author: WILLIAM M. BARKER, J.,

text:
    Thomas SALLEE v. Tyler BARRETT.
    Supreme Court of Tennessee, at Nashville.
    June 8, 2005 Session.
    Sept. 13, 2005.

      David William Haines, Jr., Clarksville, Tennessee, for the appellant, Tyler Barrett.
    Phillip Leon Davidson, Nashville, Tennessee, for the appellee, Thomas Sallee.
    James Russell Farrar and Mary Byrd Ferrara, Nashville, Tennessee, for the Amicus Curiae, Tennessee Municipal League Risk Management Pool.
   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and JANICE M. HOLDER, JJ., joined. ADOLPHO A. BIRCH, JR., J., not participating.

This appeal arises from a claim for negligent infliction of emotional distress. The defendant, a police officer, accidently discharged his gun while standing behind the plaintiff, startling the plaintiff. The trial court granted the defendant’s motion to dismiss for failure to state a claim, concluding that the defendant was immune from suit pursuant to the Governmental Tort Liability Act, Tennessee Code Annotated section 29-20-310(b) (2000). The trial court also denied the plaintiffs motion to amend his complaint to add the City of Clarksville as a defendant. The Court of Appeals reversed, finding that section 29-20-205(2), which retained immunity for governmental entities for the “infliction of mental anguish” caused by its employee applied to both negligent, as well as intentional infliction of mental anguish. We reverse the Court of Appeals and reinstate the trial court’s order granting the motion to dismiss in favor of the defendant. With regard to the plaintiffs motion to amend his complaint, we find that the trial court did not abuse its discretion in denying that motion, as the requirements of Tennessee Rule of Civil Procedure 15.03 were not met.

I. Factual Background

On April 3, 2002, the plaintiff, Thomas Sallee (“Sallee”), was standing at the counter of an Amoco station located at 601 Riverside Drive in Clarksville, Tennessee. The defendant, Tyler Barrett (“Barrett”), a police officer employed by the City of Clarksville, was also inside the Amoco station, standing several feet behind Sallee. While Sallee was talking to the station’s clerk, Barrett placed his hand on his weapon, which was located in its holster. The weapon discharged suddenly and unexpectedly, and the bullet struck the floor near Barrett’s right foot.

Sallee filed a complaint against Barrett for negligent infliction of emotional distress. Sallee alleged that Barrett was negligent in failing to maintain his weapon in its holster in such a safe, secure manner as to not have it discharge in public; that the gun’s discharge was “loud, startling and unexpected;” and that as a direct and proximate cause of Barrett’s negligence, Sallee suffered severe and permanent emotional distress and post-traumatic stress disorder. Sallee did not file suit against Barrett’s employer, the City of Clarksville.

Barrett filed a motion to dismiss for failure to state a claim pursuant to Tennessee Rule of Civil Procedure 12.02(6). Barrett argued that he was immune from suit pursuant to the provisions of the Governmental Tort Liability Act (“GTLA”), Tennessee Code Annotated sections 29-20-101 et seq. It was his position that the City of Clarksville was the proper party because governmental entities are subject to liability for the negligent acts of its employees, and there is no exception for negligent infliction of emotional distress. Sallee countered that one of the exceptions to the general waiver of immunity for negligent acts is for “infliction of mental anguish,” Tennessee Code Annotated 29-20-205(2) (2000), and this includes both negligent and intentional infliction of emotional distress. As such, the City of Clarksville would be immune from suit for negligent infliction of emotional distress caused by its employees, making Barrett the proper party to this lawsuit. Sallee also filed a motion to amend his complaint to add the City of Clarksville as a defendant.

Barrett’s motion to dismiss was heard by the trial court on June 5, 2003. The court granted the motion to dismiss by order dated June 30, 2003. The trial court concluded that under the provisions of the GTLA, Barrett was immune from suit. Specifically, the court cited to Tennessee Code Annotated section 29-20-205, which removes governmental immunity for injuries proximately caused by a negligent act or omission of its employee. Under Tennessee Code Annotated section 29-20-310, if the immunity of a governmental entity is removed, the employee is immune from suit. The court also held that Sallee’s request to amend his complaint to substitute the City of Clarksville as a party defendant would be “futile” because such an amendment would not relate back to the original date of the filing of Sallee’s complaint.

The Court of Appeals reversed the judgment of the trial court, holding that:

[T]he legislature intended to include both negligent and intentional infliction of emotional distress in this exception to the removal of a governmental entity’s immunity. Since the City of Clarksville is immune from suit for the negligent infliction of emotional distress arising from its employee’s negligent act, under T.C.A. § 29-20-310(b), Barrett is the proper Defendant in this suit.

Thus, the Court of Appeals concluded that the trial court erred in dismissing the case based on Barrett’s immunity. The Court of Appeals did not address the issue of whether Sallee should have been allowed to amend his complaint to add the City of Clarksville as a defendant because this issue was pretermitted by its decision to reverse the trial court’s grant of Barrett’s motion to dismiss.

We granted review to determine whether governmental entities are immune from liability for negligent infliction of emotional distress.

II. Standard of Review

The construction of statutes and application of the law to the facts of a case are questions of law. See State v. Jennings, 130 S.W.3d 43, 45 (Tenn.2004); State v. Jackson, 60 S.W.3d 738, 742 (Tenn.2001). Accordingly, the standard of appellate review is de novo without any presumption of correctness given to the lower courts’ conclusions of law. Jennings, 130 S.W.3d at 45; Jackson, 60 S.W.3d at 742.

The grant or denial of a motion to amend is within the sound discretion of the trial court, and the court’s action will be reversed only for an abuse of discretion. See Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn.2001); Henderson v. Bush Bros. & Co., 868 S.W.2d 236, 237-38 (Tenn.1993).

III. Analysis

A. Barrett’s Motion to Dismiss

The primary issue in this ease is whether “infliction of mental anguish,” as used in Tennessee Code Annotated section 29-20-205(2) (2000), encompasses both the tort of negligent infliction of emotional distress as well as the tort of intentional infliction of emotional distress. If both torts are included in the statutory language, then the Court of Appeals correctly concluded that Barrett was the proper party defendant. On the other hand, if the words as used in the statute include only the tort of intentional infliction of emotional distress, then the trial court was correct in holding that the City of Clarksville, and not officer Barrett, was the proper party defendant.

We begin our analysis by noting that historically, governmental entities have been held immune from suit absent their express waiver of that immunity. See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 79 (Tenn.2001). In 1973, the General Assembly enacted the Tennessee Governmental Tort Liability Act (GTLA), which waived in part the immunity previously afforded to governmental entities. 1973 Tenn. Pub. Acts ch 345, codified at Tenn. Code Ann. § 29-20-101 et seq. (2000). Specifically, section 29-20-205 removes immunity “for injury proximately caused by a negligent act or omission of any employee within the scope of his employment....” Where immunity has been waived, such as for the negligent acts of governmental employees, the governmental entity is the proper party-defendant. In such circumstances, the employee is, by statute, immune from suit. TenmCode Ann. § 29-20-310(b) (2000).

While generally waiving governmental immunity for the negligent acts committed by employees of governmental entities, Tennessee Code Annotated section 29-20-205(2) (2000) specifically preserves immunity from claims arising out of “false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights.” (Emphasis added.) Therefore, our task in this case is to determine whether the legislature intended to preserve immunity for claims arising out of negligent infliction of emotional distress as well as the intentional infliction of emotional distress.

To assist in our interpretation of the statute, it is helpful to review the historical underpinnings and emergence of claims for negligent infliction of emotional distress. Historically, courts denied recovery where the defendant’s negligence caused mental disturbance without accompanying physical injury or physical consequences, or without other independent basis for tort liability. See, e.g., Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn.1982); Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270 (1966) abrogated by Camper v. Minor, 915 S.W.2d 437 (Tenn.1996); Bowers v. Colonial Stages Interstate Transit, Inc., 163 Tenn. 502, 43 S.W.2d 497 (1931) abrogated by Camper v. Minor, 915 S.W.2d 437 (Tenn.1996); see also Restatement (Second) of Torts § 436 cmt. c (1965).

Over the years, this Court has carved out exceptions to the general rule, allowing recovery for mental disturbance alone in certain limited circumstances. For example, in Hill v. Travelers’ Ins. Co., 154 Tenn. 295, 294 S.W. 1097 (1927), the plaintiff was allowed to recover for mental damages occasioned by the defendants’ mutilation of her husband’s dead body during an autopsy, notwithstanding the fact that the plaintiff had not suffered either a contemporaneous physical injury or exhibited physical symptoms of her alleged mental injuries. Hill, 294 S.W. at 1099; see also Wadsworth v. W. Union Tel. Co., 86 Tenn. 695, 8 S.W. 574 (1888) (establishing a similar exception for the negligent failure to deliver a telegraph regarding imminent death of plaintiffs brother, thus preventing her from sitting by his bedside when he died).

The “physical manifestation” rule, however, was not fully rejected until our decision in Camper v. Minor, 915 S.W.2d 437 (Tenn.1996). In Camper, we held that negligent infliction of emotional distress must be analyzed under the general negligence approach, requiring the five elements of general negligence: duty, breach of duty, injury or loss, causation in fact, and proximate or legal cause. Camper, 915 S.W.2d at 446. Proof of an accompanying or consequential physical injury was no longer required. Id.

