Intracare Hospital North and Terry Bauske v. Cindy Campbell, Individually and A/N/F of Frank Brown

Opinion issued March 29, 2007

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00356-CV

____________

INTRACARE HOSPITAL NORTH AND TERRY BAUSKE, Appellants

V.

CINDY CAMPBELL, AS NEXT FRIEND AND GUARDIAN OF FRANK

BROWN, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2005-71529

O P I N I O N

This is an interlocutory appeal from the partial denial of a motion to dismiss

health-care-liability claims for failure timely to file an expert report. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 51.014 (9) (Vernon Supp. 2006). Appellee, Cindy

Campbell, filed the relevant health-care-liability claim on behalf of her adult son,

Frank Brown, as his next friend. Campbell was later appointed Brown's guardian,

after which time she amended her petition to assert the claims as Brown's guardian.

Campbell filed an expert report more than 120 days from the filing of her claims

asserted as Brown's next friend, but fewer than 120 days from the amendment of her

petition to show that she was Brown's guardian. We determine whether the trial court

erred in determining, in effect, that the 120-day expert-report deadline was tolled until

Campbell was appointed Brown's guardian. We reverse the order in part and remand

the cause for further proceedings consistent with this opinion.

Background

According to Campbell's petition, on August 13, 2004, Brown, who

suffered from paranoid schizophrenia, was transferred from the facilities of appellant

IntraCare Hospital North ("IntraCare") to another adult supervisory facility. Brown

escaped while at the new facility. He was found just over two days later, disoriented,

dehydrated, hungry, sunburned, scratched, and bruised.

On November 4, 2005, Campbell filed her original petition against, among

others, appellants IntraCare and Terry Bauske (together, "appellants"), upon whose

advice Campbell alleged that Brown had been transferred. (1) Campbell's original

petition alleged that she sued "individually and as next friend of . . . Brown." In the

petition's factual-allegation section, Campbell alleged that Brown was "a nineteen-year old suffering from paranoid schizophrenia." Against appellants, Campbell

alleged causes of action for negligence (the duty to maintain adequate care,

supervision, and control of Brown); intentional infliction of emotional distress

(reckless failure of same duties); and medical malpractice (negligence and negligent

referral to an allegedly sub-standard facility) and sought attorney's fees and actual,

exemplary, and mental-anguish damages.

On November 30, 2005, appellants specially excepted on the ground that

Campbell lacked the capacity to sue as the next friend of Brown, whom she had also

alleged was an adult, because Campbell was not his legal guardian. On December 1,

2005, appellants filed an unverified "Motion to Determine the Legal Capacity of

Cindy Campbell," in which they requested that the trial court order Campbell "to

produce evidence of her legal capacity to bring this suit . . ." within 10 days or,

alternatively, that Campbell's next-friend claims "be dismissed for want of legal

capacity to sue." Appellants did not plead lack of capacity in their answer. (2) The trial

court did not rule on appellants' special exceptions or motion to show capacity, nor

did it abate the case during the time that Campbell would later seek to cure her lack

of capacity through a guardianship proceeding. See Austin Nursing Ctr., Inc. v.

Lovato , 171 S.W.3d 845 , 853 n.7 (Tex. 2005) (indicating that if trial court concludes

that capacity is lacking, court should abate case and give plaintiff reasonable time to

cure defect).

On January 13, 2006, Campbell filed her first amended petition, in which

she alleged that she brought suit individually and as next friend of Brown, "an

incapacitated person," under Texas Rule of Civil Procedure 44. See Tex. R. Civ. P.

44 ("Minors, lunatics, idiots, or persons non compos mentis who have no legal

guardian may sue and be represented by 'next friend' under the following rules

. . . ."). She also alleged that her son was a "mentally incapacitated adult." Campbell

realleged the same matters relating to Brown's claims in her second amended petition,

which she filed on February 15, 2006.

On March 2, 2006, the Madison County Court appointed Campbell as

Brown's legal guardian. On March 20, Campbell moved the trial court in the present

case to have the guardianship recognized. She simultaneously filed a third amended

petition, alleging that her claims were asserted individually and on behalf of

Brown--both as his guardian and his next friend. On April 4, 2006, the trial court

signed an agreed order recognizing Campbell's guardianship of Brown.

On March 6, 2006--after Campbell had been appointed Brown's guardian,

but before she had amended her petition to allege that guardianship--appellants

moved to dismiss Brown's and Campbell's claims against them for Campbell's failure

to serve an expert report on them within 120 days of the claim's filing. (3) See Act of

June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen.

