Opinion filed April 23, 2020




                                       In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-18-00114-CV
                                   __________

                          CASEY HARRIS, Appellant
                                          V.
      PIONEER NATURAL RESOURCES USA, INC., Appellee

                 On Appeal from the County Court at Law No. 2
                            Midland County, Texas
                       Trial Court Cause No. CC19281


                      MEMORANDUM OPINION
       This is an appeal from a summary judgment rendered against Appellant,
Casey Harris, on limitations. In a single issue, Appellant contends that the trial court
erred by granting summary judgment because the statute of limitations was tolled
under the doctrines of misidentification or misnomer. We affirm.
                                  Background Facts
       In March 2015, appellee Pioneer Natural Resources USA, Inc. (PNRUSA)
operated an oil and gas lease in Glasscock County, Texas. Appellant asserts that he
sustained personal injuries from a slip and fall at PNRUSA’s lease on March 23,
2015.
        Appellant brought a personal injury suit on February 17, 2017. However,
Appellant’s original petition named Pioneer Natural Resources Company (PNRC)
as the defendant. PNRC filed its original answer and verified denial on April 3,
2017, contending that it was not liable in the capacity in which it was sued. PNRC
also alleged a defect of the parties.
        Appellant served a request for disclosures on PNRC on April 10, 2017. On
May 10, 2017, PNRUSA, rather than PNRC, responded to Appellant’s request for
disclosures. In its response, PNRUSA stated that it had been “incorrectly identified
as Pioneer Natural Resources Company.” PNRUSA also responded to Appellant’s
request for disclosure of the correct names of the parties by stating that “Pioneer
Natural Resources Company has been incorrectly named. The correct name of this
party is Pioneer Natural Resources USA, Inc.” However, PNRC remained the sole
defendant for the rest of 2017.
        In December 2017, PNRC moved for summary judgment on the basis that it
was not the proper defendant because PNRUSA had actual control, possession, or
ownership of the premises where Appellant was injured. The trial court heard
PNRC’s motion for summary judgment on January 2, 2018. On January 5, 2018,
Appellant filed his first amended petition, which omitted and effectively nonsuited
PNRC and added PNRUSA as a defendant. PNRUSA was served with the first
amended petition on January 17, 2018. PNRUSA filed its answer and traditional
motion for summary judgment in February 2018. The trial court granted PNRUSA’s
motion for summary judgment in April 2018, and this appeal followed.
                                        Analysis
        We review a trial court’s grant of summary judgment de novo. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010) (citing Provident Life & Accident
                                           2
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When reviewing a summary
judgment, we review the evidence in the light most favorable to the nonmovant,
indulge every reasonable inference in favor of the nonmovant, and resolve any
doubts against the motion. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830,
833 (Tex. 2018) (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)).
        A defendant moving for summary judgment on the affirmative defense of
limitations has the burden to conclusively establish that defense. Velsicol Chem.
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 Cty. Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.
1999).
        Appellant’s claims are governed by a two-year statute of limitations. See TEX.
CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2017). Generally, a suit must be
brought within the limitations period, and suing one entity will not toll limitations
with respect to a different entity. See Cont’l S. Lines, Inc. v. Hilland, 528 S.W.2d
828, 829 (Tex. 1975). It is undisputed that Appellant filed his first amended petition
naming PNRUSA as a defendant after the two-year limitations period expired.
Therefore, Appellant 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.—Fort Worth 2003, no pet.) (citing KPMG Peat Marwick, 988 S.W.2d at
748).
        Appellant contends that the statute of limitations should have been tolled
under the doctrines of misidentification or misnomer. Texas courts recognize a
distinction between misnomer and misidentification. Enserch Corp. v. Parker, 794
S.W.2d 2, 4 (Tex. 1990). A misnomer arises when a plaintiff sues the correct entity
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but misnames it in the pleadings. In re Greater Houston Orthopaedic Specialists,
Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding). Courts generally allow a
party to correct a misnomer by permitting the subsequent amendment to relate back
to the filing date of the original petition. Id.; Parker, 794 S.W.2d at 4–5. Courts are
more flexible in misnomer cases because the correct defendant has been served and
has notice that it is the intended defendant.          Greater Houston Orthopaedic
Specialists, 295 S.W.3d at 325–26.
      Misidentification typically occurs when two separate legal entities exist, and
the plaintiff mistakenly sues an entity with a similar name. Id. Misidentification
usually does not toll the statute of limitations. Parker, 794 S.W.2d at 5. An
exception exists, however, when (1) two separate but related entities use similar
trade names, (2) the correct entity had notice of the suit, and (3) the correct entity
was not misled or disadvantaged by the misidentification. See Flour Bluff Indep.
Sch. Dist. v. Bass, 133 S.W.3d 272, 274 (Tex. 2004). Courts have recognized this
exception because, in such situations, strictly applying the statute of limitations does
not advance its primary purpose of compelling the exercise of the plaintiff’s rights
within a reasonable time in order to afford the defendant a fair opportunity to defend
the suit while the witnesses are available and the evidence is still fresh in their minds.
Hilland, 528 S.W.2d at 831. This exception is known as the “Hilland Rule” and is
considered to be a narrow exception. See Chavez v. Andersen, 525 S.W.3d 382, 388
(Tex. App.—Houston [14th Dist.] 2017, no pet.); Cortinas v. Wilson, 851 S.W.2d
324, 327 (Tex. App.—Dallas 1993, no writ).
      In misidentification cases, the issue is not whether the plaintiff used diligence
in suing the correct defendant but, rather, “whether the legitimate purpose of the
limitations statute would be served by its application under circumstances where no
party is misled or placed at a disadvantage by the error in pleading.” Parker, 794
S.W.2d at 5 (citing Palmer v. Enserch Corp., 728 S.W.2d 431, 434 (Tex. App.—
                                            4
Austin 1987, writ ref’d n.r.e.)). For the exception to apply, however, the plaintiff
must demonstrate that the correct defendant had notice of the suit within the
limitations period. Burchinal v. PJ Trailers-Seminole Mgmt. Co., 372 S.W.3d 200,
213 (Tex. App.—Texarkana 2012, no pet.); Cooper v. D & D G.C. of Gilmer, Inc.,
187 S.W.3d 717, 720 (Tex. App.—Tyler 2006, no pet.) (citing Hilland, 528 S.W.2d
at 831); see Hilland, 528 S.W.2d at 831 (indicating that there was no finding that
defendant “was actually notified and had a fair opportunity to defend itself before
the period of limitations had run”).
        On appeal, Appellant relies on both misnomer and misidentification.
However, Appellant did not raise misnomer in his response to the motion for
summary judgment as a ground for defeating the motion for summary judgment.1
The nonmovant must expressly present to the trial court, by written answer or
response, any issues defeating the movant’s entitlement to summary judgment.
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) (citing
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979));
Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.]
2007, no pet.). “Issues not expressly presented to the trial court by written motion,
answer or other response shall not be considered on appeal as grounds for reversal.”
TEX. R. CIV. P. 166a(c). Thus, by not presenting misnomer as a ground for defeating
summary judgment in its response, Appellant cannot rely on misnomer on appeal.
See Diamond, 105 S.W.3d at 695 n.1 (noting that the appellant could rely on both
misnomer and misidentification because she raised both grounds in her response to
the motion for summary judgment). Moreover, because Appellant sued the wrong
entity of two existing entities, this is a case of misidentification rather than



