Wilkins v. Methodist Health Care System

• Decision Date: 12 June 2003
• Docket Number: No. 14-02-00883-CV.,14-02-00883-CV.
• Citation: 108 S.W.3d 565
• Parties: Robinetta WILKINS, Appellant, v. METHODIST HEALTH CARE SYSTEM and the Methodist Hospital, Collectively d/b/a the Methodist Health Care System, Inc., Appellees.
• Court: Texas Court of Appeals

108 S.W.3d 565

Robinetta WILKINS, Appellant, v. METHODIST HEALTH CARE SYSTEM and the Methodist Hospital, Collectively d/b/a the Methodist Health Care System, Inc., Appellees.

No. 14-02-00883-CV.

Court of Appeals of Texas, Houston (14th Dist.).

June 12, 2003.

Rehearing Overruled July 10, 2003.

COPYRIGHT MATERIAL OMITTED

Jamie Annette Penton, Roy Alan Camberg, Houston, for appellant.

Oscar Luis Delarosa, Houston, for appellees.

Panel consists of Chief Justice BRISTER and Justices FOWLER and EDELMAN.

OPINION

SCOTT BRISTER, Chief Justice.

Robinetta Wilkins sued Methodist Health Care System ("the System"), owner of Methodist Hospital ("the Hospital") in Houston, alleging personal injuries caused by the temporary loss of a surgical instrument in her abdomen during her gall bladder surgery. One year after the case was filed and long after limitations had expired, the System objected that it was not the proper defendant but the Hospital was. Wilkins amended her petition to name both, and sent it by mail to the System's attorney of record. She did not request any new citation.

The trial court granted summary judgment for the System (because it was not her health care provider), and dismissed without prejudice claims against the Hospital (because it was never served). Wilkins filed a motion for new trial making new arguments and attaching additional proof. In a comprehensive and detailed order, the trial judge granted the motion for new trial, expressly took into consideration the new arguments and proof, and then entered the same judgment as before. Wilkins filed nothing further until her notice of appeal ninety days later.

This appeal raises two issues: whether a second citation was required before final judgment, or a second notice of appeal was required after it. Because the Texas appellate rules appear to be more forgiving than the rules of civil procedure, we believe a second notice of appeal was not necessary but a second citation was. Accordingly, we have jurisdiction to entertain the appeal, but affirm.

Was a Second Notice of Appeal Needed?

The System argues we have no jurisdiction because Wilkins's only motion for new trial was filed before the final judgment rather than after it, and thus did not extend the appellate deadlines.¹ Generally, a premature motion for new trial extends the appellate timetables.² If a trial court modifies a judgment after one motion for new trial has been filed, a second motion is not needed to extend the deadlines if the first motion "assails" the modified judgment.³ A motion assails a later judgment if some of the points in the earlier motion still apply to the later judgment.⁴ By attacking the trial court's final disposition (which was the same in both judgments), Wilkins's motion qualifies.

The System contends an exception applies here because the trial court granted Wilkins's motion for new trial.⁵ In Harris County Hospital District v. Estrada, our sister court held a premature motion for new trial extends appellate deadlines even if it has been overruled, but suggested a different rule might apply if all relief sought in the motion had been granted.⁶ Assuming this exception is correct (which we need not decide), it does not apply here because the trial court did not grant all relief requested by Wilkins. While the trial court granted her request to consider additional evidence, her request to continue the suit against the Hospital was denied. Thus, Wilkins's motion did "assail" the subsequent judgment, thereby extending the appellate timetables and rendering her notice of appeal timely.⁷

Was a Second Citation Needed?

Wilkins filed suit on June 21, 2000 (shortly before limitations expired), naming "Methodist Health Care System d/b/a Methodist Hospital System" as defendant, and serving citation on the System. The System answered with a general denial and 25 defenses, many of which appear to be form objections very unlikely to have anything to do with the facts of this case.⁸ What the answer did not include was any complaint that the wrong party had been served or that the alleged assumed name was incorrect.