Laws 847 , 864, 875, 884, 898-99 (requiring claimant asserting health-care-liability

claim to serve expert report on opposing parties within 120 days of claim's filing;

further providing that, if expert report is not timely served, court must dismiss such

claim with prejudice upon defendant's motion) , (4) amended by Act of May 18, 2005,

79th Leg., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 , 1590 (current version at Tex.

Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2006)) . Campbell responded

that Brown's claims were not properly before the trial court until March 20,

2006--when she amended her petition to assert those claims as Brown's

guardian--because she had not had capacity to represent Brown in the lawsuit as his

next friend and thus could not properly have asserted any claims on his behalf before

then. Campbell concluded that the 120-day deadline to file the expert report for

Brown should thus be calculated from the time that "Brown, through Guardian, was

properly brought before the Court."

In contrast, appellants responded that the 120-day deadline should be

calculated from the date of the filing of Brown's claims, regardless of whether

Campbell had capacity to assert those claims at that time, because Campbell later

cured her lack of capacity through the guardianship proceeding. Analogizing to case

law on the statute of limitations--in which courts have held that claims filed without

capacity, but before limitations runs, are considered timely even when capacity is not

cured until after limitations runs--appellants argued that the curing of capacity did

not restart the 120-day deadline, but required instead that the timeline for filing the

report "relate back" to the date of the claim's original filing. Appellants also argued

that, even if the guardianship extended the time to file an expert report on Brown's

behalf, the guardianship could have had no effect on Campbell's claims brought in

her individual capacity.

After a hearing, the trial court rendered an order granting the motion to

dismiss all of Campbell's individual claims against appellants with prejudice, but

denying the motion to dismiss with respect to Brown's health-care-liability claims

against appellants. Appellants appeal the portion of the ruling denying their motion

to dismiss Brown's health-care-liability claims that Campbell asserted on his behalf.

Standard of Review

We generally review rulings on a motion to dismiss under section 74.351

for abuse of discretion. See Estate of Regis ex rel. McWashington v. Harris County

Hosp. Dist. , 208 S.W.3d 64, 67 (Tex. App.--Houston [14th Dist.] 2006, no pet.)

(holding same in appeal of ruling under section 74.351). The ruling under review in

this case concerned a purely legal issue: whether former section 74.351(a) provides

for the 120-day expert-report deadline to restart upon the curing of the claimant's

representative's lack of capacity. We generally review questions of law like this de

novo . See Brown v. Villegas , 202 S.W.3d 803, 805 (Tex. App.--San Antonio 2006,

no pet.) ("We review the trial court's dismissal of a health care liability claim under

an abuse of discretion standard; however, to the extent that the resolution of the issue

presented requires an interpretation of [the statute] or a determination that [the

statute] applies to a claim, we review under a de novo standard."). But see Estate of

Regis ex rel. McWashington , 208 S.W.3d at 67 (describing standard of review of

section-74.351(a) ruling as abuse of discretion, although appeal involved issue of

statutory interpretation); Mokkala v. Mead , 178 S.W.3d 66, 70 (Tex. App.--Houston

[14th Dist.] 2005, pet. granted) (same). Nonetheless, a trial court has no discretion

in determining what the law is, which law governs, or how to apply the law. See

Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992). Accordingly, the standard of

review of this particular ruling is the same, regardless of whether it is described as

abuse of discretion or de novo .

The Effect of Curing Campbell's Incapacity to Sue on Brown's Behalf

In three issues, appellants argue that the trial court erred in implicitly

determining that the 120-day deadline under former section 74.351(a) did not

commence until Campbell cured her lack of capacity by being appointed Brown's

guardian. Because the parties do not dispute that Campbell lacked legal capacity to

sue as her adult son's next friend and that her appointment as his legal guardian cured

that defect, we, too, assume without deciding that she lacked capacity to sue until she

was appointed his guardian by the county court. See also Saldarriaga v. Saldarriaga ,

121 S.W.3d 493, 499 (Tex. App.--Austin 2003, no pet.) (holding that next friend

must be appointed for allegedly incompetent adult under procedural safeguards

applicable to guardianships).

