Lorenzo Gomez, as the and Representative of the Estate of Agapito Gomez v. Texas Windstorm Insurance Association

NUMBER 13-04-598-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LORENZO GOMEZ, AS

EXECUTOR

AND REPRESENTATIVE OF THE

ESTATE OF AGAPITO GOMEZ , Appellant,

v.

TEXAS WINDSTORM INSURANCE

ASSOCIATION , Appellee.

On appeal from the 28th District

Court

of Nueces County, Texas.

DISSENTING MEMORANDUM OPINION

Before Chief Justice Valdez and Justices

Castillo and Garza

Dissenting Memorandum Opinion by Justice

Castillo

Appellant,

Lorenzo Gomez, as Executor and Representative of the Estate of Agapito Gomez

("Gomez"), appeals from the

trial court's order granting a motion to dismiss without prejudice based upon

Gomez's lack of capacity to sue and the court's consequential lack of subject

matter jurisdiction. I would affirm.

I. Background

An

insurance policy covering windstorm loss to a home located in Corpus Christi,

Texas, was issued to Agapito Gomez by appellee, Texas Windstorm Insurance

Association ("TWIA"). [1] On March 14, 2000, Agapito Gomez filed a

claim for loss under the policy, alleging wind-driven rain and subsequent

damage, including mold. Agapito Gomez

died on November 20, 2000.

On

September 13, 2001, the original petition was filed, naming Agapito Gomez as

plaintiff. Claims included breach of

contract, bad faith, and breach of statutory duties under the Texas insurance

code and the Texas deceptive trade practices act. TWIA's original answer, filed October 9,

2001, identified numerous defenses and included a verified plea alleging

Gomez's lack of capacity. The matter was

placed on the trial court's drop docket in January 2004. On February 10, 2004, the trial court issued

a docket control order identifying May 5, 2004, as the deadline for joinder of

parties. On June 11, 2004, Gomez filed a

first amended petition, continuing to name Agapito Gomez as plaintiff but

adding that "Plaintiff is deceased, having died in the course of the

adjustment of the claim. Plaintiff is

represented by his executor and son, Lorenzo Gomez." The petition also states that "Agapito

Gomez died on November 20, 2000. His

will was probated on December 7, 2000, naming Lorenzo Gomez as his executor."

On June

18, 2004, TWIA filed its motion to dismiss for lack of jurisdiction, alleging

the following: (1) Agapito Gomez, as the

only named plaintiff, was deceased and lacked capacity to sue; and (2) although

the personal representative of an estate is entitled to sue for recovery of

property belonging to the estate, [2]

and Gomez was named executor, he was never joined as a party to the suit. TWIA urged that no person with standing to

bring the suit on behalf of the estate was ever joined as a party to the suit

prior to the deadline for joinder of additional parties.

Gomez

responded to the motion to dismiss on June 22, 2004, and then on July 23, 2004,

filed a second amended petition changing the caption and preamble to identify

the plaintiff as "Lorenzo Gomez as the Executor and Representative of the

Estate of Agapito Gomez." An

amended response to the motion to dismiss was filed July 29, 2004, relating

that Gomez, with TWIA's knowledge, had all times been actively involved in

pursuit of the estate's claim and that this was simply an issue of

misnomer. Gomez urged that any error as

to party could easily be corrected by an amended petition, which would relate

back to the original petition and therefore was not fatal to the court's

jurisdiction.

On

August 13, 2004, the trial court, after receiving supplemental briefing from

each party, entered its order for dismissal without prejudice. The order reflects that "Agapito Gomez

lacks capacity to sue," and that "this court lacks subject matter

jurisdiction" over the matter.

Gomez subsequently requested findings of fact and conclusions of law, and

further claimed that (1) the court had failed to dispose of all the claims, and

(2) "the suit was filed with a misnomer of the Plaintiff." Findings of fact and conclusions of law were

issued on September 7, 2004, and included the following:

1. Agapito Gomez died on November 20, 2000.

2. Suit was filed September 13, 2001, in the

name of Agapito Gomez.

3. TWIA's original answer of October 9, 2001,

included a verified denial of legal capacity to sue.

4. The deadline to join parties passed on May 7,

2004.

5. Lorenzo Gomez, as independent executor of the

estate of Agapito Gomez, was not joined as a party to this suit prior to the

deadline for party joinder set in the February 4, 2004, Docket Control Order,

and did not request leave of court to join as a party after the joinder

deadline.

