Court of Appeals of Texas, Dallas.

Gloria VIRREY, Appellant

v.

FOODMAKER, INC. d/b/a Jack in the Box, and Jack in the Box, Inc., Appellees

No. 05-95-00231-CV.

|

Dec. 8, 1995.

O P I N I O N

JAMES.

*1 This is an appeal from summary judgment granted for appellees Foodmaker, Inc. d/b/a Jack in the Box (Foodmaker) and Jack in the Box, Inc. In two points of error, Virrey contends that the trial court erred in granting summary judgment for Foodmaker and Jack in the Box, Inc. on Virrey’s negligence claims. We hold that the two-year statute of limitations bars Virrey’s negligence claim against Foodmaker. We hold that the summary judgment evidence conclusively establishes that Jack in the Box, Inc. was not a proper party to this suit. Therefore, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Virrey was an employee at a Jack in the Box restaurant. On May 4, 1992, Virrey was injured when she slipped and fell on a wet floor. On May 2, 1994, which was two days before the limitations period expired, Virrey filed her original petition naming Jack in the Box, Inc. as the sole defendant. Virrey’s petition alleged the defendant was negligent. Jack in the Box, Inc. answered it did not have any interest in the restaurant. Jack in the Box, Inc. also filed a verified denial that it was not a proper party. On June 29, 1994, Virrey filed an amended petition adding Foodmaker as a defendant.

Foodmaker and Jack in the Box, Inc. both moved for summary judgment on Virrey’s negligence claim. The trial court granted the motions for summary judgment.

SUMMARY JUDGMENT STANDARD OF REVIEW

Summary judgment is designed to eliminate unmerited claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on fact issues. Compton v. Calabria, 811 S.W.2d 945, 949 (Tex.App.-Dallas 1991, no writ) (citing Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952)). The trial court renders its decision on summary judgment based upon “(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits … on file at the time of the hearing.” Tex.R. Civ. P. 166(a)(c).

For the defendant, as movant, to prevail on a summary judgment, it must either (1) disprove at least one element of the plaintiff’s theory of recovery or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.-Dallas 1992, no writ). The movant has the burden of proof to show that no genuine issues of material fact exist and that it is entitled to summary judgment as a matter of law. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301-02 (Tex.1990). We view all evidence favorable to the nonmovant as true. We indulge all inferences and resolve all doubts in the nonmovant’s favor. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986).

Once the movant has established a right to summary judgment, the non-movant’s response must expressly present any reasons seeking to avoid the movant’s entitlement, and such reasons must be supported by summary judgment proof establishing a fact issue. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex.1982).

FOODMAKER, INC.

*2 In her first point of error, Virrey argues that the trial court erred in granting summary judgment on her negligence claim against Foodmaker based on the statute of limitations because (1) misnomer, (2) filing under an assumed name, or (3) the “lack of prejudice” doctrine operates to toll or suspend the applicable statute of limitations.

Applicable Law-Statute of Limitations

Statutes of limitations exist 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. Continental S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex.1975).

Negligence claims are subject to the two-year statute of limitations. Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon 1986); Clade v. Larsen, 838 S.W.2d 277, 281 (Tex.App.-Dallas 1992, writ denied). A negligence cause of action ordinarily accrues when “the negligent party by some act or omission breaches its duty of ordinary care.” Clade, 838 S.W.2d at 281. This is generally the date of the act which causes the injury. Continental S. Lines, Inc., 528 S.W.2d at 829.

A defendant seeking summary judgment based on the affirmative defense of the statute of limitations must conclusively establish all of its elements as a matter of law, leaving no genuine issue of a material fact remaining. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991); Damron v. Ornish, 862 S.W.2d 683, 684-85 (Tex.App.-Dallas 1993, writ denied) (op. on reh’g).

1. Misnomer

Virrey asserts her original petition contained a misnomer because it identified the defendant as Jack in the Box, Inc. instead of Jack in the Box.

a. Applicable Law

Misnomer occurs when the plaintiff merely misnames the defendant sought to be held liable, but serves the correct defendant, thereby advising the intended defendant of the suit. Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex.1990); Johnson v. Coca-Cola Co., 727 S.W.2d 756, 758 (Tex.App.-Dallas 1987, writ ref’d n.r.e.). Misnomer tolls the limitations period so a subsequent amendment of the petition relates back to the date of the original petition. Enserch Corp., 794 S.W.2d at 4-5.

