

                                           NO.
12-04-00361-CV
 
              IN THE COURT OF APPEALS
 
 TWELFTH COURT OF APPEALS DISTRICT
 
                             TYLER, TEXAS
 
DEBORAH COOPER AND
EARL COOPER,                                              '     APPEAL
FROM THE SECOND
APPELLANTS
 
V.                                                                         '     JUDICIAL
DISTRICT COURT OF
 
D&D G.C. OF GILMER, INC. AND
D&D G.C. OF JACKSONVILLE, INC.,         '     CHEROKEE
COUNTY, TEXAS
APPELLEES


                                                                      OPINION
Deborah Cooper and Earl Cooper appeal the trial
court=s order granting summary judgment in favor of
D&D G.C. of Gilmer, Inc. (AGilmer@) and D&D G.C. of Jacksonville, Inc. (AJacksonville@).  The
Coopers raise one issue on appeal.[1]  We affirm.
 
                                                               Background 
The Coopers filed suit against Golden Corral
Corporation on July 21, 2003 alleging that on August 2, 2001, Deborah Cooper
sustained injuries in a slip and fall incident in the women=s restroom of the Golden Corral restaurant in
Jacksonville, Texas.  Golden Corral filed
its original answer on August 22, 2003. 




On December 1, 2003, the Coopers filed their second
amended petition, in which they added Gilmer as a defendant and named David C.
Clausen as its registered agent.  On
March 3, 2004, the Coopers took Clausen=s deposition. 
Through Clausen=s deposition testimony, the Coopers discovered that
the Golden Corral in Jacksonville where Deborah Cooper allegedly suffered
injuries was then owned by Jacksonville. 
On April 12, 2004, the Coopers filed their fourth amended original
petition, in which they added Jacksonville as a defendant.
On June 28, 2004, Gilmer and Jacksonville[2]
filed a motion for summary judgment arguing that the Coopers= negligence claim was barred by the two year statute
of limitations.  In support of their
motion for summary judgment, Gilmer and Jacksonville attached Clausen=s[3]
affidavit, in which he stated, in pertinent part, as follows:
 
I was the owner of D&D G.C. of
Jacksonville, the entity that operated the Jacksonville restaurant on August 2,
2001.  This restaurant ceased operation
on November 22, 2002.  I did not have
knowledge of the lawsuit against Golden Corral Corporation until sometime after
August 2, 2003.  By the time Plaintiff
filed suit against D&D G.C. of Gilmer, Inc. in November of 2003, I had
moved from my home in Gilmer, Texas to Lincoln, Nebraska....
 
The Coopers filed a response and, in support
thereof, attached excerpts of Clausen=s deposition testimony.  On October 25, 2004, the trial court granted
summary judgment and dismissed the Cooper=s claims with prejudice.  This appeal followed.  
 
Standard of Review
To prevail on a traditional summary judgment motion,
a movant must show that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. 
Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002).  We take as true all
evidence favorable to the nonmovant and indulge every reasonable inference and
resolve any doubts in the nonmovant=s favor.  RhoneBPoulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).  We are not required to ascertain the
credibility of affiants or to determine the weight of evidence in the
affidavits, depositions, exhibits, and other summary judgment proof.  See Gulbenkian v. Penn, 252
S.W.2d 929, 932 (Tex. 1952).  The only
question is whether or not an issue of material fact is presented.  See Tex.
R. Civ. P. 166a(c).  




A defendant moving for summary judgment on the
affirmative defense of limitations has the burden to conclusively establish
that defense.  Velsicol Chemical
Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997).  If the movant establishes that the statute of
limitations bars the action, the nonmovant must then adduce summary judgment
proof raising a fact issue in avoidance of the statute of limitations.  KPMG Peat Marwick v. Harrison Co.
Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  
                                                           Misidentification
In their sole issue, the Coopers contend that the
two year statute of limitations upon which the trial court based its summary
judgment should have been tolled pursuant to the doctrine of
misidentification.  The primary purpose
of a statute of limitations is to compel the exercise of a right within a
reasonable time so that the opposite party has a fair opportunity to defend
while witnesses are available and the evidence is fresh in their minds.  Continental S. Lines v. Hilland, 528
S.W.2d 828, 831 (Tex. 1975).  The statute
of limitations for a personal injury suit, including negligence, is two
years.  See Tex. Civ. Prac. & Rem. Code Ann. ' 16.003(a) (Vernon Supp. 2005).  There is no dispute that the Coopers filed
their second and fourth amended petitions naming Gilmer and Jacksonville as
defendants more than two years after the date of the alleged injury.  Therefore, the Coopers bore the burden of
bringing forth summary judgment evidence raising a genuine issue of material
fact regarding the application of some legal theory in avoidance of
limitations.   Diamond v. Eighth
Ave. 92, L.C., 105 S.W.3d 691, 695 (Tex. App.BFort Worth 2003, no pet.) (citing KPMG Peat
Marwick, 988 S.W.2d at 748). 
Misidentification occurs when two separate legal
entities with similar names actually exist, and the plaintiff sues the wrong
entity by mistake.  See Diamond,
105 S.W.3d at 695 (citing Chilkewitz v. Hyson, 22 S.W.3d 825, 828
(Tex. 1999)).  In misidentification
cases, limitations may be tolled when a plaintiff sues an incorrect entity if
(1) there are two separate but related entities that use a similar trade name,
(2) the correct entity had notice of the suit, and (3) the correct entity was
not misled or disadvantaged by the plaintiff=s
mistake.  See Chilkewitz,
22 S.W.3d at 830.  To toll limitations,
the defendants must be shown to have had notice of the suit within the
limitations period.   See Hilland, 528 S.W.2d
at 831 (indicating that there was no finding that defendant Awas actually notified and had a fair opportunity to
defend itself before the period of limitations had run@).  




