Albert Jones Jr. v. Richard Davison and Payton Lafleur

• Court: Court of Appeals of Texas
• Decided: September 25, 2025
• Docket: 09-25-00220-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-25-00220-CV __________________

ALBERT JONES JR., Appellant

V.

RICHARD DAVISON AND PAYTON LAFLEUR, Appellees

__________________________________________________________________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. 23DCCV0379 __________________________________________________________________

MEMORANDUM OPINION

Albert Jones Jr., asks us to accept a permissive appeal from an interlocutory

order that is not otherwise appealable. Because we conclude the order does not

involve a controlling question of law about which there is a substantial ground for

difference of opinion, we deny Jones’s application.

Jones filed suit against Richard Davison and Payton LaFleur seeking damages

for the death of his mother, Niki Smith. Davison and LaFleur specially excepted to

Jones’s petition on the grounds that it does not include all necessary parties since

1 Jones is not the only person potentially entitled to damages arising from Smith’s

death. Davison and LaFleur provided the trial court deposition testimony in which

Jones testified Smith had five other children at the time of her death. Davison and

LaFleur relied on provisions of the Wrongful Death Act which states,

(a) An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.

(b) The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.

Tex. Civ. Prac. & Rem. Code § 71.004(a),(b). Davison and LaFleur argued Smith’s

other children are necessary parties to the lawsuit pursuant to Texas Rule of Civil

Procedure 39(a) which states, in part,

(a) Persons to Be Joined If Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.

Tex. R. Civ. P. 39(a).

2 After a hearing, the trial court signed an order requiring Jones to amend his

petition. The trial court then signed an order allowing Jones to appeal its ruling under

Texas Civil Practice and Remedies Code 51.014(d) which provides:

[A] trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

Tex. Civ. Prac. & Rem. Code § 51.014(d). Asserting the trial court’s order meets

both of these requirements, Jones then filed an Application for Interlocutory Appeal

asking us to accept the appeal. See id. § 51.014(f). In his application, Jones argues

the Texas Wrongful Death Act’s use of the word “may” means that a statutory

beneficiary is permitted, but not required, to bring the action on behalf of all

beneficiaries. See id. § 71.004(b).

In their response to Jones’s application, Davison and LaFleur argue the trial

court’s order does not involve a controlling question of law as to which there is a

substantial ground for difference of opinion, because the Wrongful Death Act

contemplates that only one suit may be brought, and this Court – along with other

Courts of Appeals – has held that all statutory beneficiaries are necessary parties to

an action for wrongful death. Dennis v. Gulf C. & S.F. Ry. Co., 221 S.W.2d 352

3 (Tex. Civ. App.—Beaumont 1949), certified. ques. ans. 224 S.W.2d 704 (Tex.

1949).

We agree with Davison and LaFleur. “A wrongful death cause of action is

purely a creature of statute.” Witty v. Am. Gen. Cap. Distribs., Inc., 727 S.W.2d 503,

504 (Tex. 1987). The Act creates “[a]n action… for the exclusive benefit of the

surviving spouse, children, and parents of the deceased.” Tex. Civ. Prac. & Rem.

Code § 71.004(a) (emphasis added). The Act then creates exactly two options for

bringing “the action”: (1) “The surviving spouse, children, and parents of the

deceased may bring the action”; or (2) “one or more of those individuals may bring

the action for the benefit of all.” See id. § 71.004(b) (emphasis added).

Rather than creating a separate action for each beneficiary, the Act creates one

action for all beneficiaries. Rather than permitting any beneficiary to bring an action

for his or her own benefit, the Act permits “the action” to be brought either by all

beneficiaries or by one or some beneficiaries for the benefit of all. See Avila v. St.

Luke’s Lutheran Hosp., 948 S.W.2d 841, 850 (Tex. App.—San Antonio 1997, pet.

denied) (“The act contemplates that only one suit shall be brought, which shall be

for the benefit of all parties entitled to recover.”); see also Tex. Civ. Prac. & Rem.

Code § 71.004(a) (b). The Act does not create an action that may be brought by

fewer than all beneficiaries unless it is brought for the benefit of all beneficiaries.

4 Jones has not met the requirements for a permissive appeal, because he has

not shown there to be a substantial ground for difference of opinion about the law

supporting the trial court’s order. See id. § 51.014(d). We deny the application for

permissive appeal. See Tex. R. App. P. 28.3(l).

PETITION DENIED.

PER CURIAM

Submitted on September 24, 2025 Opinion Delivered September 25, 2025

Before Golemon, C.J., Wright and Chambers, JJ.