    Affirm and Opinion Filed July 29, 2013
 




 
                                                           S   In The
                                                          Court of Appeals
                                                   Fifth District of Texas at Dallas
 
                                                        No. 05-11-01376-CV
 
                                      TAMARA ROBISON, Appellant
                                                V.
                              TEXAS HEALTH RESOURCES, INC. ET AL, Appellee
 
 
                                    On Appeal from the 199th Judicial District Court
                                                 Collin County, Texas
                                        Trial Court Cause No. 199-01101-2010
 
                                               MEMORANDUM OPINION
                                           Before Justices Bridges, Lang, and Richter1
                                                   Opinion by Justice Bridges
 

              Appellant Tamara Robison appeals from a summary judgment entered in favor of

    appellee Texas Health Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen a/k/a

    Texas Health Allen (“THR”). In two issues, Robison argues the trial court erred in granting: (1)

    summary judgment and dismissing Robison’s claims due to alleged misidentification and (2)

    THR’s no-evidence motion for summary judgment on Robison’s medical malpractice claims.

    We affirm.

                                                            Background
 
              On November 5, 2009, Robison filed her medical malpractice lawsuit against THR. On
 
    November 24, 2009, THR filed its verified denial, stating:
 
 
 
       1
           The Hon. Martin Richter, Justice, Assigned
           Defendant THR is not liable in the capacity in which it is sued. Specifically,
           Texas Health Resources does not do business as Texas Health Presbyterian
           Hospital Allen or Texas Health Allen, is not a hospital as alleged in Plaintiff’s
           Original Petition, is not responsible for the acts or omissions of any agents or
           employees of Texas Health Presbyterian Hospital Allen and did not provide any
           of the healthcare at issue in this case.
 
           THR filed its responses to requests for disclosure on July 23, 2010. In those responses,

    THR disclosed:

           Texas Health Resources does not do business as Texas Health Presbyterian
           Hospital Allen or Texas Health Allen. Texas Health Resources did not provide
           any of the health care at issue herein, nor did it employ the caregivers that did.
           The correct name of the hospital is: Texas Health Presbyterian Hospital Allen,
           f/k/a Presbyterian Hospital of Allen.
 
           On May 11, 2011, THR filed its traditional and no-evidence motions for summary

    judgment. In those motions, THR alleged it did not provide any care to Robison and, therefore,

    could not be held liable. THR further argued that, due to the manner in which Robison named

    the defendants, she failed to sue Texas Health Presbyterian Hospital Allen (“THPHA”), the

    entity that provided care to Robison.

           On June 10, 2011, Robison filed her first amended petition, naming defendants as “Texas

    Health Resources, Inc. and Texas Health Presbyterian Hospital Allen d/b/a Texas Health Allen.”

    Robison filed her Rule 28 motion on June 13, 2011, requesting the trial court to substitute the

    already named defendant, “Texas Health Resources, Inc. d/b/a Texas Health Presbyterian

    Hospital Allen” with “Texas Health Presbyterian Hospital Allen.” The record before us does

    not include a ruling on Robison’s Rule 28 motion. However, on July 12, 2011, the trial court

    granted THR’s motion for summary judgment.

                                            Analysis
 
    Standard of Review

           The standards for reviewing a traditional summary judgment are well established. The

  party moving for summary judgment has the burden of showing no genuine issue of material fact
                                             –2
    exists and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Nixon v.

    Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether a disputed material

    fact issue exists, precluding summary judgment, evidence favorable to the non-movant will be

    taken as true.    Nixon, 690 S.W.2d at 548–49.      Further, every reasonable inference must be

    indulged in favor of the non-movant and any doubts resolved in its favor. Id. A motion for

    summary judgment must expressly present the grounds upon which it is made and must stand or

    fall on those grounds alone. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341

    (Tex. 1993); Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 688 (Tex. App.—Dallas

    2000, no pet.).
 
           We review a no-evidence summary judgment under the same legal sufficiency standard

    used to review a directed verdict. See TEX.R. CIV. P. 166a(i); Gen. Mills Rests., Inc. v. Tex.

    Wings, Inc., 12 S.W.3d 827, 832–33 (Tex. App.—Dallas 2000, no pet.).               Thus, we must

    determine whether the nonmovant produced more than a scintilla of probative evidence to raise a

    fact issue on the material questions presented. Gen. Mills, 12 S.W.3d at 833. When analyzing

    no-evidence summary judgments, we consider the evidence in the light most favorable to the

    nonmovant. Id.

           In the present case, the trial court did not specify the grounds on which THR’s summary

    judgment motion was granted. If a summary judgment order issued by the trial court does not

    specify the ground or grounds relied upon for a ruling, the ruling will be upheld if any of the

    grounds in the summary judgment motion can be sustained. Bradley v. State ex rel. White, 990

    S.W.2d 245, 247 (Tex. 1999); Ortega v. City Nat. Bank, 97 S.W.3d 765, 772 (Tex. App.—

    Corpus Christi 2003, no pet.).

