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.BHouston [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 ReviewBStanding 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.BSan 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.BWaco 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.BWaco 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 LawBStanding 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.  AnalysisBStanding 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.BHouston [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.BTyler 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.BBeaumont 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.BDallas 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.BCorpus 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.BCorpus Christi 1993, writ denied)).^[10]  In Pech v. Estate of Tavarez, 112 S.W.3d 282 (Tex. App.BCorpus 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.BCorpus 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.BHouston [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.BHouston [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.BBeaumont 1997, pet. denied); City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 783 (Tex. App.BDallas 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.BHouston [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.BAustin 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.BSan 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.BFort 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.BCorpus 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.BHouston [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.BBeaumont 1993, orig. proceeding); Hill v. Lopez, 858 S.W.2d 563, 565 (Tex. App.BAmarillo 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.

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^[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.BCorpus 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.BTyler 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).