Thorson v. Aviall Services Inc et al
Filing
35
MEMORANDUM OPINION AND ORDER denying 30 Sealed MOTION to Substitute Heirs of Deceased Plaintiff As Parties Plaintiff and granting 60 days to file amended motion. (Ordered by Judge Sidney A Fitzwater on 12/2/2015) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DON THORSON,
Plaintiff,
VS.
AVIALL SERVICES, INC., et al.,
Defendants.
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§ Civil Action No. 3:15-CV-0571-D
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MEMORANDUM OPINION
AND ORDER
Plaintiff Don Thorson (“Don”) filed this lawsuit against defendants Aviall Services
Inc. (“Aviall”)1 and Conexis Benefits Administrators, LP (“ Conexis”). Following Don’s
death, Rachel B. Thorson (“Rachel”) (Don’s mother) and Sonya Nichols (“Sonya”) (Don’s
sister), as Don’s heirs, filed the instant motion under Fed. R. Civ. P. 25(a)(1) to substitute
themselves as plaintiffs.2 The court denies the motion because Rachel and Sonya have failed
to demonstrate that no administration of Don’s estate is necessary. The court grants Rachel
and Sonya leave to file an amended motion for purposes of proving that Don’s estate does
not require administration, or that at least one of them has been appointed as a personal
representative of Don’s estate who can prosecute this action in a representative capacity.
1
On April 10, 2015 Aviall filed a motion to dismiss this action. That motion remains
pending until the court resolves whether this lawsuit can continue following Don’s death.
2
Some of the pleadings in this case, including the instant motion to substitute, have
been filed as sealed documents. The court concludes, however, that this memorandum
opinion and order need not be sealed.
I
Don sued Aviall and Conexis to recover for breach of contract and violations of
ERISA.3 Following his death, his mother (Rachel) and sister (Sonya) filed the instant motion
to substitute themselves as plaintiffs, contending that they are his successors in interest under
the Texas Survival Statute and under federal and state common law. Rachel and Sonya
maintain that Don did not leave a will; that they are therefore his sole surviving heirs and
successors in interest by intestate succession; and that there has been no administration of his
estate, and that none is necessary. They contend that, if it becomes necessary in the future
to file a proceeding in the probate court, it is anticipated that Rachel will be appointed
Executrix or Administratrix and will file as successor plaintiff. They also contend that, to
the extent Don’s claims are not covered by the Texas Survival Statute, a plaintiff can bring
a common-law survival action for damage to real or personal property, breach of contract,
debt, wrongful acquisition of property by fraud or deceit, trespass to try title, or conversion
of property.
Aviall opposes the motion. It recognizes that, although the personal representative
of an estate ordinarily is the only person entitled to sue for recovery of property belonging
to the estate, in the absence of such an appointment, the heirs at law can maintain the suit,
provided they allege and prove that there is no administration pending and none is necessary.
Aviall also acknowledges that Rachel and Sonya allege that, at this time, there is no
3
Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461.
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administration of Don’s intestate estate and none is necessary. But Aviall maintains that
Rachel and Sonya contradict this assertion by acknowledging that, if a probate proceeding
becomes necessary in the future, Rachel would likely seek appointment as the estate’s
representative. And it contends that, in the complaint, Don alleged that he lost $200,000 in
his business, was unable to afford medical care for his family, and had large unpaid hospital,
medical, and drug bills. Aviall therefore maintains that Rachel and Sonya have failed to
make the required showing necessary for substitution as plaintiffs. It also posits that, even
if Rachel and Sonya can make the required showing, Sonya lacks standing and the capacity
to be substituted as a plaintiff, and Rachel cannot recover some of the damages the complaint
seeks.4
II
Under Texas law, the general rule is that the personal representative of a decedent’s
estate is the only person who is entitled to sue to recover estate property. See Shepherd v.
Ledford, 962 S.W.2d 28, 31 (Tex. 1998) (citing Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex.
1971)). There is an exception to this rule, however, that allows a decedent’s heirs at law to
bring suit to recover property belonging to the estate during the four-year period allowed by
law. Id. at 31-32. To do so, the heirs “must allege and prove that there is no administration
pending and none necessary.” Frazier, 472 S.W.2d at 752. These “same general rules
govern a suit to recover damages for breach of a contract made by decedent during his
4
The court need not address at this time whether Rachel is entitled to recover relief in
any particular form.