6. There is a defect in party plaintiff, in that

Agapito Gomez has no legal capacity to sue, and no person with standing to

bring suit on behalf of the estate was properly joined as a party.

7. The original petition is a nullity and fails

to confer subject matter jurisdiction on the court.

8. TWIA's special exceptions are sustained, the

first amended petition is a nullity and, to the extent the ruling on special

exceptions is not clear, the Order for Dismissal is reformed to add:

"Defendants'

Special Exception to Plaintiff's First Amended Original Petition is sustained

and the following allegations are stricken from Plaintiff's First Amended

Original Petition: (1) the allegation in

Section I, second paragraph, that 'Plaintiff is represented by his Executor and

son Lorenzo Gomez. Tex. Civ. Prac &

Rem. Code Sec. 71.021,' and (2) any allegation that Lorenzo Gomez, as the

independent executor of the estate of Agapito Gomez, is the plaintiff in this

case."

9. TWIA's special exceptions are sustained, the

second amended petition was filed after the deadline for joinder of parties,

and there was no request for leave of court to join Lorenzo Gomez as

independent executor of the estate of Agapito Gomez as a party to this

suit. To the extent the ruling on

special exceptions is not clear, the Order for Dismissal is reformed to add:

"Defendants'

Special Exception to Plaintiff's Second Amended Original Petition is sustained

and the following allegations are stricken from Plaintiff's [Second] Amended

Original Petition: (1) the allegations

in the style and first paragraph that 'Lorenzo Gomez as the Executor and

Representative of the Estate of Agapito Gomez' is the plaintiff; (2) the

allegation in Section I, second paragraph, that 'Plaintiff is represented by

his Executor and son Lorenzo Gomez. Tex.

Civ. Prac. & Rem. Code Sec. 71.021,' and (3) any allegation that Lorenzo

Gomez, as the independent executor of the estate of Agapito Gomez, is the

plaintiff in this case."

10. The procedure of scire

facias is not appropriate here, as it is limited to those instances in which a

plaintiff dies subsequent to the filing of a lawsuit.

11. "Misnomer" is

not properly applied here where plaintiff did not "misname" the

correct party, but rather named an incorrect party. Therefore, the second amended petition does

not "relate back" and, because the original petition was a nullity,

does not confer subject matter jurisdiction.

12. The failure to name the

personal representative of the estate as a party is a matter of fundamental

jurisdiction. The court lacks subject

matter jurisdiction over this matter and it was properly dismissed without

prejudice on August 13, 2004.

This appeal followed.

II. Separate Motion to

Determine Appellate Jurisdiction

By separate motion, Gomez contends that this Court has no jurisdiction

to address this appeal because the underlying order for dismissal was not a

final judgment. Specifically, Gomez

urges that the order for dismissal fails to dispose of all claims, including

(1) Lorenzo Gomez's claims (urging misnomer, that Lorenzo Gomez "was a

party at the time that the Order was signed," and the order only recites

that Agapito Gomez lacks capacity to sue), and (2) the parties' claims for

costs of court. [3] I conclude we have jurisdiction over this

appeal. Tex. Ass = n of Bus. v. Tex. Air Control Bd ., 852 S.W.2d 440, 443 (Tex. 1993). Jurisdiction of a court is never presumed. El-Kareh v. Tex. Alcoholic Beverage Comm = n , 874

S.W.2d 192, 194 (Tex. App. B Houston [14th Dist.] 1994, no writ). Because the question of jurisdiction is a

legal question, the de novo standard of review is applied. Mayhew v. Town of Sunnyvale , 964

S.W.2d 922, 928 (Tex. 1998). If the

record does not affirmatively demonstrate the appellate court's jurisdiction,

the appeal must be dismissed. Id . The jurisdiction of this Court is established

exclusively by constitutional and statutory enactments. See , e.g. , Tex. Const. art. V, ' 6; Tex.

Gov = t Code Ann. ' 22.220 (Vernon 2004). Unless one of the sources of our authority

specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp. , 39 S.W.3d 191,

195 (Tex. 2001); N. E. Indep. Sch. Dist. v. Aldridge ,

400 S.W.2d 893, 895 (Tex. 1966).

Absent an express grant of

authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend ,

394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see Tex. Civ. Prac. & Rem. Code Ann . ' 51.014 (Vernon Supp. 2004-05). Therefore, it must be determined if the order

for dismissal of the underlying action is a final judgment.

