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Pfullmann v. Evans5/30/1996
Filed May 30, 1996
MEMORANDUM OPINION
Roger Pfullmann appeals a summary judgement rendered against him from Jim Evans's personal injury suit arising from an automobile accident. In two points of error, Pfullmann contends the trial court erred in granting summary judgement based on the statute of limitations because Pfullman established as a matter of law that the statute should be tolled, and alternatively, that fact issues preclude summary judgment. In one cross-point, Evans asks us to award him sanctions against Pfullmann for bringing a frivolous appeal. After reviewing all points of error, we conclude all dispositive issues are clearly settled in law. Therefore, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 90(a). The factual nature of the cases as well as their procedural histories, pleadings, and evidence are known to the parties.
Discussion
Pfullmann contends the trial court erred in granting summary judgment based on the statute of limitations because he established as a matter of law that he exercised due diligence in obtaining service on the defendant. Alternatively, he argues that fact issues regarding his due diligence in obtaining service on the defendant preclude summary judgment. We conclude the trial court did not err in granting summary judgment because Pfullmann named, sued and served the wrong person. He did not sue the correct Jim Evans until after the statute of limitations had run. Because this is a case of misidentification, limitations was not tolled. Pfullmann's claims are barred as a matter of law. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex. 1990); Cortinas v. Wilson, 851 S.W.2d 324, 327 (Tex. App.--Dallas 1993, no writ).
Evans' Cross-Point
In his cross-point, Evans contends he is entitled to sanctions against Pfullmann under Texa Rule of Appellate Procedure 84. Before we can assess damages under rule 84, we must find that the appellant brought the appeal for delay and without sufficient cause. Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101, 108 (Tex. App.--Dallas 1992, writ denied). We conclude nothing in the record indicates Pfullmann took this appeal for delay or without sufficient cause. See id.
DISPOSITION
We conclude Pfullmann's two points of error are without merit. We overrule Pfullmann's points of error one and two. We also overrule Evans' cross-point. We affirm the trial court's judgment.
PER CURIAM
Do Not Publish
Tex. R. App. P. 90
950595F.U05
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