbell=20
asserted on his behalf.
We generally review rulings on =
a motion=20
to dismiss under section 74.351 for abuse of discretion. See =
Estate of=20
Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 =
S.W.3d=20
64, 67 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (holding =
same in=20
appeal of ruling under section 74.351). The ruling under review in =
this=20
case concerned a purely legal issue: whether former section =
74.351(a)=20
provides for the 120-day expert-report deadline to restart upon =
the curing=20
of the claimant's representative's lack of capacity. We generally =
review=20
questions of law like this de novo. See Brown v.=20
Villegas, 202 S.W.3d 803, 805 (Tex. App.--San Antonio 2006, =
no pet.)=20
("We review the trial court's dismissal of a health care liability =
claim=20
under an abuse of discretion standard; however, to the extent that =
the=20
resolution of the issue presented requires an interpretation of =
[the=20
statute] or a determination that [the statute] applies to a claim, =
we=20
review under a de novo standard."). But see Estate of =
Regis=20
ex rel. McWashington, 208 S.W.3d at 67 (describing standard =
of review=20
of section-74.351(a) ruling as abuse of discretion, although =
appeal=20
involved issue of statutory interpretation); Mokkala v. =
Mead, 178=20
S.W.3d 66, 70 (Tex. App.--Houston [14th Dist.] 2005, pet. granted) =
(same).=20
Nonetheless, a trial court has no discretion in determining what =
the law=20
is, which law governs, or how to apply the law. See Walker v.=20
Packer, 827 S.W.2d 833, 840 (Tex. 1992). Accordingly, the =
standard of=20
review of this particular ruling is the same, regardless of =
whether it is=20
described as abuse of discretion or de novo.
In three issues, appellants =
argue that=20
the trial court erred in implicitly determining that the 120-day =
deadline=20
under former section 74.351(a) did not commence until Campbell =
cured her=20
lack of capacity by being appointed Brown's guardian. Because =
the parties=20
do not dispute that Campbell lacked legal capacity to sue as her =
adult=20
son's next friend and that her appointment as his legal guardian =
cured=20
that defect, we, too, assume without deciding that she lacked =
capacity to=20
sue until she was appointed his guardian by the county =
court. A. =
Discussion "'[A] party has capacity =
when it=20
has the legal authority to act, regardless of whether it has a =
justiciable=20
interest in the controversy.'" Coastal Liquids Transp., L.P. =
v. Harris=20
County Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001) =
(emphasis in=20
original) (quoting Nootsie, Ltd. v. Williamson County =
Appraisal=20
Dist., 925 S.W.2d 659, 661 (Tex. 1996)). A plaintiff's lack =
of=20
capacity to bring suit on another's behalf does not deprive the =
trial=20
court of subject-matter jurisdiction over the suit, and a =
challenge to the=20
plaintiff's capacity may thus be waived. Compare Coastal =
Liquids=20
Transp., L.P., 46 S.W.3d at 884 (providing that challenge to=20
plaintiff's lack of capacity can be waived), and Safeway =
Stores, Inc.=20
of Tex. v. Rutherford, 130 Tex. 465, 469, 111 S.W.2d 688, 690 =
(1938)=20
(concluding that judgment in favor of minor suing individually, =
rather=20
than through next friend, would not have been void), with =
Browning v.=20
Placke, 698 S.W.2d 362, 363 (Tex. 1985) (indicating that =
judgment is=20
void when, among other things, it is apparent that court rendering =
judgment "had . . . no jurisdiction of the subject =
matter"),=20
and Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex. =
App.--Houston=20
[1st Dist.] 2004, pet. denied) ("Lack of subject-matter =
jurisdiction is=20
fundamental error that may be recognized by the appellate court, =
sua=20
sponte, or raised by a party, by appellate challenge, for the =
first time=20
on appeal."); see Tex. R. Civ. P. 90, 93(1), =
(2). "[M]inors and incompetents are =
considered=20
to be under a legal disability and are therefore unable to sue or =
be sued=20
in their individual capacities; such persons are required to =
appear in=20
court through a legal guardian, a 'next friend,' or a guardian ad =
litem."=20
Former section 74.351(a), which =
is=20
applicable to this cause, provides that a "claimant" asserting a=20
health-care-liability claim must serve the required expert report =
not=20
later than the 120th day after the date that the claim was filed. =
See=20
former Tex. Civ. Prac. & Rem. Code Ann. =
=A7 74.351(a) (then=20
providing that date of claim's filing was triggering date; =
currently=20