Misidentification occurs when the plaintiff “is mistaken as to which of two defendants is the correct one and there is actually existing a corporation with the name of the erroneously named defendant.” Enserch Corp., 794 S.W.2d at 5. When misidentification occurs the plaintiff has sued the wrong party. Enserch Corp., 794 S.W.2d at 5; Cortinas v. Wilson, 851 S.W.2d 324, 326-27 (Tex.App.-Dallas 1993, no writ). Misidentification does not toll the statute of limitations. Enserch Corp., 794 S.W.2d at 5.

b. Application of Law to Facts

Virrey’s original petition states Jack in the Box, Inc. is a New Jersey corporation qualified to do business in the State of Texas. Virrey’s amended petition states Foodmaker, Inc. is a Delaware corporation qualified to do business in the State of Texas. Virrey’s original petition brought suit against Jack in the Box, Inc., a separate and distinct legal entity from Foodmaker. The case before us is a misidentification, not a misnomer. See Enserch Corp., 794 S.W.2d at 4-5; Cortinas, 851 S.W.2d at 326-27.

*3 We conclude Virrey’s petition naming Jack in the Box, Inc. as a defendant was not a misnomer which would toll the running of the statute of limitations in favor of Foodmaker. See Enserch Corp., 794 S.W.2d at 4-5.

2. Filing Under An Assumed Name

Virrey next asserts her original petition naming Jack in the Box, Inc. sued Foodmaker under its assumed name, Jack in the Box.

a. Applicable Law

“Rule 28 creates a procedure that permits suit … against a business entity for the purpose of enforcing … against it a substantive right in its … assumed or common name.” Howell v. Coca-Cola Bottling Co. of Lubbock, 595 S.W.2d 208, 211 (Tex.Civ.App.-Amarillo), writ ref’d n.r.e., 599 S.W.2d 801 (Tex.1980); see Tex.R. Civ. P. 28. The rule has no relevance where suit is brought against a corporation in its corporate name. The rule is applicable only when suit is brought against an entity operating under an assumed name. Howell, 595 S.W.2d at 211-12.

The rule does not apply where suit is originally filed against one corporation, and subsequently suit is filed against a second corporation with a different name and after the statutory limit for bringing suit has expired. Howell, 595 S.W.2d at 211-12.

b. Application of Law to Facts

Virrey’s original petition named Jack in the Box, Inc. as the sole defendant. Thus, Virrey sued Jack in the Box, Inc. in its corporate name. See Howell, 595 S.W.2d at 211-12. Virrey did not sue Foodmaker under its assumed name, Jack in the Box. Therefore, rule 28 does not apply. See Tex.R. Civ. P. 28; see also Howell, 595 S.W.2d at 211-12. We conclude rule 28 did not toll the limitation period against Foodmaker when suit was filed against Jack in the Box, Inc. See Howell, 595 S.W.2d at 211-12.

3. Lack of Prejudice

Finally, Virrey argues Foodmaker had a business relationship with Jack in the Box., Inc., was cognizant of the incident, and has not been misled or disadvantaged in obtaining the evidence needed for its defense.

a. Applicable Law

Courts “have tempered the harshness of statutes of limitations by refusing to apply them in unusual situations, where the proper defendant was cognizant of the facts and was not misled or placed at a disadvantage in obtaining relevant evidence to defend the suit.” Howell, 595 S.W.2d at 212; see Enserch Corp., 794 S.W.2d at 5. “Before this equitable principle can be applied, however, there must be some support in the record.” Howell, 595 S.W.2d at 212.

Prejudice is relevant only when the intended corporation or business entity defendant and the defendant actually named in the plaintiff’s petition have a business relationship. Cortinas, 851 S.W.2d at 327. Further, “suit against a subsidiary corporation will not toll limitation against the parent corporation, regardless of common stock ownership, a duplication of officers and directors, or common control resulting from stock ownership, unless management and operation of the parent and subsidiary are so assimilated that the subsidiary is simply a name or conduit through which the parent conducts its business.” Wright v. Gifford-Hill & Co., Inc., 736 S.W.2d 828, 834 (Tex.App.-Waco 1987, writ ref’d n.r.e.) (citing Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 (Tex.1975)). The corporate fiction is disregarded “on the theory that the subsidiary is the alter ego of the parent, and suit against the subsidiary is the same as suit against the parent for the purpose of limitation.” Wright, 736 S.W.2d at 834.

*4 “Representation of successive defendants by the same law firm is insufficient, standing alone, to remove the limitations bar.” Howell, 595 S.W.2d at 212 (citing Krenek v. Epps Super Market No. 2, Inc., 377 S.W.2d 753, 757 (Tex.Civ.App.-Austin 1964, no writ)).