At the time the GTLA was enacted in 1973, the physical manifestation rule was still in effect. In almost all circumstances, the tort of negligent infliction of emotional distress then still required proof of physical injury or must accompany another independent basis for tort liability. Thus, negligent infliction of emotional distress was not yet recognized fully as its own stand-alone tort in the same way that it now is following our decision in Camper.

On the other hand, the tort of intentional infliction of emotional distress was fully recognized by this Court prior to 1973. Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270 (1966). In Medlin, this Court held that in the context of intentional conduct, a plaintiff does have a right to emotional tranquility that, if violated, gives rise to an independent cause of action for intentional infliction of emotional distress. Id. at 273-74; see also Miller v. Willbanks, 8 S.W.3d 607, 610-12 (Tenn.1999) (discussing the history and evolution of the tort of intentional infliction of emotional distress in Tennessee).

The Court of Appeals in this case adopted the rationale and conclusions previously adopted by the Western Section of the Court of Appeals in Lockhart v. Jackson-Madison County Gen. Hosp., 793 S.W.2d 943 (Tenn.Ct.App.1990), that “the plain language of the statute justifies no other construction of the legislature’s intent” than the intent to have section 29-20-205(2) include negligent infliction of emotional distress. Lockhart, 793 S.W.2d at 946. Specifically, the court concluded that because both the torts of negligent infliction of emotional distress and intentional infliction of emotional distress existed prior to the enactment of the GTLA, and because the legislature is presumed to know the existence of the two separate torts but chose not to make a distinction in the statute, the legislature intended to include both in the statutory language.

The flaw in this rationale is that, as discussed above, the tort of negligent infliction of emotional distress was at best in its embryotic stage at the time the GTLA was enacted, while intentional infliction of emotional distress had already been fully established and recognized by the courts. Unlike the Court of Appeals, we are persuaded, based upon the development of the common law at the time the GTLA was enacted, that the legislature most likely intended that only the tort of intentional infliction of emotional distress would be included in the section preserving immunity for governmental entities.

In addition to the status of the common law at the time the GTLA was enacted, we are persuaded by the application of well-known principles of statutory construction that this was the legislature’s intent.

There has been some dispute as to whether the phrase “infliction of mental anguish,” as used in Tennessee Code Annotated section 29-20-205(2), was meant to refer only to the intentional tort or to both the intentional and negligent torts. In Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn.2001), this Court referred to section 29-20-205(2) as the “intentional tort exception” to the general waiver of immunity for negligent acts of employees. Id. at 81. In Elmore v. Cruz, No. E2001-03136-COA-R3-CV, 2003 WL 239169 (Tenn.Ct.App. Feb.4, 2003), the Eastern Section of the Court of Appeals concluded that Limbaugh “recognized that [section 29-20-205(2) ] applies to intentional torts” and, therefore, that governmental entities were only immune from suit for intentional infliction of emotional distress and waived immunity for negligent infliction of emotional distress. However, in Lockhart, (decided prior to Limbaugh) the Western Section of the Court of Appeals held that the phrase “infliction of mental anguish” in section 29-20-205(2) included both negligent and intentional infliction of mental anguish, thus preserving immunity for the governmental entity in the event of the negligent infliction of mental anguish caused by an employee. 793 S.W.2d at 943. In this case, the Middle Section of the Court of Appeals disagreed with the decision in Elmore, and instead reached the same conclusion as the court in Lock-hart, that “infliction of mental anguish” included negligent infliction of mental anguish.

In construing statutes, this Court’s role is “ ‘to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.’ ” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn.2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)); see also Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.2000). Legislative intent is derived from the plain and ordinary meaning of the statutory language unless the statute is ambiguous. See State v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000); Owens, 908 S.W.2d at 926. Additionally, because the GTLA’s limited waiver of governmental immunity is in derogation of the common law, it is to be strictly construed and confined to its express terms. Doyle, 49 S.W.3d at 858.

If statutory language is ambiguous, we must look to the entire statutory scheme to determine legislative intent. Owens, 908 S.W.2d at 926. “ ‘A statute is ambiguous if the statute is capable of conveying more than one meaning.’ ” LeTellier v. LeTellier, 40 S.W.3d 490, 498 (Tenn.2001) (quoting Bryant v. HCA Health Servs. of N. Tenn., Inc., 15 S.W.3d 804, 809 (Tenn.2000)). In ascertaining the legislature’s intent, “ ‘[w]e must seek a reasonable construction in light of the purposes, objectives, and spirit of the statute based on good sound reasoning.’ ” Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 286 (Tenn.2001) (quoting State v. Turner, 913 S.W.2d 158, 160 (Tenn.1995)). Component parts of a statute are to be construed, if possible, consistently and reasonably. See State v. Alford, 970 S.W.2d 944, 946 (Tenn.1998).

Aiding in our interpretation of legislative intent are the maxims of nosci-tur a sociis and ejusdem generis. Under the doctrine of noscitur a sociis, “the meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it.” Black’s Law Dictionary 1060 (6th ed.1990); see also Hammer v. Franklin Interurban Co., 209 Tenn. 399, 354 S.W.2d 241, 242 (1962) (holding that statutory terms should be construed with reference to their associated words and phrases). The doctrine of noscitur a sociis permits courts to modify and limit subordinate words and phrases in order to harmonize them with each other and with the evident purpose of the statute. See Scopes v. State, 154 Tenn. 105, 289 S.W. 363, 364 (1927).

Ejusdem generis is an illustration of the broader maxim of noscitur a sociis. Under this doctrine of statutory construction, “whére general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.” Black’s Law Dictionary 517 (6th ed.1990); see also Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994) (citing Nance ex rel. Nance v. Westside Hosp., 750 S.W.2d 740, 743 (Tenn.1988)); State v. Sims, 909 S.W.2d 46, 49 (Tenn.Crim.App.1995). In other words, “ ‘where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace any other than those within the class.’ ” Automatic Merck Co. v. Atkins, 205 Tenn. 547, 327 S.W.2d 328, 333 (1959) (quoting State v. Grosvenor, 149 Tenn. 158, 258 S.W. 140, 141 (1924)).

By way of example, the court in Sims applied the ejusdem generis canon of statutory construction to construe the meaning of “extreme physical pain” as found in the definition of “serious bodily injury,” Tennessee Code Annotated section 39-11-106(a)(33). The court held that the extreme physical pain definition of serious bodily injury must be read as applying to the same class of injuries as those enumerated, i.e. those causing a substantial risk of death, protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use of a bodily member, organ or mental faculty. Sims, 909 S.W.2d at 49.

The statutory language at issue in this case provides that exceptions to a governmental entity’s general waiver of immunity for negligent acts include injuries arising out of “false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights.” Tenn.Code Ann. § 29-20-205(2) (2000) (emphasis added). All of the other torts listed are intentional torts. Applying the doctrines of noscitur a sociis and ejusdem generis, we interpret the phrase “infliction of mental anguish” with reference to the other words and phrases used with it in this section of the act. Accordingly, the tort of infliction of mental anguish must be read as applying to the same class of torts as the rest of those enumerated. See Sims, 909 S.W.2d at 49. Because the rest of the enumerated torts are all intentional torts, we conclude that “infliction of mental anguish” is also meant to include only the intentional tort.

B. Sallee’s Motion to Amend his Complaint

Sallee filed his original complaint against Barrett on March 25, 2003. The discharge of Barrett’s gun occurred on April 4, 2002. On May 19, 2003, when Sallee filed a response to Barrett’s motion to dismiss, Sallee also filed a motion to amend his complaint to add the City of Clarksville as a defendant. The trial court denied this motion to amend as untimely and not relating back to the original complaint.

Rule 15 of the Tennessee Rules of Civil Procedure governs the amendment of pleadings. Rule 15.01 provides that leave to amend pleadings “shall be freely given when justice so requires.” However, the grant or denial of a motion to amend is regarded as being within the sound discretion of the trial court, see Doyle, 49 S.W.3d at 856, and trial courts are not required to grant such motions if “the amendment would have been futile.” Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 923 (Tenn.Ct.App.1991).

The trial court denied the motion to amend, saying that it was “futile” because the amendment would not relate back to the original cause of action, as the motion to amend was filed outside the one-year statute of limitations. Rule 15.03 of Tennessee Rules of Civil Procedure explains when an amendment changing a party relates back to the date of the original pleading:

"Whenever the claim or defense asserted in amended pleadings arose out of the conduct, transaction, or occurrence set forth ... in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party or the naming of the party ... against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

(Emphasis added.)

Thus, Rule 15.03 presents a two-pronged test which must be met in order for an amendment to change the party against whom the claim is asserted. First, the new party must have received sufficient notice of the action within the specified time-frame so that it will not be prejudiced in maintaining its defense. See Doyle, 49 S.W.3d at 856-57; Smith v. Southeastern Props. Ltd., 776 S.W.2d 106, 109 (Tenn.Ct.App.1989). It is reasonable to assume that the City of Clarksville was aware of the action brought by Sallee within the time-frame set forth in the rule because it was the City Attorney for the City of Clarksville that was representing Barrett in his defense of the suit against him.

However, Rule 15.03 requires more than simply showing that the potential new defendant had been made sufficiently aware of the commencement of the action. “The second requirement is that each potential new party must have known that but for a misnomer or mistake concerning his or her identity, the action would have been brought against him or her.” Rainey Bros. Constr. Co. v. Memphis & Shelby County Bd. of Adjustment, 821 S.W.2d 938, 941 (Tenn.Ct.App.1991) (citing Lease v. Tipton, 722 S.W.2d 379, 380 (Tenn.1986)). “A ‘mistake’ within the meaning of this rule does not exist merely because a party who may be hable for conduct alleged in the original complaint was omitted as a party defendant.” Smith, 776 S.W.2d at 109; see also Lease, 722 S.W.2d at 380 (holding that plaintiffs motion to amend her complaint to add her husband as a defendant did not relate back because her failure to sue her husband was not due to misnomer or mistake involving the identity of the proper party, but because the law at the time of the complaint did not allow one spouse to sue another in tort).

