Kenneth Marvin King v. Kenneth Marvin King, Temporary Administrator of the Estate of Murrell T. Gregory, and Myrtle Idell Gregory, as Surviving Spouse of Murrell T. Gregory

• Court: Court of Appeals of Texas
• Decided: December 14, 1994
• Docket: 03-93-00434-CV
• Status: Published

Opinion

king IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN

NO. 3-93-434-CV

KENNETH MARVIN KING,

APPELLANT

vs.

KENNETH MARVIN KING, TEMPORARY ADMINISTRATOR OF THE ESTATE OF MURRELL T. GREGORY, DECEASED, AND MYRTLE IDELL GREGORY, AS SURVIVING SPOUSE OF MURRELL T. GREGORY, DECEASED,

APPELLEES

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. CV91-0764-A, HONORABLE DICK ALCALA, JUDGE PRESIDING

Appellant, Kenneth Marvin King, appeals from a summary judgment granted in favor of appellees, Myrtle Idell Gregory, surviving spouse of Murrell T. Gregory, deceased, and King as temporary administrator of the deceased's estate. In his sole point of error, King contends that the trial court erred in granting appellees' motion for summary judgment because appellees did not prove as a matter of law that King failed to commence suit within the statute-of-limitations period. We will reverse the judgment.

BACKGROUND

This cause of action arose from an automobile accident between King and Mr. Gregory on June 19, 1989. King first brought suit for personal injuries on June 14, 1991, naming Mr. Gregory as the sole defendant. Mr. Gregory had died, however, on December 18, 1989. He bequeathed his entire estate, which consisted solely of personal property, to his wife. His will also named two executors, neither of whom was his wife. The will was not admitted to probate and, consequently, no executor or administrator of the estate was appointed.

In response to the summary judgment motion based on the expiration of the statute of limitations, King offered the affidavit of his attorney, Tim Edwards, who stated the following: King's attorney, Tim Edwards, filed the original petition on June 14, 1991 against Mr. Gregory; on June 20, Edwards forwarded a copy of this petition to Kathy Freeman, a representative of Mr. Gregory's insurance carrier. In August, the citation was returned unserved, and it was discovered that Mr. Gregory had died. In November 1991, Edwards learned that Mr. Gregory's surviving widow resided in a nursing home in Waco, Texas. In December 1991, Edwards began discussions with Eugene Ives, a relative of Mr. Gregory, who initially agreed to help King appoint a personal representative for Mr. Gregory's estate so that citation could be served. In February 1992, however, King received a letter from Sherman Stearns, attorney for Ives and Mrs. Gregory, indicating that King would no longer be assisted. ⁽¹⁾

That same month, King filed an application for temporary administration of Mr. Gregory's estate. King later amended his application to name himself temporary administrator. In April 1992, citation for the application hearing was issued to Mrs. Gregory, and a copy of the application was mailed to Ives's attorney, Stearns. Mrs. Gregory was served with citation of the temporary administration hearing on April 27, 1992. The hearing was originally scheduled for June 8, 1992. However, it was postponed until June 17, 1992 when King's counsel learned of a potential conflict of interest relating to his representation of King. On June 25, 1992, the trial court rendered an order appointing King temporary administrator. On June 30, 1992, a suggestion of death was filed, and on July 1, 1992, the trial court issued an order allowing King to amend his original petition.

On July 6, 1992, King filed his first amended petition in which he named as defendants both himself as temporary administrator of the estate and Myrtle Gregory as Mr. Gregory's surviving spouse. The record shows that Mrs. Gregory was served with citation of the lawsuit on July 14, 1992. Defendants subsequently filed their motion for summary judgment in February 1993.

STANDARD OF REVIEW

A movant for summary judgment must establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). All evidence favorable to the nonmovant will be taken as true; every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Id. at 548-49.

When summary judgment is sought on the ground that suit is barred by the statute of limitations, the defendant-movant assumes the burden of showing as a matter of law that the suit was barred by the statute of limitations. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). Once the movant establishes a right to summary judgment, the plaintiff-nonmovant in his response must expressly present any reasons to avoid movant's entitlement; such reasons must be supported by summary judgment proof sufficient to establish a fact issue. Palmer v. Enserch Corp., 728 S.W.2d 431, 435-36 (Tex. App.--Austin 1987, writ ref'd n.r.e.). If the nonmovant responds with proof as a basis for "tolling" the statute, the movant then has the burden to negate the nonmovant's pleading by proving, as a matter of law, that there is no genuine issue of fact concerning the nonmovant's failure to commence suit within the statute-of-limitations period. See id. at 436.

DISCUSSION

The summary judgment proof brought by both sides shows that the two-year statute of limitations applies and that the statute was tolled for one full year due to Mr. Gregory's death. ⁽²⁾ See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.003(a), .062(a), (b) (West 1986). ⁽³⁾ There is no dispute that the cause of action was required to be brought by June 19, 1992. Also, it is uncontroverted that King first brought suit against Mr. Gregory on June 14, 1991. Because Mr. Gregory was deceased, however, King did not name a proper party; he should have named Mr. Gregory's personal representative or his heirs or beneficiaries. See Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975). King concedes that his first amended petition, naming Mrs. Gregory as surviving spouse and himself as temporary administrator, was not filed within the statutory limitations period. In his sole point of error, King relies upon the supreme court's decision in Rooke v. Jenson, 838 S.W.2d 229 (Tex. 1992), arguing that the trial court erred in barring his claim on the basis of limitations.