A. Discussion

"'[A] party has capacity when it has the legal authority to act, regardless of

whether it has a justiciable interest in the controversy.'" Coastal Liquids Transp.,

L.P. v. Harris County Appraisal Dist. , 46 S.W.3d 880, 884 (Tex. 2001) (emphasis in

original) (quoting Nootsie, Ltd. v. Williamson County Appraisal Dist. , 925 S.W.2d

659, 661 (Tex. 1996)). A plaintiff's lack of capacity to bring suit on another's behalf

does not deprive the trial court of subject-matter jurisdiction over the suit, and a

challenge to the plaintiff's capacity may thus be waived. Compare Coastal Liquids

Transp., L.P. , 46 S.W.3d at 884 (providing that challenge to plaintiff's lack of

capacity can be waived), and Safeway Stores, Inc. of Tex. v. Rutherford , 130 Tex.

465, 469 , 111 S.W.2d 688, 690 (1938) (concluding that judgment in favor of minor

suing individually, rather than through next friend, would not have been void), with

Browning v. Placke , 698 S.W.2d 362, 363 (Tex. 1985) (indicating that judgment is

void when, among other things, it is apparent that court rendering judgment "had . . .

no jurisdiction of the subject matter"), and Saudi v. Brieven , 176 S.W.3d 108, 113

(Tex. App.--Houston [1st Dist.] 2004, pet. denied) ("Lack of subject-matter

jurisdiction is fundamental error that may be recognized by the appellate court, sua

sponte, or raised by a party, by appellate challenge, for the first time on appeal."); see

Tex. R. Civ. P. 90, 93(1), (2).

"[M]inors and incompetents are considered to be under a legal disability and

are therefore unable to sue or be sued in their individual capacities; such persons are

required to appear in court through a legal guardian, a 'next friend,' or a guardian ad

litem." Lovato , 171 S.W.3d at 849 . A next friend is "'[o]ne who, without being

regularly appointed guardian, acts for the benefit of'" one who is under a legal

disability to act. Latcholia v. Tex. Employers Ins. Ass'n , 167 S.W.2d 164, 169 (Tex.

1942) (op. on reh'g).

Former section 74.351(a), which is applicable to this cause, provides that

a "claimant" asserting a health-care-liability claim must serve the required expert

report not later than the 120th day after the date that the claim was filed. See former

Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a) (then providing that date of claim's

filing was triggering date; currently providing that date of petition's filing is

triggering date). A claimant is defined as "a person . . . seeking or who has sought

recovery of damages in a health care liability claim." Id. at § 74.001(a)(2) (Vernon

2006). Appellants argue that, with the exception of Campbell's individual claims,

which have been dismissed and are not at issue in this appeal, "[t]here has been one

'claim' filed by only one 'claimant' in this matter, and that claim was initially

asserted in Plaintiff's Original Petition filed on November 4, 2005 [appts' br., p. 11]."

We agree. The real party plaintiff in a lawsuit asserted by either a next friend or a

guardian is the incompetent person. Gracia v. RC Cola-7-Up Bottling Co. , 667

S.W.2d 517, 519 (Tex. 1984) (suit by next friend); Rutherford , 130 Tex. at 467 , 111

S.W.2d at 689 (same); Wimberly v. Parish , 381 S.W.2d 135, 136 (Tex. Civ.

App.--Beaumont 1964, writ ref'd n.r.e.) (guardianship). When Campbell asserted

claims on behalf of Brown--whether mistakenly as his next friend or, later and

correctly, as his actual guardian--Brown was the real party plaintiff. Thus, Brown

has at all times been the true "claimant" under former section 74.351. See Wheat v.

Montgomery , 560 S.W.2d 767, 768 (Tex. Civ. App.--El Paso 1977, no writ) (in

dictum, indicating that change in representative's capacity from next friend to

guardian was not change in plaintiff, but merely change in capacity of representative).

Nonetheless, Campbell asserts that because she lacked capacity to represent

Brown before she was appointed his legal guardian, Brown could not have been a

party plaintiff, and thus could not have been a "claimant" for purposes of former

section 74.351, until she had actually obtained the capacity to represent him. That is,

Campbell views Brown as having asserted his health-care-liability claim for the first

time only afer the person through whom he asserted that claim (Campbell) had

obtained the actual capacity to represent him. Appellants respond by relying by

analogy on the line of Texas Supreme Court authority that, when a petition alleging

a representative capacity that is actually lacking is filed before the statute of

limitations expires, and the capacity problem is cured after limitations passes (but no

new claims are asserted), the plaintiff's post-limitations capacity cures her pre-limitations lack thereof. See Lovato , 171 S.W.3d at 851, 853 ("The estate

commenced the suit before limitations expired; [Plaintiff] cured the defect in her

capacity before the case was dismissed. Under those circumstances, the estate . . .

was ultimately represented by a person with capacity to pursue the claim on its

behalf."); accord Lorentz v. Dunn , 171 S.W.3d 854, 856 (Tex. 2005) (following

Lovato ).

