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HCRA of Texas11/3/2005
of nursing, Margie Burns, was employed by HCRA in a managerial capacity and was acting in the scope of that capacity when she acted with malice, causing harm to Lloyd. The jury found that $1,000,000 in punitive damages should be assessed against HCRA. The trial court declined to apply the statutory punitive damages cap, concluding that Lloyd's estate's claims fell within the injury-to-the-elderly exception to the cap. The trial court overruled all post-verdict motions and rendered judgment on the jury's verdict.
IV. Standing
In its first issue, HCRA asserts that Appellees did not establish standing to bring a survival action on behalf of Lloyd's estate. Since HCRA filed its appellate brief in this case, the Texas Supreme Court decided Austin Nursing Center, Inc. v. Lovato, 48 Tex. Sup. Ct. J. 624, 624-30, 2005 WL 1124764, at *4 (Tex. May 13, 2005) and Lorentz v. Dunn, 48 Tex. Sup. Ct. J. 630, 630-32,2005 WL 1124768, at *2 (Tex. May 13, 2005). In both Lovato and Lorentz the supreme court recognized that, in a survival action, the decedent's estate has a justiciable interest in the controversy sufficient to confer standing. Lovato, 2005 WL 1124764, at *4; Lorentz, 2005 WL 1124768, at *2. Because the pleadings in this case alleged that HCRA's negligent conduct injured Lloyd, his estate had standing to pursue the present claim. See Lovato, 2005 WL 1124764, at *4; Lorentz, 2005 WL 112468, at *2.
HCRA also claims that Appellees did not prove that they were Lloyd's heirs and that no administration of his estate was pending or necessary. This contention does not, however, present an issue of standing. This issue is "more appropriately characterized as one of capacity." Lavato, 2005 WL 1124764, at *3. Unlike standing, which may be raised for the first time on appeal, a challenge to a party's capacity must be raised by a verified pleading in the trial court. Id.; TEX. R. CIV. P. 93(1)-(2). Because HCRA did not challenge Appellees' capacity to sue for survival benefits in the trial court, its complaint that Appellees failed to prove their legal authority to bring a survival action is waived. See generally TEX. R. APP. P. 33.1 (discussing prerequisites for preserving a complaint for appellate review). Accordingly, we overrule HCRA's first issue.
V. Interest
HCRA complains in its eighth and ninth issues that the judgment contains an incorrect starting date for, and rate of, prejudgment interest as well as an incorrect postjudgment interest rate. The trial court signed the judgment in this case on August 14, 2003. The judgment awards $37,122 in prejudgment interest on the survival damages found by the jury and awards postjudgment interest at the rate of ten percent per annum, compounded annually on the total judgment.
We first address HCRA's complaint concerning the date on which prejudgment interest began to run. HCRA argues that the judgment appears to calculate prejudgment interest from June 15, 1999, the date Lloyd was transported to the hospital emergency room, but " here is no way to determine from the face of the judgment how this award was calculated." HCRA, as the appellant, bears the burden of establishing error occurred in the trial court and that the error probably caused rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). Prejudgment interest is required in certain cases, including a personal injury case. See TEX. FIN. CODE ANN.ยง 304.102 (Vernon Supp. 2004-05). Lloyd's estate, through Lloyd's heirs, brought a personal injury action and recovered personal injury damages, but HCRA does not propose or suggest any alternative date on which prejudgment interest should properly have begun to run. Nor does HCRA set forth any interest com
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