providing that date of petition's filing is triggering date). A =
claimant=20
is defined as "a person . . . seeking or who has sought =
recovery=20
of damages in a health care liability claim." Id. at=20
=A7 74.001(a)(2) (Vernon 2006). Appellants argue that, with =
the=20
exception of Campbell's individual claims, which have been =
dismissed and=20
are not at issue in this appeal, "[t]here has been one 'claim' =
filed by=20
only one 'claimant' in this matter, and that claim was initially =
asserted=20
in Plaintiff's Original Petition filed on November 4, 2005 [appts' =
br., p.=20
11]." We agree. The real party plaintiff in a lawsuit asserted by =
either a=20
next friend or a guardian is the incompetent person. Gracia v. =
RC=20
Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) (suit =
by next=20
friend); Rutherford, 130 Tex. at 467, 111 S.W.2d at 689 =
(same);=20
Wimberly v. Parish, 381 S.W.2d 135, 136 (Tex. Civ. =
App.--Beaumont=20
1964, writ ref'd n.r.e.) (guardianship). When Campbell asserted =
claims on=20
behalf of Brown--whether mistakenly as his next friend or, later =
and=20
correctly, as his actual guardian--Brown was the real party =
plaintiff.=20
Thus, Brown has at all times been the true "claimant" under former =
section=20
74.351. See Wheat v. Montgomery, 560 S.W.2d 767, 768 =
(Tex. Civ.=20
App.--El Paso 1977, no writ) (in dictum, indicating that change in =
representative's capacity from next friend to guardian was not =
change in=20
plaintiff, but merely change in capacity of =
representative). Nonetheless, Campbell asserts =
that=20
because she lacked capacity to represent Brown before she was =
appointed=20
his legal guardian, Brown could not have been a party plaintiff, =
and thus=20
could not have been a "claimant" for purposes of former section =
74.351,=20
until she had actually obtained the capacity to represent him. =
That is,=20
Campbell views Brown as having asserted his health-care-liability =
claim=20
for the first time only afer the person through whom he asserted =
that=20
claim (Campbell) had obtained the actual capacity to represent =
him.=20
Appellants respond by relying by analogy on the line of Texas =
Supreme=20
Court authority that, when a petition alleging a representative =
capacity=20
that is actually lacking is filed before the statute of =
limitations=20
expires, and the capacity problem is cured after limitations =
passes (but=20
no new claims are asserted), the plaintiff's post-limitations =
capacity=20
cures her pre-limitations lack thereof. See Lovato, 171 =
S.W.3d at=20
851, 853 ("The estate commenced the suit before limitations =
expired;=20
[Plaintiff] cured the defect in her capacity before the case was=20
dismissed. Under those circumstances, the estate . . . =
was=20
ultimately represented by a person with capacity to pursue the =
claim on=20
its behalf."); accord Lorentz v. Dunn, 171 S.W.3d 854, =
856 (Tex.=20
2005) (following Lovato). We agree with appellants that=20
Lovato and Lorentz, although not fully on point, =
support=20
the conclusion that Campbell's expert report was untimely. If a =
claim for=20
which the plaintiff lacks capacity to sue is deemed cured by the=20
representative's later obtaining capacity, so that limitations =
runs from=20
the date of the claim's first filing (rather than from the date of =
the=20
cure), then the same should be true for a health-care-liability =
claim=20
brought by one asserting, but actually lacking, capacity to sue: =
upon=20
cure, it is as if the claim had originally been brought in the =
correct=20
capacity--i.e., the corrected capacity "relates back" to =
the=20
claim's original filing--so that the 120-day deadline began =
running from=20
the date of the claim's filing, rather than from the date of the =
cure.=20
We recognize that the =
circumstances of=20
Lovato and Lorentz differ from those present =
here in=20
that, among other things, those courts were considering =
limitations, and=20
the application of the relation-back doctrine in those cases =
benefitted=20
the plaintiffs. Nevertheless, the basic instruction of =
Lovato and=20
Lorentz is that, if a plaintiff cures her capacity within =
a=20
reasonable time, it is as if, from the very beginning of the suit, =
her=20
capacity had never been lacking. That basic instruction supports =
our=20
conclusion here. Moreover, it is well-settled both that the lack =
of the=20
plaintiff's capacity to sue on behalf of another can be waived and =
that a=20
judgment rendered for one whose plaintiff-representative lacked =
capacity=20
is not void. See, e.g., Coastal Liquids Transp., =
