Charlotte Anne Diffee, Individually as the Representative of the Estate of Jason Scott Diffee v. David Gutierrez, Mason Dixon Intermodal, Inc. D/B/A Universal Intermodal Services, Inc. and D/B/A Michigan Mason Dixon Intermodal, Inc. ( 2023 )

AFFIRMED and Opinion Filed April 11, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01109-CV
CHARLOTTE ANNE DIFFEE, INDIVIDUALLY AS THE
REPRESENTATIVE OF THE ESTATE OF JASON SCOTT DIFFEE,
Appellant
V.
DAVID GUTIERREZ, MASON DIXON INTERMODAL, INC. D/B/A
UNIVERSAL INTERMODAL SERVICES, INC. AND D/B/A MICHIGAN
MASON DIXON INTERMODAL, INC., Appellees
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-13132
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Garcia
Opinion by Justice Nowell
Appellant Charlotte Anne Diffee, Individually and as the Representative of
the Estate of Jason Scott Diffee, appeals a summary judgment dismissing her
survival claims asserted on behalf of Jason’s estate. Charlotte contends the trial
court erred in applying the statute of limitations because her subsequent appointment
as temporary executor of Jason’s estate triggered application of the relation back
doctrine. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.068. We affirm the trial
court’s judgment.
Background
On October 31, 2017, at approximately 5:49 a.m., Jason was driving
northbound on Central Expressway near State Highway 310 when David Gutierrez,
who was driving a tractor-trailer, pulled out in front of Jason causing a collision. At
the time of the accident, Gutierrez was acting in the course and scope of his
employment with appellee Mason Dixon Intermodal. Jason subsequently died on
February 27, 2018, from personal injuries suffered in the crash.
On October 30, 2019, Jason and Charlotte filed their original petition against
appellees for negligently causing Jason’s death. She named Jason as a plaintiff and
herself “individually and for the benefit of M.D.D., minor, and L.S.D., minor,
wrongful death beneficiaries of Jason Scott Diffee.” They sought recovery for the
following damages: (1) physical pain and mental anguish, past and future; (2)
necessary and reasonable medical expenses, past; (3) loss of earning capacity, past
and future; (4) disfigurement, past and future; (5) physical impairment, past and
future; (6) loss of household services, past and future; (7) loss of consortium, past
and future; and (8) funeral expenses.
On March 23, 2020, appellees filed a Rule 91a motion to dismiss the Diffees’
survival claims. Appellees argued the Diffees lacked both standing and capacity to
assert a survival cause of action because Jason died prior to filing the original
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petition and the remaining plaintiffs did not claim to act on behalf of Jason’s estate
either as the estate’s personal representative or Jason’s heir. Thus, “even if the court
accepts as true all pled allegations, none of the plaintiffs have any basis in law to
recover on their survival claims, which should be dismissed with prejudice.”
Appellees further argued any attempt by the Diffees to cure the pleading defects
would be futile because Jason’s survival claim was barred by the two-year statute of
limitations.
On April 13, 2020, “Charlotte Anne Diffee, individually and for the benefit
of M.D.D., minor, and L.S.D., minor, wrongful death beneficiaries of Jason Scott
Diffee” filed a first amended original petition. The amended petition removed any
reference to the survival damages previously sought.1 In light of the amended
pleading, appellees withdrew their Rule 91a motion to dismiss.
On June 25, 2021, Charlotte filed a second amended original petition
“individually as the representative of the estate of Jason Scott Diffee” for negligence
and sought the following damages based on serious personal injuries Jason
sustained: (1) physical pain, suffering, and mental anguish, past; (2) necessary and
reasonable medical expenses, past; and (3) loss of wages, past.
1
Instead, they sought damages for “loss[] of care, maintenance, support services, advice, counsel, and
contributions of pecuniary value that they would have in reasonable probability” received from Jason had
he lived. They alleged they suffered “additional losses by virtue of the destruction of the parent-child
relationship, including the right to love, affection, solace, comfort, companionship, society, emotional
support, and happiness.” They further suffered “mental depression and anguish, grief, and sorrow as the
result of [Jason’s] death and are likely to continue to suffer for a long time in the future.”
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Appellees filed a traditional and no-evidence motion for summary judgment
challenging Charlotte’s survival claim on behalf of the estate because it was
conclusively barred by limitations. They asserted her second amended petition could
not relate back to the timely-filed original petition because no plaintiff was acting
on behalf of the estate and Jason, who was deceased, lacked capacity and standing
to pursue a survival claim. Appellees further argued Charlotte provided no evidence
she had capacity to prosecute a survival claim on behalf of Jason’s estate.
