IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,123
BARRY D. VORHEES,
Appellant,
v.
FRANCISCO J. BALTAZAR AND THE
ADMINISTRATOR OF THE ESTATE OF
FRANCISCO J. BALTAZAR,
Appellees.
SYLLABUS BY THE COURT
1. If an appeal is docketed late, remedy lies under Supreme Court Rule 5.05 (2006 Kan. Ct. R. Annot. 34), under which dismissal is discretionary with the appellate court.
2. The party who asserts abuse of discretion bears the burden of showing it.
3. Subject matter jurisdiction is distinguishable from legal capacity to sue or be sued. Among other things, the defense of capacity can be waived if a timely objection is not raised. By contrast, subject matter jurisdiction cannot be waived and may be raised at any time, whether it be for the first time on appeal or even upon the appellate court's own motion.
4. Under the facts of this case, a timely filed petition for appointment of an estate administrator did not cure the capacity deficiency of the yet-to-be appointed administrator listed as a defendant in the timely filed negligence petition. Mere filing for appointment of the administrator does not equate to actual appointment.
5. Under the facts of this case, where a suit is timely filed against a yet-to-be-appointed estate administrator; the petition to appoint the administrator is timely filed; the administrator is appointed within 90 days of the original lawsuit filing; and the administrator is then served with process by the 120-day deadline for service granted by the court, the suit is held to be timely filed against the administrator under K.S.A. 60-203(a).
6. Under the facts of this case, where a personal injury petition against the yet-to-be-appointed administrator of the decedent's estate is timely filed, and the administrator is appointed after the statute of limitations has run but is timely served with process, no formal motion to amend the petition under K.S.A. 60-215 is required because only the capacity of the defendant administrator to be sued has been in dispute.
7. A defendant's acknowledgment of receipt of service of summons and a copy of the petition constitutes effective service under K.S.A. 60-303(e).
Review of the judgment of the Court of Appeals in an unpublished decision filed March 10, 2006. Appeal from Linn district court; RICHARD M. SMITH, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed and remanded. Opinion filed March 16, 2007.
Patrick R. Miller, of Dezube Miller, P.A., of Overland Park, argued the cause and was on the brief for appellant.
Zackery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Barry Vorhees filed suit against Francisco J. Baltazar, whom he knew to be deceased, and against the unappointed administrator of Baltazar's estate for personal injuries that Vorhees sustained in a two-vehicle accident. Although an administrator was eventually appointed, the district court dismissed the suit, and the Court of Appeals reversed in Vorhees v. Baltazar, No. 94,123, unpublished opinion filed March 10, 2006. This court granted the administrator's petition for review; our jurisdiction is under K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the Court of Appeals err in allowing Vorhees to docket his appeal out of time? No.
2. Did the district court err in dismissing Vorhees' suit? Yes.
3. Was service of process effective upon the Administrator? Yes.
Accordingly, we affirm the Court of Appeals, reverse the district court, and remand for further action consistent with this opinion.
FACTS
The facts are not in dispute. On February 12, 2002, Barry D. Vorhees and Francisco J. Baltazar were the drivers involved in a two-vehicle accident. Baltazar died that day, and Vorhees suffered severe injuries. On January 26, 2004, 17 days before the statute of limitations was to run, Vorhees filed suit against "Francisco J. Baltazar and the Administrator of the Estate of Francisco J. Baltazar" in the Linn County District Court. The petition recites that Baltazar was deceased, previously resided at 121 W. 4th, #704, Pittsburg, Kansas, and could "be served through the administrator of his estate."
A summons for the administrator of Baltazar's estate was issued that same day. However, 8 days later it was returned unserved because the administrator was "not known."
On February 11, 2004, the day before the statute of limitations was to run, Vorhees filed a "Petition for Issuance of Letters of Administration" pursuant to K.S.A. 59-2201 et seq. in the Linn County District Court, incorrectly reciting that Baltazar had lived in Linn County in "Pittsburg, Kansas." He requested that one Zachary S. Gerber be appointed as administrator and be issued letters of administration.