It is the plaintiff that has the burden of showing that the failure to name the new defendant in the original complaint resulted from a mistake concerning the identity of the proper party. Rainey Bros. Constr. Co., 821 S.W.2d at 941 (citing Smith, 776 S.W.2d 106). The circumstances of the case before us do not satisfy the second requirement of Rule 15.03— Sallee has failed to show that the failure to name the City of Clarksville in the original complaint resulted from a mistake concerning its identity. Therefore, the trial court did not abuse its discretion in denying Sallee’s motion to amend his complaint.

IV. Conclusion

In sum, considering the ambiguity of the statutory language, the state of the law at the time the statute was enacted, and general principles of statutory construction, we hold that the legislature intended the phrase “infliction of mental anguish” to apply only to the intentional infliction of emotional distress. The City of Clarks-ville does not retain immunity for claims of negligent infliction of emotional distress, and is the proper party-defendant, while Barrett is immune from suit. Therefore, we find that the Court of Appeals erred in reversing the trial court’s grant of the defendant’s motion to dismiss for failure to state a claim. We also hold that because Sallee failed to show that his failure to name the City of Clarksville in the original complaint resulted from a mistake concerning its identity, the requirements of Rule 15.03 were not satisfied, and the trial court did not abuse its discretion in denying Sallee’s motion to amend his complaint to add the City of Clarksville as a defendant.

Costs of this appeal are assessed to Thomas Sallee, and his sureties, for which execution may issue if necessary.

ADOLPHO A. BIRCH, JR., J„ not participating.

      . The terms "infliction of mental anguish” and “infliction of emotional distress” are used interchangeably throughout this opinion.


source: Caselaw Access Project

author: ALAN E. HIGHERS, J.,

license: Public Domain

text:
    LAMAR TENNESSEE, LLC, d/b/a Lamar Advertising of Nashville v. THE CITY OF HENDERSONVILLE.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Aug. 3, 2004 Session.
    Jan. 11, 2005.
    Application for Permission to Appeal Denied by Supreme Court Aug. 22, 2005.

      John R. Bradley, Hendersonville, TN, for Appellant.
    Lawrence P. Leibowitz, Rebecca G. Bond, Knoxville, TN, for Appellee.
   OPINION

ALAN E. HIGHERS, J.,

delivered the opinion of the court,

in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.

In 1987, a billboard advertising company obtained a permit to construct a billboard, approximately seventy-five (75) square feet in size, along a stretch of roadway in Hendersonville, Tennessee. At the time of issuance, the applicable zoning ordinance stated the billboard could not exceed eighty (80) square feet in size. Later that same year, the city passed a new zoning regulation providing that billboards could no longer be erected in the area as a primary use. Instead, billboards could only be erected as an accessory use to another primary use on the premises. The new zoning ordinance did not change the maximum allowable size of a billboard, which remained at eighty (80) square feet. Subsequent to the enactment of the new ordinance, the billboard company filed for a permit, pursuant to section 13-7-208 of the Tennessee Code, seeking to demolish the existing billboard and construct a new billboard, at 220 square feet in size, in its place. When the city denied the permit, the billboard company filed an action in the chancery court seeking a declaratory judgment, writ of mandamus, and permanent injunction. The billboard company also filed a motion for summary judgment, which the chancery court granted. The city filed an appeal to this court. We reverse.

Factual Background and Procedural History

This appeal involves the interpretation of section 13-7-208 of the Tennessee Code. The underlying facts presented in the trial court are undisputed. On October 21, 1987, the City of Hendersonville (“Appellant” or the “City”) issued a permit to Lamar Tennessee, LLC, d/b/a Lamar Advertising of Nashville (“Appellee” or “Lamar Advertising”), allowing Lamar Advertising to construct a billboard approximately seventy-five (75) square feet in size at the intersection of New Shackle Island Road and Volunteer Drive. Lamar Advertising entered into a lease agreement with the owner of the property on which the billboard is located. At the time the City issued the permit, the applicable city ordinance allowed a maximum permissible size for billboards of eighty (80) square feet. Later in 1987, the City amended the applicable ordinance to provide that billboards could no longer be erected in the zone encompassing New Shackle Island Road and Volunteer Drive as a primary use. Instead, signs had to be erected as an “accessory use” to another primary use. However, the new ordinance did not change the maximum allowable size of billboards, which remained eight (80) square feet.

On March 15, 2001, Lamar Advertising sought to demolish the previously constructed sign and filed for a permit to erect a new 220 square foot sign in its place. The City refused to issue Lamar Advertising a permit to expand the size of the existing billboard. As a result, Lamar Advertising filed a complaint in the Chancery Court of Sumner County on April 11, 2001, seeking the following: (1) a declaratory judgment that Lamar Advertising, pursuant to section 13-7-208 of the Tennessee Code, could demolish the existing sign and rebuild the larger sign in its place, and the City exceeded its legal authority by arbitrarily and capriciously denying the permit in violation of section 13-7-208 of the Tennessee Code; (2) a writ of mandamus ordering the City to grant the appropriate permit to erect the new sign; and (3) a permanent injunction restraining the City from interfering with erection of the new sign and ordering the City to issue the necessary permits to accomplish the task.

On November 1, 2001, Lamar Advertising filed a Motion for Summary Judgment with the trial court. The chancellor conducted a hearing on the motion on December 6, 2002, and he granted Lamar Advertising’s motion. On January 14, 2003, the chancery court entered a Final Judgment in favor of Lamar Advertising, providing, in relevant part, as follows:

It is, therefore, ORDERED, ADJUDGED, and DECREED that Plaintiff have the following relief:
1) That the Plaintiff shall be entitled to demolish and rebuild the outdoor advertising display at issue, same being a pre-existing, although presently nonconforming use of said property and such rights are therefore protected under the provisions of Tennessee Code Annotated § 13-7-208;
2) That the Defendant City of Hendersonville is hereby ORDERED to grant to the Plaintiff all appropriate building permits or similar permission with regard to the outdoor advertising structure located on this parcel of land; [and]
3) That a Writ of Mandamus issue, if necessary, ordering the Defendant City of Hendersonville to grant to the Plaintiff the appropriate permits for which is [sic] has applied....

The City filed a timely notice of appeal to this Court presenting the following issue for our review: Whether the chancery court erred in holding that section 13-7-208 of the Tennessee Code permits the Appellee to demolish, rebuild, and expand the billboard at issue. For the reasons set forth herein, we reverse.

Standard of Review

Since this case involves a trial court’s grant of summary judgment to one of the parties in the instant litigation, we apply the following standard of review:

The standards governing an appellate court’s review of a motion for summary judgment are well settled. Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court’s judgment, and our task is confined to reviewing the record to determine whether the requirements of Tenn. R. Civ. P. 56 have been met. Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). Tenn. R. Civ. P. 56.03 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1998); and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of proving that its motion satisfies these requirements. Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991). When the party seeking summary judgment makes a properly supported motion, the burden shifts to the nonmoving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact. Byrd, 847 S.W.2d at 215.

Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997).

The Grant of Summary Judgment

Both parties are in agreement that, subsequent to the City’s enactment of the new ordinance in 1987, the billboard at issue became a legal pre-existing non-conforming use entitled to protection under section 13-7-208 of the Tennessee Code. The City concedes that the applicable statute gives Lamar Advertising the right to maintain, and even replace, the structure. The area of contention between the parties concerns whether the applicable statute permits Lamar Advertising to enlarge the billboard beyond the eighty (80) square feet maximum limitation which the City carried over from the old ordinance and incorporated into the current ordinance.

The power of a municipality to enact zoning regulations derives from the General Assembly’s enactment of zoning legislation codified at section 13-7-101 et seq. of the Tennessee Code. See Lafferty v. City of Winchester, 46 S.W.3d 752, 757-58 (Tenn.Ct.App.2000). In enabling municipalities to enact zoning regulations, the legislature also placed a limitation on the power of municipalities, which this Court has noted by stating:

The General Assembly recognized that empowering local governments to enact zoning ordinances could result in hardship to existing property owners whose property was not previously covered by land use restrictions. These property owners could find themselves in violation of a newly enacted zoning ordinance simply because the existing use of their property was inconsistent with the new restrictions. Rather than leaving the resolution of this problem entirely to the local governments, the General Assembly decided, as a matter of policy, that certain property owners should always be permitted to continue to use their property as they had been using it before the local land use restrictions took effect.

421 Corp. v. Metro. Gov’t of Nashville & Davidson County, 36 S.W.3d 469, 476 (Tenn.Ct.App.2000).; see also Lafferty, 46 S.W.3d at 758. Thus, section 13-7-208(b) of the Tennessee Code provides that:

In the event that a zoning change occurs in any land area ... and such zoning restrictions differ from zoning restrictions imposed after the zoning change, then any ... business establishment in operation, permitted under the zoning regulations or exceptions thereto prior to the zoning change shall be allowed to continue in operation and be permitted; provided, that no change in the use of land is undertaken by such industry or business.

