Summary
involving defect in pleading based on capacity
Summary of this case from Kipp, Inc. v. Grant Me The Wisdom Found.Opinion
No. 14-02-00342-CV.
Memorandum Opinion filed September 23, 2003.
Appeal from the 190th District Court, Harris County, Texas, Trial Court Cause No. 00-14285.
Reversed and Remanded.
Panel consists of Justices YATES, HUDSON, and FROST.
MEMORANDUM OPINION
Shirley Thomas, as next of friend of Jena Thomas, sued Robert Lee Dickson, II, for negligence, gross negligence, and breach of implied warranty after the kitchen ceiling in her apartment allegedly fell on her head. Prior to trial, the trial court granted a motion to dismiss in favor of Dickson. On appeal, Thomas contends the trial court (1) violated Rule 12 of the Texas Rules of Civil Procedure; (2) erred in dismissing the case under the statute of limitations; and (3) harmed her by failing to make findings of fact and conclusions of law. We reverse and remand.
The injury sustained by Jena Thomas occurred on or about August 8, 1998. The original petition, which named Jena Thomas as plaintiff, was timely filed on March 20, 2000. During a deposition, Jena Thomas testified that she suffers from schizophrenia and that her mother is her legal guardian. On November 5, 2001, the day before trial, Dickson filed a motion to show authority because Jena lacked the capacity to sue. The trial court granted a continuance, and on November 27, 2001, Shirley Thomas, the mother of Jena Thomas, filed a second amended petition as next friend of Jena Thomas.
Following the substitution, Dickson filed an "Amended Motion to Show Authority or In The Alternative Motion to Dismiss" in which he argued that either (1) Jena Thomas lacked the capacity to sue or (2) Shirley Thomas could not sue on Jena's behalf because the amended petition was filed more than two years after Jena's injury.
At a hearing on appellee's motion, Thomas' attorney advised the trial court that no formal guardianship exists. He also advised the court that he had amended the petition to "save this case." The trial court granted Dickson's motion, and the cause was dismissed.
On appeal, Shirley Thomas contends in her third issue for review that the trial court erred in ordering a dismissal of the cause. We agree.
The statute of limitations for personal injury is two years. Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon 2002). To the extent Jena is competent, her suit was timely filed. To the extent Jena is not competent, a suit may be filed on her behalf by a "next friend." Tex.R.Civ.P. 44. Moreover, the Civil Practice and Remedies Code provides:
Rule 44 states:
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:
(1) Such next friend shall have the same rights concerning such suits as guardians have, but shall give security for costs, or affidavits in lieu thereof, when required.
(2) Such next friend or his attorney of record may with the approval of the court compromise suits and agree to judgments, and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit.
Tex.R.Civ.P. 44.
If a filed petition relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitations unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.
Tex. Civ. Prac. Rem. Code Ann. § 16.068 (Vernon 1997). If the nature of the suit against the defendants remains unchanged by the amended petition, the substitution of parties-plaintiff does not constitute a new suit. Johnston v. Crook, 93 S.W.3d 263, 269 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).
Here, the amended petition was wholly based upon, and grew out of, the same set of facts and occurrences as were alleged in the original petition. Except for naming Shirley Thomas as next friend of Jena Thomas, the pleading did not change. Like the original petition, the second amended petition alleged (1) Jena Thomas as the injured party; (2) the date of the injury; (3) the type of injury; (4) a named defendant; and (5) the type of damages sought by plaintiff. The nature of the suit against Dickson remained exactly the same in the amended petition as it had been in the original petition. Changing only the capacity of the plaintiff did not constitute the filing of a new suit. See id. Thus, the second amended petition related back to the original petition, and the date of the original petition controls our disposition of the limitations issue. Accordingly, appellant's claims are not barred by limitations, and appellant's third issue for review is sustained.
As the result of our disposition of this issue for review, we need not address the remaining issues. The judgment of the trial court dismissing the case is reversed and the cause is remanded for a new trial.
Judgment rendered and Memorandum Opinion filed September 23, 2003.