We agree with appellants that Lovato and Lorentz , although not fully on

point, support the conclusion that Campbell's expert report was untimely. If a claim

for which the plaintiff lacks capacity to sue is deemed cured by the representative's

later obtaining capacity, so that limitations runs from the date of the claim's first

filing (rather than from the date of the cure), then the same should be true for a

health-care-liability claim brought by one asserting, but actually lacking, capacity to

sue: upon cure, it is as if the claim had originally been brought in the correct

capacity-- i.e. , the corrected capacity "relates back" to the claim's original filing--so

that the 120-day deadline began running from the date of the claim's filing, rather

than from the date of the cure.

We recognize that the circumstances of Lovato and Lorentz differ from

those present here in that, among other things, those courts were considering

limitations, and the application of the relation-back doctrine in those cases benefitted

the plaintiffs. Nevertheless, the basic instruction of Lovato and Lorentz is that, if a

plaintiff cures her capacity within a reasonable time, it is as if, from the very

beginning of the suit, her capacity had never been lacking. That basic instruction

supports our conclusion here. Moreover, it is well-settled both that the lack of the

plaintiff's capacity to sue on behalf of another can be waived and that a judgment

rendered for one whose plaintiff-representative lacked capacity is not void. See, e.g. ,

Coastal Liquids Transp., L.P. , 46 S.W.3d at 884 (providing that challenge to

plaintiff's lack of capacity can be waived); cf. Rutherford , 130 Tex. at 469 , 111

S.W.2d at 690 (concluding that judgment in favor of minor suing individually, rather

than through next friend, would not have been void). Accordingly, had appellants

never objected to Campbell's lack of capacity to assert Brown's claims, and had

Campbell never sought to cure that deficiency, any judgment rendered on those

claims would have been valid despite her lack of capacity. There is also no question

that, under those circumstances, former section 74.351(a)'s expert-report deadline

would have been calculated from the date that Campbell filed Brown's

claims--regardless of whether she had actual capacity to assert them when they were

filed. Former section 74.351(a)'s expert-report deadline should not have a different

starting date simply because Campbell eventually cured her lack of capacity.

Additionally, the purposes behind former section 74.351(a)'s adoption were,

among other things, to remove unwarranted delay and expense, to accelerate the

disposition of non-meritorious cases, and to give hard-and-fast deadlines for the

serving of expert reports. See Mokkala , 178 S.W.3d at 74-75 (considering former

section 74.351(a) and quoting from legislative record). If the expert-report deadline

were allowed to restart at any time that capacity is cured--even though more than 120

days had elapsed from the time that the claimant's representative had purported first

to assert the claim--these purposes of former section 74.351(a) would be thwarted

because the expert-report deadline could be greatly extended. Cf. id. at 76

("Allowing a plaintiff to restart the period for serving an expert report by simply

nonsuiting her health care liability claim and refiling that same claim, could

effectively expand the 120-day period to well over two years. Such a procedure is

inconsistent with the policies, goals, and statutory provisions [behind former section

74.351(a)'s adoption] set forth above.") (citations omitted). Such an extension

would, in effect, also violate the spirit (if not the letter) of former section 74.351

itself, which provides only limited means to extend the time for filing the expert

report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a), (c) (Vernon Supp.

2006) (allowing for extension of 120-day deadline by written agreement of affected

parties; further providing that, if expert report is deemed not to have been timely

served because its elements were deficient, court has discretion to allow claimant 30

days to cure deficiency).

Campbell further argues that the cases upon which appellants rely are

distinguishable because, in them, the party lacking capacity originally alleged that he

had the same type of capacity that he eventually obtained. For example, Campbell

notes that, in both Lovato and Lorentz , the plaintiffs originally alleged that they were

the estate administrators when they were not, but later actually became the estates'

administrators. See Lovato , 171 S.W.3d at 847, 853 ("In any event, it would be

pointless to require that the plaintiff file an 'amended' pleading containing the same

allegations of capacity as were stated in her original petition."); Lorentz , 171 S.W.3d

at 855 . Here, in contrast, Campbell notes that she alleged originally that she was a

next friend , but she later cured that defect by becoming a guardian .

"[Texas Rule of Civil Procedure] 44 gives a next friend the same rights as

a guardian, which necessarily include the ability to make any decision with respect

to a lawsuit on behalf of the ward . . . ." Saldarriaga , 121 S.W.3d at 499 ; see Tex.

