Court of Appeals of Texas, Beaumont.

Jerry RISINGER, Appellant,

v.

Jimmy R. GRAY and Cheryl E. Gray, Appellees.

No. 09-93-193 CV.

|

July 14, 1994.

Before WALKER, C.J., BROOKSHIRE and BURGESS, JJ.

OPINION

WALKER.

*1 This appeal arises from a lawsuit resulting from a motor vehicle accident involving an automobile driven by appellant, Jerry Risinger, and another automobile driven by appellee, Cheryl Gray. There were no passengers in either car. This accident occurred on October 29, 1990, in Montgomery County, Texas. On October 23, 1992, six days prior to limitations expiring, appellant Risinger filed his original lawsuit naming Jimmy Gray, an appellee herein, as the sole defendant. Jimmy Gray received a copy of appellant’s original petition along with citation on November 17, 1992, nineteen days after limitations had expired. When appellant received Answers to Interrogatories from appellee, Jimmy Gray, appellant realized that the name of the person involved in the collision was not “Jimmy Gray,” but was “Cheryl Gray.” Appellant then amended his lawsuit to name “Cheryl Gray” as the driver and to allege a negligent entrustment cause of action against Jimmy Gray, Cheryl Gray’s husband.

Appellant admitted by affidavit that “at the scene of the motor vehicle accident … the woman … told me that her name was Cheryl Gray.” Appellant takes the position by brief, that in dealing with appellees’ insurance company, appellant was lead to believe that the name of the woman involved in the collision was “Jimmy Gray.” It is clear that appellant failed to both name the proper party and obtain service on the proper party within the statute of limitations period.

The trial court granted appellees’ motions for summary judgment which appellant now ask this Court to overturn.

The burden upon appellees, movants, in motion for summary judgment, was to establish as a matter of law that no issues of fact were present and that movants were entitled to judgment as a matter of law. See INA v. Bryant, 686 S.W.2d 614 (Tex.1985). All evidence must be viewed in a light most favorable to the non-movant. Cox v. Bancoklahoma Agri-service Corp., 641 S.W.2d 400 (Tex.App.-Amarillo 1982, no writ). “A summary judgment may only be granted in favor of [a] movant whose evidence offered in support of the motion establishes the movant’s right to judgment as a matter of law.” Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex.1984).

Appellant Risinger contends that his response to appellee Cheryl Gray’s motion for summary judgment raised fact questions regarding misnomer of a party. By affidavit, Risinger states that he believed that the proper name of the individual involved in the collision was “Jimmy Gray.” Appellant contends that Cheryl Gray produced no summary judgment evidence to show that she was unaware of this suit. It is appellant’s position that this case is controlled by Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975). Price was involved in an automobile accident where the defendant died several months after the accident. When the original lawsuit was filed, the only defendant named was “The Estate of Welton Terry Anderson.” These pleadings were later amended to name the administrator of the estate, being the same person who received service for the estate. The administrator filed a motion for summary judgment claiming that the statute of limitations barred plaintiff’s claim. The Supreme Court held it to be a misapplication of the statute of limitations to bar plaintiff’s action as defendant was “at all times fully cognizant of the facts and could not have been mislead as to the basis of the suit, nor was he placed at any disadvantage in obtaining relevant evidence to defend the same.” Id. at 692.

*2 Appellant also cites De Leon Torres v. Johns, 706 S.W.2d 693 (Tex.App.-Corpus Christi 1986, no writ), which is a case involving misnomer.

The case before us is not a case involving the law of misnomer. Appellant seeks to direct this Court down the same rabbit trail upon which this Court was snared in 1984, in Smith v. Matthews Trucking Co., Inc., 665 S.W.2d 836 (Tex.App.-Beaumont 1984), this Court was reversed by the Texas Supreme Court in Matthews Trucking Co. v. Smith, 682 S.W.2d 237 (Tex.1984). Even though appellant makes no mention or reference to Matthews Trucking Co. v. Smith, appellees place strong reliance upon same, and rightly so. In Smith, the trial court granted defendant’s motion for summary judgment in a personal injury action in favor of Matthews because it was not sued within two years from the date of the accident resulting in personal injuries. This Ninth Court of Appeals reversed the trial court’s judgment and remanded the cause for trial on the merits. Our Texas Supreme Court reversed this Court and affirmed the judgment of the trial court.

