Rodney and Veeta Truttling, Individually and on Behalf of the Estate of Julien Truttling v. Metropolitan Life Insurance Company--Appeal from 68th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Rodney and Veeta Truttling, Individually and

on Behalf of the Estate of Julien Truttling

Appellants

Vs. No. 11-01-00263-CV B Appeal from Dallas County

Metropolitan Life Insurance Company

Appellee

Rodney and Veeta Truttling, Individually and on Behalf of the Estate of Julien Truttling, appeal the trial court=s summary judgment that their claim against Metropolitan Life Insurance Company was barred by limitations. Appellants argue that the Amisnomer@ or Amisidentification@ doctrines and TEX.R.CIV.P. 28 tolled the statute of limitations. We affirm.

Background Facts

On December 30, 1995, Julien Truttling was murdered during a fraternity party at a Doubletree Hotel in Dallas. Metropolitan Life Insurance Company was the owner of the Doubletree Hotel at the time of his death. On August 8, 1997, appellants filed suit, individually and on behalf of the Estate of Julien Truttling, against Doubletree Corporation d/b/a Doubletree Hotel; Omega Psi Phi Fraternity, Inc.; and others. Metropolitan was not named as a defendant. On September 11, 1998, over two years after Julien Truttling=s death, appellants filed their Fourth Amended Petition which named Metropolitan Life Insurance Company as a defendant. Metropolitan pleaded the affirmative defense that appellants= claims were barred by the statute of limitations. TEX. CIV. PRAC. & REM. CODE ANN. '16.003 (Vernon Supp. 2002).

Metropolitan subsequently filed a motion for summary judgment on the ground that appellants= claims were barred by Section 16.003. The trial court granted Metropolitan=s motion. Metropolitan then filed a motion to sever. The trial court entered its order severing appellants= claims against Metropolitan; and appellants appealed from the final judgment in favor of Metropolitan.

Standard of Review

A trial court must grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). A trial court properly grants summary judgement for a defendant if he establishes all the elements of an affirmative defense. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the movant establishes his right to a summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the non-movant. American Tobacco Company, Inc. v. Grinnell, supra at 425; Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985).

In their sole issue, appellants argue that the trial court erred in granting summary judgment for Metropolitan on the ground of limitations. They first assert that either misnomer or an exception to the general rule of misidentification tolled limitations. They also assert that Rule 28 tolled limitations.

Misnomer and Misidentification

In Enserch Corporation v. Parker, 794 S.W.2d 2 (Tex.1990), the Texas Supreme Court distinguished misnomer and misidentification:

Texas courts have recognized a distinction between misnomer and misidentification. If the plaintiff merely misnames [and serves] 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.

Id. at 4.

There is an exception to the rule that limitations are not tolled in a misidentification case. 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. See Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex.1999); Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex.1975).

Appellants claim that either the misnomer doctrine or the exception to the misidentification doctrine tolls the statute of limitations. Appellants did not timely raise this argument in the trial court. On September 12, 2000, appellants filed their response to Metropolitan=s motion for summary judgment specifically raising Rule 28 as a defense. Appellants did not mention misidentification or misnomer in their response. On October 12, 2000, the trial court heard the motion for summary judgment and granted summary judgment for Metropolitan on November 3, 2000.

Appellants first asserted their argument on misnomer or misidentification in a supplemental response that they filed on November 3, 2000, the day of the summary judgment ruling. Rule 166a(c) requires a summary judgment response to be filed at least seven days before the summary judgment hearing unless the respondent gets leave of court to file it later. If leave of court is not granted in writing, the response is not before the court. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996). Appellants= response was not filed within seven days of the hearing, and there is no order in the record granting appellants leave to file the late supplemental response. Misnomer and misidentification cannot be considered on this appeal.

Rule 28

Appellants argue that limitations were tolled by the operation of Rule 28 which provides:

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court=s own motion the true name may be substituted.

In Chilkewitz v. Hyson, supra at 830, the Texas Supreme Court emphasized that Rule 28 is not a tolling provision. Rule 28 provides that, if an entity conducts business under an assumed or common name, it may be sued under that name. The plaintiff in Chilkewitz sued Morton Hyson, M.D., in his individual capacity. The correct defendant was his professional association, Morton Hyson, M.D., P.A. There was evidence that the association conducted business under the name of Morton Hyson, M.D. Hyson acknowledged that the association was made aware of the claim even before the plaintiff filed suit. The court held that plaintiff could correct the name to Morton Hyson, M.D., P.A., after the two-year limitation period because Rule 28 allowed plaintiff to sue the association in the assumed name of Morton Hyson, M.D., and because the association had actual notice of the suit. Chilkewitz v. Hyson, supra at 830.

In the case before us, Rule 28 does not apply. Appellants timely sued Doubletree Corporation d/b/a Doubletree Hotel. Doubletree Corporation is a legal entity which does business in its own name and in the name of Doubletree Hotel. Appellants point to the control that Metropolitan retained under its management agreement with Doubletree and describe the business relationship between the two corporations; but that is not evidence that Metropolitan conducted business under the assumed name of Doubletree Corporation or Doubletree Hotel. The trial court did not err in granting summary judgment for Metropolitan on limitations. Appellants= sole issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

April 25, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.