De Leon Torres v. Johns

• Decision Date: 13 February 1986
• Docket Number: No. 13-85-298-CV,13-85-298-CV
• Citation: 706 S.W.2d 693
• Parties: Maria DE LEON TORRES, Appellant, v. Donald Harvey JOHNS, Indiv., et al., Appelles.
• Court: Texas Court of Appeals

Page 693

706 S.W.2d 693

Maria DE LEON TORRES, Appellant, v. Donald Harvey JOHNS, Indiv., et al., Appelles.

No. 13-85-298-CV.

Court of Appeals of Texas,

Corpus Christi.

Feb. 13, 1986.

E. David Ramirez, Israel Ramon, Jr., Arturo R. Cantu, Edinburg, for appellant.

David J. Dunn, John R. Lyde, Brin & Brin, P.C., Corpus Christi, for appellees.

Before NYE, C.J., and DORSEY and BENAVIDES, JJ.

OPINION

DORSEY, Justice.

This appeal from orders granting summary judgments raises the issue of when, and under what circumstances, the statute of limitations is tolled. The appellant, plaintiff below, was injured in an automobile accident. Defendant Donald Harvey Johns was the driver of a tractor-trailer rig which collided with appellant. Appellee O.B.I.-Hughes, Inc., employed Johns and owned the rig at the time of the accident. O.B.I.-Hughes has since merged into appellee Hughes Tool Company. The trial court held that the causes of action against the individual appellee and the two appellee corporations were barred by the two-year statute of limitations. ¹

The basis of the trial court's holding was that, although plaintiff's petition was timely filed, service was not properly had on any of the defendants within the statute of limitations. Whether limitations was tolled by ineffective attempts at service must be answered separately for the individual appellee and the corporate appellee. The controlling question with respect to appellant's attempts at service on appellee Johns is whether appellant exercised due diligence in securing service of process. With respect to appellees Hughes and O.B.I.-Hughes, the controlling question is whether these appellees were misled to their prejudice by service on Oil Base, Inc.

The chronology pertinent to these questions is taken from the summary judgment evidence, primarily appellee's answers to interrogatories propounded by appellant and the affidavit in support of appellant's response to the motion for summary judgment filed by appellant's attorney. Sometime prior to the automobile accident which caused the injuries made the basis of this suit, Oil Base, Inc., changed its name to O.B.I.-Hughes, Inc. The automobile accident occurred on December 7, 1980. Sometime in December of 1981, O.B.I.-Hughes merged into Hughes Tool Company. However, at the time of the accident, Hughes Tool Company already owned 100% of the O.B.I.-Hughes stock. Appellant filed her original petition on September 28, 1982, naming Oil Base, Inc., and "John Donald Harvey" as defendants. Nothing in the summary judgment evidence indicates how appellant arrived at these names. Hughes Tool admits in its answers to appellant's interrogatories that it learned of the lawsuit in October of 1982. Ostensibly, this knowledge was gained by appellant's attempt to serve Oil Base, Inc., with process. Also in October of 1982, appellant mailed process for "John Donald Harvey" to the sheriff of Montgomery County. Process was later returned unserved. On November 5, 1982, process was mailed to the district clerk of Jim Wells County, directing the clerk to serve "John Donald Harvey" at a Harris County address. Process was also mailed to the constable of Harris County on November 12, 1982. This was returned unserved on December 30, 1982, after the statute of limitations ran on December 7, 1982. Process was again mailed by appellant on March 10, 1983, to the district clerk of Jim Wells County, directing the clerk to serve "John Donald Harvey" at a Burnet, Texas, address. Process was also mailed to the sheriff of Burnet County on March 17, 1983. The sheriff served appellee Johns on March 23, 1983, and informed appellant of the error in the name. Appellant then amended its petition and served "Donald Harvey Johns" on March 25, 1983. In addition, appellant's attorneys made several phone calls during this time in an attempt to find "DONALD HARVEY JOHNS."

Appellant's attorney also swore that due diligence was exercised in attempting service on Johns and that appellant was "led to believe" that appellee's name was, in fact, Harvey. No explanation of this claim is given in the affidavit in support of appellant's response to appellee's motions for summary judgment. On March 23, 1983, appellant also filed its first amended petition, adding O.B.I.-Hughes and Hughes as defendants. The primary purpose of a statute of limitations is to compel the exercise of a right within a reasonable time so that the opposite party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. While the plaintiff made a mistake in her original petition as to the defendant that should have been sued, it is our opinion that she should be given, under the circumstances here present, an opportunity to prove that [appellee] was cognizant of the facts, was not misled, or placed at a disadvantage in obtaining relevant evidence to defend the suit. Price v. Anderson, 522 S.W.2d 690 (Tex.1975); Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950). See also Gentry v. Credit Plan Corporation of Houston, Tex., 528 S.W.2d 571 [Tex.1975]....

Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex.1975).

In an appeal from a summary judgment, the appellate court must view the summary judgment evidence in the light most favorable to the party opposing the summary judgment. Every fact which tends to oppose the summary judgment must be taken as true, and every reasonable inference indulged in favor of the party opposing the summary judgment. Wilcox v. St. Mary's University of San Antonio, Inc., 531 S.W.2d 589 (Tex.1975); Shehab v. Xanadu, Inc., 698 S.W.2d 491 (Tex.App.--Corpus Christi 1985, no writ). In the case at bar, there are two interrelated questions to be answered: the effect of the misnomer, and the effect of service beyond the limitation period.

The general misnomer rule is "if the plaintiff misnames the person sought to be held liable and serves that person, then the subsequent amendment of plaintiff's pleadings to correctly state the name of the defendant relates back to the date of the original petition." Marez v. Moeck, 608 S.W.2d 740 (Tex.Civ.App.--Corpus Christi 1980, no writ). See Braselton-Watson Builders, Inc. v. Burgess, 567 S.W.2d 24 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.); Astro Sign Company v. Sullivan, 518 S.W.2d 420 (Tex.Civ.App.--Corpus Christi 1974, writ ref'd n.r.e.).

The statute of limitations does not bar an action where a plaintiff files his petition within the statutory time limit but names the wrong defendant, then amends to name the correct defendant after the running of the statute of limitations, where the correct defendant at all times knew of the facts of plaintiff's case and was not misled nor placed at a disadvantage in obtaining relevant evidence to defend the suit. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975); see Continental Southern Lines v. Hilland, 528 S.W.2d 828 (Tex.1975); Gentry v. Credit Plan Corporation of Houston, 528 S.W.2d 571 (Tex.1975). The entire record will be reviewed by the appellate court to determine whether the defendant was misled or placed at a disadvantage in defending the suit. Howell v. Coca-Cola Bottling Co. of Lubbock, Inc., 595 S.W.2d 208, 212 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.).

Johns was a party to the collision upon which this suit was based. As a party, he would be cognizant of the facts surrounding the collision. The petition served upon Johns, while misstating his name, informed him that he was one of the intended defendants and that the subject of the suit was the collision between himself and appellant on December 7, 1980. We fail to find any facts in the record which show that Johns would have been misled or disadvantaged in defending the suit.

Where summary judgment is sought on the ground that suit is barred by the statute of limitations, the movant must assume the burden of proving as a matter of law that the suit was barred by the statute of limitations. See Delgado v. Burns, 656 S.W.2d 428 (Tex.1983). If the non-movant claims diligence in response, the movant must conclusively establish lack of diligence. Zale Corporation v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.197...