The order of August 13, 2004, states that the underlying "named

and numbered cause" is dismissed for lack of capacity of Agapito Gomez and

"[the trial court] lacks subject

matter jurisdiction." Lack of

capacity as to Agapito Gomez is undisputed.

The law provides that no cause of action may be brought in the name of a

deceased person's estate. Austin

Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (citing Price

v. Estate of Anderson , 522 S.W.2d 690, 691 (Tex. 1975) (holding that the

"estate" of a decedent is not a legal entity and may not properly sue

or be sued as such)). Gomez's second

amended petition, filed nearly three years after the action was initiated and

after the deadline to join parties, was the first pleading in which Gomez sought

to add a proper party plaintiff. The

petition was untimely, and Gomez neither sought nor obtained leave of court to

file the amendment. See Tex. R. Civ. P . 63. Accordingly, the only named party plaintiff

at the time of the order of dismissal was Agapito Gomez, deceased, who lacked

capacity. Lovato , 171 S.W.3d at

849 . The dismissal extended to the

entire cause as brought before the trial court.

No claims survived this dismissal. [4]

I agree with the majority that the order for dismissal constitutes a

final disposition of the underlying matter, that we have jurisdiction to

consider this appeal, and that Gomez's motion challenging jurisdiction of this

Court should be denied. Lehmann ,

39 S.W.3d at 195 .

III. Issues on Appeal

Gomez, by three issues, contends that the trial court erred in

dismissing the underlying action because (1) he was authorized to bring suit

under the policy, (2) the trial court does not lose jurisdiction because of a

misnomer of the plaintiff, and (3) rights under the policy and Texas statutes

survive the death of the named insured.

IV. Analysis

Gomez's first and third issues speak to Gomez's authority to bring a

cause of action on behalf of his deceased father and the survivability of any

claims. His second issue addresses

whether, even if such authority exists and the claims survive, the cause of

action was properly brought in the name of a party with the requisite authority. Since this issue is dispositive, I address it

first.

A. The Issue of

"Misnomer"

The trial court's findings reflect that, although Gomez was named in

Agapito Gomez's will as executor, no effort was made to timely amend the

pleading to name a proper party. The

findings further reflect that Gomez, as executor, was the only person

authorized to bring suit on behalf of the estate, see Tex. Prob. Code Ann . ' ' 37, 233A (Vernon 2003), and that he was

never properly joined as a party to the suit.

Gomez therefore urges that, by virtue of the doctrines of relation-back

and "misnomer," the second amended petition properly relates back to

the date of the first petition and suit is brought by a proper party.

B. Standard of Review B Standing and Capacity

As a component of subject matter jurisdiction, the issue of standing

is reviewed by the same standard applicable to subject matter

jurisdiction. Tex. Ass'n of Bus. ,

852 S.W.2d at 445-46 . The petition is

construed in favor of the plaintiffs and the entire record is reviewed to

determine if any evidence supports standing.

Id .; Ford Motor Co. v. Aguiniga , 9 S.W.3d 252, 258 (Tex.

App. B San Antonio 1999, pet denied).

Whether a party has capacity to sue is similarly a question of law.

Byrd v. Estate of Nelms, 154

S.W.3d 149, 155 (Tex. App. B Waco 2004, pet. denied). A trial court's conclusions on questions of

law cannot be attacked on factual insufficiency grounds. BMC Software Belgium, N.V. v. Marchand ,

83 S.W.3d 789, 794 (Tex. 2002); Hardy v. State , 50 S.W.3d 689, 696 (Tex.

App. B Waco 2001), aff'd , 102 S.W.3d 123

(Tex. 2003). Rather, they are reviewed

de novo and are analyzed for their correctness.

BMC Software , 83 S.W.3d at 794 ; Hardy , 50 S.W.3d at

696 . Even if the conclusions of law are

not correct, the error will not require reversal if the trial court rendered

the proper judgment. BMC Software ,

83 S.W.3d at 794 .

C. The Law B Standing and Capacity

A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp., L.P. v. Harris

County Appraisal Dist. , 46 S.W.3d 880, 884 (Tex. 2001). "Standing" is a party's justiciable

interest in the suit and is a component of subject matter jurisdiction. Nootsie, Ltd. v. Williamson County

Appraisal Dist ., 925 S.W.2d 659, 661-62 (Tex. 1996). In Texas, the standing doctrine requires that

there be (1) "a real controversy between the parties," that (2)

"will be actually determined by the judicial declaration

sought." Lovato, 171 S.W.3d at

849 ; Nootsie , 925 S.W.2d at 662 (citing Tex. Ass'n of Bus .,

852 S.W.2d at 446 ). Standing focuses on

the question of who may bring an action.