On April 22, 2004, Vorhees filed for a 30-day extension to serve the administrator. He alleged that venue for appointment of an administrator had been transferred to Crawford County–site of Pittsburg–and that appointment had not yet been made. The Linn County District Court granted Vorhees' motion, stating that "[p]ursuant to K.S.A. 60-203(a), Plaintiff shall have up to and including May 26, 2004, in which to serve Defendants."
On May 11, 2004, 2 years and approximately 3 months after the date of the accident, the Crawford County District Court appointed Steven Horak as the administrator of Baltazar's estate (the Administrator). After finding that Horak," named by petitioner as proposed administrator of the estate of Francisco J. Baltazar, having been duly appointed and qualified as administrator," the court issued letters of administration, incorrectly labeled "Letters Testamentary."
Approximately 2 weeks later, the Administrator went to Vorhees' attorney's office where the attorney's law clerk presented him with copies of the summons, petition, and other probate papers. In the clerk's presence, the Administrator executed the "Return on Service of Summons," which stated that the Administrator "acknowledge[d] receipt of service of summons and petition in the above entitled case this 24th day of May, 2004." Vorhees never took any steps to amend his original petition, i.e., to formally acknowledge that Horak had been appointed as administrator.
On June 14, 2004, the Administrator filed a motion to dismiss, asserting that Vorhees had failed to commence the suit within the statute of limitations because he sued "a deceased person, known to be deceased at the time the Petition was filed, and against a nonexistent administrator, also known not to exist at the time the Petition was filed." The motion also alleged insufficiency of process and insufficiency of service of process because of purported deficiencies in the law clerk's authority to serve.
The district court granted the motion to dismiss, reasoning that neither defendant had the capacity to be sued before the statute of limitations ran:
"No entity with the capacity to be sued ever existed during the entire two year period of the statute of limitations. Service of Process cannot 'relate back' if there is no legal entity to relate back to. . . . [T]he statute of limitations bars plaintiff's claim and this case should be and is hereby dismissed."
After Vorhees filed a motion to reconsider, the district court concluded that it lacked jurisdiction to hear the case.
The Court of Appeals reversed, holding that the district court had subject matter jurisdiction; Vorhees timely commenced the action before the statute of limitations lapsed as described in K.S.A. 60-203(a); and service was properly effected upon the Administrator.
ANALYSIS
Issue 1: The Court of Appeals did not err in allowing Vorhees to docket his appeal out of time.
The threshold question on appeal is whether the Court of Appeals erred in allowing Vorhees to docket his appeal out of time. If so, the rest of the appellate issues are moot. The Administrator specifically asserts that Vorhees failed to make a showing of excusable neglect for his late filing.
The district court entered its order denying Vorhees' motion for reconsideration on January 19, 2005. Vorhees filed his timely notice of appeal on January 24, 2005, and on March 9 filed a motion for leave to docket out of time, asserting:
"3. Appellant's counsel did not receive the documents that are required to accompany the docketing statement within the requisite time for filing the docketing statement.
"4. Appellant's counsel has not obtained a certified file stamped copy of the Notice of Appeal, Order on Appellant's Motion for Reconsideration, Order of Dismissal and all post-hearing motions in the above-captioned matter. These are included herein for filing with the remainder of the materials required for docketing this appeal. These combined documents complete the requirement for docketing the appeal."
On March 15, 2005, the Administrator filed his response, arguing that Vorhees' motion should be denied because the motion reveals "not excusable neglect but simple neglect." Three days later, the Court of Appeals granted Vorhees' motion, noting the Administrator's response.
Supreme Court Rule 2.04 (2006 Kan. Ct. R. Annot. 11) states that within 21 days of filing the notice of appeal, the appellant "shall" obtain and file various pleadings with the court. Based on the language of Rule 2.04, the Administrator argues that Vorhees was required to file the necessary documents by February 14, 2005; they were not actually filed, however, until March 18, 2005.
The Administrator further asserts that the Court of Appeals should have dismissed the appeal pursuant to Supreme Court Rule 5.05 (2006 Kan. Ct. R. Annot. 34). See Carson v. Eberth, 3 Kan. App. 2d 183, 185, 592 P.2d 113 (1979) (if an appeal is docketed late, remedy lies under Rule 5.05 under which dismissal is discretionary with the appellate court). Rule 5.05 states: "On the motion of a party . . . , the appellate court may dismiss an appeal on account of a substantial failure to comply with the rules of the court." (Emphasis added.)
