Riston v. Doe

• Decision Date: 27 July 2004
• Docket Number: No. 14-03-00869-CV.,14-03-00869-CV.
• Citation: 161 S.W.3d 525
• Parties: Rosie RISTON, Appellant, v. John DOE # 1 a/k/a Thyssenkrupp Elevator Corporation d/b/a Thyssenkrupp Elevator d/b/a Dover Elevator d/b/a Dover Elevator Company d/b/a Dover, Appellee.
• Court: Texas Supreme Court

Page 525

161 S.W.3d 525

Rosie RISTON, Appellant, v. John DOE # 1 a/k/a Thyssenkrupp Elevator Corporation d/b/a Thyssenkrupp Elevator d/b/a Dover Elevator d/b/a Dover Elevator Company d/b/a Dover, Appellee.

No. 14-03-00869-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

July 27, 2004.

Scot Gibbons Dollinger, Houston, for appellant.

Alan Lawrence Rucker, Wade Lowrie Mcclure, Dallas, for appellee.

Panel consists of Justices FOWLER, EDELMAN and SEYMORE.

OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Rosie Riston, appeals a summary judgment dismissing her personal injury claims against appellee, John Doe # 1 a/k/a ThyssenKrupp Elevator Corporation d/b/a ThyssenKrupp Elevator d/b/a Dover Elevator d/b/a Dover Elevator Company d/b/a Dover ("ThyssenKrupp"), based on the statute of limitations. We affirm.

I. BACKGROUND

Riston claims she was injured on September 23, 2000 when she was struck by an elevator door at Houston Intercontinental Airport. She originally sued the City of Houston only. However, she filed a first amended petition on September 22, 2002 adding "John Doe # 1," "John Doe # 2," "John Doe # 3," "John Doe # 4," and "John Doe # 5" as defendants. Riston alleged that these defendants designed, manufactured, sold, installed, built and/or maintained the elevator. She asserted causes of action for negligence, product liability, breach of warranties, and strict liability. On September 25, 2002, Riston filed a second amended petition naming "John Doe # 1 a/k/a ThyssenKrupp Elevator Corporation d/b/a ThyssenKrupp Elevator d/b/a Dover Elevator d/b/a Dover Elevator Company d/b/a Dover" in place of "John Doe # 1."¹ ThyssenKrupp was served on October 25, 2002.²

ThyssenKrupp moved for summary judgment asserting that (1) Riston did not file suit against ThyssenKrupp within the two-year statute of limitations, and (2) Riston could not assert breach of warranty claims against ThyssenKrupp because it did not design, manufacture, market, sell, or install the elevator.³ The trial court granted the motion for summary judgment, dismissed all Riston's claims against ThyssenKrupp, and severed the claims against Thyssenkrupp from the remaining claims.

II. STANDARD OF REVIEW

When a defendant moves for summary judgment on the basis of an affirmative defense such as limitations, it has the burden to conclusively prove all the elements of the affirmative defense as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue to avoid the statute of limitations. Id. In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and make all reasonable inferences in the nonmovant's favor. Id. Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

III. STATUTE OF LIMITATIONS

In her sole issue, Riston contends the trial court erred by granting ThyssenKrupp's motion for summary judgment because the statute of limitations was tolled based on the doctrines of misnomer, due diligence, and relation back.⁴ Riston does not dispute that she first named ThyssenKrupp as a defendant in her second amended petition, filed after the statute of limitations expired. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986) (prescribing two-year statute of limitations for personal injury claims). However, Riston contends her timely first amended petition naming "John Doe # 1" tolled the statute of limitations because "John Doe # 1" was a misnomer for ThyssenKrupp. Riston further contends that she tolled the statute of limitations because she used due diligence to serve ThyssenKrupp, and, therefore, the date of service related back to the filing of her timely first amended petition.

This case presents an issue of first impression in Texas. The parties do not cite, and we have not found, any Texas law addressing the use of a "John Doe" petition to toll the statute of limitations, except where specifically authorized by statute. However, for the reasons stated below, we refuse to allow Riston's "John Doe" petition to toll the statute of limitations.⁵

A. THE MISNOMER DOCTRINE DOES NOT APPLY TO A "JOHN DOE" PETITION.

First, the misnomer doctrine is not applicable here. Misnomer arises when the plaintiff merely misnames the correct defendant. Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex.1999); Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex.1990). In such a case, limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition. Enserch Corp., 794 S.W.2d at 45.

