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Frozen Food Express Industries12/14/1999
These are cross-appeals in a personal injury action. The appellee, Clarence Grippe, was an independent contractor for FFE Transportation Services, Inc. (Services) when he sustained injuries in a fall from a trailer owned by Services. The appellants, Frozen Food Express Industries, Inc. (Industries) and Frozen Food Transportation Services, Inc. (Transportation), raise five points of error:
(1) Grippe's action against appellants is barred by the statute of limitations; (2) there is no evidence or factually insufficient evidence to support the jury's finding that appellants' negligence proximately caused Grippe's injuries; (3) the single business enterprise theory does not apply under the facts of this case; (4) the trial court abused its discretion by denying appellants leave to amend their answer so they could raise verified denials; and (5) there is no evidence or factually insufficient evidence to support the jury's award of future damages. Grippe cross-appeals on a single point:
the trial court erred in denying his motion to reform and correct the judgment to reflect the correct name of the defendant, FFE Transportation Services, Inc., the company with which Grippe had contracted. We reverse and render for the appellants Industries and Transportation.
Factual and Procedural Background
Grippe was a truck driver for Services. As an independent contractor, he owned the tractor that pulled a trailer owned by Services. The trailer had a side door through which the driver entered and exited to unload small loads. To enter this particular trailer through the side door, the driver must use the tire as a step and grab the side of the door to pull himself up. On June 7, 1995, Grippe, then 63-years-old, injured his shoulder and back when he fell from the trailer while attempting to exit through the side door. On August 30, 1995, Grippe sued "Frozen Food Express, Inc." for his injuries. On November 9, 1995, Frozen Food Express, Inc. was timely served through its registered agent, Stoney Stubbs. On June 6, 1997, the day before the statute of limitations expired, Grippe filed his fourth amended petition naming eight new defendants. Two of these defendants are the appellants, Industries and Transportation. No citations were requested. On June 9, 1997, Grippe filed his fifth amended petition and again no citations were requested. On July 9, 1997, Grippe filed his sixth amended petition. Finally on July 31, 1997, one citation was issued for the sixth amended petition. This citation was directed to "Trailmobile Trailer Corporation Services, Inc. aka FFE Transportation Services, Inc., by serving reg. agt., Stoney M. Stubbs." Stubbs was served with this citation on August 5, 1997. Grippe did not request any other citations until January 5, 1998. On that day citations were issued naming appellants Industries and Transportation. These citations were served the same day.
At one time there were as many as ten defendants named in this lawsuit, but when the case went to trial in July 1998, only three defendants remained, both appellants and Frozen Food Express, Inc. The jury found in favor of Grippe and apportioned forty percent liability to Transportation, forty percent to Industries, twenty percent to Grippe, and awarded damages in the amount of $400,000 for past and future pain and mental anguish, loss of earning capacity, and physical impairment. After reducing the amount of damages to reflect Grippe's proportionate share of responsibility, the trial court entered judgment in Grippe's favor against Industries and Transportation, jointly and severally.
In addition to the questions of liability, there were four other questions presented to the jury
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