The trial court's joinder deadline came and went. In its responses to Wilkins's requests for disclosure, the System represented:

• the correct names of the parties to the lawsuit were "Robinetta Wilkins" and "The Methodist Health Care System";

• it had "no responsive information" as to the names of potential parties; and

• there were no applicable insurance agreements, as the Hospital (not the System) was self-insured.

After being compelled by order of the trial court, the System made extensive responses to Wilkins's interrogatories and requests for production concerning, among other things:

• policies applicable to "your operating rooms" in effect at the time of the surgery;

• documents concerning the incident; and

• names, addresses, and phone numbers of every doctor, nurse, technician, and assistant participating in the surgery or providing treatment after it.

Finally, on the pleadings cut-off date (July 10, 2001), the System filed an amended answer adding its 26th defense — that Wilkins had sued the wrong entity by suing the System rather than the Hospital. But there was no verified denial, so the System may have remained liable for the surgery.⁹ That defect was finally remedied eight months later, when the System added a verified denial of standing, capacity, defect of parties, and assumed name.

Wilkins's only response to these developments was to amend her petition to name as defendants "Methodist Health Care System and the Methodist Hospital, doing business collectively as the Methodist Health Care System, Inc." The amendment was served by certified mail on all attorneys of record. It is undisputed that no citation was issued and served with the amended petition on the Hospital's registered agent (the same person as the System's registered agent).

In this appeal, Wilkins contends the trial court misapplied the doctrines of misnomer and misidentification, and erred in failing to take judicial notice of the System's assumed names.¹⁰ As in many other cases, arguments could be made whether this is a case of misnomer, misidentification, or assumed name, but the parties have not presented those arguments here. Although Wilkins relied on assumed name below, she has abandoned that argument on appeal, never citing Rule 28,¹¹ and mentioning assumed names only to support her claims regarding misidentification. Similarly, the System's sole argument on appeal (as well as in its motion below) is that misidentified parties must be served with citation, and the Hospital never was.¹²

Clearly, service of citation after discovery of a mistake is not required in misnomer cases — by definition, the correct defendant has already been served.¹³ Nor is service of a second citation required in assumed name cases — again, the correct defendant has already been served, albeit in an assumed name.¹⁴ Conversely, service of a new citation clearly is required when two defendants have no business relationship and service has been obtained only on the wrong one.¹⁵

The question presented is whether new service of citation is required when there is a misidentification between two related entities. We believe it is. Rule 124 provides "In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules.¹⁶ Sending the amended petition to a defendant's attorney does not constitute service of citation.¹⁷ Nor did the System's attorney ever agree to accept service or make an appearance on the Hospital's behalf. While the System's responses to discovery clearly required the assistance of Hospital personnel, helping a related corporate entity with discovery responses does not constitute a general appearance in this litigation.

It is true there was some evidence placing this case among those allowing an equitable tolling of limitations due to misidentification. This rule tolls limitations when (1) two separate but related entities (2) use a similar trade name and (3) the correct entity has notice of the suit and is neither misled nor disadvantaged by misdirected service.¹⁸ Here, the System admits it owned the Hospital, so there is no question the two entities were related. While we must disregard the assumed name certificates Wilkins attached for the first time to her appellate brief (which show the Hospital does business under the Systems name, and vice versa),¹⁹ there was other evidence offered that the Hospital and the System used a similar trade name.²⁰ And it is hard to imagine how the Hospital was either misled or disadvantaged, as many of its employees and agents participated extensively in the discovery process and were already designated to testify at trial.²¹

But assuming limitations was tolled, the question remains — tolled until what? Obviously, until the proper defendant was joined. Absent an appearance, waiver of service, or some other express provision of law, the Texas rules allow such joinder only by service of citation.

Interestingly, in the six misidentification cases in the last 50 years in which the Supreme Court has found the requirements met for equitable tolling of limitations, there is not a single instance in which new service of citation appears to have occurred;²² in every case the plaintiff merely filed an amended petition without citation or formal service.²³ But in each of those cases, the proper party voluntarily appeared to litigate the limitations issue;²⁴ citation was unnecessary because there was a general appearance. In this case, the Hospital avoided making such an appearance.

It is hard to justify what happened in this case. The System must have been immediately aware of Wilkins's mistake, but did not point out the error until the last possible moment. There is...