Boyattia v. Hinojosa

• Decision Date: 24 February 2000
• Docket Number: No. 05-98-01012-CV,05-98-01012-CV
• Citation: 18 S.W.3d 729
• Parties: (Tex.App.-Dallas 2000) FRANCHELLA BOYATTIA, Appellant v. MICHAEL HINOJOSA AND THE COUNTY OF DALLAS, Appellees
• Court: Texas Court of Appeals

Page 729

18 S.W.3d 729 (Tex.App.-Dallas 2000)

FRANCHELLA BOYATTIA, Appellant v. MICHAEL HINOJOSA AND THE COUNTY OF DALLAS, Appellees

No. 05-98-01012-CV

In The Court of Appeals Fifth District of Texas at Dallas

February 24, 2000

On Appeal from the County Court at Law No. 5 Dallas County, Texas, Trial Court Cause No. cc-96-1704-b consolidated with cc-96-1474-e [Copyrighted Material Omitted]

Before Justices Morris, Roach, and Dodson¹

OPINION

Opinion By Justice Morris

In this appeal, Franchella Boyattia challenges a summary judgment in favor of Michael Hinojosa and the County of Dallas on her claims against them arising out of an automobile accident. Hinojosa and the County moved for summary judgment asserting Boyattia's claims against the County were not actually filed within the limitations period and, further, that limitations barred her claims because she failed to use due diligence to achieve service of process. Hinojosa and the County also moved for summary judgment on the separate grounds that they were immune from liability and there was no evidence that Hinojosa's actions proximately caused Boyattia's damages. After examining the summary judgment evidence, we conclude the County is entitled to summary judgment on the basis of limitations. We further conclude, however, that Hinojosa failed to show his entitlement to judgment as a matter of law on the issues of limitations and immunity. We also conclude Boyattia produced some evidence from which a jury could find that Hinojosa's actions proximately caused her damages. Accordingly, we affirm the trial court's judgment in part, reverse it in part, and remand the cause for further proceedings.

I.

At the time of the automobile collision giving rise to this lawsuit, the County of Dallas employed Michael Hinojosa as a deputy constable. As part of his duties, Hinojosa served citations and other court documents. On March 1, 1994, Hinojosa drove a county-owned car to the 9100 block of Forest Lane in Dallas and parked it in the far right lane, next to an apartment complex. Although the complex had a parking lot, Hinojosa chose not to use it. Hinojosa left the car and walked to the complex to serve a resident with court papers. The car did not have a police "light bar" on its roof, but Hinojosa testified he turned on the car's flashing hazard lights before he left.

When Hinojosa returned to the car, he got inside, started it, and switched off the hazard lights. Before he could take the car out of "park," he was struck from behind by a car driven by Wondrous Wimberly. Wimberly testified that she and Boyattia, who was a passenger in Wimberly's car, were traveling east in the right lane of Forest Lane on their way to lunch. According to Wimberly, the car immediately in front of her unexpectedly swerved to the left at which time she saw Hinojosa's car stopped in the road. She applied the brakes and tried to move out of the lane, but her efforts to avoid hitting Hinojosa's car failed. The bumper on the passenger side of Wimberly's car hit the back of Hinojosa's car. Boyattia allegedly injured her knee and neck in the collision.

Boyattia sued to recover damages for her alleged injuries. The style of her original petition listed Wimberly, Hinojosa, and the County of Dallas as defendants. The petition's opening paragraph, however, stated that Boyattia was bringing her claims against Wimberly, Hinojosa, and the City of Dallas. The petition went on to list the City of Dallas as a party and named the city attorney as the agent for service of process. The remainder of the original petition alleged and described specific claims against the County of Dallas, Wimberly, and Hinojosa. No claims were alleged specifically against the City of Dallas.

Boyattia filed her original petition on February 29, 1996, one day before the limitations period on her claims would have run. Citations on Wimberly, Hinojosa, and the County were issued the same day. The clerk's office did not deliver Hinojosa's citation to a constable for service until March 12, 1996. For reasons unexplained in the summary judgment record, the clerk did not deliver the County's citation to a constable until May 31, three months after the citation was issued. The record does not indicate when citation on Wimberly was delivered, but does show that Wimberly was served on March 23. Hinojosa was served on March 13. The County's citation was first served on June 3, 1996, but it was served on the Dallas city attorney.

