Torres v. Johnson

• Decision Date: 27 November 2002
• Docket Number: No. 2-01-134-CV.,2-01-134-CV.
• Citation: 91 S.W.3d 905
• Parties: Jose Luis TORRES, Appellant, v. E.W. JOHNSON, individually and Emmett W. Johnson Company, Inc., Appellees.
• Court: Texas Court of Appeals

91 S.W.3d 905

Jose Luis TORRES, Appellant, v. E.W. JOHNSON, individually and Emmett W. Johnson Company, Inc., Appellees.

No. 2-01-134-CV.

Court of Appeals of Texas, Fort Worth.

November 27, 2002.

Law Offices of Garcia & Read, L.L.P., and Domingo A. Garcia, John H. Read,

and Oscar J. Zevallos, Dallas, for Appellant.

Robison & Robison, and Douglas M. Robison, Denton, for Appellee.

PANEL A: CAYCE, C.J.; DAY and DAUPHINOT, JJ.

OPINION

JOHN CAYCE, Chief Justice.

Introduction

In this wrongful discharge case, the primary issues we must decide are (1) whether Jose Luis Torres's claims against Emmett W. Johnson Company, Inc. (the Company) are time-barred due to Torres's failure to properly identify the Company in his original petition and (2) whether Torres failed to exhaust his administrative remedies because he did not wait to sue until 180 days after he filed his charge of discrimination. Because we conclude that Torres's claims against the Company are not time-barred and that he did not fail to exhaust his administrative remedies, we will reverse and remand in part and affirm in part.

Background Facts & Procedural History

Torres was discharged from his employment with the Company on November 18, 1999. On November 19, 1999, Torres filed a charge of discrimination, alleging that his employment had been wrongfully terminated because of his Hispanic national origin. On November 29, 1999, the Equal Employment Opportunity Commission (EEOC) dismissed the charge and issued a notice of right to sue.

On January 20, 2000, Torres filed a wrongful termination lawsuit in which he named "E. W. JOHNSON, Individually, d/b/a E.W. JOHNSON COMPANY" as the defendant. Torres's petition was served on Gary M. Fahs, President and Chief Operating Officer of the Company, at the Company's corporate offices on January 25, 2000. On April 24, 2000, Torres amended his petition to name "E.W. Johnson, Individually and EMMETT W. JOHNSON COMPANY, INC." as defendants.

In September 2000, appellees moved for summary judgment on Torres's claims on the following grounds: (1) Torres did not timely sue the Company because he did not name the Company as a defendant within ninety days of receiving his notice of right to sue from the EEOC; (2) Torres did not exhaust his administrative prerequisites because he did not give the EEOC or the Texas Commission on Human Rights (TCHR) 180 days to investigate his claim before filing suit; and (3) Johnson could not be sued individually under either Title VII¹ or the Texas Commission on Human Rights Act (TCHRA)² because he was not Torres's employer and supervisors are not individually liable under either Title VII or the TCHRA. The trial court granted a general summary judgment for appellees, and this appeal followed.

Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. KPMG Peat Marwick, 988 S.W.2d at 748; see also TEX.R. CIV. P. 94. To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

Timeliness of Lawsuit

A discrimination lawsuit under Title VII must be filed within ninety days after the aggrieved person receives a notice of right to sue from the EEOC. 42 U.S.C.A. § 2000e-5(f)(1); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984) (per curiam); Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir.1988). If a plaintiff fails to sue under Title VII within ninety days, the suit is barred unless some equitable basis justifies tolling this limitation period. Way, 840 F.2d at 306; Bolling v. City & County of Denver, 790 F.2d 67, 69 (10th Cir.1986).

In his first issue, Torres contends that summary judgment for the Company was improper because he filed and served his lawsuit against the Company within ninety days of receiving notice of the right to sue.³ Torres asserts that his naming of the Company in his original petition as "E.W. Johnson, Individually d/b/a E.W. Johnson Company" was simply a misnomer and that, as a result, his amended petition correctly naming Emmett W. Johnson Company, Inc. as a defendant related back to his timely filed original petition.

