Sysco Food Services of San Antonio, Inc. v. Ramirez, Miguel ( 2000 )

NUMBER 13-99-009-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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SYSCO FOOD SERVICES OF SAN ANTONIO, INC., Appellant,

v.

MIGUEL RAMIREZ, Appellee.

____________________________________________________________________

On appeal from the 370th District Court of Hidalgo County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion by Justice Hinojosa

Appellee, Miguel Ramirez, sued Tommy Villarreal and Sysco Corporation ("Sysco Corp.") for personal injuries received in a traffic accident. He later added appellant, Sysco Food Services of San Antonio, Inc. ("Sysco SA"), as a defendant. The case was tried to a jury, and after the close of evidence, appellee non-suited Sysco Corp. Sysco SA then moved for a directed verdict, and the trial court denied the motion. The jury found that: (1) Villarreal, Sysco SA's employee, was negligent and in the course and scope of his employment with Sysco SA, and (2) appellee had suffered actual damages in the amount of $35,000. Sysco SA then filed a motion for judgment notwithstanding the verdict. The trial court denied the motion and signed a judgment in favor of appellee. By a single point of error, Sysco SA contends the trial court erred by denying its motion for instructed verdict, by overruling its motion for judgment notwithstanding the verdict, and by entering judgment for appellee because appellee's claims were barred by limitations. We affirm.

A. Standard of Review

A directed or instructed verdict is proper when: (1) a specifically indicated defect in the opponent's pleadings makes it insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law; or (3) the evidence offered on a cause of action is insufficient to raise an issue of fact. City of Alamo v. Casas, 960 S.W.2d 240, 248 (Tex. App.--Corpus Christi 1997, pet. denied); Nelson v. American Nat'l Bank of Gonzales, 921 S.W.2d 411, 414 (Tex. App.--Corpus Christi 1996, no writ). A judgment notwithstanding the verdict is authorized only where the trial court determines that no evidence supports the jury's findings. Mancorp v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). We review denials of motions for instructed verdict and motions for judgment notwithstanding the verdict by a legal sufficiency or "no evidence" standard of review. Casas, 960 S.W.2d at 248; City of Alamo v. Montes, 904 S.W.2d 727, 732 (Tex. App.--Corpus Christi 1995, writ dism'd, 934 S.W.2d 85 (Tex. 1996).

When we review a no-evidence point of error, we must consider only the evidence and reasonable inferences therefrom which tend to support the jury findings. Redman Homes. Inc. v. Ivy, 920 S.W.2d 664, 667 (Tex. 1996); Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex. 1989); Casas, 960 S.W.2d at 248-49. A legal sufficiency challenge should be sustained only when the record shows that: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively established the opposite of a vital fact. Cecil v. Smith, 804 S.W.2d 509, 510 n.2 (Tex. 1991); Casas, 960 S.W.2d at 249.

B. Limitations

Sysco SA complains that appellee's cause of action is barred by limitations. Generally, a plaintiff must bring his action for personal injury not later than two years after the date the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2000). 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. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988); Continental S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975); Price v. Estate of Anderson, 522 S.W.2d 690, 692 (Tex. 1975); Palmer v. Enserch Corp., 728 S.W.2d 431, 433 (Tex. App.--Austin 1987, writ ref'd n.r.e.).

Considering only the evidence supporting the jury verdict, the record shows that appellee was injured on April 27, 1994, when a semi-tractor trailer rig disregarded a flagman's instructions and drove through an intersection where appellee was working on a traffic light. The rig, which had "Sysco" painted on its side, collided with a utility truck bucket in which appellee was suspended, crushing him against the traffic light. The rig drove off without stopping, but the flagman was able to get a description of the rig and a partially-correct license plate number.

McAllen police investigated the incident as a hit and run. Soon after the accident, they contacted the Sysco Food Services warehouse in nearby Mercedes and were given the telephone number of Sysco SA's main office in San Antonio. Two Sysco SA supervisors, Joe Galant and Michael Archuleta, assisted the police in the investigation. They eventually identified the driver of the rig as Tommy Villarreal, a Sysco SA employee.

Appellee filed suit on April 18, 1996, nine days before the statute of limitations expired. He named Villarreal and Sysco Corp. as defendants. Villarreal was apparently never served, although citation was issued. Sysco Corp. was served on May 2, 1996, with citation, the petition, and various discovery requests. Sysco Corp.'s verified answer denied that Villarreal was its employee, and alleged an unspecified defect in the parties. On November 21, 1996, Sysco Corp. filed a motion for summary judgment on the grounds that it did not own the vehicle involved in the accident and that Villarreal was not its employee. Sysco Corp. asserted that Villarreal was an employee of Sysco SA, a wholly-owned subsidiary of Sysco Corp. On December 6, 1996, appellee amended his petition and added Sysco SA as a defendant in the suit. Sysco SA was served with citation on December 29, 1996, two years and eight months after the accident.