M.D. Anderson Ctr. v. Novak , 52 S.W.3d 704, 708 (Tex. 2001)

(citing In the Interest of B.I.V. , 923 S.W.2d 573, 574 (Tex.

1996)). Without standing, a court lacks

subject matter jurisdiction to hear the case. Tex. Ass'n of Bus. , 852 S.W.2d at 443 .

A plaintiff has standing when it is personally aggrieved, having

sustained an injury such that it has a personal stake in the litigation. See Nootsie, 925 S.W.2d at 661 ; see

also M.D. Anderson , 52 S.W.3d at 708 .

The plaintiff must be "properly situated to be entitled to [a]

judicial determination." Lovato ,

171 S.W.3d at 849 (citing 13 Charles

Alan Wright, Arthur R. Miller and Edward H. Cooper , Wright, Miller & Cooper, Federal Practice

and Procedure: Jurisdiction: 2D ' 3531, at 338‑39 (2d ed. 1984)).

A plaintiff must also have the capacity to pursue a claim. Id .

"Capacity" is a party's legal authority to act. Nootsie, 925 S.W.2d at 661 . A decedent's estate "is not a legal

entity and may not properly sue or be sued as such." Lovato , 171 S.W.3d at 849 ; Price , 522

S.W.2d at 691 ; see also Henson v. Crow, 734 S.W.2d 648, 649 (Tex.

1987). Although an estate, much like a

minor or incompetent, may have suffered an injury and thus have a justiciable

interest in the controversy, it lacks the legal authority to sue, and the law

therefore grants another party the capacity to sue on its behalf. Lovato , 171 S.W.3d at 849 . [5]

D. Analysis B Standing and Capacity

Agapito Gomez, deceased, had neither standing nor capacity to

sue. However, his properly appointed

legal representative did have standing to bring claims which survived on behalf

of his estate. See Lovato, 171

S.W.3d at 850 ; Shepherd v. Ledford , 962 S.W.2d 28, 31 (Tex. 1998); see

also Ford Motor Co. v. Cammack , 999 S.W.2d 1, 5 (Tex. App. B Houston [14th Dist.] 1998, pet. denied)

("only heirs or personal representatives have a justiciable interest in

recovering estate property").

Similarly, the estate's representative has the capacity to bring such

claims. Lovato , 171 S.W.3d at

847 ; Cooper v. Coe , 2005 Tex. App. LEXIS 5091 , at *7-*8 (Tex. App. B Tyler June 30, 2005, pet. filed). [6] However, the representative did not attempt

to appear as a party plaintiff in this matter until the second amended petition

was untimely filed.

1. Doctrine of Relation-Back

Relation-back is a doctrine by which an earlier-filed pleading tolls

the statute of limitations for claims asserted in later amended pleadings, as

long as the amendments are not based on new, distinct, or different

transactions or occurrences. Tex. Civ. Prac. & Rem. Code Ann . ' 16.068 (Vernon 1997). In proper circumstances, a claim which would

otherwise be time‑barred will survive if the original petition asserting

the plaintiff's representative capacity was filed before the statute of

limitations expired, provided that capacity, if challenged, is established

within a reasonable time. See Lovato ,

171 S.W.3d at 853 . [7]

Texas courts recognize that the substitution of a personal

representative does not introduce a new or different cause of action and that

such a substitution will relate back to the time of the original filing of the

lawsuit, if original claims were brought in the representative's individual

capacity. Lovato , 171 S.W.3d at

852 . In such an instance, the individual

bringing the suit was alive and had standing, but lacked capacity or authority

to bring the suit. [8] In Cooper , the court held that the

estate's representative, as an heir, had the capacity to sue on behalf of the

mother's estate, and the relation-back doctrine operated to cure any

limitations issues. Cooper , 2005

Tex. App. LEXIS 5091 , at *12-*13. However, in cases of this type, the party

filing the initial pleading had standing to sue and capacity could be cured by

the relation-back doctrine. As we have

already noted, Agapito Gomez, the named plaintiff, had no standing.

