Adriana Garcia v. Bazan Enterprise, Inc. D/B/A Taco Ole Restaurant ( 2022 )

NUMBER 13-21-00390-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ADRIANA GARCIA, Appellant,
v.
BAZAN ENTERPRISES, INC.
D/B/A TACO OLE RESTAURANT, Appellee.
On appeal from the County Court at Law No. 6
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Chief Justice Contreras
By two issues, appellant Adriana Garcia appeals the trial court’s order granting
appellee Bazan Enterprises, Inc. d/b/a Taco Ole Restaurant (Taco Ole)’s motion for
summary judgment. We affirm.
I. BACKGROUND
Garcia was a Taco Ole employee on June 27, 2017, when she allegedly suffered
injuries to her left hand and arm while operating “a machine . . . that was unsafe and unfit
for use by [Taco Ole’s] employees.” On June 13, 2019, Garcia sued “Taco Ole Restaurant
located at 2316 Conway Rd. Mission[,] Texas 78574,” alleging claims of premises liability
and negligence. Garcia hired a process server to serve one of Taco Ole’s registered
agents, Elias Bazan Jr. 1 On June 26, 2019, the process server effected service on Elias
Bazan III at a Taco Ole restaurant located at 2620 West Freddy Gonzalez Drive in
Edinburg, Texas.
Garcia filed a motion for default judgment on February 21, 2020, noting that Taco
Ole had failed to file an answer. On May 20, 2020, Taco Ole filed a motion to quash
service of process, arguing that service upon Elias Bazan III was improper, as he “is not
the registered agent, president, vice president[,] nor any other officer of Bazan
Enterprises, Inc.” See TEX. BUS. ORGS. CODE ANN. § 5.255 (listing corporate agents for
service of process). Taco Ole presented documentation from the Secretary of State’s
office that, in fact, Elias Bazan III—Elias Bazan Jr.’s son—is the registered agent for a
separate business entity called Bazan Enterprises of Edinburg, Inc. d/b/a Taco Ole of
Edinburg (Taco Ole Edinburg). On June 18, 2020, the trial court granted Taco Ole’s
motion to quash service, and instead deemed that Taco Ole was served as of that date. 2
1 The record reflects that Maria Delia Bazan is also listed as a registered agent of Taco Ole.
2 On June 20, 2020, Garcia attempted service on Taco Ole again, even though the trial court
deemed that process had been served as of June 18. Once again, the process server executed service at
Taco Ole Edinburg and, although correctly named in the service return form, upon the wrong Elias Bazan.
We note, as the parties do, that service on Elias Bazan Jr. would have been impossible, as he died on
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On June 23, 2020, Taco Ole filed its motion for summary judgment, arguing that
Garcia failed to effect service of process within the two-year statute of limitations for
personal injury cases. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. In her response,
Garcia argued that she diligently attempted to serve Taco Ole, so the date of service
should relate back to the date she filed suit. As evidence of her diligent efforts, Garcia
attached the two service return forms indicating service upon Elias Bazan III at Taco Ole
Edinburg.
On October 7, 2020, the trial court signed a partial summary judgment order, ruling
that Garcia’s negligence and premises liability claims against Taco Ole were barred by
limitations. On September 23, 2020, Garcia filed her second amended original petition
adding claims for breach of contract and breach of warranties. Those claims, not at issue
in this appeal, were dismissed by the trial court’s second summary judgment order on
October 4, 2021. Garcia filed a motion for new trial on October 29, 2021, arguing that the
two-year limitations period should have been equitably tolled under the doctrines of
misnomer and misidentification. The trial court did not rule on the motion for new trial.
This appeal followed.
II. DISCUSSION
By two issues, Garcia argues the trial court’s summary judgment should be
reversed because: (1) she sued Taco Ole under its assumed name and provided Taco
Ole with actual notice of her suit; and (2) she “worked diligently to obtain service” on Taco
Ole. We address the two issues in reverse order.
November 8, 2018—seven months before Garcia filed suit.