Factual similarity between Smith and the present case is apparent. On February 17, 1978, Smith was allegedly injured in a collision with a vehicle driven by an employee of Matthews. Smith’s attorney discussed the accident with the insurance carrier for Matthews, however, settlement negotiations were unsuccessful. Although a representative of the insurance carrier told Smith’s attorney that the defendant was “Matthews Trucking Co.,” there was no claim that this was a misrepresentation of corporate identity. On February 15, 1980, two days prior to the running of the two year statute of limitation, Smith filed his original petition against LouisianaMatthews Trucking Co., Inc., which was served with process on March 5, 1980. Smith’s attorney was contacted on March 20, 1980, by Louisiana-Matthews Trucking Co., Inc., and was told that it was not the trucking company sought to be charged. Smith’s attorney requested that the district court reissue citation and on May 20, 1980, Matthews Trucking Co. was served with process but without amendment of pleadings.

On June 5, 1980, Matthew-Lufkin, Inc., d/b/a Matthews Trucking Co., answered the suit with a general denial and specifically alleged that Smith’s cause of action was barred by the twoyear statute of limitations, Tex.Rev.Civ. Stat. Ann. art. 5526 (repealed)(for current statute, see Tex. Civ. Prac. & Rem.Code § 16.003 (Vernon 1986). Defendant Matthews, contended that this Court of Appeals erred in holding that; (1) Matthews-Lufkin, Inc., was sued “in a sense” in Smith’s original petition; (2) the statute of limitations was tolled until the insurance claim manager advised plaintiff’s attorney of the correct defendant; (3) the statute of limitations was tolled due to an official error made by the Secretary of State’s Office; and (4) the trial court’s judgment was interlocutory because it did not dispose of a workers’ compensation benefit intervention claim.

*3 Our Texas Supreme Court made clear that:

This is not a misnomer case in which a plaintiff sued the correct defendant but merely misnamed the defendant. In such a case, service upon the correct defendant would be proper and the defendant would then be under a duty to plead such misnomer and seek abatement. See Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840 (1939); Abilene Independent Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847 (1921).

Matthews Trucking Co. v. Smith, 682 S.W.2d at 238-239.

In our case, like Smith, appellant Risinger sued the wrong defendant. “The filing of that suit did not toll the running of the two-year statute of limitations in favor of the correct defendant …” Id. at 239.

Regarding Risinger’s contention that “he was led to believe” that the name of the woman involved in the collision was “Jimmy Gray,” we again rely on Smith, which holds:

The court of appeals also erred in holding that the statute of limitations was tolled until the insurance claims manager advised Smith’s attorney of the correct defendant. A suit mistakenly filed against the wrong defendant imposes no duty on the correct defendant to intervene and point out plaintiff’s error. Moreover, the rule applies even though the correct defendant may have known of the suit. McDonald v. Miller, 90 Tex. 309, 39 S.W. 89, 95 (1897); Garcia v. Employers Casualty Company, 519 S.W.2d 685, 689 (Tex.Civ.App.-Amarillo 1975, writ ref’d n.r.e.); Astro Sign Company v. Sullivan, 518 S.W.2d 420, 424 (Tex. Civ. App.-Corpus Christi 1974, writ ref’d n.r.e.).

Id. at 239.

In the present case, appellant admitted by summary judgment affidavit that at the scene, “the woman … told me that her name was Cheryl Gray.” In spite of appellant having direct knowledge of the proper defendant, appellant consciously chose to omit Cheryl Gray from his original petition. Appellant confuses the law relating to misnomer with the law relating to misidentification.