2. Doctrine of Misnomer

Gomez therefore argues that this is simply an instance of

"misnomer," rather than of standing or capacity. Misnomer operates to permit a party to

correct the name of a party where the correct entity is in fact a party, but

merely misnamed. [9] See Chilkewitz v. Hyson , 22 S.W.3d

825, 828 (Tex. 1999). Gomez urges that

because he participated in prosecution of the suit, and all parties had

knowledge that he was doing so on behalf of the estate, he should be permitted

to correct the name of the plaintiff from the deceased to Gomez, as executor

and representative of the deceased's estate.

Gomez asserts that despite the plain identification of the plaintiff as

Agapito Gomez, "this suit was [originally] brought by Lorenzo Gomez in his

capacity as legal representative of his father's estate," and that this

misnomer, under the relation-back doctrine, easily resolves what might

otherwise be an issue. I disagree. In Bluebonnet Savings Bank v. Jones

Country , 911 S.W.2d 871 (Tex. App. B Beaumont 1995), rev'd on other grounds ,

920 S.W.2d 679 (Tex. 1996), the court refused to ignore the fact that at all

times during the suit, Thomas Selman had been dead. Although he was named as defendant and an

answer was filed on his behalf, he had no legal existence. Further, neither his heirs nor the

administrator of his estate had been brought into the suit. Despite the fact that the parties

"generally acted as though [he] were still alive," any judgment

entered against him was void. Id . at 880.

The same is true with respect to prosecution of a suit:

[S]uits can be

maintained by and against only parties having an actual or legal existence. . .

. No suit can lawfully be prosecuted

save in the name of a plaintiff and against a defendant having a legal entity

either as a natural or as an artificial person.

There must be a real plaintiff and a real defendant.

Stinson

v. King , 83 S.W.2d 398,

399 (Tex. Civ. App. B Dallas 1935, writ dism'd w.o.j.). The personal representative of a decedent's

estate is generally the only person entitled to sue to recover estate property.

Price , 522 S.W.2d at 691 ; Casillas

v. Cano , 79 S.W.3d 587, 590 (Tex. App. B Corpus Christi 2002, no pet.).

I further note that cases upon which Gomez relies do not support his

contention that this matter involves misnomer.

In Price, 522 S.W.2d at 691 , suit was brought against the estate

instead of the personal representative, but the personal representative was

served. Although the question was not

reached, the court nevertheless noted it was not a true misnomer case:

The mistake in a

misnomer case is one of fact, i.e. as to the correct name of the party intended

to be sued. The mistake in the present

case is one of law, i.e. as to the party that should be sued to establish the

liability of a decedent and collect the claim out of property belonging to his

estate. It could be argued that a

mistake of this nature is inexcusable, but we do not attempt to explore that

question here.

Id . at 692.

Embrey v. Royal Ins. Co. , 22 S.W.3d 414 (Tex. 2000) in fact recognizes that an estate is not a

legal entity and therefore cannot sue or be sued. Id. at 415 n.2 (citing Henson ,

734 S.W.2d at 649 ). The Embrey

court further observed that if the personal representative of an estate

participates in the case, the judgment involving the estate "may" be

valid, but because neither party raised the issue, the court simply

"assumed" that Embrey was serving as the personal representative of

the estate. Embrey , 22 S.W.3d at

415 n.2 (citing Bernstein v. Portland Sav. & Loan Ass'n , 850 S.W.2d

694, 699 (Tex. App. B Corpus Christi 1993, writ denied)). [10] In Pech v. Estate of Tavarez , 112

S.W.3d 282 (Tex. App. B Corpus Christi 2003, no pet.), we granted

summary judgment and dismissed the case where the estate itself was the moving

party for summary judgment. Id .

at 284. While we acknowledged that the

estate's personal representative's participation "may" render a

judgment valid, see id . at 288 (citing Embrey , 22 S.W.3d

at 415 n.2), I conclude Pech remains distinguishable because suit had

been brought against both the estate and its personal representative, each had

made general appearances, and the personal representative of the estate

directly participated in the case. Id .