The statute of limitations was not created to provide a log behind which opportunistic defendants could smugly lie for two years and then emerge solemnly proclaiming their rights under the statute, when the facts show that such defendants were fully aware that the plaintiffs were legally mistaken as to their identity. Castro, 663 S.W.2d at 505. Limitations may be tolled in cases where the doctrine of misidentification applies. Misidentification generally occurs where two corporations have the same or similar names, and the plaintiff has mistakenly sued the wrong entity. Enserch Corp. v. Parker, 794 S.W.2d 2, 5 (Tex. 1990); Matthews Trucking Co. v. Smith, 682 S.W.2d 237, 239 (Tex. 1984). Texas courts have held that where the proper defendant knew of the facts of the suit, was not misled, and was not placed at a disadvantage in obtaining relevant evidence necessary for its defense, limitations will not bar the plaintiff's suit where the wrong defendant is sued first and the proper defendant is added after the statute of limitations has run. Parker, 794 S.W.2d at 5-6; Matthews Trucking, 682 S.W.2d at 239; Continental S. Lines, 528 S.W.2d at 831; Palmer, 728 S.W.2d at 433. The diligence of the plaintiff in suing the proper defendant before the statute runs is not important; the controlling issue is whether the legitimate purpose of the statute of limitations would be served by its application where no party was misled or placed at a disadvantage by the error in pleading. Palmer, 728 S.W.2d at 434. This equitable exception to limitations is narrowly limited to situations where the proper defendant and the defendant named in the petition have a business relationship. Parker, 794 S.W.2d at 6; Matthews Trucking, 682 S.W.2d at 239; Cortinas v. Wilson, 851 S.W.2d 324, 327 (Tex. App.--Dallas 1993, no writ). Factors considered by courts in determining whether a defendant who is added after the statute of limitations has run has been misled or prejudiced include:

(1) Both defendants were fully cognizant of the facts and could not have been misled as to the basis of the suit. Parker, 794 S.W.2d at 6; De Leon Torres v. Johns, 706 S.W.2d 693, 696 (Tex. App.--Corpus Christi 1986, no writ);

(2) The proper defendant had actual knowledge of the incident and had as much opportunity to prepare a defense as if it had been named in the original petition. Price , 522 S.W.2d at 692 (Tex. 1975); De Leon Torres, 706 S.W.2d at 696; Palmer, 782 S.W.2d at 435;

(3) Both defendants had the same attorney. Parker, 794 S.W.2d at 5-6; Continental S. Lines, 528 S.W.2d at 830; De Leon Torres, 706 S.W.2d at 696; Castro v. Harris Co., 663 S.W.2d 502, 505 (Tex. App.--Houston [1st Dist.]1983, writ dism'd w.o.j.);

(4) The defendants had separate but intertwined legal departments. Parker, 794 S.W.2d at 5-6; Palmer, 782 S.W.2d at 434-35;

(5) The defendants had the same agent for service. Continental S. Lines, 528 S.W.2d at 830; De Leon Torres, 706 S.W.2d at 696; Castro, 663 S.W.2d at 505;

(6) The defendants had different registered agents for service, but at the same address. Palmer, 782 S.W.2d at 434;

(7) The two defendants did business under one name. Continental S. Lines, 528 S.W.2d at 830; Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 575 (Tex. 1975);

(8) Service of citation may actually have been forwarded to the proper defendant. Continental S. Lines, 528 S.W.2d at 830-31;

(9) Employee of proper defendant reported the accident to his employer. Continental S. Lines, 528 S.W.2d at 831; and

(10) One defendant was a wholly-owned subsidiary of the other. Parker, 794 S.W.2d at 4; Palmer, 728 S.W.2d at 434.

Here, the record reflects that:

(1) Sysco SA knew of the accident very shortly after it happened and actually assisted the police in determining that one of its drivers was involved;

(2) Sysco SA is a wholly-owned subsidiary of Sysco Corp.;

(3) Sysco SA's trucks, including the one that struck appellee, had "Sysco" painted on their sides, suggesting both companies "did business" under the same name;

(4) The two companies had the same registered agent for service at the same address; and

(5) Both companies were represented in this matter by the same law firm.

C. Failure to Plead and Prove "No Prejudice" Exception

Sysco SA complains that appellee failed to plead and prove the "no prejudice" exception that tolls the statute of limitations in cases of misidentification.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request or objection. Tex. R. App. Proc. 33.1(a)(1). The reason for requiring a timely request or objection is threefold: (1) fairness to all parties requires a litigant to advance complaints at a time when there is an opportunity to respond or cure them; (2) reversing a case for error not raised in a timely fashion permits the losing party to second guess its tactical decisions after they do not produce the desired result; and (3) judicial economy requires that issues be raised first in the trial court in order to spare the parties and the public the expense of a potentially unnecessary appeal. Cross Marine, Inc. v. Lee, 905 S.W.2d 22, 25 (Tex. App.--Corpus Christi 1995, writ denied); see also Tex. R. App. Proc. 33.1(a)(1)(A) (motion must state grounds for ruling sought with sufficient specificity to make trial court aware of complaint).

In both its oral motion for instructed verdict and written motion for judgment notwithstanding the verdict, Sysco SA alleged only that there was no evidence to support a jury finding against it. Sysco SA did not complain to the trial court of any defect in pleading or findings of the jury. Therefore, this complaint has not been preserved for our review.

D. Conclusion

The record shows that Sysco SA had full knowledge of the accident and had ample opportunity to conduct its own investigation of the facts. In no way was Sysco SA misled or prejudiced by appellee's error in pleading. Clearly, the doctrine of misidentification applies in this case.

Because the doctrine of misidentification applies, we hold the statute of limitations was tolled and appellee's cause of action against Sysco SA was not barred by limitations. Accordingly, the trial court did not err in denying Sysco SA's motion for instructed verdict, in overruling Sysco SA's motion for judgment notwithstanding the verdict, or by entering judgment for appellee. We overrule appellant's sole point of error.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 10th day of August, 2000.