Opinion
SA-23-CV-00624-FB
12-15-2023
CAROLINE ERNEST FLORES, AS SPOUSE AND HEIR TO THE ESTATE OF JOE F. ERNEST, DECEASED; Plaintiff, v. U.S. BANK NATIONAL ASSOCIATIOM AS TRUSTEE FOR CMALT REMIC 2007-A6-REMIC PASS-THROUGH CERTIFICATES, SERIES 2007-A-6 AND SUBSTITUTE TRUSTEES, Defendant.
ORDER
Elizabeth S. ("Betsy") Chestney, United States Magistrate Judge
Before the Court in the above-styled cause of action is Defendant's 12(c) Motion for Judgment on the Pleadings [#17], which has been referred to the undersigned for a report and recommendation. This suit challenges the foreclosure of a defaulted loan secured by property located at 21 Aston Glen, San Antonio, Texas, 78257. Plaintiff asserts claims of conversion, trespass to chattels, and a violation of Chapter 51 of the Texas Property Code. Plaintiff contends that she is the spouse and heir to the estate of the borrower, Joe F. Ernest, who is now deceased. The theory of Plaintiff's suit is that she did not receive notice of the default and the acceleration of the note as required by the Texas Property Code and that she was entitled to such notice as spouse and heir. Plaintiff alleges a probate cause of action is pending in Probate Court 2 in Bexar County, Texas, case number 2022PC04890, regarding Mr. Ernest's estate.
By its motion, Defendant argues that it is entitled to judgment on the pleadings because Plaintiff was never legally married to Mr. Ernest and because there has been no order establishing her as heir to his estate. Thus, argues Defendant, Plaintiff cannot establish that she was entitled to notice; cannot establish that she is entitled to possession of the property at issue; and cannot establish standing. These are the primary issues raised in the motion to dismiss, but Defendant also challenges Plaintiff's pleadings as to the various elements of the asserted causes of action.
Although framed as a standing issue, one component of Defendant's argument for dismissal is actually a challenge to Plaintiff's legal capacity to assert claims on behalf of the estate of Mr. Ernest. Legal capacity to sue implicates the legal authority to represent an estate in a judicial proceeding and is a matter of state law. Only a personal representative, administrator, or heir may sue on behalf of an estate. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (quotation marks and citations omitted) (“[A] decedent's estate is not a legal entity and may not properly sue or be sued as such.... [T]he law therefore grants another party the capacity to sue on their behalf.”). Under Texas law, a lack of legal capacity is an affirmative defense, not a jurisdictional barrier to suit. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003).
The Court construes Defendant's motion as a factual challenge to Plaintiff's capacity to sue, not just a challenge to the sufficiency of her pleadings. Defendant argues Plaintiff cannot establish that she is a spouse or heir with capacity to sue for her own or Mr. Ernest's injuries on behalf of his estate. Defendant attaches evidence from the pending probate proceeding regarding Plaintiff's failure to establish her heirship to the motion. The undersigned notes that Plaintiff has pleaded that she was a common law spouse. Texas law recognizes informal marriages as legal marriage. Tex. Fam. Code § 2.401. It is unclear whether Plaintiff has presented the evidence required to establish her alleged informal marriage to the probate court or whether she has evidence that would establish her informal marriage that she could present to this Court. Although Defendant asks the Court to take judicial notice of the probate proceedings, the careful approach here is to convert Defendant's motion to a motion for summary judgment.
Rule 12(d) of the Rules of Civil Procedure provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” The rule further states that “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Converting the motion to a motion for summary judgment allows Plaintiff the opportunity to provide the Court with any evidence from the probate proceeding or otherwise that could establish her as heir and spouse.
The Court notes that Plaintiff has not responded to the motion to dismiss. Additionally, Plaintiff's counsel has already failed to follow multiple orders of the Court, failing to confer with Defendant on pretrial conference filings and failing to appear at the noticed pretrial conference. Thus, the Court will set a deadline for Plaintiff to file a response in opposition to Defendant's motion and to produce evidence regarding her alleged marriage and heir status and legal capacity to pursue this lawsuit. If Plaintiff does not respond to the motion in a timely fashion, the undersigned will recommend the District Court grant the motion to dismiss for lack of legal capacity and for failure to prosecute this case and to follow orders of this Court. See Fed.R.Civ.P. 41(b).
IT IS THEREFORE ORDERED that Defendant's 12(c) Motion for Judgment on the Pleadings [#17] is hereby CONVERTED to a motion for summary judgment.
IT IS FURTHER ORDERED that Plaintiff file any response to the motion with evidence on or before January 5, 2024. If Defendant has other evidence to submit, it should do so by that date as well.