Similarly, Waste Disposal Ctr., Inc. v. Larson , 74 S.W.3d 578

(Tex. App. B Corpus Christi 2002, pet. denied) does not

support Gomez's argument that his participation was sufficient to make him

effectively a party in his capacity as executor. In Larson , suit for wrongful death was

brought against the estate, rather than against the personal

representative. Id . at 586. We noted this was a matter of fundamental

jurisdiction which could not be waived because no legal entity was named as a

defendant and, as such, there was no one to waive the defect. Id . (citing Henson , 724 S.W.2d

at 469; Price , 522 S.W.2d at 691 ); see also Dueitt v. Dueitt , 802

S.W.2d 859, 861 (Tex. App. B Houston [1st Dist.] 1991, no writ). Although the estate appeared and participated

in the entire case, at the conclusion of trial the estate moved for a directed

verdict on jurisdictional grounds, claiming that since it was not a legal

entity its property could not be subject to judgment. Larson, 74 S.W.3d at 586 . The trial court granted the directed

verdict. We confirmed that the right had

not been waived, and the trial court had no jurisdiction to enter a judgment

against the estate. Id . We reiterated that a suit seeking to subject

an estate's property to a judgment should ordinarily be instituted against the

personal representative or, under appropriate circumstances, the heirs or

beneficiaries. Id . at 586 (citing

Price , 522 S.W.2d at 691 ).

Gomez also relies upon Estate of C.M. v. S.G. , 937 S.W.2d 8

(Tex. App. B Houston [14th Dist.] 1996, no writ), which

recognizes that a judgment against an estate is "not necessarily

void" where the personal representative of the estate appears in or

participates in the lawsuit. Id .

at 10. However, even though the personal

representative was a co-defendant, the record did not indicate that he

participated in the suit in his capacity as executor. Id .

The court also reiterated that an estate is not a legal entity, may not

be sued in that capacity, fundamental jurisdiction cannot be waived, and no

judgment may be entered where a court lacks jurisdiction over a party. Id . at 10. "Civil suits may be maintained

only by and against parties having an actual or legal existence." Id . at 10, n.2 (citing Bailey v.

Vanscot Concrete Co. , 894 S.W.2d 757, 759 (Tex. 1995)).

I also find Gomez's reliance upon Dueitt , 802 S.W.2d 859 to be

misplaced. In Dueitt , suit was

brought in the name of the estate (not in the name of the deceased) to resolve

the right of a surviving spouse to control disposition of the deceased's

body. The Dueitt court emphasized

that suit cannot be maintained by an estate and, thus, "a suit on behalf

of a decedent's estate is a nullity, unless the estate's personal

representative appears in or participates in the suit." Id . at 861. Further, it was not a misnomer case. Id .

However, the personal representative had effectively adopted the

estate's claims in his affidavit attached to the petition, which indicated his

capacity and asserted his personal knowledge and the truth of the matters

asserted in the petition, and therefore suit could proceed. [11] Id. ; see also Estate of C.M. ,

937 S.W.2d at 10 (distinguishing Dueitt on same grounds).

Case law is clear that, here, Gomez did not simply "misname"

the plaintiff:

Our common‑law

decisions have recognized that a misidentification arises when two separate

legal entities actually exist and a plaintiff mistakenly sues the entity with a

name similar to that of the correct entity.

Misidentification is generally distinct from misnomer. Misnomer arises when a plaintiff sues the

correct entity but misnames it.

Chilkewitz , 22 S.W.3d at 828 (citations omitted); see

also Enserch Corp. v. Parker , 794 S.W.2d 2, 4-5 (Tex. 1990). Here, because no existing entity was named as

a party plaintiff, I conclude the doctrine of misnomer does not apply.

3. Special Exceptions and Late

Amendment of Pleadings

Encompassed within Gomez's second issue, that "the trial court

does not lose jurisdiction because of a misnomer of the plaintiff," is his

apparent contention that the trial court erred in not permitting amendment to

the plaintiff's pleading. Within that

contention, although not in a formal issue on appeal, is the implicit argument

that the trial court erred in granting the special exceptions and dismissing

the matter without first permitting Gomez an opportunity to cure the defect.

a. Standard of Review

The trial court has wide discretion in ruling on special

exceptions. LaRue v. GeneScreen, Inc .,

957 S.W.2d 958, 961 (Tex. App. B Beaumont 1997, pet. denied); City of

Austin v. Houston Lighting & Power Co. , 844 S.W.2d 773, 783 (Tex. App. B Dallas 1992, writ denied). Similarly, the trial court's refusal to

permit a party to amend its pleadings, and its dismissal of a suit is reviewed

under an abuse of discretion standard. Mercure

Co., N.V. v. Rowland , 715 S.W.2d 677, 680 (Tex. App. B Houston [1 st Dist.] 1986, writ

ref'd n.r.e.). Whether a trial

court abused its discretion depends on whether the trial court acted without

reference to any guiding rules or principles, in other words, whether the act

was arbitrary or unreasonable. Downer

v. Aquamarine Operators, Inc ., 701 S.W.2d 238 , 241‑42 (Tex.