Once Gilmer and Jacksonville established
conclusively by their summary judgment evidence that Clausen, as president and
owner of Gilmer and Jacksonville, did not have knowledge of the Coopers= lawsuit against Golden Corral, the burden shifted
to the Coopers to bring forth controverting summary judgment evidence.  See KPMG Peat Marwick, 988
S.W.2d at 748.  We have reviewed the
summary judgment record and have found no evidence that raises a fact question
as to whether Clausen, and thereby Gilmer and Jacksonville, knew of the Coopers= lawsuit until after August 2, 2001.  See Diamond, 105 S.W.3d at 695;
see also Hilland, 528 S.W.2d at 831.  
Nonetheless, the Coopers allege that Golden Corral
withheld information in its discovery. 
Yet, other than the excerpts of Clausen=s
deposition testimony, the Coopers failed to include any discovery or other
evidence in the summary judgment record. 
See Tex. R. Civ. P.
166a(d).  Furthermore, there is no
indication in the portion of Clausen=s deposition testimony in the record that any
information was withheld or that Jacksonville had knowledge of the lawsuit at
any time before the statute of limitations had run.
Additionally, the Coopers= reliance on Hilland, 528 S.W.2d at
830B31 and Ensearch Corporation v. Parker,
794 S.W.2d 2 (Tex. 1990) in support of their position is misplaced.  In Hilland, the
plaintiff, who allegedly suffered an injury while she was a passenger on a bus,
filed suit against Continental Trailways, Inc. rather than Continental Southern
Lines, Inc., the correct defendant.  Id.
at 829.  The court determined that there
was evidence in the record to show that (1) both entities used the same agent
for service, (2) the process may have actually been forwarded to the  correct defendant, Continental Southern
Lines, Inc., and (3) the driver of the bus had filled out an accident report
for Continental Southern Lines, Inc.  Id.
at 830B31.  Under
such facts, and considering the logical inferences therefrom, the court
concluded that there was a fact issue concerning whether Continental Southern
Lines, Inc. had notice of the lawsuit prior to the time the statute of
limitations had run.  Id.
at 831.  Since here the only summary
judgment evidence of record indicates that Clausen, and thereby Gilmer and
Jacksonville, had no knowledge of Cooper=s suit until after August 2, 2003, the instant case
is distinguishable from Hilland.




Parker
involved a wrongful death action stemming from a pipeline accident.  Parker sued Lone Star Gas Company rather than
Ensearch d/b/a Lone Star Gas Company.  See
Parker, 794 S.W.2d at 4.  The
record reflected that in-house counsel for Ensearch conducted all of the
utility litigation for both Ensearch Corporation d/b/a Lone Star Gas Company
and Lone Star Gas Company of Texas, Inc. 
Id. at 5.  Moreover,
Parker=s petition correctly identified the proper defendant
as Lone Star Gas Company although the style of the case incorrectly read ALone Star Gas Company of Texas, Inc.@  Id.
at 5B6.  Further
still, the evidence supported that Lone Star Gas Company of Texas had been
named as a party defendant in other lawsuits where Ensearch Corporation d/b/a
Lone Star Gas Company was the target defendant. 
Id. at 6.  The court
determined the evidence indicated that both Lone Star Gas Company of Texas,
Inc. and Ensearch Corporation d/b/a Lone Star Gas Company were fully cognizant
of the facts of the accident and could not have been misled as to the basis of
the suit prior to the statute of limitations running.  Id. at 6.  Here, the summary judgment evidence
conclusively supports that Clausen, Gilmer, and Jacksonville were unaware of
the Coopers= suit until after August 2, 2003.  There is no contradictory evidence in the
summary judgment record.  Thus, the
instant case is distinguishable from Parker.
For the foregoing reasons, we hold that the trial
court correctly granted summary judgment in favor of Gilmer and
Jacksonville.  The Coopers= sole issue is overruled.
 
                                                                 Disposition
Having overruled the Coopers= sole issue, the trial court=s judgment is affirmed.
 
 
    
JAMES T. WORTHEN    
    
Chief Justice
 
 
Opinion
delivered February 15, 2006.
Panel consisted of Worthen, C.J., Griffith, J.,
and DeVasto, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                            (PUBLISH)




[1] We have construed the Coopers four
arguments raised on appeal liberally in the interest of justice.  For the sake of clarity, we will address
these four arguments as a single issue.



[2]
The Coopers had previously
nonsuited Golden Corral.


[3] The record reflects that Clausen
was the owner and president of both Gilmer and Jacksonville. 