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A. Standard of Review & Applicable Law
We review a trial court’s order granting summary judgment de novo. Eagle Oil &
Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). We take as true all evidence
favorable to the nonmovant and indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646
(Tex. 2020). To be entitled to traditional summary judgment, a movant must establish
there is no genuine issue of material fact and the movant is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d
125, 130 (Tex. 2018). A defendant who conclusively establishes an affirmative defense
is entitled to summary judgment on that claim. Eagle Oil & Gas Co., 619 S.W.3d at 705
(citing Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010)).
Personal injury claims are subject to a two-year limitations period. See TEX. CIV.
PRAC. & REM. CODE ANN. § 16.003(a) (“[A] person must bring suit for . . . personal
injury . . . not later than two years after the day the cause of action accrues.”). To timely
“bring suit,” a plaintiff must not only file suit within the limitations period, but must also
work diligently to serve the defendant with process. See Gant v. DeLeon, 786 S.W.2d
259, 260 (Tex. 1990). When a suit is timely filed, but the defendant is not served until
after the limitations period expires, the date of service relates back to the date of filing
only if the plaintiff exercised diligence in effecting service. Proulx v. Wells, 235 S.W.3d
213, 215 (Tex. 2007) (per curiam). “In a summary judgment proceeding, once the
defendant proves that service occurred after limitations expired, the burden shifts to the
plaintiff to explain the delay and to raise a fact question regarding diligence of service.”
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Flanigan v. Nekkalapu, 613 S.W.3d 361, 364 (Tex. App.—Fort Worth 2020, no pet.).
“In assessing diligence, the relevant inquiry is whether the plaintiff acted as an
ordinarily prudent person would have acted under the same or similar circumstances and
was diligent up until the time the defendant was served.” Proulx, 235 S.W.3d at 216.
Diligence in effecting service of process is generally a question of fact and determined
“by examining the time it took to secure citation, service, or both, and the type of effort or
lack of effort the plaintiff expended in procuring service.” Id. However, diligence may be
determined as a matter of law when “one or more lapses between service efforts are
unexplained or patently unreasonable.” Id.; see Roberts v. Padre Island Brewing Co., 28
S.W.3d 618, 621 (Tex. App.—Corpus Christi–Edinburg 2000, pet. denied) (“[A] lack of
diligence exists as a matter of law because it is clear that appellant did not exhaust all of
the alternatives available to achieve proper service.”); Rodriguez v. Tinsman & Houser,
Inc., 13 S.W.3d 47, 49 (Tex. App.—San Antonio 1999, pet. denied) (“A lack of diligence
will be found as a matter of law . . . if no valid excuse for lack of service is offered, or if
the lapse of time and the plaintiff’s acts, or inaction, conclusively negate diligence.”).
“It is the responsibility of the one requesting service, not the process server, to see
that service is properly accomplished.” Primate Const., Inc. v. Silver, 884 S.W.2d 151,
153 (Tex. 1994); see Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex.
App.—Corpus Christi–Edinburg 1994, no writ) (“Any deficiency in the server’s
performance is imputed to [the plaintiff].”); see also TEX. R. CIV. P. 99(a) (“The party
requesting citation shall be responsible for obtaining service of the citation and a copy of
the petition.”). Accordingly, “reliance on the process server does not constitute due
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diligence in attempting service of process.” Roberts, 28 S.W.3d at 621; see Flanigan, 613
S.W.3d at 365.
B. Diligence
By her second issue, Garcia argues that she “exercised diligence in attempting to
effectuate service upon [Taco Ole,]” so the date of service should relate back to the date
she filed suit.
Taco Ole pleaded the affirmative defense of limitations, noting the following
sequence of events: (1) Garcia was allegedly injured on June 27, 2017; (2) Garcia timely
filed suit on June 13, 2019; (3) the two-year limitations period expired on June 27, 2019;
and (4) Taco Ole was not served with process until June 18, 2020. Taco Ole’s evidence
proved untimely service, and thus the burden shifted to Garcia to prove diligence in the
371 days between filing suit against and effecting service of process on Taco Ole. See
Eagle Oil & Gas Co., 619 S.W.3d at 705; Flanigan, 613 S.W.3d at 364. Garcia did not
meet her burden.
