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Johnson v. Burger King Corporation8/17/2000
This is an appeal from a summary judgment granted by the 60th District Court. Carroll Johnson filed a pro se suit against Burger King, Inc., alleging Johnson sustained personal injuries from the collapse of a chair in a Burger King located at 3301 Twin City Highway, Port Arthur, Texas. Burger King Corporation filed a general denial.
Some time later, Burger King Corporation amended its answer to allege a defect in parties. Now represented by counsel, Johnson amended his petition to add National Restaurant Enterprises, Inc., d/b/a Ameriking Corporation, as a defendant. Burger King filed a "no evidence" motion for summary judgment that also alleged it did not operate the restaurant in question. See Tex. R. Civ. P. 166a(i). Ameriking filed a motion for summary judgment on the grounds of limitations. The trial court granted both motions for summary judgment and severed the cause of action against Ameriking into No. B-157,893-A. Johnson pursued a consolidated appeal of the two judgments.
Issue one contends the equitable exception to the statute of limitations precludes summary judgment for Ameriking. See Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex. 1990); Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex. 1975). "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. If, however, the plaintiff is mistaken as to which of two defendants is the correct one and there is actually existing a corporation with the name of the erroneously named defendant (misidentification), then the plaintiff has sued the wrong party and limitations is not tolled." Enserch Corp. v. Parker, 794 S.W.2d at 4-5.
Johnson sued a separate entity, Burger King, so this is a case of misidentification rather than misnomer. The narrow exception providing for tolling of the statute of limitations in cases of misidentification is stated in Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d at 831: In misidentification cases, limitations may be tolled when a plaintiff sues an incorrect entity 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.
The accident allegedly occurred October 18, 1995. Johnson filed his pro se petition against Burger King on October 16, 1997, shortly before limitations expired. See Tex. Civ. Prac. & Rem. Code Ann. ยง 16.003 (Vernon 1986 & Supp. 2000). Johnson argues that Ameriking and Burger King have a business relationship and that Ameriking had notice of the suit by October 30, 1997, twelve days after the limitations period had run. The situation is indistinguishable from Barnett v. Houston Natural Gas Co., 617 S.W.2d 305, 306 (Tex. Civ. App.--El Paso 1981, writ ref'd n.r.e.), in which the court held that the critical issue is whether the party claimed to be responsible was in fact put on notice as to the claim being made against it in the pending suit. In distinguishing Hilland, the court noted:
At the hearing on Mr. Barnett's motion for new trial, no evidence was offered to show that citation might originally have been sent to the party that should have been sued, as occurred in the Hilland case. Likewise, no contention is made, as there was in Hilland, that the "liable defendant" (if in fact liability does exist) caused or acquiesced in the filing of the answer by a "non-liable defendant." Also, it must be noted that in Mrs. Hilland's case, suit was originally filed some five months before limitations would run on her cause of action, and an amended pleading after the original answer coul
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