                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00815-CV

                           IN THE ESTATE OF Alvilda Mae AGUILAR

                         From the Probate Court No. 2, Bexar County, Texas
                                   Trial Court No. 2012-PC-2802
                             Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: September 10, 2014

REVERSED AND RENDERED

           Anthony C. Aguilar and Michael A. Aguilar appeal the probate court’s order granting a

motion to transfer a wrongful death action from an El Paso district court to the probate court and

a subsequent order granting a motion to dismiss the causes of action asserted in the lawsuit as

baseless pursuant to TEX. R. CIV. P. 91a. Because the probate court was not authorized to transfer

the wrongful death action from the El Paso district court, we reverse both orders and render

judgment denying the motion to transfer.

                                            BACKGROUND

           The Aguilars sued appellees Margaret Morales and Jesus Morales in the 205th District

Court of El Paso County, Texas, for the wrongful death of Alvilda A. Aguilar — the mother of

Anthony, Michael, and Margaret. At the time the Aguilars filed the wrongful death action,
                                                                                                    04-13-00815-CV


Margaret was serving as the independent executrix of the estate of Alvilda Aguilar, and a probate

of the estate was pending in Bexar County Probate Court No. 2. In the El Paso County lawsuit,

however, Margaret was sued only in her individual capacity. The lawsuit sought past and future

mental anguish damages, alleging Margaret and Jesus wrongfully caused Alvilda’s death.

Pursuant to section 34.001 of the Texas Probate Code, Margaret, in both her representative and

individual capacity, filed a motion to transfer the El Paso County lawsuit to the probate court. The

probate court granted the motion. 1

         After the lawsuit was transferred, Margaret and Jesus filed a motion to dismiss the claims

asserted therein under Rule 91a of the Texas Rules of Civil Procedure, asserting that the causes of

action were baseless. The probate court granted the motion and dismissed the claims.

                                          NATURE OF THE LAWSUIT

         The parties disagree on the nature of the claims asserted in the Aguilars’ lawsuit. The

Aguilars contend that their lawsuit is a wrongful death lawsuit, while Margaret and Jesus assert

both wrongful death and survival claims are alleged.

         “[W]rongful death and survival actions are distinct causes of action.” Cunningham v.

Haroona, 382 S.W.3d 492, 508 (Tex. App.—Fort Worth 2012, pet. denied). The actionable wrong

in a survival cause of action is “that which the decedent suffered before his death.” Russell v.

Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). “The damages recoverable are those which

[the decedent] himself sustained while he was alive.” Id. “In contrast to a survival action, damages

recoverable in a wrongful death action are for the exclusive benefit of the defined statutory




1
  This court previously dismissed an appeal of the probate court’s order granting the motion to transfer for lack of
jurisdiction because no final judgment had been entered. See In re Estate of Aguilar, No. 04-13-00690-CV, 2014 WL
2518164 (Tex. App.—San Antonio June 4, 2014, no pet.). The probate court’s order dismissing the lawsuit as baseless
provides the finality necessary to invoke this court’s jurisdiction. See De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.
2006).

                                                        -2-
                                                                                                 04-13-00815-CV


beneficiaries and are meant to compensate them for their own personal loss.” Cunningham, 382

S.W.3d at 508. “[W]rongful death beneficiaries may pursue a cause of action ‘only if the

individual injured would have been entitled to bring an action for the injury if the individual had

lived.’” In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex. 2009) (quoting TEX. CIV. PRAC.

& REM. CODE § 71.003(a)).

        In arguing that the petition contains a survival cause of action, Margaret and Jesus note that

the petition alleges that they breached their duty to care for Alvilda from 2002 until her death.

They also note that the petition alleges that Alvilda would have been entitled to sue Margaret and

Jesus if she had lived. Finally, they note that the Aguilars expressly reserved the right to amend

the petition.

        All of these arguments ignore, however, that the only damages sought in the Aguilars’

petition are for past and future mental anguish damages, which are damages recoverable only in a

wrongful death action. Moreover, as previously noted, in order to bring their wrongful death

action, the Aguilars were required to prove that Alvilda would have been entitled to bring the cause

of action if she had lived. Thus, alleging that Alvilda could have done so is consistent with the

Aguilars’ wrongful death claim. Finally, determining whether the probate court had the authority

to transfer the lawsuit must be based on the claims that were alleged and pending at the time the

probate court considered the motion to transfer. Having reviewed the petition, we conclude that

the only claim alleged by the Aguilars in their petition is a wrongful death claim asserted against

Margaret and Jesus in their individual capacities. 2




2
  If the Aguilars subsequently amend their petition to add additional claims, Margaret would not be precluded from
filing another motion to transfer with the probate court.

                                                      -3-
                                                                                                      04-13-00815-CV


                                 TRANSFER OF WRONGFUL DEATH CLAIM

         Venue in a wrongful death action is governed by section 15.002 of the Texas Civil Practice

and Remedies Code. 3 Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 620-21 (Tex. 2005). In

their petition, the Aguilars assert venue is proper in El Paso County because a substantial part of

the events or omissions giving rise to the claim occurred in El Paso County. See TEX. CIV. PRAC.

& REM. CODE ANN. § 15.002(a) (West 2014) (providing for lawsuit to be brought “in the county

in which all or a substantial part of the events or omissions giving rise to the claim occurred”).

