Rohini Malik v. Anupama Bhargava, M.D. ( 2014 )

AFFIRM; and Opinion Filed February 19, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00384-CV
ROHINI MALIK, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF STEPHEN FRIEDEL, Appellant
V.
ANUPAMA BHARGAVA, M.D. AND THE HILLCREST CLINIC, P.A. D/B/A
HILLCREST FAMILY MEDICINE, P.A., Appellees
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-02568-2012
MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Brown
Opinion by Justice Brown
Appellant Rohini Malik, individually and as representative of the estate of Stephen
Friedel, brought this wrongful death action against appellees Anupama Bhargava, M.D. and the
Hillcrest Clinic, P.A. d/b/a Hillcrest Family Medicine, P.A. after Malik’s alleged husband Friedel
died from cardiac arrest. Appellees moved for summary judgment on grounds that Malik had no
standing to bring this lawsuit because she and Friedel were divorced at the time of his death.
Malik responded that she and Friedel had an informal marriage after their divorce. The trial
court granted summary judgment for appellees. Because we conclude the evidence conclusively
establishes that there was no new agreement to be married before Friedel’s death, we affirm the
trial court’s judgment.
Malik and Friedel entered into a ceremonial marriage on August 12, 2006. For financial
reasons, Malik and Friedel divorced on June 9, 2008. In her deposition, Malik explained that she
and Friedel both entered into the marriage with debt and were concerned that, in a bad economy,
if one spouse was laid off from work, the other spouse would become responsible for all debt.
They wanted “to protect the income of whatever spouse was still working” and avoid filing for
bankruptcy. In 2008 and 2009, Malik and Friedel filed separate federal income tax returns, each
indicating they were “single.” According to Malik, the divorce was “just on paper.” After the
divorce, Malik and Friedel continued to live together and wear their wedding rings. They still
shared their lives as if they were husband and wife. They did not tell their family and friends
about the divorce.
Two years after the divorce, in the summer of 2010, Friedel sought medical treatment
from Dr. Bhargava in her office. Friedel listed Malik as his wife on forms he filled out in
Bhargava’s office. On July 20, 2010, Friedel saw Bhargava, complaining of shortness of breath.
Bhargava diagnosed Friedel with an upper respiratory infection. On August 25, 2010, Friedel
had another appointment with Bhargava, again complaining of shortness of breath. Bhargava
treated Friedel for asthma. Three days later, on August 28, 2010, EMS was called to Friedel’s
residence and transported him to the hospital. Friedel still complained of shortness of breath and
was diagnosed with a severe pulmonary embolism. As he was being treated for this condition in
the emergency room, he suffered a cardiac arrest and died.
Friedel’s parents and Malik brought this wrongful death action against Bhargava and the
clinic at which she practiced medicine, alleging that Bhargava was negligent in failing to identify
the underlying cause of Friedel’s respiratory distress and in failing to timely refer him to the
emergency room. Appellees moved for summary judgment as to Malik, asserting Malik had no
standing to bring this suit because of the divorce. See TEX. CIV. PRAC. & REM. CODE ANN. §§
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71.004, 71.021 (West 2008) (to have standing to sue under wrongful death and survival statutes,
Malik must be Friedel’s surviving spouse). The trial court granted appellees’ motion for
summary judgment and severed Friedel’s parents’ claims. This appeal followed.
In a single issue, Malik contends the trial court erred in granting summary judgment
because she produced evidence sufficient to create a question of fact regarding the existence of
an informal marriage. We disagree.
We review the trial court’s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The standard for reviewing a traditional motion for
summary judgment under rule 166a(c) is well established. Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548-49 (Tex. 1985); see TEX. R. CIV. P. 166a(c). The movant for summary
judgment has the burden of showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Nixon, 690 S.W.2d at 548-49. In deciding whether a
material fact issue exists, evidence favorable to the non-movant will be taken as true. Id. at 549.