L.P.,=20
46 S.W.3d at 884 (providing that challenge to plaintiff's lack of =
capacity=20
can be waived); cf. Rutherford, 130 Tex. at 469, 111 =
S.W.2d at=20
690 (concluding that judgment in favor of minor suing =
individually, rather=20
than through next friend, would not have been void). Accordingly, =
had=20
appellants never objected to Campbell's lack of capacity to assert =
Brown's=20
claims, and had Campbell never sought to cure that deficiency, any =
judgment rendered on those claims would have been valid despite =
her lack=20
of capacity. There is also no question that, under those =
circumstances,=20
former section 74.351(a)'s expert-report deadline would have been=20
calculated from the date that Campbell filed Brown's =
claims--regardless of=20
whether she had actual capacity to assert them when they were =
filed.=20
Former section 74.351(a)'s expert-report deadline should not have =
a=20
different starting date simply because Campbell eventually cured =
her lack=20
of capacity. Additionally, the purposes =
behind former=20
section 74.351(a)'s adoption were, among other things, to remove=20
unwarranted delay and expense, to accelerate the disposition of=20
non-meritorious cases, and to give hard-and-fast deadlines for the =
serving=20
of expert reports. See Mokkala, 178 S.W.3d at 74-75 =
(considering=20
former section 74.351(a) and quoting from legislative record). If =
the=20
expert-report deadline were allowed to restart at any time that =
capacity=20
is cured--even though more than 120 days had elapsed from the time =
that=20
the claimant's representative had purported first to assert the=20
claim--these purposes of former section 74.351(a) would be =
thwarted=20
because the expert-report deadline could be greatly extended. =
Cf.=20
id. at 76 ("Allowing a plaintiff to restart the period for =
serving an=20
expert report by simply nonsuiting her health care liability claim =
and=20
refiling that same claim, could effectively expand the 120-day =
period to=20
well over two years. Such a procedure is inconsistent with the =
policies,=20
goals, and statutory provisions [behind former section 74.351(a)'s =
adoption] set forth above.") (citations omitted). Such an =
extension would,=20
in effect, also violate the spirit (if not the letter) of former =
section=20
74.351 itself, which provides only limited means to extend the =
time for=20
filing the expert report. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. =A7 74.351(a), (c) (Vernon Supp. 2006) (allowing for =
extension of=20
120-day deadline by written agreement of affected parties; further =
providing that, if expert report is deemed not to have been timely =
served=20
because its elements were deficient, court has discretion to allow =
claimant 30 days to cure deficiency). Campbell further argues that =
the cases=20
upon which appellants rely are distinguishable because, in them, =
the party=20
lacking capacity originally alleged that he had the same type of =
capacity=20
that he eventually obtained. For example, Campbell notes that, in =
both=20
Lovato and Lorentz, the plaintiffs originally =
alleged=20
that they were the estate administrators when they were not, but =
later=20
actually became the estates' administrators. See =
Lovato,=20
171 S.W.3d at 847, 853 ("In any event, it would be pointless to =
require=20
that the plaintiff file an 'amended' pleading containing the same=20
allegations of capacity as were stated in her original =
petition.");=20
Lorentz, 171 S.W.3d at 855. Here, in contrast, Campbell =
notes=20
that she alleged originally that she was a next friend, =
but she=20
later cured that defect by becoming a guardian. =
"[Texas Rule of Civil =
Procedure] 44 gives=20
a next friend the same rights as a guardian, which necessarily =
include the=20
ability to make any decision with respect to a lawsuit on behalf =
of the=20
ward . . . ." Saldarriaga, 121 S.W.3d at =
499;=20
see Tex. R. Civ. P. 44 (1) (so providing). Moreover, as =
we have=20
stated above, the real party plaintiff in a lawsuit asserted by =
either a=20
next friend or a guardian is the incompetent person. See =
Gracia,=20
667 S.W.2d at 519; Rutherford, 130 Tex. at 467,111 S.W.2d =
at 689;=20
Wimberly, 381 S.W.2d at 136. Finally, whether one wishes =
to be=20
appointed the next friend or the guardian of an adult who has not =
yet been=20
adjudged incompetent, one must follow the same procedures, =
i.e.,=20
those for guardianships. See Saldarriaga, 121 S.W.3d at =
498-99.=20
For these reasons, it is immaterial that Campbell represented =
