Moore v. Hooters of Am.

• Decision Date: 30 March 2023
• Docket Number: 11-21-00168-CV
• Parties: JARED MOORE, Appellant v. HOOTERS OF AMERICA, LLC, Appellee
• Court: Texas Court of Appeals

1

JARED MOORE, Appellant v. HOOTERS OF AMERICA, LLC, Appellee

No. 11-21-00168-CV

Court of Appeals of Texas, Eleventh District

March 30, 2023

On Appeal from the 244th District Court Ector County, Texas Trial Court Cause No. C-19-08-1106-CV

Panel consists of: Bailey, C.J., Williams, J., and Wright, S.C.J ^[4] Trotter, J., not participating.

MEMORANDUM OPINION

W BRUCE WILLIAMS JUSTICE

This is an appeal from summary judgment rendered against Appellant Jared Moore, on traditional and no-evidence grounds. In two issues, Appellant contends that the trial court erred in granting summary judgment. First, Appellant argues that Appellee was the proper party to be named or, alternatively, that TW Restaurant Holder, LLC was effectively sued under Rule 28, the doctrine of misnomer, or the doctrine of misidentification. Second, Appellant argues that he has set forth more than a scintilla of evidence on his substantive claims. We affirm.

Factual and Procedural History

On September 13, 2017, Appellant, Jared Moore, suffered injuries after he was pepper sprayed and shot outside a Hooters in Odessa, Texas, by a hired security guard, Rance Wayne Struck, who was an employee of independent contractor ION Security and Investigations (ION). This Hooters was owned and operated by TW Restaurant Holder, LLC (TWR). Appellee, Hooters of America, LLC, was a parent business entity to TWR.

On August 23, 2019, Appellant filed suit against three parties: Struck, ION, and Appellee. Appellee filed a timely sworn verified denial asserting a defect as to parties.^[1] Appellee pled that it was not the company that owned, operated, or leased the premises in Odessa at the time of the incident. Nearly eighteen months later, Appellant issued his first discovery requests, and Appellee identified TWR as a potential party to the lawsuit. Soon after, Appellee filed a motion for summary judgment, asserting grounds for traditional and no-evidence summary judgment, arguing that Appellant had produced no evidence on each element of his claims and that Appellee was the wrong party to be sued.

Appellee's position is that Hooters of America, LLC (HOA) at any relevant time, was never the owner or operator of, nor did it have or exercise control over, the Odessa Hooters restaurant or its premises. To the contrary, the business entity that operated the Odessa restaurant was TWR, a separate LLC from, and a subsidiary company of, Appellee. Appellee's position is further that there was no evidence of HOA employment, direction, control, or duty to train or supervise the ION security guard, Struck. Appellee's summary judgment evidence primarily consisted of the unsworn declaration^[2] of Benjamin Benson, the general counsel for HOA. Benson averred that, having personal knowledge:

• HOA and TWR were two different LLC entities.

• At all times relevant, TWR operated the Hooters restaurant in Odessa, Texas, where the incident occurred.

• It was TWR and Struck's employer ION, an independent contractor, that entered into the written contract for the Odessa restaurant's security.

• HOA at any relevant time did not own, operate, or control the Odessa Hooters premises.

• HOA did not hire, train, retain, supervise, furnish, control, or employ any person or agent who worked at the Odessa Hooters.

• HOA did not have any responsibility or role regarding safety or security at the Odessa Hooters.

• TWR did not employ, pay, or equip Struck. Struck did not report to TWR; TWR did not instruct Struck about how to do his work; TWR did not direct Struck to involve himself in the incident; and TWR was not aware that Struck had followed Appellant out of the building and to the parking lot where the incident occurred.

No summary judgment evidence submitted by Appellant materially rebutted the unsworn declaration of Benjamin Benson. Appellant did not complain of any formal defects in the summary judgment evidence, nor did Appellant challenge Benson's personal knowledge or competence as a witness, the basis of his declarations, or the admissibility of that summary judgment evidence. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018).