Tenn.Code Ann. § 13-7-208(b)(l) (2003); see also Simmons v. City of Lexington, 11 S.W.3d 136, 141 (Tenn.Ct.App.1999). Subsection (d) of the statute permits a business establishment to “destroy present facilities and reconstruct new facilities necessary to the conduct of such industry or business subsequent to the zoning change.” TenmCode Ann. § 13-7-208(d) (2003); see also 421 Corp., 36 S.W.3d at 476.

The expansion of a business establishment, which the parties argue is the focus of this appeal, is governed by subsection (c), which provides:

[BJusiness establishments in operation and permitted to operate under zoning regulations or exceptions thereto in effect immediately preceding a change in zoning shall be allowed to expand operations and construct additional facilities which involve an actual continuance and expansion of the activities of the industry or business which were permitted and being conducted prior to the change in zoning; provided, that there is a reasonable amount of space for such expansion on the property owned by such industry or business situated within the area which is affected by the change in zoning, so as to avoid nuisances to adjoining landowners. No building permit or like permission for construction or landscaping shall be denied to an industry or business seeking to expand and continue activities conducted by that industry or business which were permitted prior to the change in zoning; provided, that there is a reasonable amount of space for such expansion on the property owned by such industry or business situated within the area which is affected by the change in zoning, so as to avoid nuisances to adjoining landowners.

Tenn.Code Ann. § 13-7-208(e) (2003); see also 421 Corp., 36 S.W.3d at 476. Our review of the complaint filed by Lamar Advertising in the chancery court, as well as the arguments it puts forth on appeal, leads us to conclude that Lamar Advertising takes the position that, when the City changed the zoning ordinance, their use of the billboard became a non-conforming use, therefore, they were automatically entitled, pursuant to section 13-7-208 of the Tennessee Code, to destroy the present billboard and erect in its place a larger structure.

This Court has classified section 13-7-208 of the Tennessee Code as a “grandfather clause,” which we have described as follows:

A grandfather clause is defined as “an exception to a restriction that allows all those already doing something to continue doing it, even if they would be stopped by the new restriction.” Black’s Law Dictionary 629 (5th ed.1979). A grandfather clause exception in a statute must be construed strictly against the party who seeks to come within the exception. Teague v. Campbell County, 920 S.W.2d 219, 221 (Tenn.Ct.App.1995), peiyn. app. denied (Tenn.1996).

Coe v. City of Sevierville, 21 S.W.3d 237, 243 (Tenn.Ct.App.2000); see also Outdoor W. of Tenn., Inc. v. City of Johnson City, 39 S.W.3d 131, 135 (Tenn.Ct.App.2000). Since Lamar Advertising is the party seeking protection of the applicable statute, it has the burden of proving the sign is a pre-existing non-conforming use qualifying for protection. Lamar Adver. of Tenn., Inc. v. City of Knoxville, 905 S.W.2d 175, 176 (Tenn.Ct.App.1995) (citation omitted); see also Outdoor W. of Tenn., 39 S.W.3d at 135; Coe, 21 S.W.3d at 243. In satisfying this burden, Lamar Advertising must show (1) a change in zoning restrictions, and (2) permissive operation of the business prior to the change. Rives v. City of Clarksville, 618 S.W.2d 502, 505 (Tenn.Ct.App.1981).

The chancellor, in granting summary judgment to Lamar Advertising, relied on the holding in Lamar Advertising of Tennessee, Inc. v. City of Knoxville, No. 03A01-9407-CH-00252, 1995 WL 124292, 1995 Tenn.App. LEXIS 184 (Tenn.Ct.App. Mar.23, 1995), perm. app. denied 1997 WL 170304, 1995 Tenn. LEXIS 495 (Tenn. Aug. 28,1995), an unreported decision rendered by the Eastern Section of this Court, to find that section 13-7-208 of the Tennessee Code allowed Lamar Advertising to expand its sign. That case involved a dispute concerning three separate parcels of land which contained signs operated by Lamar Advertising. Lamar Advertising of Tenn., Inc., 1995 WL 124292, at *3, 1995 Tenn.App. LEXIS 184, at *1. On one of the parcels, Lamar Advertising had maintained a billboard since 1971 in an area where the city permitted billboards. Id. 1995 WL 124292, at *3, 1995 Tenn.App. LEXIS 184, at *2. Subsequently, the city enacted a new zoning ordinance prohibiting the erection of a billboard within 750 feet of another billboard along the same section of roadway. Id. 1995 WL 124292, at *3, 1995 TenmApp. LEXIS 184, at *7. In 1989, Lamar Advertising applied for a permit from the city to tear down the sign in question and build an updated version in its place. Id. However, the new sign was to be moved some twenty-four (24) feet toward the roadway and closer to another sign in violation of the new ordinance. Id. When the city denied the permit, Lamar Advertising filed an action in chancery court which resulted in a finding in favor of Lamar Advertising. Id. 1995 WL 124292, at *3, 1995 TenmApp. LEXIS 184, at *8. The city appealed the decision, arguing that “allowing Lamar to rebuild its sign in a manner that increases its nonconformity gives Lamar greater rights in its sign than the owner of a conforming sign has.” Id. In rejecting the City’s argument and affirming the ruling of the chancery court, the Court stated:

In any event, we need not speculate regarding the extent to which the Legislature wished to protect non-conforming uses because the limits of the protection are set out in the Statute. Subsection (d) of T.C.A. 13-7-208 applies only where the construction and rebuilding does not “change the use classification of the land.” The reconstruction Lamar proposed certainly does not change its use of the land at all.
Furthermore, the Statute allows reconstruction only when “there is a reasonable amount of space for such expansion on the property owned by such industry or business situated within the area which is affected by the change in zoning, so as to avoid nuisances to adjoining landowners.”

Id. 1995 WL 124292, at *3-4, 1995 Tenn. App. LEXIS 184, at *8-9. The chancellor held that, since Lamar Advertising was not changing the use of the land and did not require additional space, Lamar Advertising was entitled to expand the sign in question.

In turn, the City is, in essence, attacking the chancery court’s decision on two fronts. First, the City makes the policy argument that the legislature intended section 13-7-208 of the Tennessee Code to protect businesses from zoning changes business owners did not anticipate when commencing their business. According to the City, since the size restriction in effect when Lamar Advertising originally built the sign is the same size restriction in the new zoning ordinance, it strains the statutory language to hold that Lamar Advertising may invoke the statute’s protection by merely relying on an unrelated change in the zoning law.

Second, the City asserts that Lamar Advertising failed to satisfy the two threshold requirements announced by this Court in Rives. In support of this position, the City relies on two decisions rendered by this Court interpreting section 13-7-208 of the Tennessee Code. Regarding the first prong in Rives, the City relies on the decision in Lamar Advertising of Tennessee, Inc. v. City of Knoxville, 905 S.W.2d 175 (Tenn.Ct.App.1995), where it was stated:

As for the first prong of the Rives test, the Chancellor found that the City’s annexation of the land supplied the necessary change in zoning prior to which Lamar’s use was permitted. This determination was in error. The Rives Court required more than a change in enforcement. The Court stated that the zoning change must be significant “insofar as the plaintiff is concerned”; it required a change in the uses allowed under the zoning code, which change affects the plaintiffs use of his land.
The record below shows that in 1972 the area in question was in an Agricultural Zone where billboards were prohibited. The record further shows that the area was rezoned in 1979 from Agricultural to Planned Commercial, which also prohibits billboards. The Planned Commercial zoning is still in effect. The record clearly indicates that there has been no change in the Zoning Code affecting Lamar’s use of its land since before T.C.A. 13-7-208 went into effect in 1973. Lamar is unable to meet its burden of showing a change in the Zoning Code which affects its use of the land in question. Consequently, Lamar cannot invoke the protection of T.C.A. 13-7-208.

Lamar Advertising of Tenn., Inc., 905 S.W.2d at 177 (emphasis added). Applying this rationale, the City argues that the change to the zoning ordinance at issue in this case did not affect Lamar Advertising’s use of the property since Lamar Advertising may still maintain the current sign. Next, the City points to our decision in Coe v. City of Sevierville, 21 S.W.3d 237 (Tenn.Ct.App.2000), where it was stated “[i]t would be a ‘strained and illogical conclusion’ to say the Legislature intended to grandfather a use which would put Plaintiff in a better position than she was in before the zoning became effective.” Coe, 21 S.W.3d at 243 (citing Teague v. Campbell County, 920 S.W.2d 219, 221 (Tenn.Ct.App.1995)).

We find that the chancery court erred in relying solely on our decision in Lamar Advertising of Tennessee, Inc. v. City of Knoxville, No. 03A01-9407-CH-00252, 1995 WL 124292, 1995 Tenn.App. LEXIS 184 (Tenn.Ct.App. Mar.23, 1995), to support a grant of summary judgment in favor of Lamar Advertising. We note, as does Lamar Advertising, that before Lamar Advertising can rebuild an expanded version of the billboard at issue, it must first destroy the present structure. In order to do so, reference must be made to section 13-7-208(d) of the Tennessee Code, which provides that a business establishment “shall be allowed to destroy present facilities and reconstruct new facilities necessary to the conduct of such industry or business subsequent to the zoning change.” Tenn.Code Ann. § 13-7-208(d) (2003) (emphasis added). We need not determine whether Lamar Advertising satisfied its burden by proving the existence of the two threshold requirements set forth in Rives. Assuming arguendo that Lamar Advertising did in fact satisfy the threshold requirements announced in Rives, in order to comply with section 13-7-208(d) of the Tennessee Code, Lamar Advertising needed to go further and prove that destroying the present structure was “necessary to the conduct of such industry or business subsequent to the zoning change.” Tenn.Code Ann. § 13-7-208(d) (2003); see also Outdoor W. of Tenn., Inc. v. City of Johnson City, 39 S.W.3d 131,136 (Tenn.Ct.App.2000).