Charlotte filed a response asserting her repeated allegations that (1) the
automobile accident caused Jason’s serious personal injuries and subsequent death,
(2) Gutierrez proximately caused plaintiffs’ damages, and (3) Jason sustained
serious personal injuries as a direct and proximate result of defendants’ negligence,
which were sufficient to allege a survival cause of action on behalf of Jason’s estate.
Thus, her second amended original petition related back to the timely-filed original
petition because the amendment was not wholly based on a new, distinct, or different
transaction or occurrence. See TEX. CIV. PRAC. & REM. CODE ANN. §16.068. She
also attached to her response her appointment as temporary administrator of Jason’s
estate, which the court signed on September 7, 2021.
Appellees conceded in their reply that Charlotte provided evidence
establishing her capacity to assert a survival suit and abandoned their no-evidence
motion for summary judgment. However, appellees still maintained that Charlotte’s
survival claims were barred by limitations, and they were entitled to judgment as a
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matter of law. “Jason’s original inclusion as a plaintiff is fatal to Charlotte’s relation-
back argument” because he was a stranger to his own survival claim given his death
prior to suit.
On September 17, 2021, the trial court granted appellees’ traditional motion
for summary judgment. Charlotte filed a motion for new trial, which was overruled
by operation of law, and this appeal followed.
Standard of Review
We review summary judgments de novo, viewing the evidence in the light
most favorable to the non-movant, crediting evidence favorable to the non-movant
if reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022). Where, as
here, a defendant moves for traditional summary judgment, it must demonstrate that
“there is no genuine issue as to any material fact” and that it is “entitled to judgment
as a matter of law.” TEX. R. CIV. P. 166a(c); Zive, 644 S.W.3d at 173. When a party
moves for summary judgment on the affirmative defense of limitations, it must
conclusively prove when the cause of action accrued. KPMG Peat Marwick v.
Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If the summary
judgment movant establishes the statute of limitations bars the action, the nonmovant
must adduce summary judgment proof raising a fact issue in avoidance of the statute
of limitations. Id.–5–
Discussion
Charlotte argues the trial court erred by granting a traditional motion for
summary judgment because the second amended petition relates back to the timely
filed original petition. Appellees respond that the original petition did not assert a
survival claim because there was no party with both standing and capacity to do so;
therefore, her amended petition could not relate back to the original pleading and
toll limitations.
A person must bring suit for a personal injury no later than two years after the
day the cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).
A cause of action for negligence accrues on the date the negligent, injury-producing
act is committed. Taylor v. Hill, No. 05-15-00385-CV, 2016 WL 825722, at *2
(Tex. App.—Dallas Mar. 3, 2016, no pet.) (mem. op). In this case, it is undisputed
the accident occurred, and Jason’s negligence cause of action accrued, on October
31, 2017. However, because he died during the two-year statute of limitations, the
statute of limitations for his survival claim was tolled for twelve months. TEX. CIV.
PRAC. & REM. CODE ANN. § 16.062(a). Thus, the personal representative of Jason’s
estate was required to bring a survival claim by November 2, 2020.2 Appellants
claim the original petition, filed on October 30, 2019, satisfies the statute of
2
Because October 31, 2020, fell on a Saturday, the statute of limitations carried over to Monday,
November 2, 2020.
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limitations and the relation-back doctrine as set forth in section 16.068 of the civil
practice and remedies code applies to the second amended petition.
Section 16.068 states:
If a filed pleading 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 limitation 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. Under section 16.068, a two-part test
determines whether an amended pleading relates back to an original pleading to
avoid limitations. Ware v. Everest Grp., L.L.C., 238 S.W.3d 855, 866 (Tex. App.—
Dallas 2007, pet. denied). First, the cause of action asserted in the original pleading
must not have been barred by limitations when the original pleading was filed. Id.Second, the amended pleading which changes the facts or grounds of liability or
defense must not be wholly based on a new, distinct, or different transaction or
occurrence. Id.The intent of section 16.068 is “to protect existing rights, not to create or
revive a right or cause of action that had terminated prior to the claim being
asserted.” Id. (quoting Almazan v. United Servs. Auto. Ass’n, Inc., 840 S.W.2d 776,
779 (Tex. App.—San Antonio 1992, writ denied) (emphasis in original)). The
relation-back doctrine does not save application of the statute of limitations to claims
that have been dismissed and are later refiled. Delhomme v. Comm’n for Law.
