Vanessa Brown v. Sebastian Valiyaparampil , 2015 Tex. App. LEXIS 11310 ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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VANESSA BROWN, No. 08-14-00031-CV
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Appellant, Appeal from
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v. County Court at Law No. 3
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SEBASTIAN VALIYAPARAMPIL, of Dallas County, Texas
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Appellee. (TC # CC-12-04504-CV)
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OPINION
Vanessa Brown appeals from a summary judgment granted in favor of Sebastian
Valiyaparampil on his affirmative defense of limitations. For the reasons that follow, we affirm.
FACTUAL SUMMARY
On September 30, 2010, Brown was injured when the vehicle in which she was riding
was struck by another vehicle. Brown filed suit on July 20, 2012 against Subin Sebastian
Valiyaparampil (“Subin”) alleging that his negligent operation of the vehicle proximately caused
the accident and caused her injuries. Subin answered with a general denial on August 21, 2012.
Subin filed a motion for summary judgment on November 21, 2012, asserting that he was
not a proper defendant because he was not the driver of the vehicle. Subin supported his
summary judgment motion with his own affidavit averring that his father, Sebastian
Valiyaparampil (“Sebastian”) was the driver of the vehicle involved in the accident. On
December 10, 2012, Brown amended her original petition to include Sebastian as a defendant
and she subsequently dismissed her suit against Subin.
Sebastian’s answer included both a general denial and the affirmative defense of
limitations. On May 28, 2013, Sebastian moved for summary judgment on his limitations
defense. In her response, Brown argued that the delay in filing the amended suit against
Sebastian resulted from “misnomer and/or misidentification” and the amended petition should
relate back to the original petition. Additionally, Brown argued that limitations should be tolled
because she had incorrectly identified the defendant as Subin, but Sebastian had notice of the suit
and would not be prejudiced. Sebastian responded that Brown’s equitable-tolling argument
applied only to suits involving corporate or business entity defendants. Additionally, he
maintained that he had no duty to notify Brown about her mistake. The trial court granted
Sebastian’s motion for summary judgment and later denied Brown’s motion for new trial. This
appeal follows. .
TOLLING THE STATUTE OF LIMITATIONS
In her sole issue, Brown contends that the trial court erred by granting summary
judgment on the basis of limitations by refusing to apply the equitable exception to the
misidentification rule.
Standard of Review
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). If the movant establishes that the statute of limitations bars the
action, the non-movant must then adduce summary judgment proof raising a fact issue in
avoidance of the statute of limitations. Hooten Const. Co., Inc. v. Canterbury, Stuber, Elder,
Gooch & Surratt, P.C., 08-05-00154-CV, 2006 WL 2480475, at *2 (Tex.App.--El Paso Aug. 29,
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2006, no pet.). We review the evidence presented in the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009).
The Hilland Rule
Texas courts have recognized a distinction between misnomer and misidentification.
Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990). If the plaintiff merely misnames the
correct defendant (misnomer), limitations is tolled and a subsequent amendment of the petition
relates back to the date of the original petition. Id. at 4-5. If, however, the plaintiff is mistaken
as to which of two parties is the correct defendant and there is actually existing a party with the
name of the erroneously named defendant (misidentification), then the plaintiff has sued the
wrong party and limitations is not tolled. Id. In Enserch, the plaintiff sued Lone Star Gas
Company of Texas, a separate and distinct legal entity from the proper defendant, Enserch
Corporation doing business as Lone Star Gas Company. Id. This was a case of misidentification
because the plaintiff named and sued the wrong entity. Id.
The “Hilland Rule” has been applied to the general rule that misidentification will not toll
limitations. In Continental Southern Lines, Inc. v. Hilland, the plaintiff mistakenly sued the
wrong bus company and failed to amend her petition to name the correct defendant until after the
limitations period had expired. Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828,
828 (Tex. 1975). The Texas Supreme Court held that the plaintiff should have the opportunity to
prove the correct defendant was cognizant of the facts, was not misled, or placed at a
disadvantage in obtaining relevant evidence to defend the suit. Id. at 831. The Supreme Court
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clarified the Hilland rule in Flour Bluff, stating that the statute of limitations will be tolled in
misidentification 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 Independent School District v. Bass, 133 S.W.3d 272, 274 (Tex. 2004). The court
has also held that for the exception to be applicable, a business connection or relationship must
be present between the correct defendant and the one who was mistakenly named. Matthews
Trucking Co., Inc. v. Smith, 682 S.W.2d 237, 239 (Tex. 1984).
