                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 VANESSA BROWN,                                                No. 08-14-00031-CV
                                                §
                       Appellant,                                  Appeal from
                                                §
 v.                                                         County Court at Law No. 3
                                                §
 SEBASTIAN VALIYAPARAMPIL,                                    of Dallas County, Texas
                                                §
                       Appellee.                             (TC # CC-12-04504-CV)
                                                §

                                         OPINION

       Vanessa Brown appeals from a summary judgment granted in favor of Sebastian

Valiyaparampil on his affirmative defense of limitations. For the reasons that follow, we affirm.

                                    FACTUAL SUMMARY

       On September 30, 2010, Brown was injured when the vehicle in which she was riding

was struck by another vehicle. Brown filed suit on July 20, 2012 against Subin Sebastian

Valiyaparampil (“Subin”) alleging that his negligent operation of the vehicle proximately caused

the accident and caused her injuries. Subin answered with a general denial on August 21, 2012.

       Subin filed a motion for summary judgment on November 21, 2012, asserting that he was

not a proper defendant because he was not the driver of the vehicle. Subin supported his

summary judgment motion with his own affidavit averring that his father, Sebastian

Valiyaparampil (“Sebastian”) was the driver of the vehicle involved in the accident.          On
December 10, 2012, Brown amended her original petition to include Sebastian as a defendant

and she subsequently dismissed her suit against Subin.

       Sebastian’s answer included both a general denial and the affirmative defense of

limitations. On May 28, 2013, Sebastian moved for summary judgment on his limitations

defense.   In her response, Brown argued that the delay in filing the amended suit against

Sebastian resulted from “misnomer and/or misidentification” and the amended petition should

relate back to the original petition. Additionally, Brown argued that limitations should be tolled

because she had incorrectly identified the defendant as Subin, but Sebastian had notice of the suit

and would not be prejudiced. Sebastian responded that Brown’s equitable-tolling argument

applied only to suits involving corporate or business entity defendants.         Additionally, he

maintained that he had no duty to notify Brown about her mistake. The trial court granted

Sebastian’s motion for summary judgment and later denied Brown’s motion for new trial. This

appeal follows. .

                          TOLLING THE STATUTE OF LIMITATIONS

       In her sole issue, Brown contends that the trial court erred by granting summary

judgment on the basis of limitations by refusing to apply the equitable exception to the

misidentification rule.

                                       Standard of Review

       We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). If the movant establishes that the statute of limitations bars the

action, the non-movant must then adduce summary judgment proof raising a fact issue in

avoidance of the statute of limitations. Hooten Const. Co., Inc. v. Canterbury, Stuber, Elder,

Gooch & Surratt, P.C., 08-05-00154-CV, 2006 WL 2480475, at *2 (Tex.App.--El Paso Aug. 29,



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2006, no pet.). We review the evidence presented in the motion and response in the light most

favorable to the party against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009).

                                         The Hilland Rule

       Texas courts have recognized a distinction between misnomer and misidentification.

Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990). 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. Id. at 4-5. If, however, the plaintiff is mistaken

as to which of two parties is the correct defendant and there is actually existing a party with the

name of the erroneously named defendant (misidentification), then the plaintiff has sued the

wrong party and limitations is not tolled. Id. In Enserch, the plaintiff sued Lone Star Gas

Company of Texas, a separate and distinct legal entity from the proper defendant, Enserch

Corporation doing business as Lone Star Gas Company. Id. This was a case of misidentification

because the plaintiff named and sued the wrong entity. Id.

       The “Hilland Rule” has been applied to the general rule that misidentification will not toll

limitations. In Continental Southern Lines, Inc. v. Hilland, the plaintiff mistakenly sued the

wrong bus company and failed to amend her petition to name the correct defendant until after the

limitations period had expired. Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828,

828 (Tex. 1975). The Texas Supreme Court held that the plaintiff should have the opportunity to

prove the correct 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 Supreme Court



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clarified the Hilland rule in Flour Bluff, stating that the statute of limitations will be tolled in

misidentification cases 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.

Flour Bluff Independent School District v. Bass, 133 S.W.3d 272, 274 (Tex. 2004). The court

has also held that for the exception to be applicable, a business connection or relationship must

be present between the correct defendant and the one who was mistakenly named. Matthews

Trucking Co., Inc. v. Smith, 682 S.W.2d 237, 239 (Tex. 1984).