In Outdoor West, Lamar Advertising sought eleven permits from the city in order to enlarge and/or change the billboards to double-faced structures to provide more advertising space. Outdoor W. of Tenn., Inc., 39 S.W.3d at 133. In 1988, the city passed a zoning ordinance prohibiting the construction of new billboards. Id. The city manager testified at trial that from 1981 until 1988, the zoning ordinance in effect at the time permitted billboards as long as they were no larger than 672 square feet in size. Id. at 134. Since the billboards at issue were constructed prior to 1988, Lamar Advertising argued that section 13-7-208 of the Tennessee Code applied, and, therefore, they could upgrade the billboards. Id. at 133. After the trial court deemed the billboards a non-conforming use, it applied section 13-7-208 of the Tennessee Code by ordering the city to grant the requested permits to Lamar Advertising, and the city filed an appeal to this Court. Id. at 134-35.

After finding that the threshold requirements announced in Rive were met in Outdoor West, we stated:

The City argues that subsection (d) applies, that Lamar has failed to prove that the destruction and reconstruction is “necessary to the conduct of such industry or business,” and, therefore, the judgment of the Trial Court must be reversed. We agree with the City that subsection (d) appears to require a higher standard of proof by Lamar, since under that section, Lamar must show that the reconstruction is “necessary to the conduct of [the] industry or business.”

Id. at 136. In Outdoor West, we affirmed the trial court’s finding due to the abundant testimony offered by a representative of Lamar Advertising illustrating the need for the expansions. Id. at 136-37. A review of the record presently before the Court commands us to reach a different result in this case.

“Summary judgment should be awarded when the moving party can demonstrate that there are no genuine issues regarding material facts of the cause of action and that it is entitled to a judgment as a matter of law.” Keltner v. Open Lake Sporting Club, No. W2002-00449-COA-R3-CV, 2003 WL 346932, at *3, 2003 Tenn.App. LEXIS 128, at *8 (Tenn.Ct.App. Feb.12, 2003) (citing Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998)). We find that the chancery court erred in awarding summary judgment to Lamar Advertising because, under the plain language of section 13-7-208 of the Tennessee Code and our interpretation of this language in Outdoor West, an issue of fact remains regarding whether destruction of the existing structure to facilitate the rebuilding of a new billboard is necessary to the conduct of Lamar Advertising’s business. The record reveals that Lamar Advertising made merely a perfunctory statement in its motion for summary judgment to the effect that “Lamar desires to demolish and construct a more modern structure at the location.” At the hearing, counsel for Lamar Advertising reiterated this same sentiment by stating “Lamar wishes to tear the sign down and put up a more modern structure.” These statements do not explain why rebuilding a larger sign is “necessary” to Lamar Advertising’s business. See Outdoor W. of Tenn., Inc., 89 S.W.3d at 136. When a genuine issue of fact remains to be resolved by the fact-finder, summary judgment is inappropriate. See Buddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343, 347 (Tenn.Ct.App.1999); City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 738-39 (Tenn.Ct.App.1996).

Conclusion

Based on the reasons set forth herein, we find that the chancery court erred in awarding summary judgment to the Appel-lee in this case. Accordingly, we reverse the chancellor’s decision and remand this case to the chancery court for further proceedings consistent with this opinion. Costs of this appeal are assessed against the Appellee, Lamar Tennessee, LLC, for which execution may issue if necessary.

      . Around the same time Lamar Advertising applied for the permit to expand the size of the sign located at New Shackle Island Road and Volunteer Drive, it also filed for a permit to demolish and rebuild another 220 square foot sign located in another part of the city. This second sign, already 220 square feet in size, was also erected prior to the new ordinance taking effect. Therefore, the City granted this permit because Lamar Advertising was not enlarging the sign beyond its original size.

      . Lamar Advertising qualifies as a "business establishment” under the applicable statute. See Outdoor W. of Tenn. v. City of Johnson City, 39 S.W.3d 131, 137-38 (Tenn.Ct.App. 2000). The fact that Lamar Advertising leased the premises on which its sign is located does not change this result. See Creative Displays, Inc. of Knoxville v. City of Pigeon Forge, 576 S.W.2d 356, 358 (Tenn.Ct.App. 1978) (stating that a business does not have to be a fee owner of the subject land, but it may be a lessee and still qualify for protection under Tenn.Code Ann. § 13-7-208).


author: PER CURIAM.

text:
    DIAMOND OFFSHORE MANAGEMENT CO., Petitioner, v. Lela GUIDRY, Individually and a/n/f of Hunter Guidry and as Independent Administratrix of the Estate of Craig Guidry, Respondent.
    No. 02-0884.
    Supreme Court of Texas.
    April 8, 2005.
    Rehearing Denied Oet. 14, 2005.

      Michael K. Rose, Mark Freeman, Stevens Baldo & Freeman, L.L.P., Beaumont, Jacqueline M. Stroh, Crofts & Callaway, P.C., San Antonio, for petitioner.
    Brent W. Coon, Brent Coon & Associates, Houston, David P. Wilson, Andrew Cowan, Provost & Umphrey Law Firm, L.L.P., Beaumont, for respondent.
   PER CURIAM.

In this wrongful death action under the Jones Act, the trial court rendered judgment on a verdict for the plaintiff of a deceased seaman, killed ashore when he was thrown from the bed of a pickup in a one-vehicle accident. A divided court of appeals affirmed. Petitioner, the decedent’s employer, complains that there is no evidence that at the time of the accident the decedent was “in the course of his employment”, as required by the Act, but alternatively, even if there was some evidence to that effect, it was not conclusive, and the jury should therefore have been, but was not, asked to find whether the decedent and his co-employee, who was driving the pickup, were then in the course of their employment. We agree that the jury was not properly charged and therefore reverse and remand the case for a new trial.

Late one evening, at the end of their 12-hour shift, Craig Guidry and several of his fellow crew members left the Ocean Tower, a jack-up offshore rig docked for repairs in the Sabine Pass shipyard, and drove in two vehicles about five miles down the road to see the Ocean Confidence, a much larger rig also owned by their employer, Diamond Offshore Management Co. Diamond did not object to their leaving. The weather was too foggy for anyone to get a good look, so they went instead over to the Chicken Crossing, a nearby karaoke bar, arriving about midnight. The testimony admitted at trial is conflicting about whether they had anything alcoholic to drink. They all left about 2:00 a.m., when the bar closed, to return to their rig, since they were in the middle of a two- or three-week hitch during which they lived and worked on the rig. Although it was drizzling, Guidry decided to ride in the bed of the pickup driven by his co-worker, Sammy Martinez. On the way, Martinez was speeding and lost control, and Guidry was thrown from the truck. He died of his injuries days later. The trial court excluded evidence that Guidry’s blood-alcohol content was about twice the level for legal intoxication in Texas.

Guidry’s wife, Lela, sued Diamond on behalf of herself, their son, and Guidry’s estate. Ten members of the jury found that the negligence of both Diamond and Guidry caused his injuries, allocated responsibility 35% to Diamond and 65% to Guidry, and assessed damages of $1,250,000. The trial court rendered judgment on the verdict, awarding the plaintiff $620,672.42, including pre-judgment interest. As already noted, a divided court of appeals affirmed.

Jones Act lawsuits in state courts are governed substantively by federal maritime law and procedurally by state law. The plaintiff concedes, as she must, that to recover for Guidry’s death, she was required to prove that it occurred while he was “in the course of his employment” within the meaning of the Act. The parties disagree about what evidence is sufficient to meet this burden, and whether any was adduced.

Diamond argues for three reasons that none was. First, Diamond says, there is no evidence that it could possibly have benefitted from a few employees’ drive-by, midnight viewing of another rig docked for repairs. But two of Diamond’s managerial employees, John Auth and John McWil-liams, as well as the plaintiffs expert testified that such a venture could have been in the course of employment. That testimony was some evidence to satisfy the plaintiffs burden. Second, Diamond contends, there is no evidence that Guidry himself went near the Ocean Confidence that night, even if his fellows did. But the jury could reasonably have inferred, from evidence that he suggested the excursion and accompanied the others, that he went by the rig as they did.

Third, and more importantly, Diamond argues that Guidry and his co-workers’ principal destination all along was really the Chicken Crossing, which could not have been in the course of their employment. Diamond acknowledges that seamen may be on shore leave and nevertheless in the service of the vessel, but it argues that the rationale for this rule is limited to “blue-water” seamen, for whom “[t]he voyage creates not only the need for relaxation ashore, but the necessity that it be satisfied in distant and unfamiliar ports.” Diamond cites the Fifth Circuit’s decision in Sellers v. Dixilyn Corp. as an example of the proper distinction between “blue-water” seamen and rig workers. But in that case the rig worker was denied maintenance and cure for injuries he sustained in a one-vehicle accident on his way home for a week after having finished his hitch on the rig. Assuming Sellers is correct, Guidry’s two-hour venture from his rig mid-hitch is not so far removed from his work there as to be, as a matter of law, outside the scope of his employment.

