Opinion
No. 05-09-00596-CV
Opinion Filed March 25, 2010.
On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-14776-E.
Before Justices O'NEILL, LANG, and MYERS.
MEMORANDUM OPINION
Kevin McKnight appeals the trial court's summary judgment ordering that he take nothing on his negligence claims against Derek B. Meller. In a single issue, McKnight argues the limitations period should be equitably tolled to permit his claims against Meller. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
On March 10, 2006, McKnight was traveling eastbound on Interstate 635 in Dallas County, Texas when a car driven by Derek B. Meller struck the rear of McKnight's car. McKnight suffered injuries as a result of the accident. On December 18, 2007, McKnight filed suit against Derek L. Meller, the father of the driver, asserting negligence claims arising out of the accident. On January 18, 2008, Derek L. Meller filed a general denial. On February 20, 2008, Derek L. Meller filed a response to McKnight's discovery requests, listing his son as the driver of vehicle. On August 21, 2008, McKnight filed his first amended petition to include the driver, Derek B. Meller, as a party to the suit. On January 15, 2009, the trial court granted summary judgment as to Derek L. Meller. On April 1, 2009, Derek B. Meller filed a motion for summary judgment on the ground that limitations barred McKnight's suit against him, and the trial court granted the motion. This appeal followed.
In a single issue, McKnight argues the statute of limitations should be equitably tolled. McKnight reasons equitable tolling should be recognized to defeat the motion for summary judgment because: 1) he mistakenly sued a related, but distinct party other than the true defendant, and 2) the true defendant had actual knowledge of the lawsuit prior to the applicable statute of limitations, was cognizant of the facts of the accident subject of the lawsuit, and was not misled or prejudiced by the mistake in McKnight's initial petition.
We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). A movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant. Id. at 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id.
A defendant seeking summary judgment based on an affirmative defense must establish all elements of the affirmative defense as a matter of law. Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). The statute of limitations is an affirmative defense. See Tex. R. Civ. P. 94. A two-year statute of limitations applies to suits for personal injury. Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon Supp. 2009).
Misidentification arises when two separate legal entities exist and a plaintiff mistakenly sues an entity with a name similar to that of the correct entity. In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W. 3d 323, 325 (Tex. 2009) (orig. proceeding) (per curiam); Enserch Corp. v. Parker, 794 S.W.2d 2, 5 (Tex. 1990). In cases of misidentification, the plaintiff has sued the wrong party, and the statute of limitations is not tolled. If, however, the plaintiff merely misnames the correct defendant, it is referred to as a "misnomer," limitations is tolled, and a subsequent amendment of the petition relates back to the date of the original petition. Enserch, 794 S.W.2d at 4-5.
In this case, both parties agree that the decision to sue Derek L. Meller, instead of his son, Derek B. Meller, is a case of misidentification. McKnight did not make Derek B. Meller a party to the underlying suit until August 21, 2008, approximately five months after limitations expired on March 10, 2008. McKnight argues that the statute of limitations should be equitably tolled because Derek B. Meller had actual knowledge of the lawsuit, was not misled by McKnight's misidentification, and suffered no prejudice. The Texas Supreme Court has held that a plaintiff who misidentifies a corporate defendant may escape the statute of limitation requirement by proving that the defendant suffered no prejudice. Enserch, 794 S.W.2d at 6. Prejudice is a relevant consideration only when an intended corporate or business-entity defendant and the defendant actually named in the plaintiff's petition have a business relationship. Id. at 6; Matthews Trucking Co. v. Smith, 682 S.W.2d 237, 238 (Tex. 1984). There is no such business relationship in this case.
This court has previously held, under similar facts, that the doctrine of equitable tolling of the statute of limitations is unavailable. See Eggl v. Arien, 209 S.W.3d 318, 319 (Tex. App.-Dallas 2006, pet. denied) (holding equitable tolling doctrine not available when plaintiff misidentified driver of car as Nazir Arien and failed to join the appropriate party, Nazir's son Sheltzad Arien, until after limitation period expired); see also Cortinas v. Wilson, 851 S.W.2d 324, 327 (Tex. App.-Dallas 1993, no writ) (declining to extend "lack of prejudice" exception to the statute of limitations to individual defendants, when mother was mistakenly sued instead of her daughter). Accordingly, the trial court did not err when it granted summary judgment. See Nixon, 690 S.W.2d at 548-49; Eggl, 209 S.W.3d at 319. We decide McKnight's single issue against him.
The trial court's judgment is affirmed.