Texas recognizes a distinction between misnomer and misidentification. Where a party is mistaken as to which of two defendants is the correct one and names and serves the incorrect defendant, then the litigant has sued the wrong party and limitations are not tolled. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990); New York Underwriters Ins. Co. v. Ehlinger, 593 S.W.2d 432, 433 (Tex.Civ.App.-Houston [14th Dist.] 1980, no writ). Appellant’s contention that Cheryl Gray’s failure to produce any summary judgment evidence demonstrating her lack of knowledge of the suit is also not acceptable. Again, a suit mistakenly filed against the wrong defendant imposes no duty on the correct defendant to intervene and point out plaintiff’s error. Smith, 682 S.W.2d at 239. In Texas a marital relationship does not create a general agency, one for the other. Thus, appellant’s amended petition alleging individual acts of negligence against appellee Cheryl Gray cannot be characterized as a pro forma amendment. See Henslee v. Alexander, 469 S.W.2d 318 (Tex.Civ.App.-Eastland 1971, no writ). Appellant further says, without citing authority, that his amended petition naming Cheryl Gray, relates back to the date of the original petition which was filed prior to the running of the limitations period. The “relation back doctrine” does not purport to deal with amendments which add parties. Stokes v. Beaumont, Sour Lake & Western Railway Co., 161 Tex. 240, 339 S.W.2d 877 (1960); Chien v. Chen, 759 S.W.2d 484, 493 (Tex.App.-Austin 1988, no writ). An amended pleading relates back unless a new party is added. Kirkpatrick v. Harris, 716 S.W.2d 124, 125 (Tex.App.-Dallas 1986, no writ); see also Leeds v. Cooley, 702 S.W.2d 213, 215 (Tex.App.-Houston [1st Dist.] 1985, writ ref’d n.r.e.) (tolling occurs when a party defendant is brought into the suit and not when the original pleading is filed). Points of error one and two are overruled.

*4 Point of error three contends that the trial court erred in granting summary judgment in favor of appellee, Jimmy Gray, because at the time of the filing of motion for summary judgment, appellant had not lodged allegations of negligent entrustment against appellee, Jimmy Gray.

Appellant’s amended petition alleging negligent entrustment against Jimmy Gray was before the trial court on the date the court granted summary judgment in favor of Jimmy Gray. Appellant filed his amended petition on January 29, 1993. The trial court considered appellee Jimmy Gray’s summary judgment on February 15, 1993, and signed an order granting same on February 22, 1993. The trial court’s judgment states that the pleadings of the parties were considered and the record fails to indicate otherwise, thus, a presumption arises that appellant’s claim for negligent entrustment was properly before the court. See Goswami v. Metropolitan Sav. & Loan, 751 S.W.2d 487, 490-491 (Tex.1988).

Jimmy Gray’s motion for summary judgment specifically addressed the issue of negligent entrustment in paragraph III. In spite of Jimmy Gray’s affidavit attached and filed as a part of his motion for summary judgment, appellant claims that the cause of action for negligent entrustment was not negated by any affidavit on file.

The Jimmy Gray affidavit conclusively negated an essential element of appellant’s cause of action for negligent entrustment. This affidavit denied any involvement, ownership, control, or authority to control any vehicle allegedly involved in the accident with appellant. Furthermore, the record before us establishes that appellant failed to seek any delay in the summary judgment proceedings in order to secure affidavits or take depositions as provided under Rule 166a (g) of the Texas Rules of Civil Procedure. This being the case, the affidavit of Jimmy Gray, although an interested party, will support a summary judgment in the absence of a controverting affidavit or of an attempt by the non-movant to avail himself of a Rule 166a (g) postponement. See Longoria v. Texaco, Inc., 649 S.W.2d 332, 335-336 (Tex.App.-Corpus Christi 1983, no writ); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.-Dallas 1963, writ ref’d r.n.e.).

Appellant’s point of error three is overruled.

We hold that the trial court correctly applied the law of misidentification to the facts at hand. We affirm the judgment of the trial court’s granting of summary judgment in favor of appellee, Cheryl Gray.

We further hold that the trial court correctly applied the law as to appellee, Jimmy Gray’s motion for summary judgment and we affirm the trial court’s judgment.

Having overruled appellant’s three points of error, the judgment of the trial court is in all things affirmed.

AFFIRMED.