1985). Merely because a trial court may

decide a matter within its discretion in a different manner than an appellate

court would in a similar circumstance does not demonstrate that an abuse of

discretion has occurred. Id .

b. The Special Exceptions

The court sustained TWIA's special exceptions and, subsequent to entry

of the order of dismissal, sought to reform its judgment to incorporate its

decision to strike all references to Gomez as executor or representative of

Agapito Gomez's estate from the first and second amended petitions. Gomez complains that the findings of fact and

conclusions of law were not ruled upon at the time the order for dismissal was

entered and were therefore waived. [12] No reporter's record is before us. However, the plain language of the findings

reflects that they were issued to clarify the trial court's earlier rulings,

"to the extent the court's ruling[s] on Defendant's Special Exception[s]

to Plaintiffs' First [and Second] Amended Original petition[s] [are] not clear

in the hearing record or court's order."

Further, the rules of civil procedure do not preclude the trial court

from modifying its own judgment, if this occurred, in such circumstances. See Tex.

R. Civ. P . 329b(d); Horseshoe Bay Resort Sales Co. v. Lake Lyndon B.

Johnson Improvement Corp ., 53 S.W.2d 799, 815 (Tex. App. B Austin 2001, pet. denied). [13] Rule 329b places no restrictions upon a trial

court's authority to sua sponte modify or set aside a judgment during the

period of its plenary power. See

White v. Comm'rs Court of Kimble County , 705 S.W.2d 322, 325 (Tex. App. B San Antonio 1986, no writ).

A trial court generally is not to dismiss a case without first giving

the non-excepting party an opportunity to amend its pleadings. See Friesenhahn v. Ryan , 960 S.W.2d

656, 658 (Tex. 1998); Marts v. Transp. Ins. Co. , 111 S.W.3d 699, 706

(Tex. App. B Fort Worth 2003, pet. denied). However, the court is not required to give

the party an opportunity to amend if the pleading defect is the type that

cannot be cured by amendment. Mowbray

v. Avery , 76 S.W.3d 663, 678 (Tex. App. B Corpus

Christi 2002, pet. denied). Here, Gomez

asks that the amendment relate back to a pleading that was determined to be a

"nullity."

Moreover, if the trial court sustains special exceptions but fails to

provide an opportunity to replead, before a party may complain, it must

demonstrate that such an opportunity was requested and denied. Tex.

R. App. P. 33.1(a); Inglish v. Prudential Ins. Co. , 928 S.W.2d

702, 705 (Tex. App. B Houston [1st Dist.] 1996, writ

denied). The objecting party may also

file a motion for new trial, see Inglish , 928 S.W.2d at 705 , and seek

remedy by appeal. Low v. King ,

867 S.W.2d 141, 142 (Tex. App. B Beaumont 1993, orig. proceeding); Hill

v. Lopez , 858 S.W.2d 563, 565 (Tex. App. B Amarillo

1993, orig. proceeding). An appellant

who complains of the dismissal of a cause of action following special

exceptions must first attack the trial court's decision to sustain the special

exceptions and then attack the court's decision to dismiss the cause of

action. Mowbray , 76 S.W.3d at

678 .

Gomez states only that the special exceptions were granted subsequent

to the judgment of dismissal and were therefore simply without effect. [14] An appellant must challenge both the order of

dismissal and the order granting the special exceptions or face waiver of the

unchallenged issue. Mowbray , 76

S.W.3d at 678 . Gomez never objected to a

ruling on the special exceptions before the trial court, and raises no such

issue on appeal, instead simply stating that the findings are without

effect. Without deciding whether the

findings of fact were effective to reform the order of dismissal, I conclude

that Gomez has failed to preserve error with respect to any challenge to the

special exceptions. See Tex. R. App. P. 33.1(a); Inglish ,

928 S.W.2d at 705 .

c. The Attempted Late Amendment

With respect to the trial court's refusal to permit the second amended

petition to add a new party to the suit, to the extent this may have been

raised as an issue, rule 37 provides that additional parties "may be

brought in" "upon such terms as the court may prescribe." Tex.