    Misidentification
 
           Because it is dispositive of this appeal, we begin with Robison’s first issue in which she


                                                   –3
    argues the trial court erred in granting summary judgment and dismissing Robison’s claims due

    to “alleged misidentification when Robison sued ‘d/b/a Texas Health Presbyterian Hospital

    Allen’ and not simply ‘Texas Health Presbyterian Hospital Allen.’”

           In order to prove a claim of negligence against THR, Robison was required to prove each

    of the essential elements of the cause of action: (1) a legally cognizable duty requiring

    conformity to a certain standard of conduct; (2) a failure to conform to the required standard; (3)

    actual injury; and (4) a reasonably close causal connection between the conduct and the alleged

    harm. Drury v. Baptist Mem’l Hosp. Sys., 933 S.W.2d 668, 672 (Tex. App.—San Antonio 1996,

    writ denied); see also McDole v. San Jacinto Methodist Hosp., 886 S.W.2d 357, 359 (Tex.

    App.—Houston [1st Dist.] 1994, no writ)).           In its traditional and no-evidence motions for

    summary judgment, THR argued, because Robison failed to name the proper party, she failed to

    prove THR owed or breached a duty to her. THR further argued it, therefore, conclusively

    negated the allegations that its conduct was the proximate cause of any harm or damages to

    Robison.

           In her brief before this Court, Robison does not refute that THPHA was the entity that

    provided the care in question.    Rather, she argues the trial court erred in granting summary

    judgment, because her original petition against “d/b/a Texas Health Presbyterian Hospital Allen”

    constituted actual suit against THPHA. We disagree.

           Our sister court has already noted a “d/b/a” designation does not make the entity a party

    to the lawsuit, but merely indicates “the name of the business which the Defendant was alleged

    to have been operating.” National Med. Enters. v. Wedman, 676 S.W.2d 712, 714 (Tex. App.—

    El Paso 1984, no writ).     Furthermore, the evidence       in the record before us includes the

    Certificate of Fact, filed with the Secretary of State by THR, which lists all assumed names used

    by THR. THPHA is not listed among those names used by THR. Conversely, the Certificate of


                                                   –4
    Fact, filed with the Secretary of State by THPHA, does not list THR as an assumed name.
 
            Still, Appellant cites us to the Cummings decision for the proposition that identifying

    THPA as a d/b/a of THR was a proper way to sue THPA. See Cummings v. HCA Health Serv. of

    Tex., Inc., 799 S.W.2d 403 (Tex. App.—Houston [14th Dist.] 1990, no writ).                          However, the

    Cummings court stated because the underlying case involved a suit against an assumed name

    when it was named as a d/b/a, it made no difference that it was sued as an assumed name of a

    corporate entity rather than sued as an entity, standing alone. See id. at 404. We have already

    noted the record before us reflects THR did not use THPHA as an assumed name. Therefore, we

    conclude the Cummings decision is distinguishable from the case at hand. Furthermore, because

    THPHA was not an assumed name of THR, rule 28 substitution would have also been improper.2

            Finally, Robison argues that she has at least raised a fact issue because “as admitted by

    THR, there is such a closeness to THR and THPA.” However, the record does not reflect this

    alleged admission of closeness.             Rather, THR’s brief and the evidence within the record

    demonstrate the opposite.

            In its motion for summary judgment, supported by the summary judgment evidence, THR

    argues “it is a distinct legal entity, separate and apart from THPHA.” The record reflects the

    legal name of the hospital where Robison was treated was “Texas Health Presbyterian Hospital

    Allen.” Nothing in the record shows THPHA has been an assumed name for THR or that THR

    has been an assumed name for THPHA.

 
 
        2
          In spite of being placed on notice of the proper name by THR through both its verified denial and its responses
    to Robison’s requests for disclosure, Robison requested a rule 28 substitution of parties only after THR’s motions
    for summary judgment were filed. Rule 28 provides that “[a]ny 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.” TEX. R. CIV. P. 28. However, as we have already noted,
    the evidence does not show THPHA was an assumed name of THR, making rule 28 substitution improper.
    Furthermore, there is nothing in the record to show the trial court ruled on the rule 28 motion prior to granting
    summary judgment.		


                                                           –5
            Because Robison failed to name the proper party to the lawsuit, we conclude the trial

    court correctly granted summary judgment in favor of THR. See TEX. R. CIV. P. 166a(c), (i);

    Bradley, 990 S.W.2d at 247. We overrule Robison’s first issue and, because THR’s first issue is

    dispositive of the appeal, we need not reach Robison’s second issue. We affirm the judgment of

    the trial court.
 
 
 
 
 
 
            111376F.P05                               /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE




                                                 –6
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

TAMARA ROBISON, Appellant                            On Appeal from the 199th Judicial District
                                                     Court, Collin County, Texas
                                                     Trial Court Cause No. 199-01101-2010.
No. 05-11-01376-CV         V.
                                                     Opinion delivered by Justice Bridges.
                                                     Justices Lang and Richter participating.
TEXAS HEALTH RESOURCES, INC. ET
AL, Appellee



     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellee TEXAS HEALTH RESOURCES, INC. ET AL recover its
costs of this appeal from appellant TAMARA ROBISON.



Judgment entered July 29, 2013




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE




                                                –7