While there was thus some evidence that Guidry was in the course of his employment, that evidence was not conclusive. The jury was free to disbelieve the plaintiffs expert. Auth also testified that employees did not further Diamond’s interests when they were off-duty and that going to a bar would not be business-related. McWilliams’ credibility was in question because Diamond had terminated his employment under circumstances he believed were not justified. Further, a seaman’s misconduct while on shore leave, such as intoxication, may take him outside the course of employment. Thus, the issue whether Guidry was in the course of his employment at the time of the accident was one for the jury.

The trial court correctly instructed the jury as follows:

A seaman’s employer is legally responsible for the negligence of one of his employees while that employee is acting within the course and scope of his employment.
A seaman’s own wilful misconduct, consisting of something which is done in pursuance of some private avocation or business, or grows out of relations unconnected with the service of the vessel, or not logically incident of duty in the service of the vessel may constitute an intervening cause.
A seaman’s employer may be hable under the Jones Act for injuries to the seaman only if the seaman was injured “in service of the vessel” or “in the course of his employment”. Under the Jones Act “course and scope” of employment includes the whole period of service to the vessel by the seaman. A seaman on shore leave may or may not be acting in service of the vessel, or in the course of his employment, for purposes of application of the Jones Act.

The trial court then submitted a single liability question as follows:

Did the negligence, if any, of those named below [Diamond and Guidry] legally cause the injuries to Craig Guidry in question.

Diamond requested in writing that the trial court also inquire of the jury whether Guidry and Martinez were acting in service of the vessel at the time of the accident, and the trial court endorsed those requests as “refused”. At the charge eon-ference, the trial court stated that it would treat Diamond’s refused requests as objections to the charge.

Diamond complains that despite the trial court’s instructions regarding “course of employment”, it never asked the jury for a finding on the issue. We agree. The plaintiff argues, as the court of appeals concluded, that the instructions clearly informed the jury of the requirement that Guidry and Martinez were acting in the course of their employment. While that is true, the liability question made no reference to the requirement or allowed the jury to take it into account. The jury was asked to find only negligence and causation. The court of appeals concluded that the questions Diamond requested were improper inferential rebuttal questions, but this is simply incorrect. As we have explained, “[t]he basic characteristic of an inferential rebuttal is that it presents a contrary or inconsistent theory from the claim relied upon for recovery.” The questions Diamond requested did not present a theory inconsistent with the plaintiffs claim; they asked about elements of the plaintiffs claim.

The plaintiff argues that submitting separate questions on the issue of course of employment would be inconsistent with the mandate of Rule 277 of the Texas Rules of Civil Procedure that broad-form questions be used whenever feasible. But Diamond does not complain that questions about course of employment were not asked separately; it complains that no such questions were asked at all. Broad-form submission does not entail omitting elements of proof from the charge. While the trial court could certainly have inquired about the separate issues of negligence, causation, and course of employment in a single question with proper instructions, Diamond was not obligated to request such a question. It was required only to object to the absence of any inquiry, which the trial court acknowledged Diamond had done with its requested questions.

Moreover, the jury was not asked whether Martinez was acting in the scope of employment at the time of the accident, a prerequisite, the plaintiff concedes, for imposing vicarious liability on Diamond, his employer. Because the evidence on this issue, too, was conflicting, the trial court erred in not requesting a finding from the jury.

Accordingly, we reverse the judgment of the court of appeals, and without hearing oral argument, remand the case to the trial court for a new trial.

Chief Justice JEFFERSON did not participate in the decision.

      . 46 U.S.C.App. § 688 ("Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.”).

      . 84 S.W.3d 256 (Tex.App.-Beaumont 2002).

      . Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998) (in a Jones Act case "the state court must apply substantive federal maritime law but follow state procedure”).

      . See note 1, supra; Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 130-131, 80 S.Ct. 247, 4 L.Ed.2d 191 (1959); O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 38, 63 S.Ct. 488, 87 L.Ed. 596 (1943).

      . Braen, 361 U.S. at 132, 80 S.Ct. 247; Warren v. United States, 340 U.S. 523, 529-530, 71 S.Ct. 432, 95 L.Ed. 503 (1951); Aguilar v. Standard Oil Co., 318 U.S. 724, 730-734, 63 S.Ct. 930, 87 L.Ed. 1107 (1943).

      . Aguilar, 318 U.S. at 734, 63 S.Ct. 930.

      . 433 F.2d 446, 448 (5th Cir.1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 332 (1971).

      . Cf. Warren, 340 U.S. at 528, 71 S.Ct. 432 (noting that some cases hold that a seaman is not entitled to maintenance and cure for injuries resulting from intoxication); Aguilar, 318 U.S. at 731, 63 S.Ct. 930 (noting that seamen have been denied maintenance and cure for injuries resulting from intoxication though the exception has sometimes been "qualified in recognition of a classic predisposition of sailors ashore”).

      . 84 S.W.3d at 264.

      . Id.

      . Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex.1978).

      . See Keetch v. Kroger Co., 845 S.W.2d 262, 267 (Tex.1992) (Hecht, J., concurring) ("It should hardly need be said that broad form submission does not entail omitting elements of proof from the charge.”).

      . State Dept. of Highways & Pub. Tramp, v. Payne, 838 S.W.2d 235, 239-239 (Tex.1992); see also First Valley Bank v. Martin, 144 S.W.3d 466, 475-476 (Tex.2004) (Wainwright, J., concurring).

      . See TEX. R. APP. P.59.1.


author: Chief Justice JEFFERSON

text:
    AUSTIN NURSING CENTER, INC. d/b/a Austin Nursing Center; Century Care of America, Inc.; Paul Gray; Paul Hanlon; and Guadalupe Zamora, M.D., Petitioners, v. Pauline Wilson LOVATO, Independent Administratrix of the Estate of Margarita Torres Wilson, Respondent.
    No. 03-0659.
    Supreme Court of Texas.
    Argued Nov. 10, 2004.
    Decided May 13, 2005.
    Rehearing Denied Oct. 14, 2005.

      Ruth G. Malinas, Christopher John Deeves, Cynthia Day Grimes, Ball & Weed, P.C., San Antonio, Laura Swar-brick, David M. Davis, V. Elizabeth Led-better and Peter R. Meeker, Davis & Wilkerson, P.C., Austin, for Petitioner.
    Alfonso L. Melendez, Anna Nigel Mark-etto, Melendez & Marketto, P.C., El Paso, and Raul Steven Pastrana, Pastrana Law Firm, Austin, for Respondent.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

On behalf of her deceased mother, Pauline Wilson Lovato filed a survival action against Guadalupe Zamora, M.D., Austin Nursing Center, Inc., and related entities and individuals (collectively “Austin Nursing Center”). In her original petition, filed within the statute of limitations, Lo-vato asserted that she was the personal representative of her mother’s estate. In actuality, Lovato was not appointed independent administrator until after the statute of limitations on the survival action expired. Austin Nursing Center moved for summary judgment, arguing that Lova-to lacked standing to bring the survival action at the time the case was filed, and the trial court granted the motion. The court of appeals reversed, holding that Lo-vato’s later-acquired status as the estate’s personal representative gave her standing, which related back to the time of the lawsuit’s original filing.

We hold that the standing doctrine’s requirements were satisfied and that the trial court had jurisdiction to hear the case. We further hold that although Lova-to may have lacked capacity to bring the survival action at the time the lawsuit was filed, any defect in her capacity was later cured by her appointment as the estate’s administrator. Accordingly, we affirm the court of appeals’ judgment.

I

Background

Ninety-two-year-old Margarita Torres Wilson allegedly developed pressure ulcers while a resident at Austin Nursing Center from May to June 1998. She was discharged from the center in June and transferred to another care facility. Wilson died on August 18,1998.

On January 27, 2000, before limitations expired, Lovato filed this survival action on behalf of her mother’s estate pursuant to the survival statute, which provides that “[a] personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.” Tex. Civ. PRac. & Rem.Code § 71.021(b). Lovato alleged that she was the “Personal Representative” of Wilson’s estate, but also that “no administrator [of the estate] ha[d] been appointed.” Lovato asserted that Austin Nursing Center’s medical negligence harmed Wilson, resulting in physical pain and impairment, mental anguish, medical expenses, and disfigurement.

Two months after she brought the survival action, Lovato filed an application for independent administration of Wilson’s estate in the probate court, asking that she be appointed administrator of the estate and alleging that her mother died intestate, had no real property, and had personal property valued at less than $2,000. The probate court appointed Lovato administrator nearly two years later, on May 9, 2002, after the statute of limitations on the survival action had expired.

On April 22, 2002, Austin Nursing Center moved for summary judgment, arguing that because Lovato did not prove she was an heir or the estate’s personal representative, she lacked standing to bring the survival claim, depriving the trial court of subject matter jurisdiction. Austin Nursing Center argued alternatively that the survival claim was barred by limitations because a party with standing did not timely assert it.

Lovato filed her fourth amended petition and her first supplemental petition on May 20, 2002. In these petitions, Lovato alleged that she was the “Independent Ad-ministratrix” of her mother’s estate. Lo-vato then responded to Austin Nursing Center’s motion for summary judgment, arguing that her fourth amended petition related back; that she fulfilled the purpose and intent of the statute of limitations by notifying the defendants of the survival claim; and that she had standing to bring the survival claim because she was an heir at the time the original petition was filed, and no administration was pending or necessary.

On July 18, 2002, the trial court granted Austin Nursing Center’s motion for summary judgment and dismissed the survival action. The court of appeals reversed the trial court’s judgment, holding that (1) Lo-vato had “filed her original petition within the limitations period, with authority to bring the survival action as an heir”; and (2) “Lovato became the independent administrator of her mother’s estate and filed an amended petition in that capacity.” 113 S.W.3d 45, 55. The court reasoned that “Lovato cured her defective standing as personal representative of the estate,” because her post-limitations petition “relate[d] back to the original filing of her case.” Id. (citing Tex. Civ. PRac. & Rem. Code § 16.068). Thus, the court of appeals concluded that the trial court had jurisdiction to hear the survival action. Id.