Statute of Limitations
Because this is an action for personal injury, Brown was required to file suit no later than
two years after the day the cause of action accrued. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003
(West Supp. 2014). Brown sued Subin, the actual driver’s son within the limitations period.
When the plaintiff is mistaken as to which of two defendants is the correct one and there is
actually a party by the name of the erroneously named defendant, this is misidentification and the
limitations is not tolled. Enserch, 794 S.W.2d at 5. This is a case of misidentification, not
misnomer, so the amendment does not relate back to the original petition. Id. Brown did not sue
Sebastian until December 10, 2012, approximately two and half months after the statute of
limitations expired.
Brown argues that the Hilland rule should be applied to toll limitations because the
correct defendant, Sebastian, was aware of her claim prior to the running of the statute of
limitations. Several intermediate courts of appeals have declined to extend the Hilland rule to
cases where the wrong individual, as opposed to the wrong business entity, was sued. Cortinas
v. Wilson, 851 S.W.2d 324, 327 (Tex.App.--Dallas 1993, no writ); Eggl v. Arien 209 S.W.3d
318, 319 (Tex.App.--Dallas 2006, pet. denied)(cited chronologically). The facts in these cases
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are strikingly similar to the instant case. And, because this case was transferred to us from
Dallas pursuant to the Supreme Court’s docket equalization rules, we must apply precedent from
the Fifth Court of Appeals
In Cortinas, the plaintiff was in a car accident with Carrie Wilson, but sued Maria
Wilson, Carrie’s mother. Cortinas, 851 S.W.2d at 325. Cortinas did not sue Carrie until after
the limitations period had expired. Id. at 326. The trial court granted summary judgment in
Carrie’s favor. Id. The court held that this was a misidentification situation and that the Hilland
rule only applies when there is a business defendant and that business defendant has a business
relationship with the erroneously named defendant. Id. at 327. The court declined to extend the
Hilland rule to individual defendants and affirmed the summary judgment in Wilson’s favor. Id.
In Eggl, the Dallas Court of Appeals again addressed an issue of misidentification.
There, Eggl was hurt in a car accident and subsequently sued Nazir Arien. Eggl, 209 S.W.3d at
319. Later, Eggl found out that the actual driver was Sheltzad Arien. Id. Eggl amended her
petition to include Sheltzad Arien after the limitations period had expired. Id. The trial court
granted Sheltzad’s motion for summary judgment because limitations had expired. Id. Eggl
appealed, arguing that limitations should be tolled because the true defendant had notice of the
suit and was not misled or disadvantaged by her mistake. Id. Citing Cortinas, the court held that
the Hilland rule should not be extended to individual defendants, but only used for business
defendants. Id. The court affirmed the trial court’s summary judgment in Sheltzad’s favor. Id.
Brown attempts to factually distinguish these cases based on what she perceives as a lack
of similarity between the defendants’ names in each case whereas here father and son shared the
name Sebastian. We note, however, that the two defendants here still had different first names,
Subin Sebastian Valiyaparampil and Sebastian Valiyaparampil. We do not agree with Brown that
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Cortinas and Eggl are inapplicable to this case.
Brown also argues that applying the Hilland rule only to suits involving business
defendants unfairly prejudices plaintiffs who have sued non-business defendants. The Hilland
rule exists because the related business entities in that case “made a conscious effort” to confuse
the public by appearing to be the same bus company. See Hilland, 528 S.W.2d at 830; Cortinas,
851 S.W.2d at 327 (noting the Hilland rule “is rooted in the understandable confusion that occurs
when a company does business and holds itself out to the public under a trade name"). This type
of purposeful identity confusion generally does not exist with individuals. See Fleener v.
Williams, 62 S.W.3d 284, 287 (Tex.App.--Houston [1st Dist.] 2001, no pet.). There is no
evidence here that Sebastian and Subin held themselves out to the public as the same person.
We agree with our sister courts and likewise decline to extend the Hilland rule to
individuals. Even if we did not agree, we are bound by Rule 41.3 to apply the precedent of the
Dallas Court of Appeals to this transferred case. See TEX.R.APP.P. 41.3. Because Sebastian
conclusively established that the statute of limitations had expired when Brown sued him, the
trial court properly granted summary judgment in Sebastian’s favor. We overrule Brown’s sole
issue and affirm the judgment of the trial court.
November 3, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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