As Carson states, dismissal under Rule 5.05 is discretionary. Discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). Although the Administrator acknowledges this standard, he fails to show the Court of Appeals abused its discretion by denying his motion to dismiss the appeal for Vorhees' failure to comply with the rules of the court. See 276 Kan. at 454 (party who asserts abuse of discretion bears the burden of showing it). Rather, he essentially asserts that Vorhees should have given better reasons for docketing late. Additionally, the Court of Appeals has acknowledged that jurisdictional rules should be read liberally "to allow litigants the opportunity to have their claims heard and determined." Sanders v. City of Kansas City, 18 Kan. App. 2d 688, 692, 858 P.2d 833, rev. denied 253 Kan. 860 (1993), cert. denied 511 U.S. 1052 (1994).
We conclude the Court of Appeals did not abuse its discretion.
Issue 2: The district court erred in dismissing Vorhees' suit.
Jurisdiction
In denying Vorhees' motion for reconsideration, the district court asserted that it had no jurisdiction:
"In effect, the plaintiff now argues that since an estate was opened one day prior to the running of the statute of limitations, the subsequent appointment of the special administrator several months later should relate back to the opening of the estate.
. . . .
"The mere fact that the plaintiff sought to open an estate one day prior to the expiration of the applicable statute of limitations does not save this action. The appointment of the special administrator well after the statute of limitations has expire[d] still represents a bar to the Court asserting jurisdiction over this action. See Moore v. Luther, 29 Kan. App. 2d 1004 (2001) and Deeds v. Estate of Barker, 74 P.3d 594 (2003)." (Emphasis added.)
The Court of Appeals reviewed the issue of jurisdiction, but ruled that jurisdiction existed, distinguishing Moore v. Luther, 29 Kan. App. 2d 1004, 35 P.3d 277 (2001). It noted, "[U]nlike Moore, when the district court dismissed Vorhees' action, an administrator had been appointed and served, thus creating a party defendant and giving the court jurisdiction to hear the case. See Anderson v. Estate of Peterson, No. 90,863, unpublished opinion filed September 24, 2004, slip op. at 3; Moore, 29 Kan. App. 2d at 1007." (Emphasis added.) Slip op. at 6.
Under the facts and the Administrator's allegations in the instant case, the purported threshold issue of jurisdiction is a red herring. The relevant threshold issue is instead one of capacity to be sued, i.e., whether the defendant named at the time of the petition's timely filing–"Administrator of the Estate of Francisco J. Baltazar"–was a legal entity capable of being sued. Under Kansas law, absent an administrator or an executor, an estate lacks the ability to sue or be sued. See Ryan v. Williams, Adm'r, 29 Kan. 487, 498-500 (1883). Clearly, at the time of filing, the decedent Francisco J. Baltazar was not, and would never be, capable of being sued and that issue is moot. See Egnatic v. Wollard, 156 Kan. 843, 856, 137 P.2d 188 (1943) (when a person dies, his or her individual capacity to respond in damages for torts ceases; thereafter, his or her financial obligations must be met by his or her estate).
We believe the lower courts' understandable confusion regarding jurisdiction as a necessary issue in this case begins with Moore. There, plaintiffs filed suit against Luther for injuries arising out of a car accident. Suit was filed after Luther died and 5 days prior to the expiration of the statute of limitations. One hundred and nineteen days after the lawsuit was filed, plaintiffs first learned of Luther's death. Pursuant to K.S.A. 60-225, which allows substitution if a party dies, plaintiffs attempted to substitute Luther's widow, who had previously been the executor of the estate. However, the district court denied the motion and dismissed the claim, finding that the statute of limitations barred the action.