The petition also alleges facts to support the assertion of venue in El Paso County because the

Aguilars allege the following occurred in El Paso County: (1) Margaret and Jesus set up a schedule

in El Paso that was difficult on Alvilda by changing the time she awoke and the food she was

eating; (2) Alvilda was fatigued following her husband’s funeral; however, Margaret demanded

that she return to San Antonio rather than remain in El Paso to rest and build up her physical health;

(3) Alvilda experienced an impaction in her intestinal system; however, Margaret did not consult

with a medical doctor to determine whether Alvilda was physically able to return to San Antonio

by automobile; and (4) Margaret made Alvilda awake at an extremely early hour to return to San

Antonio and did not allow her sufficient time to use the restroom facilities. 4 The question

presented in this case is whether the probate court could transfer venue of the lawsuit to the Bexar

County probate court.




3
  In their brief, Margaret and Jesus argue that the Aguilars did not complain about venue. We disagree. While the
Aguilars’ brief may not be a model of clarity, the brief provides, “The Supreme Court stated TEX. PROB. CODE ANN.
§ 5B is a venue statute not a jurisdictional statute. Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 620 (Tex. 2005).
A district court and probate court can both have jurisdiction. The question is where proper venue is. Ibid. at 626.”
4
  We note that Margaret and Jesus would need to file a motion to transfer venue in the El Paso County District Court
to challenge the alleged venue facts. See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (noting plaintiff
must prove venue is proper in the county of suit if a defendant files a motion to transfer venue objecting to the
plaintiff’s venue choice).

                                                         -4-
                                                                                                   04-13-00815-CV


         “Section 34.001 of the Texas Estates Code provides that a judge of a statutory probate court

may transfer to itself from a district court ‘a cause of action related to a probate proceeding pending

in the statutory probate court or a cause of action in which a personal representative of an estate

pending in the statutory probate court is a party.” In re Estate of Aguilar, No. 04-13-00038-CV,

2014 WL 667516, at *3 (Tex. App.—San Antonio Feb. 19, 2014, pet. filed) (quoting TEX. ESTATES

CODE § 34.001) (mem. op.). “Therefore, transfer is proper where either (1) the cause of action

relates to a probate proceeding, or (2) a personal representative of the pending estate is a party to

[the] suit.” Id.

         Because Margaret was sued in her individual capacity and the lawsuit alleges only a

wrongful death cause of action, the causes of action asserted in the El Paso County lawsuit are not

“related to [the] probate proceeding” as that phrase is defined in the Texas Estates Code. See TEX.

ESTATES CODE ANN. § 31.002 (West 2014). 5 Moreover, Margaret is not a party to the lawsuit in

her capacity as independent executrix of Alvilda’s estate. Accordingly, the probate court erred in

granting the motion to transfer venue.




5
 Because the Bexar County probate court is a statutory probate court, the following are included in the definition of
“a matter related to a probate proceeding”:
                   (1)      an action against a personal representative or former personal representative
         arising out of the representative’s performance of the duties of a personal representative;
                   (2)      an action against a surety of a personal representative or former personal
         representative;
                   (3)      a claim brought by a personal representative on behalf of an estate;
                   (4)      an action brought against a personal representative in the representative’s capacity
         as personal representative;
                   (5)      an action for trial of title to real property that is estate property, including the
         enforcement of a lien against the property;
                   (6)      an action for trial of the right of property that is estate property;
                   (7)      the interpretation and administration of a testamentary trust if the will creating the
         trust has been admitted to probate in the court;
                   (8)      the interpretation and administration of an inter vivos trust created by a decedent
         whose will has been admitted to probate by the court;
                   (9)      any cause of action in which a personal representative of an estate pending in
         statutory probate court is a party in the representative’s capacity as personal representative.
TEX. ESTATES CODE ANN. § 31.002 (West 2014).

                                                        -5-
                                                                                                  04-13-00815-CV


                                                   STANDING

        Margaret and Jesus finally argue that section 71.004(c) of the Texas Civil Practice and

Remedies Code authorized only Margaret to file the wrongful death action because it was filed

more than three calendar months after Alvilda’s death. Section 71.004(c) provides that “[i]f none

of the individuals entitled to bring [a wrongful death] action have begun the action within three

calendar months after the death of the injured individual, his executor or administrator shall bring

and prosecute the action unless requested not to by all those individuals.” TEX. CIV. PRAC. & REM.

CODE ANN. § 71.004(c) (West 2008). While section 71.004(c) may provide a basis for filing a

motion to dismiss the El Paso County lawsuit, the lawsuit is not converted into a claim by Margaret

in her representative capacity because of the Aguilars’ questionable standing. Moreover, we note

that Margaret, in her capacity as independent executrix of Alvilda’s estate, has not filed a wrongful

death action against herself in Bexar County. 6

                                                 CONCLUSION

        The probate court’s order granting the motion to transfer venue and the probate court’s

order dismissing the lawsuit are reversed, and judgment is rendered that the motion to transfer is

denied. 7 Nothing in this opinion precludes Margaret and Jesus from filing a motion to dismiss

pursuant to TEX. R. CIV. P. 91a in the El Paso County District Court.

                                                          Catherine Stone, Chief Justice




6
  Although Margaret argues that venue would be proper in Bexar County because Bexar County was the county of her
residence at the time the wrongful death cause of action accrued, “[a]s long as the forum is a proper one, it is the
plaintiff’s privilege to choose the forum.” Gonzalez, 159 S.W.3d at 622 (internal citations omitted).
7
  The probate court should take all actions necessary to retransfer the cause to the El Paso County District Court.

                                                       -6-