herself=20
first as next friend of Brown and then cured that deficiency =
through a=20
legal appointment under the title of guardian, rather than under =
the title=20
of next friend: whether she had filed the suit as next friend or =
as=20
guardian, Campbell would have had the same powers and would have =
attempted=20
to represent the same person on the same claims. Accordingly, we =
decline=20
to distinguish the analogous limitations authority on which we =
have relied=20
for the reason that Campbell argues here. B. =
Resolution Appellants'=20
motion to dismiss and their related reply implicitly treated all =
of=20
Campbell's and Brown's claims as being health-care-liability =
claims,=20
praying that the court "dismiss[] this matter" and "this case" =
against=20
them. In her response to =
the motion=20
to dismiss, Campbell referred only to "[t]he medical malpractice =
claims=20
asserted in this matter." No one briefed to the trial court =
whether all or=20
only some of Brown's claims in this suit were =
health-care-liability claims=20
for which former section 74.531(a) required that an expert report =
be=20
served. The trial court's ruling with respect to Brown's claims =
does not=20
reveal, implicitly or expressly, whether the court considered all =
of those=20
claims to be subject to former section 74.351(a). We decline to =
review a=20
matter that was not presented to the trial court and on which we =
cannot=20
determine that the trial court ruled. Accordingly, on remand, the =
trial=20
court may determine which of Brown's claims were "health care =
liability=20
claims" that must be dismissed with prejudice for Campbell's =
failure=20
timely to serve an expert report.
We reverse the order of the =
trial court=20
to the extent that it denied the motion to dismiss the=20
health-care-liability claims against appellants brought by =
Campbell on=20
behalf of Brown and remand the cause for further proceedings =
consistent=20
with this opinion. Tim Taft Justice Panel consists of Justices =
Taft, Keyes,=20
and Hanks. 1. Some other defendants were eventually =
non-suited.=20
Those who were not non-suited are not parties to this appeal.=20
2. The Texas Rules of Civil Procedure =
require that a=20
defendant challenging a plaintiff's capacity to sue raise the =
matter by=20
verified pleading, if lack of capacity is not evident from the =
petition.=20
See Tex. R. Civ. P. 93(1), (2); Coastal Liquids =
Transp., L.P.=20
v. Harris County Appraisal Dist., 46 S.W.3d 880, 885 (Tex. =
2001);=20
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 =
S.W.2d=20
659, 662 (Tex. 1996). The burden is on the defendant to challenge =
capacity=20
to sue. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d =
845, 853=20
n.7 (Tex. 2005). The issues before us do not require us to =
determine=20
whether appellants could challenge capacity by the exception and =
motion=20
that they filed or whether they also had to raise the matter by =
verified=20
plea.=20
3. Rather than filing an expert report, as =
required by=20
the applicable law, Campbell mistakenly moved for entry of cost =
bond in=20
lieu thereof, as was allowed by superseded law.=20
4. The version of section 74.351(a) =
applicable to this=20
suit provided that the expert report had to be served 120 days =
from the=20
date that the claim was filed. See Act of June =
2, 2003,=20
78th Leg., R.S., ch. 204, =A7=A7 10.01, 10.09, 23.02(a), (d), 2003 =
Tex. Gen.=20
Laws 847, 864, 875, 884, 898-99, amended by Act of May =
18, 2005,=20
79th Leg., ch. 635, =A7 1, 2005 Tex. Gen. Laws 1590, 1590 (current =
version=20
at Tex. Civ. Prac. & Rem. Code Ann. =A7 74.351(a) (Vernon =
Supp. 2006)).=20
The Legislature later amended section 74.351(a) to require that a =
claimant=20
serve an expert report in a health-care-liability claim not later =
than the=20
120th day after the date that the original petition was =
filed.=20
See Act of May 18, 2005, 79th Leg., R.S., ch. 635, =A7 1, =
2005 Tex.=20
Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. & =
Rem. Code=20
Ann. =A7 74.351(a) (Vernon Supp. 2006)). That amendment, however, =
does not=20
apply to this lawsuit. See Act of May 18, 2005, 79th =
Leg., ch.=20
635, =A7 2, 2005 Tex. Gen. Laws 1590, 1590 (providing that 2005 =
amendment of=20
section 74.352(a) applies only to causes of action that accrued on =
or=20
after amendment's effective date of September 1, 2005). For =
simplicity's=20
sake, we refer in the remainder of this opinion to the version of =
section=20
74.351(a) that applies to this lawsuit as "former section=20
74.351(a)."