The question in Moore, as stated by the Court of Appeals, was "[w]hether a litigant can use this statute [K.S.A. 60-225] to save a cause of action filed against a decedent." 29 Kan. App. 2d at 1008. As a preliminary matter, however, the Moore court determined that the district court lacked jurisdiction:
"There is currently no party defendant. A decedent does not have the capacity to be sued. [Citations omitted.] Therefore, Glen Luther is not a proper defendant. The plaintiffs have not effected the appointment of a special administrator to proffer as a substitute. Without adversarial parties, the trial court lacked subject matter jurisdiction over the case. 'In a suit or proceeding in personam of an adversary character, the court can acquire no jurisdiction for the purpose of trial or judgment until a party defendant is brought before it who actually or legally exists and is legally capable of being sued.' 59 Am. Jur. 2d, Parties, § 41, p. 438. A dismissal based upon the statute of limitations [however,] 'operates as an adjudication upon the merits.' [Citations omitted.] With no defendant in the lawsuit, the trial court lacked jurisdiction to make a ruling on the merits of the case. Therefore, we reverse the district court's ruling that plaintiffs' claims were barred by the 2-year statute of limitations and, correspondingly, that plaintiffs' case should be dismissed with prejudice." (Emphasis added.) 29 Kan. App. 2d at 1006-07.
We further believe the lower courts' confusion specifically stems from the above italicized language contained in 59 Am. Jur. 2d, which is based upon an 1881 case, Ash v. Guie, 97 Pa. 493. This 125-year-old theory, i.e., a lack of jurisdiction because of a party's lack of capacity, has fallen into disfavor. As is stated in 6A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, p. 442 (1990):
"Some early decisions suggested that a defect in capacity deprives the court of subject matter jurisdiction, since a real case or controversy does not exist when one of the parties is incapable of suing or being sued, although more recent authority has rejected that characterization. To treat capacity problems as subject matter jurisdiction defects seems to exaggerate their significance." (Emphasis added.)
See Swaim v. Moltan Co., 73 F.3d 711, 715 (7th Cir. 1996); Summers v. Interstate Tractor & Equipment Co., 466 F.2d 42, 50 (9th Cir. 1972) ("The question of a litigant's capacity or right to sue or to be sued generally does not affect the subject matter jurisdiction of the district court."); and Crane Constr. Co. v. Klaus Masonry, 71 F. Supp. 2d 1138, 1141 (D. Kan. 1999).
In addition to these commentators' reliance upon Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964), as an indication that capacity is not a jurisdictional issue, they look for support to Federal Rule of Civil Procedure 9(a) and contrast its features with those of subject matter jurisdiction:
"Furthermore, it is difficult to reconcile the conception of capacity as a jurisdictional matter with the Rule 9(a) requirement that capacity be put into issue by specific negative averment, which indicates the draftsmen's intention that the issue be excluded from the case unless expressly raised by a party at the pleading stage. This is in sharp contrast to the strong and clearly expressed policy against the waiver of subject matter jurisdiction defects." (Emphasis added.) 6A Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d, § 1559, p. 443 (1990).
Based upon our prior holdings and Kansas statute, we agree with these commentators that subject matter jurisdiction is distinguishable from legal capacity to sue or be sued. In Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 106 P.3d 483 (2005), we discussed standing, a component of subject matter jurisdiction, and cited with approval a Missouri case revealing standing's distinction from capacity: "'The question of standing "does not relate to the legal capacity to sue, a defense [see K.S.A. 2004 Supp. 60-209(a)] waived unless timely asserted . . . ."'" 279 Kan. at 185 (quoting Pace Const. v. Mo. Hwy. & Transp. Com'n, 759 S.W.2d 272, 274 (Mo. App. 1988).
Additionally, Federal Rule 9(a), examined by the above commentators, served as a drafting model for K.S.A. 60-209(a). Augusta Oil Co., Inc. v. Watson, 204 Kan. 495, 501, 464 P.2d 227 (1970). Accordingly, we have held that when a defendant raises a plaintiff's lack of capacity to sue, its failure to comply with 60-209(a) must be regarded as a waiver of the defense. See, e.g., Van Brunt, Executrix v. Jackson, 212 Kan. 621, 624, 512 P.2d 517 (1973); Augusta Oil, 204 Kan. at 501. By contrast, we have held that subject matter jurisdiction, unlike capacity, cannot be waived and may be raised at any time, whether it be for the first time on appeal or even upon the appellate court's own motion. Mid-Continent Specialists, Inc., 279 Kan. at 185-86.