In her response to Taco Ole’s motion for summary judgment, Garcia argued that
she “presented evidence showing diligence on [her] part in effecting service on [Taco
Ole].” Such evidence consisted only of the return of service forms indicating that her
process server effected service on Elias Bazan III at Taco Ole Edinburg. Garcia seems
to have been under the continued misunderstanding that she served the correct party
with process. Indeed, on appeal, Garcia again states that she “did not mistake who [she]
was supposed to serve.” But as noted, Taco Ole submitted documentation from the
Secretary of State’s office showing that Taco Ole and Taco Ole Edinburg are two separate
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business entities with different registered agents. Elias Bazan Jr. was a registered agent
of Taco Ole, but Elias Bazan III is not.
Evidently, Garcia believed that her process server properly effected service on
Taco Ole on the final day of the limitations period, and she then waited over eight months
and filed a motion for default judgment when Taco Ole failed to respond to her suit. In
fact, the process server failed to serve any corporate representative or registered agent
of Taco Ole. This Court has held that reliance on a process server to effect proper service
does not, as a matter of law, constitute diligence, as the deficiency in a process server’s
performance is imputed to the plaintiff. Roberts, 28 S.W.3d at 621; Gonzalez, 884 S.W.2d
at 590; see also Flanigan, 613 S.W.3d at 365. Here, the return of service forms clearly
indicated that only Elias Bazan III was served, not Elias Bazan Jr. Accordingly, Garcia’s
summary judgment evidence does not establish that she exercised due diligence. See
Roberts, 28 S.W.3d at 621; Rodriguez, 13 S.W.3d at 49.
While Taco Ole and Taco Ole Edinburg have similar trade names and have
registered agents with nearly identical personal names, the relevant return service form
clearly indicates that process was served at Taco Ole Edinburg, not Taco Ole, and on an
individual with a different name suffix. An “ordinarily prudent person” in this case should
have recognized the error—if not immediately, at the very least when the purportedly
served Taco Ole had not responded for over eight months by the time Garcia filed her
motion for default judgment, which was seven months since its response was due. See
Gonzalez, 884 S.W.2d at 590 (“Had [appellants and their attorney] been diligent, [t]he[y]
would have noticed that appellees had not filed an answer for over fourteen months after
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[t]he[y] filed the amended petition.”).
Since Garcia cannot rely on her process server’s error to demonstrate diligence,
she must otherwise explain a delay of over one year between filing suit and effecting
service on Taco Ole. Garcia claims that Taco Ole’s “fail[ure] to abide by applicable Texas
Law governing corporations maintaining registered agents, and seeming gamesmanship
in having Elias Bazan[] III accept service” on Taco Ole’s behalf led her to “labor[] under
the belief that the correct person had been served until [she] received [Taco Ole]’s Motion
to Quash Service.” In the first place, these arguments were never raised in the trial court,
so they are waived on appeal. See TEX. R. APP. P. 33.1; TEX. R. CIV. P. 99(a). In any case,
there is no evidence in the record, and Garcia has not cited legal authority, to support
these claims. See TEX. R. APP. P. 38.1. Even so, while Elias Bazan Jr. passed away
before Garcia filed suit, Taco Ole’s other registered agent on file with the Secretary of
State’s office was Maria Delia Bazan, whom Garcia could have found and served by
exercising due diligence. See Roberts, 28 S.W.3d at 621–22 (holding that appellant failed
to exercise diligence because, inter alia, “appellee is an incorporated entity whose agent
for service of process is registered with the Secretary of State’s office[, and thus,
a]ppellant could have obtained the name of appellee’s registered agent by contacting the
Secretary of State’s office and effected service upon appellee’s registered agent”). We
thus find no merit to Garcia’s contentions. See Proulx, 235 S.W.3d at 216.
Garcia untimely served Taco Ole with process and was, therefore, required to
prove diligence in effecting service. As a matter of law, Garcia has failed to meet that
burden. See id.; Flanigan, 613 S.W.3d at 365; Roberts, 28 S.W.3d at 621. We overrule
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Garcia’s second issue.
C. Equitable Doctrines
By her first issue, Garcia argues that her suit was timely as “she sued Taco Ole
under its assumed name and provided Taco Ole with actual notice of her suit.” We
construe this as an argument raising the equitable doctrines of misnomer and
misidentification. While explicitly raised only on appeal and in her motion for new trial,
Garcia interspersed in her various pleadings and responses arguments and authorities
related to the two doctrines, so we address them here. See TEX. R. CIV. P. 166a(c).