       Appellant asserted as follows in his response to the motion for summary judgment: “Here, Plaintiff
        1

sued PNRC instead of [PNRUSA]. Clearly, Plaintiff falls in the limited exception of misidentification.”
                                                   5
misnomer. See Parker, 794 S.W.2d at 5. Thus, Appellant’s misnomer argument
fails.
         Appellant had the burden to adduce summary judgment evidence raising a
genuine issue of material fact as to the application of the misidentification doctrine.
Appellant contends that PNRUSA had notice that it was the intended defendant and
was not misled or disadvantaged by Appellant’s mistake in naming PNRC as the
defendant. In support of his position, Appellant points out that the same attorney
represented PNRC and PNRUSA at all stages of this litigation and that PNRUSA
appeared to respond to Appellant’s discovery requests propounded upon PNRC.
Appellant also attached photographs to his summary judgment response depicting
the accident site. In several of the photographs, a sign on the premises read “Pioneer
Natural Resources.”
         After reviewing the record, there is no summary judgment evidence that
PNRUSA and PNRC are related entities. Although it is true that both entities are
similarly named, this fact is insufficient, without more, to establish that the two
entities are related. The photographs Appellant relies upon also do not establish a
relationship between the two entities. The sign that is depicted only refers to
“Pioneer Natural Resources,” but it does not allude to any connection between
PNRUSA and PNRC. Similarly, the fact that both entities were represented by the
same attorney is insufficient alone to overcome a statute-of-limitations defense. See
Howell v. Coca-Cola Bottling Co. of Lubbock, 595 S.W.2d 208, 212 (Tex. App.—
Amarillo 1980, writ ref’d n.r.e.) (“Representation of successive defendants by the
same law firm is insufficient, standing alone, to remove the limitations’ bar.”). Thus,
Appellant has failed to create a fact issue regarding whether PNRC and PNRUSA
are related entities.
         Further, even if Appellant had established a relationship between PNRUSA
and PNRC, Appellant provided no summary judgment evidence that PNRUSA had
                                           6
notice of the suit prior to March 23, 2017, which is the two-year anniversary of the
date of injury. The summary judgment evidence does not show when Appellant
served PNRC with suit papers. PNRC did not file its answer until April 3, 2017.
Thus, even if we assume that notice to PNRC was also notice to PNRUSA, there is
no summary judgment evidence that PNRC received notice of the suit prior to
March 23, 2017.
        Appellant has provided no summary judgment evidence that PNRUSA
became aware of the suit prior to the expiration of limitations. Therefore, Appellant
has failed to raise a fact issue under the doctrine of misidentification. We overrule
Appellant’s sole issue on appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


April 23, 2020
Panel consists of: Bailey, C.J.,
Wright, S.C.J.,2 and Trotter, J.3

Willson, J., and Stretcher, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
        3
         The Honorable W. Stacy Trotter, 358th District Court, Ector County, Texas, sitting by assignment.
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