Discipline, 113 S.W.3d 616, 621 (Tex. App.—Dallas 2003, no pet.). A timely filed
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suit, subsequently nonsuited, does not toll limitations, and the nonsuit is treated as
though the first lawsuit had never been filed against the defendants. See Cebor Serv.
Corp. v. Landscape Design & Const., Inc., 270 S.W.3d 328, 333 n.3 (Tex. App.—
Dallas 2008, no pet.). Moreover, “[o]rdinarily, an amended pleading adding a new
party does not relate back to the original pleading.” Gibbs v. City of Houston, No.
01-20-00570-CV, 2021WL 4733790, at *3 (Tex. App.—Houston [1st Dist.] Oct. 12,
2021, pet. denied) (mem. op.) (quoting Alexander v. Turtur & Assocs., Inc., 146
S.W.3d 113, 121 (Tex. 2004)).
Despite asserting a survival claim for the first time in the second amended
petition, Charlotte relies on section 16.068 to argue the amended petition relates back
to the timely filed original petition. Under the facts of this case, we cannot agree.
A plaintiff must have both standing and capacity to bring a lawsuit. Coastal
Liquids Transp., L.P., v. Harris Cnty. Appraisal Dist., 46 S.W.3d 880, 884 (Tex.
2001). A plaintiff has standing when it is personally aggrieved, regardless of
whether it is acting with legal authority; a party has capacity when it has the legal
authority to act, regardless of whether it has a justiciable interest in the controversy.
Id.Here, the original petition named Jason, individually, and Charlotte,
individually and on behalf of two minors, as wrongful death beneficiaries. They
were listed separately under the “Parties” section of the petition. However, because
Jason died prior to the filing of the original petition, he had neither standing nor
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capacity to assert a legal claim; his inclusion in the original petition was a nullity
that did not invoke the trial court’s jurisdiction and could not toll the statute of
limitations. Armes v. Thompson, 222 S.W.3d 79, 83–84 (Tex. App.—Eastland 2006,
no pet.) (“[w]hen Armes passed away, she no longer represented a legal entity for
purposes of filing a suit and, therefore, did not have standing to assert a claim”
because suits can be maintained by and against only parties having an actual or legal
existence).
Any claim Jason owned before his death passed to his heirs and devisees,
subject to his estate’s administration. TEX. CIV. PRAC. & REM. CODE ANN.
§ 71.021(b) (“A personal injury action survives to and in favor of the heirs, legal
representations, and estate of the injured person.”) (Texas Survival Statute). The
original petition named Charlotte in her individual capacity and for the benefit of
minors, as wrongful death beneficiaries, but not as the personal representative of
Jason’s estate. The petition did not name Jason’s estate, indicate their was an estate
representative, or otherwise mention the Texas Survival Statute.
When appellees filed their Rule 91a motion to dismiss highlighting these
procedural deficiencies, Charlotte filed a first amended petition nonsuiting Jason and
removing any requests for damages that could be associated with a survival claim.
Nothing remained or was added to the amended complaint to indicate Charlotte was
asserting a survival claim on behalf of Jason’s estate.
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Not until the second amended petition filed on June 25, 2021, almost four
years after the accident giving rise to the claim, did Charlotte bring a survival action
on behalf of Jason’s estate (“Charlotte Anne Diffee, Individually and as the
Representative of the Estate of Jason Scott Diffee”). Accordingly, the relation-back
doctrine cannot save her claims because there was no timely and properly pleaded
survival action before the court to which section 16.068 could apply. See Ware, 238
S.W.3d at 866 (recognizing intent of section 16.068 is “to protect existing rights, not
to create or revive a right or cause of action that has been terminated prior to the
claim being asserted”).