Accordingly, although the defendant named at the time of the petition's timely filing, "Administrator of the Estate of Francisco J. Baltazar," may have lacked the capacity to be sued because Horak had not yet been appointed, and had still not been appointed by the 2-year anniversary of the date of the accident, there is no legitimate controversy concerning the district court's subject matter jurisdiction over this case.
Statute of limitations
The Administrator argues that because neither defendant was in existence before the 2-year anniversary date of the accident, dismissal was required under the statute of limitations. See K.S.A. 60-513. He essentially agrees with the district court that there was nothing to which the later appointment of the Administrator could relate back. In the alternative, he argues that if an administrator can be appointed after the 2-year anniversary date, a formal amendment under K.S.A. 60-215 is required to properly name the actual administrator as defendant.
Vorhees responds that his action naming the two defendants was timely filed because it was performed within 2 years of the accident. However, if his petition filing was deficient, he argues that the deficiency was cured by his subsequent petition on February 11, 2004,–the day before the 2-year anniversary date–requesting an administrator be appointed. As a second alternative, he essentially argues that he put the outlines of the administrator clearly in place when he filed his original petition generically naming "the Administrator of the Estate of Francisco J. Baltazar." According to this argument, in effect Vorhees merely colored in the space within the Administrator outline 3 months later when Horak was formally appointed; as a result, no formal amendment was required.
The facts are undisputed. We decide this issue of first impression as a matter of law; our review is de novo. See Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 419-20, 109 P.3d 1241 (2005) (summary judgment on undisputed facts); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005) (statutory interpretation); Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996) (interpretation and application of statute of limitations).
We begin our analysis by rejecting Vorhees' argument that the mere filing of his February 11, 2004, petition for appointment of an administrator cured any deficiency in his original negligence petition. Mere filing which seeks appointment does not equate to actual appointment, as demonstrated by his own pleadings. Among other things, his February 11 petition requested that Gerber serve, but the ultimate appointment was of Horak 90 days later.
Moreover, Kansas statutes do not support Vorhees' argument. K.S.A. 59-2239(2) provides:
"Nothing in this section shall affect or prevent the enforcement of a claim arising out of tort against the personal representative of a decedent within the period of the statute of limitations provided for an action on such claim. For the purpose of enforcing such claims, . . . a special administrator [may be] appointed, and suit filed against the administrator within the period of the statute of limitations for such action. . . . The action may be filed in any court of competent jurisdiction and the rules of pleading and procedure in the action shall be the same as apply in civil actions. Any such special administration shall be closed and the special administrator promptly discharged . . . upon conclusion of any action filed."
K.S.A. 59-710, which establishes an expedited procedure for administrator appointment, also fails to suggest mere filing suffices:
"For good cause shown a special administrator may be appointed pending the appointment of an executor or administrator, after the appointment of an executor or administrator without removing the executor or administrator or pursuant to subsection (2) of K.S.A. 59-2239 as amended by this act. The appointment may be for a specified time, to perform duties respecting specific property, or to perform particular acts." (Emphasis added.)
The expedited procedure contained in K.S.A. 59-2204 also fails to support Vorhees' argument:
"A probate proceeding may be commenced in the district court by filing a petition and causing it to be set for hearing. When a petition is filed, the court shall fix the time and place for the hearing on it. When a petition is filed for the appointment of a personal representative, the court may appoint the proposed personal representative or some other suitable person, with or without bond, to conserve the estate until a hearing is had and a personal representative is appointed." (Emphasis added.)
We conclude that none of these statutes indicates that mere filing equates to actual appointment of the estate administrator. We consequently hold that the February 11 petition for appointment did not cure any administrator capacity deficiency in the January 26 negligence petition.
We next turn to the argument that because there was no defendant capable of being sued before the statute of limitations ran, there was nothing to which the later appointed, and served, Administrator could relate back. Accordingly, the statute of limitations bars the action. K.S.A. 60-203(a) provides:
"A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1)."
