Fleener v. Williams , 2001 Tex. App. LEXIS 7802 ( 2001 )

OPINION

ADELE HEDGES, Justice.

This is a personal injury case arising from an automobile accident. The trial court rendered summary judgment based on the statute of limitations. We affirm.

Background

On May 4, 1996, plaintiffiappellant, Jon Fleener, was in an automobile accident with defendant/appellee, June Williams. Williams was driving a car that had been rented in her mother’s name, Una Williams. Fleener sued the mother, Una Williams, within the limitations period, on April 30, 1998. On March 4, 1999, ten months after the limitations period had expired, Fleener amended his petition to add June Williams as the proper defendant. Fleener then nonsuited Williams’s mother.

The trial court rendered summary judgment for Williams based on the statute of limitations. On appeal, Fleener contends that the statute of limitations should have been tolled. We disagree.

Standard of Review

To prevail on a motion for summary judgment, a defendant must establish that no material fact issue exists and that she is entitled to judgment as a matter of law. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999). A defendant who moves for summary judgment on the basis of an affirmative defense has the burden to prove conclusively all the elements of the affirmative defense as a matter of law. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In conducting our review of the summary judgment, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmov-ant’s favor. See id.

Statute of Limitations

In his sole point of error, Fleener contends that the statute of limitations should have been tolled because a fact issue existed about whether Williams was cognizant of the lawsuit and the facts involved, and whether she was not misled or placed at a disadvantage in preparing her defense.

The statute of limitations for a tort claim is two years after the day the cause of action accrues.¹ The limitations period in this case began on May 4,1996, the date of the accident. It is undisputed that Fleener sued Williams on March 4, 1999, ten months after the limitations period expired. Thus, Fleener sued the wrong defendant (Williams's mother) within the limitations period, but did not sue the correct defendant (Williams) until the limitations period expired.

Fleener concedes that this is a case of “misidentification,” which occurs when two parties have the same or similar names, and the plaintiff sues the wrong party. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex.1990).² Generally, the statute of limitations is not tolled in a misidentification case. See id. at 5. Fleener argues, however, that the statute of limitations should have been tolled based on the principles stated in Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975).

In Hilland, the plaintiff timely sued the wrong defendant (Continental Trailways, Inc.), but did not sue the proper defendant (Continental Southern Lines, Inc.) until after the limitations period expired. Id. at 829. The supreme court concluded that the bus companies “made a conscious effort to make it appear to the public and to their customers” that they were Continental Trailways. Id. at 830. Given the confusion, the plaintiff was given an opportunity to prove that the proper 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 Hilland rule provides that a plaintiff, who misidentified a defendant, may escape the statute of limitations by proving that the defendant suffered no prejudice. Id.

Since Hilland, the supreme court has implied an additional requirement that a business relationship must exist between the erroneously named defendant and the correct defendant. See Enserch, 794 S.W.2d at 6 (applying Hilland because “the necessary business relationship exists”); Matthews Trucking Co., Inc. v. Smith, 682 S.W.2d 237, 239 (Tex.1984) (not applying Hilland because there was “no business connection or relationship between the two companies”); see also Cummings v. HCA Health Servs., Inc., 799 S.W.2d 403, 406 (Tex.App.—Houston [14th] 1990, no writ).

Fleener argues that the business relationship requirement is merely dicta. He urges this Court to extend the Hilland rule to individual defendants. However, he does not cite a single Texas case holding that the Hilland rule applies to individuals, and he conceded at oral argument that he was unaware of any such authority.

Instead, Fleener relies on Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975), a personal injury case arising from a car accident. The passenger filed suit within the two-year limitations period, improperly naming the defendant as the “estate” of the driver. Id. at 691. The court noted that the estate was not the proper defendant because a decedent’s estate is not a legal entity and may not properly sue or be sued. Id. Three years later, the passenger amended the petition to name the temporary administrator as the proper legal defendant. Id. The court held that the suit was not barred by the statute of limitations. Id. at 692.

Price is distinguishable, however. The plaintiff in Price timely served the temporary administrator — who answered for the “estate” and participated in all case proceedings — but merely misstated the capacity in which the administrator was served. See id. In the present case, June Williams, the proper defendant, was not served until after the limitations period expired, and the capacity in which she was served was not an issue.

Hilland is likewise distinguishable. The underlying premise in Hilland was that related business entities “made a conscious effort” to confuse the public by appearing to be the same bus company. See Hil-land, 528 S.W.2d at 880. Absent unusual circumstances, this issue does not arise in cases concerning misidentification of individuals. In this case, there was no use of a trade name and nothing to suggest that June Williams and her mother ever held themselves out to the public as the same person.

The facts in this case are analogous to Marez v. Moeck, 608 S.W.2d 740, 742 (Tex.Civ.App.—Corpus Christi 1980, no writ), in which a car accident victim mistakenly named the intended defendant’s father as the defendant in his original petition. The plaintiff did not amend his petition to name the proper defendant until after limitations expired. Id. at 741. The court held that the Hilland rule did not apply, and, therefore, declined to extend the “lack of prejudice” exception to individual defendants. Id. at 742.

Similarly, we see no compelling policy reason to extend the Hilland rule to mis-identification of individual defendants. See id; see also Cortinas v. Wilson, 851 S.W.2d 324, 327 (Tex.App.—Dallas 1993, no writ).

The sole point of error is overruled.

Conclusion

We affirm the judgment of the trial court.

Justice COHEN concurring.

1 . Act of May 27, 1995, 74th Leg., R.S., ch. 739, § 2, 1995 Tex. Gen. Laws 3850, 3850 (former Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a), since amended).

2 . This is not a "misnomer” case, which occurs when a plaintiff sues the correct defendant, but merely misnames him. See En-serch, 794 S.W.2d at 4.