Texas law recognizes a distinction between misnomer and misidentification. Misnomer occurs where the plaintiff misnames either himself or the correct defendant, but the correct parties are involved. Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990); Maher v. Herrman, 69 S.W.3d 332, 338 (Tex.App.-Fort Worth 2002, pet. denied). Misidentification occurs when two separate legal entities with similar names actually exist and the plaintiff sues the wrong one because he is mistaken about which entity is the correct defendant. Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex.1999); Enserch Corp., 794 S.W.2d at 4-5.

The purpose of statutes of limitations is to compel the assertion of claims within a reasonable period so that the opposite party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Computer Assocs. Ina, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996); Cona S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex.1975). Thus, the critical inquiry in both misnomer and misidentification cases is whether the correct defendant received actual notice of the lawsuit within the limitation period. In misnomer cases, limitations is tolled and a later amendment of the petition relates back to the date of the original petition — primarily because the party intended to be sued has been served and put on notice that it is the intended defendant. Enserch Corp., 794 S.W.2d at 4-5; Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343, 347 (Tex.App.-Texarkana 1998, no pet.); Hernandez v. Furr's Super markets, Inc., 924 S.W.2d 193, 196 (Tex. App.-El Paso 1996, writ denied).

Even in cases of misidentification where the wrong legal entity was sued, the limitation period may be equitably tolled if the plaintiff can prove that the proper defendant was not prejudiced by the mistake in pleading. Enserch Corp., 794 S.W.2d at 5; Cont'l S. Lines, Inc., 528 S.W.2d at 831. Courts will apply the equitable tolling doctrine in misidentification cases where applying the statute of limitations would not serve its legitimate purpose. Palmer v. Enserch Corp., 728 S.W.2d 431, 434 (Tex.App.-Austin 1987, writ ref'd n.r.e.); accord Enserch Corp., 794 S.W.2d at 5. To be entitled to equitable tolling, the plaintiff must show that the correct defendant had notice of the suit, was cognizant of the facts, and was not misled or disadvantaged by the mistake. Chilkewitz, 22 S.W.3d at 830; Cont'l S. Lines, Inc., 528 S.W.2d at 831.

This case is one of misidentification rather than misnomer. Johnson and the Company are each distinct legal entities with similar names. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997); Pabich v. Kellar, 71 S.W.3d 500, 507 (Tex.App.-Fort Worth 2002, pet. denied) (op. on reh'g) (both holding that corporations are separate legal entities from their owners and shareholders). Accordingly, the petition's naming of "E. W. JOHNSON, Individually, d/b/a E.W. JOHNSON COMPANY" as the defendant does not name the Company as a party in the case.

This case differs from many misidentification cases, however, because the lawsuit misidentifying the Company was actually served upon it within the limitation period. See, e.g., Enserch Corp., 794 S.W.2d at 5-6; Cont'l S. Lines, Inc., 528 S.W.2d at 830-31; Palmer, 728 S.W.2d at 433 (where lawsuits misidentifying true defendants were not served on them, although true defendants eventually received notice of suits). Torres served the original petition on the Company by serving its president at its registered office for service on January 25, 2000 — fifty-seven days after he received his notice of right to sue.⁴ See TEX. Bus. CORP. ACT ANN. art. 2.11, § A (Vernon 1980) (providing that a corporation may be served with process by serving its president, vice president, or registered agent). Torres stated in the petition that service could be had upon "Defendant, E.W. JOHNSON COMPANY'S owner, Mr. E.W. Johnson" at the Company's registered office for service, and other portions of the petition refer to alleged actions by "Defendant, E.W. Johnson Company." In addition, Torres's attorney sent presuit correspondence to the Company's attorney threatening suit and referencing only the Company, not Johnson. These allegations and correspondence, coupled with service of the lawsuit upon the Company, were sufficient to inform the Company that Torres intended the Company itself to be a party to the lawsuit. Because the Company had actual notice of the suit against it within the ninety-day limitation period, was cognizant of the facts, and was not misled or disadvantaged by Torres's mistake in pleading, we hold that the limitation period was equitably tolled and that Torres's suit against the Company is not time-barred.

The Company asserts that Torres's lawsuit was untimely because the...