In reaching this conclusion we reject Charlotte’s reliance on Austin Nursing
Center, Inc. v. Lovato, 171 S.W.3d 845, 852 (Tex. 2005) and Flores v. Cameron
County, 92 F.3d 258, 272 (5th Cir. 1996). In Lovato, the plaintiff’s original petition
asserting a health care liability claim on behalf of her mother’s estate, filed within
the limitations period, contained allegations that the plaintiff was the personal
representative of the estate but also alleged no estate administrator had been
appointed. Lovato, 171 S.W.3d at 847. The plaintiff filed an application for
independent administration of her mother’s estate two months after filing the
survival action and was appointed administrator after limitations ran. Id. The
supreme court concluded an original pleading containing the allegation of the correct
capacity “should suffice for limitations purposes, provided that capacity, if
challenged, is established within a reasonable time.” Id. at 853. Thus, plaintiff’s
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lack of capacity was cured by her appointment as administrator after limitations ran,
but before the survival action was dismissed. In reaching this conclusion, the court
cited cases demonstrating that courts have long permitted post-limitations amended
pleadings alleging a representative capacity for the first time to relate back to
pleadings filed during limitations. Id.
Unlike the plaintiff in Lovato, Charlotte never alleged she, or anyone else, was
the personal representative of Jason’s estate until after limitations expired. As such,
the second amended petition cannot be read as an attempt to cure Charlotte’s lack of
capacity for a properly pleaded survival action because she had previously only
pleaded claims against appellees in her capacity as a wrongful death beneficiary.
Flores was decided, in part, based on Federal Rule of Civil Procedure 15(c),
which provides, in relevant part, “an amendment of a pleading relates back to the
date of the original pleading when . . . the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out–or attempted to be set
out–in the original pleading.” FED. R. CIV. P. 15(c)(1)(B) (emphasis added). The
court concluded the amendment to the complaint “seeks to correct a technical
difficulty” with the original complaint—to formally allege that Flores sought
damages in her representative capacity as administrator of the estate. Id. at 273. The
court further noted that while Flores did not have capacity to bring suit on behalf of
the estate when she first filed her original complaint, the original complaint alleged
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a survival action and requested survival damages, thereby notifying Cameron
County it would be required to defend against such an action. Id.
Unlike Flores, the second amended petition does not seek to correct a
technical difficulty with the original petition. Charlotte did not name a personal
representative of Jason’s estate in the original petition, and she subsequently
nonsuited the survival cause of action in her first amended pleading. Also, unlike
federal rule of procedure 15, section 16.068 of the civil practice and remedies code
does not contain language allowing for relation back if the amendment sought to
include a claim or defense “attempted to be set out in the original pleading.”
Compare FED. R. CIV. P. 15 with TEX. CIV. PRAC. & REM. CODE ANN. § 16.068.
To the extent appellees may have originally had notice they would be required
to defend a survival claim and Charlotte intended to seek such relief, any such notice
was extinguished when she nonsuited the claim. See, e.g., Covington v. Sisters of
Charity of Incarnate Word, 179 S.W.3d 583, 587 (Tex. App.—Amarillo 2005, pet.
denied) (concluding that “although [the original petition] may have served the
purpose of timely notifying the defendants that a survival claim was being asserted
on behalf of the estate,” the relation-back doctrine did not apply because decedent’s
sister was a “stranger to the suit” and did not have capacity to bring the survival
cause of action).
Because the addition of the survival claims on June 21, 2021, was untimely
and the relation-back doctrine does not apply, appellees established as a matter of
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law that Charlotte’s survival claims were barred by the statute of limitations.
Accordingly, the trial court properly granted the traditional motion for summary
judgment. Charlotte’s issue is overruled.
Conclusion
We affirm the trial court’s judgment.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
211109F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHARLOTTE ANNE DIFFEE, On Appeal from the 162nd Judicial
INDIVIDUALLY AS THE District Court, Dallas County, Texas
REPRESENTATIVE OF THE Trial Court Cause No. DC-19-13132.
ESTATE OF JASON SCOTT Opinion delivered by Justice Nowell.
DIFFEE, Appellant Justices Reichek and Garcia
participating.
No. 05-21-01109-CV V.
DAVID GUTIERREZ, MASON
DIXON INTERMODAL, INC.
D/B/A UNIVERSAL
INTERMODAL SERVICES, INC.
AND D/B/A MICHIGAN MASON
DIXON INTERMODAL, INC.,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
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It is ORDERED that appellees DAVID GUTIERREZ, MASON DIXON
INTERMODAL, INC. D/B/A UNIVERSAL INTERMODAL SERVICES, INC.
AND D/B/A MICHIGAN MASON DIXON INTERMODAL, INC. recover their
costs of this appeal from appellant CHARLOTTE ANNE DIFFEE,
INDIVIDUALLY AS THE REPRESENTATIVE OF THE ESTATE OF JASON
SCOTT DIFFEE.
Judgment entered April 11, 2023.
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