In Rooke, a personal injury plaintiff sued an alleged tortfeasor; upon service of process, plaintiff learned that the tortfeasor had died. Plaintiff then amended her petition to name the wife of the deceased, the sole beneficiary and executor named in the will, as defendant in her capacity as executor. The wife sought to probate the will through muniment of title, a procedure for which no executor is required. After limitations had run, the daughter of the deceased was appointed executor. When plaintiff again amended her petition to substitute the daughter as executor, the daughter responded with a motion for summary judgment based on limitations. The supreme court noted that at the time the plaintiff first amended her petition, the daughter had learned of the suit filed against the executor of the estate. The court accordingly held that "limitations may not be asserted by an individual who assumes the job of execut[or] with full knowledge that, prior to the running of limitations, a claim involving the deceased had already been filed, naming the presumed execut[or] as defendant." Rooke, 838 S.W.2d at 230. The supreme court was persuaded by the fact that it was "undisputed" that the daughter had been aware that the "execut[or]" was being sued since the time her mother was served, and that the daughter was represented by the same attorney that represented her mother. Id. In reaching its decision, the supreme court relied on its earlier decision in Price v. Estate of Anderson, 522 S.W.2d 690 (Tex. 1975).

In Price, a personal injury plaintiff brought suit naming only the estate of the deceased as defendant. Citation was served upon the temporary administrator of the deceased's estate. The temporary administrator forwarded the citation to the attorney who had represented the deceased's insurance carrier. The attorney filed motions and answers on behalf of the estate and eventually filed a motion to dismiss based on limitations. In response, the plaintiff amended her original petition to name both the estate and the temporary administrator as defendants. The temporary administrator answered with a general denial and a motion to dismiss with prejudice based on limitations. The supreme court concluded that it would be a misapplication of limitations to bar plaintiff's action. Price, 522 S.W.2d at 692. The purpose of the suit and the nature of the claim asserted were clear from the outset, and the temporary administrator answered for the "estate" and participated in all proceedings affecting the case. The supreme court stated:

While petitioner had made a mistake in her original petition as to the defendant that should have been sued, respondent was at all times fully cognizant of the facts and could not have been misled as to the basis of the suit, nor was he placed at any disadvantage in obtaining relevant evidence to defend the same.

Id.

Edwards's affidavit, which was attached to King's response to the motion to summary judgment, provides summary judgment proof that Mrs. Gregory was served with citation in April 1992 for the June hearing on appointment of temporary administrator within the limitations period. The affidavit also shows that, within the limitations period, Mr. Gregory's relative, Ives, had discussions with King's attorney concerning the appointment of a personal representative so that King could serve citation for his suit. Moreover, the affidavit asserts that Stearns represents both Ives and Mrs. Gregory, and that either Mrs. Gregory or Mr. Ives consulted with Mr. Gregory's insurance carrier before Stearns notified King that he would no longer be assisted in the appointment of a personal representative. Although Mrs. Gregory was never served with citation on the underlying tort suit in any capacity before the expiration of the limitations period, ⁽⁴⁾ King's summary judgment proof suggests that she had sufficient knowledge of King's tort suit and his attempt to proceed with the suit by the service of citation on a personal representative of Mr. Gregory's estate for this case to fall within the spirit of the holdings in Rooke and Price. The supreme court explained in Price that "[t]he primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds." Id. The statute of limitations was not designed "to provide a log behind which opportunistic defendants could smugly lay for two years and then emerge solemnly proclaiming statutory rights. . . ." Rooke, 838 S.W.2d at 230 (quoting Castro v. Harris County, 663 S.W.2d 502, 505 (Tex. App.--Houston [1st Dist.] 1983, writ dism'd). We thus conclude that the affidavit presents a genuine fact issue as to whether Mrs. Gregory knew of the nature and purpose of the lawsuit before the expiration of the limitations period. Accordingly, we sustain King's point of error, and reverse the trial court judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Reversed and Remanded

Filed: December 14, 1994

Do Not Publish

1.   The Edwards affidavit states that the letter "notified me that Mr. Gregory, after consultation with the insurance carrier, would no longer consent to serve as Temporary Administrator." Since Mr. Gregory was deceased at the time this statement was made, we assume Edwards intended to refer to either Mrs. Gregory or Mr. Ives.

2.   The movants supported their motion for summary judgment with the affidavit of Mrs. Gregory's brother-in-law, Eugene Ives, along with sworn copies of Mr. Gregory's death certificate and will.

3.   Section 16.062 provides that the statute of limitations is tolled for a maximum of one year upon the death of a party to a suit. Tex. Civ. Prac. & Rem. Code Ann. § 16.062(a) (West 1986). However, should an executor or administrator to the estate qualify before the expiration of the one-year tolling maximum, the statute begins to run again at the time of qualification. Id. at § 16.062(b). Because no administrator or executor was appointed to Mr. Gregory's estate, limitations was tolled for the entire year.

4.   Mrs. Gregory was never named executor of the estate and never assumed the role. As noted earlier, there was no executor, temporary administrator or any other personal representative of Mr. Gregory's estate until King's appointment on June 25, 1992.