Christina Lopez v. Brenda Guadalupe Ayala and Maria Ayala ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00057-CV

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CHRISTINA LOPEZ, Appellant

V.

BRENDA GUADALUPE AYALA AND MARIA AYALA, Appellees

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On Appeal from the 51st Judicial District Court

Tom Green County, Texas

Trial Court No. A-04-1144-C

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Christina Lopez appeals from a summary judgment taken against her in her personal injury lawsuit against Brenda Guadalupe Ayala and Maria Ayala. The judgment was based on the Ayalas' contention they were sued outside the applicable statute of limitations. The trial court agreed.

          The accident from which the suit arose occurred April 24, 2001. Lopez filed suit against Farmers Texas County Mutual Insurance Company (and not against the insureds) on the last day of the limitations period, April 24, 2003. On January 22, 2004, Lopez filed a motion for leave to join additional parties, the Ayalas. On February 6, 2004, the court granted Lopez' motion for leave and dismissed Farmers from the suit. Thereafter, on February 9, 2004, Lopez filed her first amended petition, naming the Ayalas as defendants. This was over nine months after limitations had expired.

          Ultimately, the Ayalas filed a motion for summary judgment in which they alleged that limitations had run. The court granted that motion January 31, 2005.

          When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). On appeal, the movant must show that there is no material fact issue and that the movant is entitled to judgment as a matter of law. Limestone Prods. Distribution, Inc., 71 S.W.3d at 311; Rhone-Poulenc, Inc., 997 S.W.2d at 223.

          Lopez contends the court erred by granting summary judgment because the concept of misidentification saves the late filing. She contends this is merely a pleading error because it names the insurance company instead of the insured as defendant. She contends this is a case of misidentification where the wrong legal entity was sued. The Texas Supreme Court has recently addressed the application of this theory. The court has held that:

The statute of limitations will be tolled in mis-identification cases if there are two separate, but related, entities that use a similar trade name and the correct entity had notice of the suit and was not misled or disadvantaged by the mistake.

Flour Bluff Indep. Sch. Dist. v. Bass, 133 S.W.3d 272, 274 (Tex. 2004); Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex. 1999).

          In this case, the theory is inapplicable on its face. The two entities are not related, and they do not use a similar trade name. Compare Cont'l S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975). Thus, we need not reach the second portion of Lopez' argument: that the equitable exception to service should apply because of the business relationship between Ayala and the insurer.

          Lopez also suggests that, because the trial court allowed her to join the Ayalas as parties, they are properly in the lawsuit and limitations does not apply. That contention, however, is not explained. It is apparently based also on her position that misidentification justifies the joinder. For the reasons stated, this argument also fails.

          Lopez also contends the trial court erred by failing to consider the summary judgment evidence in the light most favorable to the nonmovant. In this contention, she argues the trial court failed to consider her evidence of a business relationship between the Ayalas and the insurer, suggesting this would provide proof that would allow application of the law of misidentification. As set out above, misidentification does not apply in this case, and the existence of a business relationship between the parties would not affect the controlling question of whether they were "separate, but related, entities that use a similar trade name." The contention of error is overruled.

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      August 9, 2005

Date Decided:         September 8, 2005