To prove the existence of an informal marriage in Texas, one must show three things: 1)
the parties agreed to be married, 2) after the agreement they lived together in Texas as husband
and wife, and 3) they represented to others that they were married. TEX. FAM. CODE ANN. §
2.401(a)(2) (West 2006); Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App.—Dallas 2009, no
pet.); Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App.—Dallas 2005, pet. denied). There is
no dispute here that there is evidence that after the divorce Malik and Friedel continued to live
together as if they were husband and wife and represented to others that they were married. At
issue is the first element of an informal marriage, whether Malik and Friedel agreed to be
married. To establish an agreement to be married, the evidence must show the parties intended
to have a present, immediate, and permanent marital relationship and that they did in fact agree
to be husband and wife. Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App.—Houston [14th
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Dist.] 2011, pet. denied); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.—Houston [1st
Dist.] 1991, writ denied).
Here, Malik testified clearly in her deposition about her and Friedel’s plans to remarry
after the divorce. She stated that “the intent of the divorce was to settle the financial issues and
then to remarry once those issues were - - were fixed.” She further described the reasoning
behind the divorce:
A. . . . Let’s separate the finances and see what we can do to fix it. And then the
intent was to legalize the marriage again, you know, one - - once everything was
resolved.
Q. And what are you talking about being resolved?
A. Paying off the creditors.
Q. Were you ever able to pay off the creditors prior to the time he passed away?
A. No.
Q. And it was your intention at the time that you filed for divorce to - - at least
your intention to subsequently remarry once the creditors had been paid off?
A. Yes.
Malik later testified as follows:
Q. After the judge granted the divorce, did you recognize that under the law of
the State of Texas, you were in fact divorced?
A. Yes.
Q. From the time of judge - - that the judge signed this divorce decree up until
the time Mr. Stephen Friedel died, did you and he ever get together and make
some new agreement to get married after that?
A. Just verbally.
Q. Okay. Was that the verbal agreement you had before you’d - -
A. Yeah, we just - -
Q. - - filed the divorce?
A. Yes.
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Q. I’m talking about after the divorce was granted, did you enter into any new
agreement to get married?
A. Just the same one.
Q. So in other words, there was no new agreement, correct?
A. No.
Q. Am I correct?
A. Yes.
We recognize that, in many cases, the existence of an informal marriage is going to be a
fact question. See, e.g., Alonso v. Alvarez, 409 S.W.3d 754, 758 (Tex. App.—San Antonio 2013,
pet. denied) (sufficient evidence to support trial court’s finding that parties had informal
marriage after divorce); Lewis, 173 S.W.3d at 558-64 (evidence sufficient to support jury’s
finding that informal marriage existed after divorce). Under the unusual circumstances of this
case, however, no fact question exists. There is direct evidence from Malik that there was no
new agreement to be married after the divorce and before Friedel’s death. Malik and Friedel’s
intent was to remarry later, after their debts were paid. The couple’s debts were not paid prior to
Friedel’s death. Evidence that might under other facts amount to circumstantial evidence of the
couple’s agreement, such as Friedel’s listing Malik as his wife on medical forms, does not create
a fact issue here in the face of direct evidence of the couple’s exact agreement to remarry in the
future. Thus, we conclude the evidence establishes as a matter of law that no informal marriage
existed. The trial court did not err in granting summary judgment for appellees. We resolve
Malik’s sole issue against her.
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We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
130384F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROHINI MALIK, INDIVIDUALLY AND On Appeal from the 429th Judicial District
AS REPRESENTATIVE OF THE ESTATE Court, Collin County, Texas
OF STEPHEN FRIEDEL, Appellant Trial Court Cause No. 429-02568-2012.
Opinion delivered by Justice Brown.
No. 05-13-00384-CV V. Justices O'Neill and Lang participating.
ANUPAMA BHARGAVA, M.D. AND
THE HILLCREST CLINIC, P.A. D/B/A
HILLCREST FAMILY MEDICINE, P.A.,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees ANUPAMA BHARGAVA, M.D. AND THE
HILLCREST CLINIC, P.A. D/B/A HILLCREST FAMILY MEDICINE, P.A. recover their costs
of this appeal from appellant ROHINI MALIK.
Judgment entered this 19th day of February, 2014.
/Ada Brown/
ADA BROWN
JUSTICE
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