After receiving a copy of the petition and citation, the Dallas city attorney's office called Boyattia's attorney to inform him that the City's agent had been served rather than the County's. As a result, Boyattia filed an amended petition on June 10, 1996, eliminating all references to the City and naming the Dallas County District Attorney's office as the agent for service on the County. The district attorney's office, however, would not accept service on behalf of the County. Upon learning this, Boyattia filed a second amended petition naming the Dallas County Judge as the agent for service. The clerk issued citation for the second amended petition on July 1, 1996 and delivered it to the constable on July 2. Service on the County was finally achieved on July 11.

In May 1997, the trial court signed an agreed order dismissing the claims against Wimberly. The County and Hinojosa moved jointly for summary judgment on Boyattia's claims against them, arguing the claims were barred by the two year statute of limitations. They further argued that they were entitled to the protections of sovereign and official immunity respectively. Finally, they argued there was no evidence from which a jury could conclude that Hinojosa's negligence, if any, was a proximate cause of Boyattia's injuries. On May 20, 1997, the trial court signed an order granting the motion without stating the grounds upon which it relied. This appeal ensued.

II.

In her appeal, Boyattia argues that none of the grounds for summary judgment asserted by the County and Hinojosa was established as a matter of law. She first challenges the assertion that her claims are barred by the statute of limitations. It is undisputed that Boyattia filed her original petition one day before the limitations period on her claims would have run. The County argues that Boyattia's original petition was insufficient to bring suit against it because it mistakenly named the City of Dallas in the opening paragraph as well as in the portion of the petition listing the parties and their agents for service. The County contends these mistakes are tantamount to a "misidentification" of the defendant and, therefore, the County was not actually sued when Boyattia filed her original petition.

A "misidentification" occurs when a plaintiff is mistaken with respect to which of two defendants is the correct one and the wrong party is sued. Enserch Corp. v. Parker, 794 S.W.2d 2, 5 (Tex. 1990). When a plaintiff misidentifies a defendant in a petition, the limitations period is not tolled and later amendments to add the correct defendant will not relate back to the original filing. Id. In this case, however, there was no misidentification. Boyattia was never mistaken about the identity of the party she intended to sue. In numerous paragraphs of her original petition, Boyattia alleged specific causes of action against the County. Boyattia made no allegations against the City of Dallas other than naming it in the petition's opening paragraph.

The general rule is that, in the absence of special exceptions, a petition will be construed liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). The petition as a whole must be considered in determining who is being sued. See Cox v. Union Oil Co., 917 S.W.2d 524, 526 (Tex. App.-Beaumont 1996, no writ). Boyattia's petition names the County as a defendant by naming it in the style of the case and alleging causes of action against it in the body of the pleading. See Hall v. Johnson, 40 S.W. 46, 47 (Tex. Civ. App. 1897, no writ) (party named only in style of case and referred to as "defendant" in body of pleading was sufficiently designated). Although the petition omits the County from the listing of parties, this omission does not change the fact that the portions of the pleading that refer specifically to the County allege causes of action against it as a party defendant. See id. Considering Boyattia's petition as a whole, we conclude Boyattia filed her suit against the Countywithin the limitations period.

The mere filing of a lawsuit, however, is not sufficient to meet the requirements of bringing suit within the limitations period. To "bring suit," a plaintiff must both file her action and have the defendant served with process. Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex. App.-Dallas 1999, no pet. h.). When a plaintiff does not serve the defendant until after the limitations period runs, the date of service relates back to the date suit was filed only if the plaintiff exercises diligence in effecting service. Id. The duty to exercise diligence continues until service of process is achieved. Id.

Both the County and Hinojosa contend there is no record of Boyattia using diligence to achieve service on them. As movants for summary judgment, the County and Hinojosa bore the burden of negating diligence as a matter of law. See id.; Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex. App.-Dallas 1987, no writ). Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the filing of the suit, issuance of the citation, and service of process. Li v. University of Tex. Health Science Ctr., 984 S.W.2d 647, 652 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).

The summary judgment record in this case shows the County was not served with process until approximately four months after suit was filed. There appears to be no dispute that Boyattia...