As noted, Vorhees' petition was timely filed. It named as defendants Francisco J. Baltazar, who was deceased, and the "Administrator of the Estate of Francisco J. Baltazar," who had not yet been appointed. Horak's actual appointment was not made until 89 days after the statute of limitations had run. Accordingly, at the time of filing, the Administrator–although named as a defendant–had no capacity to be sued. See Ryan, 29 Kan. at 498-500.
An analogous situation occurred in Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005). There, Margarita Torres Wilson died on August 18, 1998. On January 7, 2000, her daughter, Pauline Wilson Lovato, filed a survival action to recover for Wilson's personal injuries. Lovato alleged that she was the "Personal Representative" of Wilson's estate, but acknowledged that "no administrator [of the estate] ha[d] been appointed." 173 S.W.3d at 847. Two months after filing suit, in March 2000, Lovato filed an application in the probate court asking to be appointed administrator of her mother's estate. The statute of limitations ran on November 1, 2000 (after some tolling), and on April 22, 2002, the defendant Austin Nursing Center moved for summary judgment arguing, among other things, that the survival claim was barred by the statute of limitations.
Lovato was finally appointed administrator 3 weeks later on May 9, 2002. She then filed an amended petition on May 20, 2002, alleging that she was now the "Independent Administratrix" of the Estate of Margarita Torres Wilson. 171 S.W.3d at 847. The trial court granted the nursing center's summary judgment motion, and the Court of Appeals reversed.
The Texas Supreme Court first observed that most cases involve an amended pleading alleging a plaintiff's representative capacity for the first time.
"Generally, cases involving post-limitations representative capacity involve an amended pleading alleging that capacity for the first time. [Citations omitted.] In such cases, the issue is usually whether the plaintiff's post-limitations amendment, altering the plaintiff's capacity, can relate back to the plaintiff's pre-limitations pleadings." 171 S.W.3d at 852.
It then observed that Lovato presented a different situation, i.e., the plaintiff's representative capacity had been asserted in the original petition:
"This case is somewhat unusual, however, because Lovato has alleged representative status on behalf of the estate in every petition filed with the trial court. Her original petition asserted that she was the 'Personal Representative of the Estate of Margarita Torres Wilson.' This allegation . . . asserted that Lovato was bringing suit in her capacity as the estate's representative." 171 S.W.3d at 852.
The Lovato court therefore framed the more precise issue before it as follows:
"Thus, the issue here is not whether her amended pleadings relate back to her original petition–as every petition alleges her representative status–but whether her post-limitations capacity cures her pre-limitations lack thereof. We conclude that it does." (Emphasis added.) 171 S.W.3d at 852.
In support, the court observed that it had previously allowed a plaintiff to change her capacity. In Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117 (1929), a widow filed suit in her individual capacity and later amended her pleadings to assert her administratrix capacity, with the court holding "'[t]hat this defect did not prevent her suit from being "properly commenced"' prior to expiration of the statute of limitations." Lovato, 171 S.W.3d at 852.
The court next observed that similar allowance had been granted when the defendant's capacity had been changed:
"[W]hen faced with a change in a defendant's capacity–an amended petition filed against an estate's representative, when the original petition named only the estate itself–we held that limitations did not bar the claim, because 'the purpose and the nature of the claim asserted were clear from the outset.' Price v. Estate of Anderson, 522 S.W.2d 690, 692 (Tex. 1975); see also Rooke v. Jenson, 838 S.W.2d 229, 230 (Tex. 1992)." 171 S.W.3d at 853.
The court then reasoned that because it had held that a plaintiff's amended pleading alleging representative capacity satisfied the relation-back requirements, then, a fortiori, an original petition that alleges the correct capacity should suffice for limitations purposes. 171 S.W.3d at 853. The court only required that capacity, if challenged, be established within a reasonable time. The Texas statute referenced by the court, Tex. R. Civ. Proc. 93(1)-(2) (West 2006), allows a defendant's challenge to the defendant's capacity to be sued or the plaintiff's capacity to sue. Texas case law apparently provides the opposing party a reasonable time to cure any defect in capacity. Accord Lorentz v. Dunn, 171 S.W.3d 854 (Tex. 2005).
Lovato's guidance is particularly useful because the Texas case law it discussed is similar to Kansas case law. For exampl