[Back to Index]     [Back to 2005 Texas Case Summaries]

Cooper v. Coe, 188 S.W.3d 223 (Tex. App.—Tyler 2005, pet. denied).

Estate Administration

Survival

Plaintiff filed a survival action against Defendant, a doctor whose malpractice allegedly caused Decedent’s death.  Plaintiff claimed to be the “representative” of the estate of Decedent but she had not been formally appointed by a court.  Instead, she was bringing the action based on her determination that no administration of Decedent’s intestate estate was necessary because a family settlement agreement resolved all issues relating to the distribution of the estate and the payment of debts.  Defendant claimed that she lacked authority to bring the action because she was not a legally appointed personal representative and that administration of the estate was necessary because of the outstanding debts.  Accordingly, Defendant claimed that the action was now barred by the statute of limitations.  The trial court agreed.

The appellate court reversed.  Citing Austin Nursing Center, Inc v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005), the court explained that in a survival action, a decedent’s estate has a justiciable interest in the controversy sufficient to confer standing.  Although a court-appointed personal representative normally has the capacity to bring the survival action, the heirs may bring the action if they prove that there is no administration pending and that none is necessary.  In this case, there was no administration pending and none was necessary because of the family settlement agreement.  Because Plaintiff’s original petition was filed within the statutory period, Plaintiff’s claim was not barred by limitations.

Moral:  A family settlement agreement may act to show that no administration is necessary allowing heirs to bring a survival action directly without the necessity of the appointment of a personal representative.

[Back to Index]     [Back to 2005 Texas Case Summaries]