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Osborne v. Martin3/2/2000
Michael Wayne Osborne filed suit pro se against Port Arthur Home Health and Arsenio Martin, M.D. for medical malpractice. Osborne is the grandson of Sarah Osborne, a patient of Martin's who died at the age of 94 following treatment for breast cancer. Osborne's suit asserts a claim under the Texas Wrongful Death Act (the Act), individually and on behalf of the estate of Sarah Osborne. Martin filed a motion seeking dismissal on the grounds that (1) Osborne, as grandson of the decedent, has no viable cause of action under the Act as an individual, (2) Osborne lacks capacity or standing to assert a claim on behalf of the estate of Sarah Osborne, and (3) Osborne, as a pro se litigant, cannot act as counsel for the estate of Sarah Osborne. The trial court granted the motion, dismissed all claims against Martin and severed the cause. Osborne appeals.
Osborne's brief does not specifically address the grounds raised in Martin's motion to dismiss. He does contend the trial court erred in dismissing his claims, and as we are to liberally construe the issues raised, particularly in a pro se brief, we will address that contention.
The Act does not recognize a wrongful death claim by grandchildren. Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a) (Vernon 1997) provides the Act is "for the exclusive benefit of the surviving spouse, children, and parents of the deceased." Grandchildren are not considered "children" under the statute. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 275 (Tex. 1995) (stating "only biological or legally-adopted children of the decedent have standing" to raise a claim for wrongful death) (emphasis added). Accordingly, we find Osborne lacks standing to assert an individual claim under the Act.
Regarding Osborne's claims on behalf of the estate, " he Survival Statute provides that only a personal representative, administrator, or heir may sue on behalf of an estate. See Tex. Civ. Prac. & Rem. Code § 71.021(b)." Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998). "A personal representative includes an executor, independent executor, administrator, independent administrator, and temporary administrator. See Tex. Prob. Code Ann. § 3(aa) (Vernon Supp. 1998). Heirs are persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a person who dies intestate. See id. § 3(o)." Stewart v. Hardie, 978 S.W.2d 203, 206 (Tex. App.--Fort Worth 1998, pet. denied). The record contains no evidence, or even allegations, that Osborne qualifies in any of these capacities and the record does not reflect that Sarah Osborne died intestate. Furthermore, under the Probate Code, Osborne is disqualified to serve as executor or administrator of an estate. Tex. Prob. Code Ann. § 78(b) (Vernon Supp. 2000). ("No person is qualified to serve as an executor or administrator who is: . . . (b) A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law"). Accordingly, we find the trial court did not err in dismissing Osborne's claims on behalf of Sarah Osborne's estate.
Osborne contends his constitutional rights were violated because he could not attend the hearing on the motion to dismiss his claims. "While a prisoner has a constitutional right of access to the courts, Bounds v. Smith, 430 U.S. 817, 820, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), prisoners have no absolute right to appear personally at civil proceedings. Nance v. Nance, 904 S.W.2d 890, 892 (Tex. App.--Corpus Christi 1995, no writ)." In the Interest of M.M., 980 S.W.2d 699, 70
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