However, "John Doe" is not a misnomer for any person or entity. See Grantham v. Blount, Inc., 683 So.2d 538, 541 (Fla.Dist.Ct.App.1996) (stating that "John Doe" is not a misnomer). Instead, "John Doe" is a fictitious name used in legal proceedings to designate a person whose identity is unknown. See BLACK'S LAW DICTIONARY 845 (7th ed.1999);⁶ see also WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1218 (1993). "A plaintiff uses [`John Doe'] intentionally to identify the fact that the defendant's real identity is unknown." Grantham, 683 So.2d at 541. In addition, the misnomer doctrine is applicable when a plaintiff has made a mistake. See Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343, 347 (Tex.App.-Texarkana 1998, no pet.); Cortinas v. Wilson, 851 S.W.2d 324, 326-27 (Tex.App.-Dallas 1993, no writ). Riston's naming "John Doe" instead of ThyssenKrupp was clearly not a mistake. See Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir.1998) (recognizing that for a "John Doe" defendant, there is no mistake in identifying the correct defendant; rather, the problem is not being able to identify that defendant).⁷ Therefore "John Doe" was not a misnomer for ThyssenKrupp or any other defendant.

B. A "JOHN DOE" PETITION DOES NOT TOLL LIMITATIONS AS TO AN UNKNOWN DEFENDANT.

Because "John Doe" was not a misnomer for ThyssenKrupp or any other defendant, Riston named an unknown defendant. ThyssenKrupp asserts that a petition which fails to identify the defendant does not toll limitations. We agree for several reasons.

1. NO TEXAS STATUTE GENERALLY AUTHORIZES A "JOHN DOE" PETITION TO TOLL LIMITATIONS AS TO AN UNKNOWN DEFENDANT.

The Texas Legislature has not generally authorized a plaintiff to initiate suit and toll limitations by suing an unknown defendant as "John Doe" or any other fictitious name. See Maury v. Turner, 244 S.W. 809, 812 (Tex.Com.App.1922) (recognizing there is no authority to proceed against unknown persons in the absence of statute); see also Grantham, 683 So.2d at 540-41 (recognizing there is no common law permitting "John Doe" actions to extend limitations). The Texas Legislature has authorized the use of a "John Doe" petition to toll limitations as to unknown defendants only in certain circumstances. For example, section 16.0045 of the Texas Civil Practice and Remedies Code provides that the five-year statute of limitations for personal injury suits based on sexual assault is tolled by the filing of a petition alleging that the identity of the defendant is unknown and designating the unknown defendant as "John or Jane Doe." TEX. CIV. PRAC. & REM.CODE ANN. § 16.0045 (Vernon 2002).⁸ However, there is no similar provision in the two-year statute of limitations for personal injuries suits that are not based on sexual assault. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.003(a). If the Legislature had intended for the two-year statute of limitations to be tolled as to unknown defendants by the filing of a "John Doe" petition, it could have included such a provision in the statute. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995) (stating that when the Legislature has employed a term or phrase in one section of a statute and excluded it in another, it is presumed the Legislature had a reason for excluding it, and the term should not be implied where it has been excluded); see also Moran v. City of Houston, 58 S.W.3d 159, 162-63 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

2. IN DECIDING IF LIMITATIONS HAS TOLLED, A "JOHN DOE" PETITION SHOULD BE TREATED THE SAME AS A PETITION INVOLVING A MISIDENTIFICATION.

Further, although a "John Doe" petition involves an unknown defendant, for limitations purposes, it should be treated the same as a petition involving misidentification. Misidentification is distinct from misnomer. Enserch Corp., 794 S.W.2d at 4. Misidentification arises when two separate legal entities actually exist and a plaintiff mistakenly sues the entity with a name similar to that of the correct entity. Chilkewitz, 22 S.W.3d at 828; Enserch Corp., 794 S.W.2d at 5. In such a case, the plaintiff has sued the wrong party and limitations is not tolled. Enserch Corp., 794 S.W.2d at 5.⁹ It would be difficult to justify a set of rules that extended limitations when a plaintiff intentionally named a fictitious defendant, but barred an action when a plaintiff misidentified the defendant. See Grantham, 683 So.2d at 542. In either case, the true defendant was not notified of the action before limitations expired. See id.; cf. James v. Gruma Corp., 129 S.W.3d 755, 761 (Tex.App.-Fort Worth 2004, pet. denied) (recognizing primary reason that limitations is tolled in cases of misnomer is that the party intended to be sued has been served and put on notice that he is the intended defendant); see also Pierson, 959 S.W.2d at 347 (stating main distinction between misnomer and misidentification is whether the correct party received notice of the suit).¹⁰

3. POLICY REASONS WHY A "JOHN DOE" PETITION SHOULD NOT TOLL LIMITATIONS UNLESS AUTHORIZED BY STATUTE.

Finally, statutes of limitations would have little, if any, import if they could easily be circumvented by...