We granted Austin Nursing Center’s petition for review. 47 Tex. Sup.Ct. J. 658 (June 18, 2004).

Ill

Discussion

Austin Nursing Center argues that the court of appeals erred because, under our decision in Shepherd v. Ledford, Lovato had standing as an heir only if she could plead and prove that there was no administration pending in probate court and none was necessary. See Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex.1998). According to Austin Nursing Center, Lovato failed to meet this burden. Austin Nursing Center also contends that the court of appeals incorrectly permitted Lovato’s post-limitations appointment as administrator to cure her pre-limitations lack of standing, an incurable jurisdictional defect.

Lovato contends that the court of appeals’ judgment should be affirmed because she had standing as an heir when she originally filed the survival action within the limitations period. Alternatively, Lovato contends that even if she lacked standing as an heir when she originally filed the survival action, her post-limitations amended petition, which she filed as independent administrator of Wilson’s estate, related back to the original filing of the survival action, thereby correcting any deficiency in standing. We turn first to the issue of standing.

A

Standing Versus Capacity

The parties dispute whether Lovato had standing to assert a survival claim on behalf of Wilson’s estate. Although courts and parties have sometimes blurred the distinction between standing and capacity, we believe that the issue presented here is more appropriately characterized as one of capacity.

A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp., 46 S.W.3d at 884. The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a “justiciable interest” in its outcome, whereas the issue of capacity “is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.” 6A ChaRles Alan Wright, Arthur r. Miller, and Mary Kay Kane, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, at 441 (2d ed.1990). We have previously distinguished between these two threshold requirements as follows:

A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.

Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996); see also 6A WRIGHT, MilleR, & Kane, FEDERAL PRACTICE AND PROCEDURE: ClVTL 2d § 1559, at 441 (“Capacity has been defined as a party’s personal right to come into court, and should not be confused with the question of whether a party has an enforceable right or interest.”).

In Texas, the standing doctrine requires that there be (1) “a real controversy between the parties,” that (2) “will be actually determined by the judicial declaration sought.” Nootsie, 925 S.W.2d at 662 (quoting Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993)). Implicit in these requirements is that litigants are “properly situated to be entitled to [a] judicial determination.” 13 ChaRLes Alan Weight, Arthur R. Miller, and Edward H. Cooper, Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3531, at 338-39 (2d ed.1984). Without standing, a court lacks subject matter jurisdiction to hear the case. Tex. Ass’n of Bus., 852 S.W.2d at 443. Thus, the issue of standing may be raised for the first time on appeal. Id. at 445.

In addition to standing, a plaintiff must have the capacity to pursue a claim. For example, minors and incompetents are considered to be under a legal disability and are therefore unable to sue or be sued in their individual capacities; such persons are required to appear in court through a legal guardian, a “next friend,” or a guardian ad litem. See Sax v. Votteler, 648 S.W.2d 661, 666-67 (Tex.1983); Peek v. DeBerry, 819 S.W.2d 217, 218 (Tex.App.-San Antonio 1991, writ denied); see also Tex. Probate Code §§ 601(14), 773; Tex.R. Civ. P. 44, 173. Similarly, a decedent’s estate “is not a legal entity and may not properly sue or be sued as such.” Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.1975); see also Henson v. Crow, 734 S.W.2d 648, 649 (Tex.1987). Although a minor, incompetent, or estate may have suffered an injury and thus have a justiciable interest in the controversy, these parties lack the legal authority to sue; the law therefore grants another party the capacity to sue on their behalf. Unlike standing, however, which may be raised at any time, a challenge to a party’s capacity must be raised by a verified pleading in the trial court. Tex.R. Civ. P. 93(l)-(2); Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 56 (Tex.2003).

B

Survival Claims — Standing

At common law, a person’s claims for personal injuries did not survive her death. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 (Tex.1992); see also Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex.1963). In 1895, the Legislature abrogated this rule by enacting the survival statute, which now provides: “A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.” See Act of May 4, 1895, ch. 89, 1895 Tex. Gen. Laws 143 (now codified at Tex. Civ. Prac. & Rem.Code § 71.021(b)); Russell, 841 S.W.2d at 344. We have described a survival claim as one that belongs to the decedent:

[Under the Texas Survival Statute], a decedent’s action survives his death and may be prosecuted in his behalf. The survival action, as it is sometimes called, is wholly derivative of the decedent’s rights. The actionable wrong is that which the decedent suffered before his death. The damages recoverable are those which he himself sustained while he was alive and not any damages claimed independently by the survival action plaintiffs (except that funeral expenses may also be recovered if they were not awarded in a wrongful death action). Any recovery obtained flows to those who would have received it had he obtained it immediately prior to his death — that is, his heirs, legal representatives and estate.

Russell, 841 S.W.2d at 345 (citations omitted); see also Tex. Civ. Prac. & Rem.Code § 71.021(b). The parties to a survival action seek adjudication of the decedent’s own claims for the alleged injuries inflicted upon her by the defendant. Had the decedent lived, she would have had standing to seek redress in the courts for those injuries; due to her death, a representative must pursue the claim on her behalf. Here, that representative, Wilson’s daughter, was ultimately granted the power to sue on the estate’s behalf. A change in the status of the party authorized to assert the decedent’s personal injury claim, however, does not change the fact that the decedent has been personally aggrieved and would not, therefore, eliminate the decedent’s justiciable interest in the controversy. Because a decedent’s survival claim becomes part of her estate at death, it follows that the estate retains a justicia-ble interest in the survival action.

We therefore hold that, in a survival action, the decedent’s estate has a justiciable interest in the controversy sufficient to confer standing. See Landers, 369 S.W.2d at 35 (noting that a survival action seeks recovery for “damages sustained by the decedent and his estate as a result of the [wrongful] injuries.”) (emphasis added); see also Glickstein v. Sun Bank Miami, N.A., 922 F.2d 666, 670 (11th Cir.1991) (holding that the decedent’s estate had standing because “[t]he traditional requirement that the plaintiff show an injury in fact that is fairly traceable to the conduct of the defendant is met by the allegation in the complaint that the defendants’ actions resulted in the diminishment of the assets of the estate”) (footnote omitted). When a decedent has been personally aggrieved by a defendant’s conduct, the survival action advances a “real controversy” between the estate and the defendant that “will be actually determined by the judicial declaration sought.” See Nootsie, 925 S.W.2d at 662. Therefore, because the pleadings in this case alleged that the defendants’ negligent conduct injured Wilson, her estate had standing to pursue a claim.

We next consider whether Lovato had the capacity to bring the survival claim on the estate’s behalf.

C

Survival Claims — Capacity

Certain individuals are afforded the capacity to bring a claim on an estate’s behalf. In general, only the estate’s personal representative has the capacity to bring a survival claim. Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex.1971) (“[T]he personal representative ... is ordinarily the only person entitled to sue for the recovery of property belonging to the estate.”); see also Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex.1998). We have acknowledged, however, that under certain circumstances heirs may be entitled to sue on behalf of the decedent’s estate. Shepherd, 962 S.W.2d at 31-32. For example, in Shepherd, we held that “[h]eirs at law can maintain a survival suit during the four-year period the law allows for instituting administration proceedings if they allege and prove that there is no administration pending and none [is] necessary.” Id. We also acknowledged that a family agreement regarding the disposition of the estate’s assets can provide support for the assertion that no administration of the decedent’s estate is necessary. Id. at 32-34.

The parties dispute whether, under this Court’s holding in Shepherd, Lovato was qualified to bring suit as an heir at the time she filed the survival action. See Stewart v. Hardie, 978 S.W.2d 203, 206-07 (Tex.App.-Fort Worth 1998, pet. denied); Ford Motor Co. v. Cammack, 999 S.W.2d 1, 4 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). We need not decide whether Lovato proved heirship, however, because we hold that, in any event, Lovato acquired the capacity to sue as the estate’s personal representative when she was appointed administrator on May 9, 2002. We must, therefore, consider whether Lovato’s claims are barred because she did not cure the defect in her representative capacity until after limitations had expired.

D

Defects in Capacity

The survival action in this case is a health care liability claim governed by the two-year statute of limitations in the Medical Liability and Insurance Improvement Act (the “MLIIA”). See Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.01-12.01, 1977 Tex. Gen. Laws 2039-2053 (former Tex.Rev.Civ. Stat. art. 4590i), repealed by Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. The parties agree that limitations expired on November 1, 2000 and that Lovato filed her original petition before that date. Her fourth amended and first supplemental petitions, however, were filed after limitations ran. The parties dispute whether these amended petitions should relate back to Lovato’s original petition.

Generally, cases involving post-limitations representative capacity involve an amended pleading alleging that capacity for the first time. See, e.g., Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117, 118 (1929); Pope v. Kansas City, M. & O. Ry. Co. of Tex., 109 Tex. 311, 207 S.W. 514, 516 (1918); see also Flores v. Cameron Co., Tex., 92 F.3d 258, 271-72 (5th Cir.1996). In such cases, the issue is usually whether the plaintiffs post-limitations amendment, altering the plaintiffs capacity, can relate back to the plaintiffs pre-limitations pleadings. 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, though apparently untrue, asserted that Lovato was bringing suit in her capacity as the estate’s representative. 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-limita-tions lack thereof. We conclude that it does.