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lifetime.” Id.
III
The court considers first whether Rachel and Sonya have made a sufficient showing
that no administration of Don’s estate is necessary. As noted, Aviall contends that the
complaint’s allegation that Don had suffered significant monetary losses, together with the
acknowledgment by Rachel and Sonya that a probate proceeding might become necessary
in the future, preclude a showing that no administration of Don’s estate is necessary. Rachel
and Sonya reply that, although Don’s estate has debts, there is no need for an estate
administration because “there are no known assets comparable to the debts, except possibly
a future recovery in this suit.” Reply ¶ 1.02.
In Frazier the Supreme Court of Texas held that because “the evidence affirmatively
show[ed] that a number of debts owing by the estate were still unpaid . . . there [was] a
necessity for administration.” Frazier, 472 S.W.2d at 752. This is the same result that the
Texas Estates Code dictates. Under the Code, the administration of an estate is necessary if
there are two or more debts against the estate. See Tex. Estates Code Ann. § 306.002(c)(1)
(West 2014) (“The court may find other instances of necessity for an administration based
on proof before the court, but a necessity is considered to exist if: (1) there are two or more
debts against the estate[.]”). The Code also provides that the estate of someone who dies
intestate vests subject to the payment of the decedent’s debts, except as exempted by law.
See id. § 101.051(b). The allegations of the complaint, together with the reply of Rachel and
Sonya, establish that Don’s estate owes more than two debts. Accordingly, an administration
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of the estate is necessary under Texas law, either through use of a personal representative or
under a permissible alternative method. In Shepherd the court recognized that a “family
settlement agreement is an alternative method of administration in Texas that is a favorite of
the law.” Shepherd, 962 S.W.2d at 32.
Accordingly, although Rachel and Sonya have failed to establish that an
administration of Don’s estate is unnecessary, the court grants them leave to file an amended
motion, within 60 days of the date this memorandum opinion and order is filed,
demonstrating that no administration is pending and none is necessary because, for example,
they have entered into a recognized alternative method of administration. Alternatively, they
can demonstrate in the amended motion that at least one of them has been appointed as a
personal representative of Don’s estate who can prosecute this action in a representative
capacity.
IV
The court next considers Aviall’s challenge to Sonya’s standing and capacity to sue
on behalf of Don’s estate. Aviall contends that only Rachel (Don’s mother) can substitute
as a plaintiff and that, as Don’s sibling, Sonya cannot do so.
Under the Texas Estates Code, the estate of a person who dies intestate and is survived
only by one parent and one sibling is to be divided into two equal portions, with one portion
passing to the parent and one portion passing to the sibling. See Tex. Estates Code
§ 201.001(d)(1) (West 2014). Accordingly, Rachel and Sonya are both heirs of Don’s estate,
in equal portions. Estate beneficiaries can bring suit for certain claims that survive at
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common law. See Smith v. O’Donnell, 288 S.W.3d 417, 421 (Tex. 2009) (noting that, “[a]t
common law, actions for damages to real or personal property survive the death of the
owner.”); Thomes v. Porter, 761 S.W.2d 592, 594 (Tex. App. 1988, no writ) (recognizing
that breach of contract claims survive death of either party at common law). The Supreme
Court of Texas has held that “claims that are contractual in nature or affect property rights
survive the death of either party.” Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192
S.W.3d 780, 784 (Tex. 2006). Sonya therefore has standing and the capacity to sue, at least
to the extent necessary to substitute as a party in Don’s place.5
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For the foregoing reasons, the court denies Rachel and Sonya’s motion to substitute
heirs of deceased plaintiff as parties plaintiff. It grants them 60 days from the date this
memorandum opinion and order is filed to file an amended motion for purposes of proving
that Don’s estate does not require administration, or that at least one of them has been
appointed as a personal representative of Don’s estate who can prosecute this action in a
representative capacity.
SO ORDERED.
December 2, 2015.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
5
The court need not address at this time whether Sonya would have standing and the
capacity to sue on any other basis.
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