R. Civ. P. 44 (1) (so providing). Moreover, as we have stated above, the real party

plaintiff in a lawsuit asserted by either a next friend or a guardian is the incompetent

person. See Gracia , 667 S.W.2d at 519 ; Rutherford , 130 Tex. at 467 , 111 S.W.2d at

689 ; Wimberly , 381 S.W.2d at 136 . Finally, whether one wishes to be appointed the

next friend or the guardian of an adult who has not yet been adjudged incompetent,

one must follow the same procedures, i.e. , those for guardianships. See Saldarriaga ,

121 S.W.3d at 498-99 . For these reasons, it is immaterial that Campbell represented

herself first as next friend of Brown and then cured that deficiency through a legal

appointment under the title of guardian, rather than under the title of next friend:

whether she had filed the suit as next friend or as guardian, Campbell would have had

the same powers and would have attempted to represent the same person on the same

claims. Accordingly, we decline to distinguish the analogous limitations authority

on which we have relied for the reason that Campbell argues here.

B. Resolution

Appellant asks us to determine whether Brown's claims styled as something

other than health-care-liability claims were in fact health-care-liability claims, so that

we may order all of those claims dismissed for Campbell's failure timely to file the

expert report. Campbell opposes our doing so because the issue of whether other-named claims were actually health-care-liability claims was not litigated before the

trial court.

Appellants' motion to dismiss and their related reply implicitly treated all

of Campbell's and Brown's claims as being health-care-liability claims, praying that

the court "dismiss[] this matter" and "this case" against them. In her response to the

motion to dismiss, Campbell referred only to "[t]he medical malpractice claims

asserted in this matter." No one briefed to the trial court whether all or only some of

Brown's claims in this suit were health-care-liability claims for which former section

74.531(a) required that an expert report be served. The trial court's ruling with

respect to Brown's claims does not reveal, implicitly or expressly, whether the court

considered all of those claims to be subject to former section 74.351(a). We decline

to review a matter that was not presented to the trial court and on which we cannot

determine that the trial court ruled. Accordingly, on remand, the trial court may

determine which of Brown's claims were "health care liability claims" that must be

dismissed with prejudice for Campbell's failure timely to serve an expert report.

Conclusion

We reverse the order of the trial court to the extent that it denied the motion

to dismiss the health-care-liability claims against appellants brought by Campbell on

behalf of Brown and remand the cause for further proceedings consistent with this

opinion.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Justice Keyes, dissenting.

1. Some other defendants were eventually non-suited. Those who were not non-suited are not parties to this appeal.

2. The Texas Rules of Civil Procedure require that a defendant challenging a

plaintiff's capacity to sue raise the matter by verified pleading, if lack of

capacity is not evident from the petition. See Tex. R. Civ. P. 93(1), (2);

Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist. , 46 S.W.3d

880, 885 (Tex. 2001); Nootsie, Ltd. v. Williamson County Appraisal Dist. , 925

S.W.2d 659, 662 (Tex. 1996). The burden is on the defendant to challenge

capacity to sue. Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845 , 853 n.7

(Tex. 2005). The issues before us do not require us to determine whether

appellants could challenge capacity by the exception and motion that they filed

or whether they also had to raise the matter by verified plea.

3. Rather than filing an expert report, as required by the applicable law, Campbell

mistakenly moved for entry of cost bond in lieu thereof, as was allowed by

superseded law.

4. The version of section 74.351(a) applicable to this suit provided that the expert

report had to be served 120 days from the date that the claim was filed. See

Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d),

2003 Tex. Gen. Laws 847 , 864, 875, 884, 898-99, amended by Act of May 18,

2005, 79th Leg., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 , 1590 (current

version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a) (Vernon Supp.

2006)). The Legislature later amended section 74.351(a) to require that a

claimant serve an expert report in a health-care-liability claim not later than the

120th day after the date that the original petition was filed. See Act of May 18,

2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 , 1590 (current

version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a) (Vernon Supp.

2006)). That amendment, however, does not apply to this lawsuit. See Act of

May 18, 2005, 79th Leg., ch. 635, § 2, 2005 Tex. Gen. Laws 1590 , 1590

(providing that 2005 amendment of section 74.352(a) applies only to causes

of action that accrued on or after amendment's effective date of September 1,

2005). For simplicity's sake, we refer in the remainder of this opinion to the

version of section 74.351(a) that applies to this lawsuit as "former section

74.351(a)."