Standard of Review

We review a trial court's grant of summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010) (citing Provident Life &Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When reviewing a summary judgment, we review the evidence in the light most favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts against the motion. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). To defeat a no-evidence motion for summary judgment, "the nonmovant must produce at least a scintilla of evidence raising a genuine issue of material fact as to the challenged elements." KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019); see also TEX. R. CIV. P. 166A(I). Evidence is less than a scintilla “when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.” KMS Retail Rowlett, LP, 593 S.W.3d at 181.

Generally, when a party files for both traditional summary judgment and noevidence summary judgment, we first review the no-evidence motion for summary judgment. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). However, "if the movant in a traditional motion challenges a cause of action on an independent ground, we consider that ground first because it would be unnecessary to address whether a plaintiff met his burden as to the no-evidence challenge if the cause of action is barred as a matter of law." Apollo Expl., LLC v. Apache Corp., 631 S.W.3d 502, 515 (Tex. App.-Eastland 2021, pet. granted) (citing Womack v. Oncor Elec. Delivery Co., No. 11-17-00233-CV, 2019 WL 3023516, at *3 (Tex. App.-Eastland July 11, 2019, pet. denied) (mem. op., not designated for publication)). In the noevidence summary judgment motion filed in this matter, Appellant has the entire burden of production. See TEX. R. CIV. P. 166A(I); Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605, 608 (Tex. 2017). It was incumbent on Appellant to raise a genuine issue of material fact supported by summary judgment evidence about those elements challenged by the no-evidence motion. See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.-Texarkana 1998, orig. proceeding); see TEX. R. CIV. P. 166a(i).

Analysis

As stated, we typically review a no-evidence motion for summary judgment before a traditional summary judgment motion. However, Appellee's traditional summary judgment motion challenges Appellant's suit on grounds independent from the no-evidence motion: who is (or should be) a party to the lawsuit. Therefore, we consider it first.

I. Traditional Motion for Summary Judgment

Notwithstanding all other issues raised, where Appellant did not timely sue and serve TWR, and where no material fact question is raised by summary judgment evidence demonstrating that HOA is a proper party with potential liability, then we must affirm the trial court's granting of summary judgment. Although Appellant sued only Appellee, he contends that we should permit late suit against TWR. Appellant relies on Rule 28 of the Texas Rules of Civil Procedure to argue that, as a matter of law, TWR was properly sued by naming Hooters, using its "assumed or common name." Alternatively, Appellant argues that the doctrines of misnomer and misidentification apply, permitting Appellant to replead against TWR despite the statute of limitations and despite never having formally amended his petition to include TWR as a named defendant or served that entity. We examine each argument in turn.

The issue before us is a common one where commercial branding with an assumed or trade name such as "Hooters" is used as a marketing tool for business enterprises. See, e.g., Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 53 (Tex. 2003) (discussing the permissive use of assumed names in Texas). Corporations, including, as here, limited liability corporations (LLCs), are separate legal entities that insulate owners and/or shareholders from personal responsibility. Pabich v. Kellar, 71 S.W.3d 500, 507 (Tex. App.-Fort Worth 2002, pet. denied). Accordingly, there is nothing illegal or wrong with a growing business dividing sectors of that business and/or assets and separating them into distinct corporations or businesses, even if one of the reasons for doing so is to minimize the assets at risk in the event of a liability lawsuit. Subsidiary and parent corporations are separate and distinct "persons" as a matter of law. Lenoir v. U.T. Physicians, 491 S.W.3d 68, 88 (Tex. App.-Houston [1st Dist.] 2016, pet. denied). In Texas, corporate entities are presumed to be separate distinct entities. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798 (Tex. 2002). Appellant offers no evidence that HOA and TW, as parent company and subsidiary, are anything other than legitimate separate businesses.

Rule 28 permits a suit against a business entity in its assumed or common name. Wilkins v. Methodist Health Care Sys., 108 S.W.3d 565, 569 (Tex. App.- Houston [14th Dist.] 2003, rev'd on other grounds, 160 S.W.3d 559 (Tex. 2005); Howell v. Coca-Cola Bottling Co. of Lubbock, 595 S.W.2d 208, 211 (Tex. App.- Amarillo 1980, writ ref'd n.r.e.). Rule 28 reads in full as follows:

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a

...