Limitations is not tolled when there are two corporations, the wrong corporation is named in the petition, and the same agent is used by both corporations for service. Barnett v. Houston Natural Gas Co., 617 S.W.2d 305, 307 (Tex.Civ.App.-El Paso 1981, writ ref’d n.r.e.); Thomas v. Cactus Drilling Corp. of Texas, 405 S.W.2d 214, 215-216 (Tex.Civ.App.-Austin 1966, no writ). Limitations is not tolled when two corporations have their offices at the same location, and the wrong corporation is named in the petition. See Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 758, 761 (Tex.1995).

b. Application of Law to Facts

Virrey’s amended petition was filed June 29, 1994. It states the accident occurred on May 4, 1992. On its face, it shows it was filed more than two years after the accident. Foodmaker has met its initial burden of conclusively establishing the statute’s applicability. See Roark, 813 S.W.2d at 495; Damron, 862 S.W.2d at 684-85.

Virrey’s amended petition states Foodmaker is the parent company for Jack in the Box, Inc. This will not toll limitation against the parent corporation, Foodmaker. See Wright, 736 S.W.2d at 834. We must examine the summary judgment evidence to see whether Virrey has met her burden of raising a fact issue that Foodmaker and Jack in the Box, Inc. had a business relationship. See Westland Oil Dev. Corp., 637 S.W.2d at 907; Cortinas, 851 S.W.2d at 327.

The summary judgment evidence shows Foodmaker and Jack in the Box, Inc. were located at the same address in San Diego. Also, a fax of an affidavit of the Secretary/Treasurer of Jack in the Box, Inc. was made from Foodmaker’s fax machine. The fact that both corporations maintained corporate offices at the same address in California will not toll the statute of limitations. See Bailey, 894 S.W.2d at 758, 761.

The summary judgment evidence shows Foodmaker and Jack in the Box, Inc. utilized the same law firm to defend this suit and the same registered agent, C.T. Corp. Systems. Neither fact will toll the statute of limitations. See Howell, 595 S.W.2d at 212; Barnett, 617 S.W.2d at 307.

Foodmaker’s answers to Virrey’s first set of interrogatories state the Secretary/Treasurer of Jack in the Box, Inc. has knowledge of relevant facts relating to the incident that is the basis of this lawsuit. Even if we assume this is evidence of common control resulting from stock ownership, it will not toll the statute of limitations. See Wright, 736 S.W.2d at 834.

We conclude Virrey has not met her burden of raising a fact issue that Foodmaker and Jack in the Box, Inc. had a business relationship. See Westland Oil Dev. Corp., 637 S.W.2d at 907; Cortinas, 851 S.W.2d at 327. We overrule Virrey’s first point of error.

JACK IN THE BOX, INC.

*5 In her second point of error, Virrey complains the trial court erred in granting Jack in the Box, Inc.’s motion for summary judgment. Specifically, Virrey contends Jack in the Box, Inc. did not conclusively establish that no material issues of fact existed about (1) whether it was Virrey’s employer and (2) it truly retained control over the premises at the time of the accident.

The affidavit of Jack in the Box, Inc.’s Secretary/Treasurer states “Jack in the Box, Inc. is not a proper party to this case because it did not employ Gloria Virrey, has never supervised or exercised any control over her, and does not have and has never had any interest in the business or premises … where Plaintiff Gloria Virrey claims she was injured.” Virrey’s response to Jack in the Box, Inc.’s request for discovery and production of documents states “Plaintiff’s only employment in the United States was with Jack in the Box.”

Virrey’s response to the defendants’ motions for summary judgment included two exhibits. Exhibit A consists of two letters from CNA Insurance Companies concerning a workers’ compensation claim for a previous accident involving Virrey. A copy of Virrey’s employment application and employee performance appraisals are also included in Exhibit A. All of these documents refer only to Jack in the Box, not Jack in the Box, Inc.

We conclude Jack in the Box, Inc. met its burden of proof to show that no genuine issues of material fact exist and that it is entitled to summary judgment as a matter of law because it is not a proper party to this suit. See Acker, 790 S.W.2d at 301-02; Zep Mfg. Co., 824 S.W.2d at 657.

Virrey presented no summary judgment proof Jack in the Box, Inc. was Virrey’s employer or that it retained control over the premises at the time of the accident. Virrey has failed to present any summary judgment proof to establish a fact issue. See Westland Oil Dev. Corp., 637 S.W.2d at 907. We overrule Virrey’s second point of error.

We affirm the trial court’s summary judgment in favor of Foodmaker, Inc., d/b/a Jack in the Box, and Jack in the Box, Inc.