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Garcia v. Caremark2/29/1996
02/29/1996
On appeal from the 370th District Court of Hidalgo County, Texas.
O P I N I O N
Martha Garcia, individually and on behalf of the estate of Juan Tijerina, Jr., appeals from a take-nothing summary judgement granted in favor of Caremark, Inc., and numerous other appellees, on the ground that the statute of limitations barred Garcia's survival claims asserted on behalf of her deceased minor son. Garcia raises two points of error complaining that the limitations period had not expired at the time she filed the present lawsuit. We reverse and remand.
Garcia's minor son, Juan L. Tijerina, Jr., died intestate on November 1, 1989, from the AIDS virus, which Garcia asserts was negligently transmitted through blood products supplied by Caremark. On October 28, 1992, more than two years after her son's death, Garcia filed the present lawsuit asserting wrongful death and survival claims based on products liability in connection with the production and marketing of the blood products that killed her son.
Caremark answered and moved for summary judgement on the ground that Garcia's claims were barred by the two-year limitations period for wrongful death and survival claims. Tex. Civ. Prac. & Rem. Code Ann. 16.003(b) (Vernon 1986). Garcia concedes that her wrongful death claim is barred by the two-year limitations period, but asserts that the time for filing the survival claim asserted on behalf of her son's estate was tolled for one year following his death. The trial court granted summary judgement against Garcia on all claims.
As an initial issue, appellee Alpha Therapeutics Corp. claims that this court lacks jurisdiction to hear this case because appellant failed to timely file an adequate appeal bond. Appellee notes that the first appeal bond filed by appellant was a copy, rather than an original. Some time later, appellant filed a second bond, which was an original. Appellee claims that the second bond was filed out of time, and therefore did not perfect the appeal. We disagree.
The Texas Supreme Court has determined that courts of appeals have jurisdiction over "any appeal where the appellant files an instrument that `was filed in a bona fide attempt to invoke appellate court jurisdiction.'" Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991)(per curiam)(quoting Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989)). In this case, although the second bond was filed after the time for perfection of the appeal had passed, we hold that the first bond filed was a bona fide attempt to invoke the jurisdiction of this court, and therefore that the second bond adequately corrected any alleged defect in the first bond.
Appellee also argues that the appeal bond was defective because it lacked an affidavit of solvency for the surety. Appellee claims that the lack of such affidavit made the bond defective under Rule 46(a) of the Texas Rules of Appellate Procedure. Rule 46(a) states, in relevant part:
Unless excused by law, the appellant shall execute a bond payable to the appellee in the sum of $1000 . . . . The bond on appeal shall have sufficient surety and shall be conditioned that appellant shall prosecute his appeal or writ of error with effect and shall pay all costs which have accrued in the trial court and the cost of the statement of facts and transcript. Each surety shall give his post office address.
Tex. R. App. P. 46(a). Nothing in Rule 46(a) requires that appellant file an affidavit of solvency with the appeal bond. See Smith v. Valdez, 737 S.W.2d 141, 142 (Tex. App.--San Antonio 1987, no writ). The only requ
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