                                       Statute of Limitations

       Because this is an action for personal injury, Brown was required to file suit no later than

two years after the day the cause of action accrued. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003

(West Supp. 2014). Brown sued Subin, the actual driver’s son within the limitations period.

When the plaintiff is mistaken as to which of two defendants is the correct one and there is

actually a party by the name of the erroneously named defendant, this is misidentification and the

limitations is not tolled. Enserch, 794 S.W.2d at 5. This is a case of misidentification, not

misnomer, so the amendment does not relate back to the original petition. Id. Brown did not sue

Sebastian until December 10, 2012, approximately two and half months after the statute of

limitations expired.

       Brown argues that the Hilland rule should be applied to toll limitations because the

correct defendant, Sebastian, was aware of her claim prior to the running of the statute of

limitations. Several intermediate courts of appeals have declined to extend the Hilland rule to

cases where the wrong individual, as opposed to the wrong business entity, was sued. Cortinas

v. Wilson, 851 S.W.2d 324, 327 (Tex.App.--Dallas 1993, no writ); Eggl v. Arien 209 S.W.3d

318, 319 (Tex.App.--Dallas 2006, pet. denied)(cited chronologically). The facts in these cases



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are strikingly similar to the instant case. And, because this case was transferred to us from

Dallas pursuant to the Supreme Court’s docket equalization rules, we must apply precedent from

the Fifth Court of Appeals

       In Cortinas, the plaintiff was in a car accident with Carrie Wilson, but sued Maria

Wilson, Carrie’s mother. Cortinas, 851 S.W.2d at 325. Cortinas did not sue Carrie until after

the limitations period had expired. Id. at 326. The trial court granted summary judgment in

Carrie’s favor. Id. The court held that this was a misidentification situation and that the Hilland

rule only applies when there is a business defendant and that business defendant has a business

relationship with the erroneously named defendant. Id. at 327. The court declined to extend the

Hilland rule to individual defendants and affirmed the summary judgment in Wilson’s favor. Id.

       In Eggl, the Dallas Court of Appeals again addressed an issue of misidentification.

There, Eggl was hurt in a car accident and subsequently sued Nazir Arien. Eggl, 209 S.W.3d at

319. Later, Eggl found out that the actual driver was Sheltzad Arien. Id. Eggl amended her

petition to include Sheltzad Arien after the limitations period had expired. Id. The trial court

granted Sheltzad’s motion for summary judgment because limitations had expired. Id. Eggl

appealed, arguing that limitations should be tolled because the true defendant had notice of the

suit and was not misled or disadvantaged by her mistake. Id. Citing Cortinas, the court held that

the Hilland rule should not be extended to individual defendants, but only used for business

defendants. Id. The court affirmed the trial court’s summary judgment in Sheltzad’s favor. Id.

       Brown attempts to factually distinguish these cases based on what she perceives as a lack

of similarity between the defendants’ names in each case whereas here father and son shared the

name Sebastian. We note, however, that the two defendants here still had different first names,

Subin Sebastian Valiyaparampil and Sebastian Valiyaparampil. We do not agree with Brown that



                                               -5-
Cortinas and Eggl are inapplicable to this case.

       Brown also argues that applying the Hilland rule only to suits involving business

defendants unfairly prejudices plaintiffs who have sued non-business defendants. The Hilland

rule exists because the related business entities in that case “made a conscious effort” to confuse

the public by appearing to be the same bus company. See Hilland, 528 S.W.2d at 830; Cortinas,

851 S.W.2d at 327 (noting the Hilland rule “is rooted in the understandable confusion that occurs

when a company does business and holds itself out to the public under a trade name"). This type

of purposeful identity confusion generally does not exist with individuals.        See Fleener v.

Williams, 62 S.W.3d 284, 287 (Tex.App.--Houston [1st Dist.] 2001, no pet.). There is no

evidence here that Sebastian and Subin held themselves out to the public as the same person.

       We agree with our sister courts and likewise decline to extend the Hilland rule to

individuals. Even if we did not agree, we are bound by Rule 41.3 to apply the precedent of the

Dallas Court of Appeals to this transferred case. See TEX.R.APP.P. 41.3. Because Sebastian

conclusively established that the statute of limitations had expired when Brown sued him, the

trial court properly granted summary judgment in Sebastian’s favor. We overrule Brown’s sole

issue and affirm the judgment of the trial court.


November 3, 2015
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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