R. Civ. P . 37; Mercure, 715 S.W.2d at 679 . "The word 'may' in rule 37 is regarded

as permissive and not mandatory." Mercure ,

715 S.W.2d at 679 . Here, the

trial court provided ample time before its prescribed deadline for addition of

parties to the suit. The trial court

further concluded that the original petition was a nullity which failed to

confer jurisdiction upon the court. On

this record, I cannot conclude that the trial court abused its discretion by

denying a later effort to add a party, particularly where notice was given and

the cited defect was apparent for nearly three years.

V. Conclusion

I conclude this is not a case of misnomer. I would overrule Gomez's second issue on

appeal. Because I reach this conclusion,

I do not reach his first and third issues.

Tex. R. App. P . 47.1. I would affirm the order of the trial court

dismissing the action below.

ERRLINDA

CASTILLO

Justice

Dissenting Memorandum

Opinion delivered and filed

this the 23rd day of March,

2006.

[1] The policy in issue was

in effect between March 15, 1999, and March 15, 2000.

[2] Authority is provided to

the personal representative of the estate under the Texas probate code. See Tex.

Prob Code Ann . ' ' 3, 233A (Vernon 2003).

[3] Interestingly, Gomez

states that "while it is admitted that the further motion [for summary

judgment pending at the time the order for dismissal was entered] may dispose

of Lorenzo Gomez's claims," the claims for costs still remain outstanding. The summary judgment motion and attached

evidence alleged that Gomez's claims were barred by release and waiver because

alleged damages had already been compensated for by TWIA after a 1999

windstorm, in the amounts of $247,545.13 (building), $100,000.00 (personal

property), and $52,900.00 (additional living expenses).

[4] I disagree that

jurisdiction may attach on the bases articulated in the majority opinion. I further note this matter is not a survival

action, as that is defined in section 71.021 of the Texas Civil Practice and

Remedies Code. See Tex. R. Civ. P. Ann . ' 71.021 (Vernon

1997).

[5] Unlike standing, which

may be raised at any time, a challenge to a party's capacity must be raised by

a verified pleading in the trial court. Austin

Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (citing Tex. R. Civ. P . 93(1)‑(2); Sixth

RMA Partners v. Sibley , 111 S.W.3d 46, 56 (Tex. 2003)); see Prinz v.

Dutschmann, 678 S.W.2d 256, 259 (Tex. App. B Corpus Christi 1984, no

writ). Here, the issue of capacity was

timely and properly raised.

[6] Cooper v. Coe ,

2005 Tex. App. LEXIS 5091 , *7-*8 (Tex. App. B Tyler June 30, 2005, pet. filed) (designated as

an opinion).

[7] I would conclude that Gomez's delay of more than

two and one-half years in addressing the issue of capacity does not equate to

taking action within a "reasonable time." Lovato is distinguishable. There, although the trial court did not name

Lovato as administrator until nearly two years later, she had filed her

application for independent administration just two months after the survival

action was brought. Lovato, 171

S.W.3d at 847 .

[8] Similarly, where an

amended petition is filed against an estate's representative, where the

original petition named only the estate itself, the claim will not be barred

because "the purpose and the nature of the claim asserted were clear from

the outset . . . ." Price v.

Estate of Anderson , 522 S.W.2d 690, 692 (Tex. 1975).

[9] I continue to note that

suit in this matter identified the deceased as the plaintiff, not the personal

representative (Lorenzo Gomez) or the estate.

[10] Embrey involved

entry of an agreed judgment and assignment of claims against an insurer in

exchange for a covenant not to execute on the judgment. In issue was the availability of pre-judgment

interest under the policy. Embrey v.

Royal Ins. Co. , 22 S.W.3d 414, 416 (Tex. 2000).

[11] Gomez never provided any

such affidavit.

[12] We note that no

challenge to any of the specific findings of fact or conclusions of law has

been raised on appeal.

[13] Because this matter does

not involve a reformed judgment setting aside jury findings or verdict, Gomez's

reliance upon such cited cases is misplaced.

[14] To the extent the

findings may have operated as an order granting the special exceptions and

reforming the order of dismissal (an issue not raised and which we do not

address), the time for appeal "shall run from the time the modified,

corrected, or reformed judgment is signed." Tex.

R. Civ. P . 329b(h).