We have previously recognized that the substitution of a personal representative for dependents does not introduce a new or different cause of action and that such a substitution will relate back to the time of the original filing of the lawsuit. Pope, 207 S.W. at 516. Similarly, when a widow filed suit in her individual capacity and later amended her pleadings to assert her capacity as administratrix, we held “[t]hat this defect did not prevent her suit from being ‘properly commenced,’ ” prior to expiration of the statute of limitations. Davis, 16 S.W.2d at 118. We noted that:

The defect in her petition was that she sued as an individual, instead of as ad-ministratrix. She was the real party at interest, no matter by whom the suit was prosecuted.
This action was commenced before it was barred under the terms of any statute of limitations by the filing of the original petition and the service of citation on the Director General.

Id.; see also Mo., Kans. & Tex. Ry. Co. v. Wulf, 226 U.S. 570, 575-78, 33 S.Ct. 135, 57 L.Ed. 355 (1913) (holding that an amendment by a plaintiff to allege a claim in her representative capacity as administrator of estate under federal law, related back to claims brought in her individual capacity under state law; such an amendment was not equivalent to the commencement of a new cause of action so as to subject the amendment to the statute of limitations); Flores, 92 F.3d at 272-73 (5th Cir.1996) (applying federal relation-back rule to Texas survival claim to conclude that mother’s amended complaint alleging that she was the administrator of her son’s estate related back to her original complaint filed on behalf of her son but failing to allege her representative capacity). Although we decided Davis and Pope before the relation-back statute was enacted, we do not believe the statute compels a different result. Moreover, when 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).

If, as we have held, a plaintiffs amended pleading alleging representative capacity satisfies the relation-back requirements, an original petition that alleges the correct capacity should suffice for limitations purposes, provided that capacity, if challenged, is established within a reasonable time. The trial court, by granting summary judgment, necessarily concluded that, despite her pleading to the contrary, Lovato was not the estate’s personal representative at the time she filed the original petition. While we presume that Lova-to and her attorney filed that petition in good faith, we cannot ascertain from this record the basis for their pleading that Lovato was, in fact, “Personal Representative” of Wilson’s estate when “no administrator has been appointed.” The parties, or the trial court, are in a better position to determine whether the pleading was filed after reasonable inquiry. See Tex.R. Civ. P. 13; see also Tex Crv. PRAC. & Rem.Code ch. 10.

In any event, it would be pointless to require that the plaintiff file an “amended” pleading containing the same allegations of capacity as were stated in her original petition. The estate commenced the suit before limitations expired; Lovato cured the defect in her capacity before the case was dismissed. Under those circumstances, the estate had standing and was ultimately represented by a person with capacity to pursue the claim on its behalf.

Having determined that Lovato remedied her defective capacity and that her original petition was timely, we need not reach Austin Nursing Center’s remaining argument — that the MLIIA’s mandatory two-year limitation period “notwithstanding any other law” precludes Lovato’s post-limitations amendment from relating back to her original petition. Because Lo-vato’s original petition asserting her representative capacity was filed before the statute of limitations expired, the survival claim is not time-barred.

IV

Conclusion

We affirm the court of appeals’ judgment. See Tex.R.App. P. 60.2(a).

Justice JOHNSON did not participate in the decision.

      . See, e.g., Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001) ("Although the parties have argued the issue before us and below as one of standing, the real issue is Coastal’s capacity to sue."); Light v. Wilson, 663 S.W.2d 813, 814 (Tex.1983) ("The capacity addressed in Rule 93(c), Tex.R. Civ. P., is Light’s standing to assert or defend the action before the Court.") (emphasis added); Freedman v. Briarcroft Prop. Owners, Inc., 776 S.W.2d 212, 215 (Tex.App.-Houston [14th Dist.] 1989, writ denied) ("Appellants' challenge that appellee lacks standing is, in actuality, a challenge to appellee’s capacity to sue.”); see also 5 William V. Dorsaneo III, Texas Litigation Guide § 70.06[2] (2005) ("Texas courts have had considerable difficulty in defining the relationship of the twin doctrines of capacity and standing.”); 6A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 1542, at 330 (2d ed. 1990)("[C]ourts and attorneys frequently have confused the requirements for standing with those used in connection with ... capacity principles.’’); Firestone v. Galbreath, 976 F.2d 279, 283 n. 1 (6th Cir.1992); Glickstein v. Sun Bank Miami, N.A., 922 F.2d 666, 670 (11th Cir.1991) ("[T]he doctrine of capacity is often incorrectly considered under the rubric of a standing claim.”); Scanwell Labs. Inc. v. Shaffer, 424 F.2d 859, 861 (D.C.Cir.1970) (noting that "[s]tanding has been called one of the most amorphous concepts in the entire domain of the public law” and describing "the mental gymnastics through which the courts have passed in determining standing issues”); Cmty. Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 615 N.Y.S.2d 644, 639 N.E.2d 1, 3 (1994) ("[T]he concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable ....”).

      . The Texas Probate Code defines "estate” as "the real and personal property of a decedent." Tex. Probate Code § 3(1). Personal property "includes interests in goods, money, dioses in action, evidence of debts, and chattels real.” Id. § 3(z).

      . We recognize that, in Shepherd, we stated that "circumstances can exist when an heir may have standing to bring suit on behalf of the decedent’s estate.” 962 S.W.2d at 31 (emphasis added). Although we used the term "standing,” we were actually describing a situation in which a decedent’s heirs had the capacity, or legal right, to bring a survival action on behalf of the decedent’s estate. Id. at 31-32; see also Firestone v. Galbreath, 976 F.2d 279, 283 (6th Cir.1992) ("According to the complaint, the Estate could trace a direct injury to the alleged acts of the defendants. The question is whether these plaintiffs can sue on behalf of the Estate. This would seem to be a question of capacity rather than standing .... ”). We acknowledge that many of our courts of appeals (including the court of appeals in this case) have held that the question of who is entitled to sue on an estate’s behalf under the survival statute is an issue of standing, and in so holding, many have relied on Shepherd. See 113 S.W.3d 45("Whether a person has a right to bring a survival action on behalf of an estate is a question of standing.”); Lorentz v. Dunn, 112 S.W.3d 176, 178 (Tex.App.-Fort Worth 2003, pet. granted) ("Appellant argues that the issue should have been characterized as one of capacity instead of standing.... We hold that the issue in this appeal is one of standing and not capacity.”); Stewart v. Hardie, 978 S.W.2d 203, 207 (Tex.App.-Fort Worth 1998, pet. denied) (treating the issue as one of standing rather than capacity); Ford Motor Co. v. Cammack, 999 S.W.2d 1, 5 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) ("only heirs or personal representatives have a justiciable interest in recovering estate property”); see also Pratho v. Zapata, 157 S.W.3d 832, 839-42 (Tex.App.Fort Worth 2005, no pet. h.); Moore v. Johnson, 143 S.W.3d 339, 341-44 (Tex.App.-Dallas 2004, no pet.); County of Dallas v. Sempe, 151 S.W.3d 291, 295-98 (Tex.App.-Dallas 2004, pet. filed); Mayhew v. Dealey, 143 S.W.3d 356, 370-71 (Tex.App.-Dallas 2004, pet. denied); Coffey v. Johnson, 142 S.W.3d 414, 418 (Tex.App.-Eastland 2004, pet. denied); Stempson v. City of Houston, No. 01-02-00280-CV, 2003 WL 139603, at *2-3 (Tex.App.-Houston [1st Dist.] Jan. 9, 2003, no pet.) (mem.op.); Jasso v. Long, No. 04-01-00069-CV, 2001 WL 1503240, at *1-2 (Tex.App.-San Antonio Nov.28, 2001, no pet.) (not designated for publication); Littleton v. Prange, 9 S.W.3d 223 (Tex.App.-San Antonio 1999, pet. denied); Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 766-68 (Tex.App.-Corpus Christi 1999, pet. denied); Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex.App.-Corpus Christi 1998, pet. denied); Garcia v. Caremark, Inc., 921 S.W.2d 417, 421 (Tex.App.-Corpus Christi 1996, no writ). However, for the reasons outlined above, the issue is more appropriately characterized as one of capacity.

      . While this case was pending, the Legislature enacted House Bill 4 ("H.B.4”) which repealed article 4590i and governs all health care liability claims filed on or after September 1, 2003. Act of June 2, 2003, 78th Leg., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 884 (now codified at Tex. Civ. Frac. & Rem.Code §§ 74.001-.507). Because former article 4590i continues to govern this case we will cite to the article.

      . Because pre-suit notice was given to Austin Nursing Center, the MLIIA's ordinary two-year statute of limitations was tolled for an additional seventy-five days, making November 1, 2000 the last possible date suit could be filed. See Tex.Rev.Civ. Stat. art, 4590i, § 4.01(c).

      . See Act approved May 13, 1931, 42nd Leg., R.S., ch. 115, § 1, 1942 Tex. Gen. Laws 194 (now codified at Tex. Civ. Prac. & Rem.Code § 16.068).

      . The burden is on the defendant to challenge capacity via verified plea, and the trial court should abate the case and give the plaintiff a reasonable time to cure any defect. See Tex.R. Civ. P. 93(l)-(2); Coakley v. Reising, 436 S.W.2d 315, 317 (Tex.1968); Shiffers v. Estate of Ward, 762 S.W.2d 753, 755 (Tex. App.-Fort Worth 1988, writ denied).