The doctrines of misnomer and misidentification are distinct. See In re Greater
Hous. Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (per curiam) (citing
Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990)). Misnomer occurs when a plaintiff
serves the correct defendant but misnames it. Id. A petition reflecting a misnomer is
nonetheless effective, for limitations purposes, when filed. Id. “Courts are flexible in
[misnomer] cases because the party intended to be sued has been served and put on
notice that it is the intended defendant.” Id. This case is not a misnomer case, as Garcia
named the correct party in her petition but served the incorrect party with process. Thus,
the limitations period could not have been tolled on a theory of misnomer. See id.A misidentification occurs “when two separate legal entities exist and a plaintiff
mistakenly sues an entity with a name similar to that of the correct entity.” Id. (citing
Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999)). The consequences of a
misidentification “are generally harsh”—the limitations period will not be tolled. Exxon
Mobil Corp. v. Rincones, 520 S.W.3d 572, 594 (Tex. 2017) (quoting In re Greater Hous.
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Orthopaedic Specialists, Inc., 295 S.W.3d at 325)). There is one exception under which
limitations may be tolled in a misidentification case. See Flour Bluff Indep. Sch. Dist. v.
Bass, 133 S.W.3d 272, 274 (Tex. 2004). “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.” Id. (citing Chilkewitz, 22 S.W.3d at 830). For the exception to apply, “the
defendants must be shown to have had notice of the suit within the limitations period.”
Cooper v. D & D G.C. of Gilmer, Inc., 187 S.W.3d 717, 720 (Tex. App.—Tyler 2006, no
pet.) (citing Cont’l S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975)). It is Garcia’s
burden to prove the required elements to toll the limitations period under a theory of
misidentification. See id. (citing Diamond v. Eighth Ave. 92, L.C., 105 S.W.3d 691, 695
(Tex. App.—Fort Worth 2003, no pet.)).
In this case, Taco Ole and Taco Ole Edinburg use similar trade names. But Garcia
has failed to provide any evidence that Taco Ole: (1) had notice of the suit within the
limitations period; (2) was an entity “related to” Taco Ole Edinburg; and (3) was not
disadvantaged by her failure to timely effect service of process. See Bass, 133 S.W.3d at
274; Chilkewitz, 22 S.W.3d at 830. Indeed, Garcia only attempts to provide evidence as
to the notice element, and she does so on two grounds. First, Garcia states that Taco Ole
must have had actual notice of her suit because it filed a motion to quash service of
process. Even assuming that fact constituted sufficient evidence of notice, it would only
prove that Taco Ole had notice as of the filing of its motion on May 20, 2020—almost
eleven months after the limitations period expired. See Cooper, 187 S.W.3d at 720.
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Second, Garcia cites Rule 28 of the Texas Rules of Civil Procedure, which notes
in relevant part that a “partnership, unincorporated association, private corporation, or
individual doing business under an assumed name may sue or be sued in its partnership,
assumed or common name for the purpose of enforcing for or against it a substantive
right.” TEX. R. CIV. P. 28. Garcia argues that Taco Ole “was ‘served’ when it received
actual notice of the suit by way of formal service on Elias Bazan[] III prior to the expiration
of the applicable two-year statute of limitations.” However, nothing in the statute allows
for suit against an entity in its assumed name by simply serving the registered agent for
a separate, but similarly named, entity. And, once again, Garcia has provided no evidence
that service upon Elias Bazan III at Taco Ole Edinburg provided actual notice to Taco
Ole.
Accordingly, because Garcia has provided no evidence that Taco Ole had actual
notice of her lawsuit within the limitations period, she has not met her burden to
successfully toll the limitations period under the misidentification doctrine. See Bass, 133
S.W.3d at 274; Chilkewitz, 22 S.W.3d at 830; Hilland, 528 S.W.2d at 831; Cooper, 187
S.W.3d at 720.
We thus overrule Garcia’s first issue.
III. CONCLUSION
We affirm the trial court’s order.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
4th day of August, 2022.
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