                           NUMBER 13-12-00497-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

SALOME MORENO DEPAULA,                                                 Appellant,

                                         v.

STRIPES L.L.C., SUCCESSOR
BY MERGER TO SSP PARTNERS,                                             Appellee.


                   On appeal from the 94th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria

                Memorandum Opinion by Justice Longoria

      By four issues, which we have re-ordered, appellant, Salome Moreno DePaula,

appeals a final summary judgment entered in favor of appellee, Stripes LLC, successor

by merger to SSP Partners. We affirm.
                                         I. BACKGROUND

       In December 2009, DePaula filed a legal malpractice suit against attorneys David

Burkett, Veronica Garza, and Benito Garza. According to DePaula’s malpractice suit,

she was “involved in an accident on January 18, 2007” and sustained severe personal

injuries. DePaula filed her malpractice suit alleging that her attorneys failed to file her

personal injury suit before the applicable two-year statute of limitations had expired.

See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2011).

       In response to the suit, defendants Veronica Garza and Benito Garza filed a

motion to designate “SSP Partners, Inc.” as a responsible third party.                   See id. §

33.004(a) (West Supp. 2011).           On July 1, 2011, the trial court signed an order

designating “SSP Partners, Inc.” as a responsible third party. DePaula then filed, within

60 days, her second amended original petition naming “SSP Partners, Inc.” as a

defendant, as provided by former section 33.004(e) of the Texas Civil Practice and

Remedies Code.1          SSP Partners, Inc. filed a verified answer denying liability.

Subsequently, on December 9, 2011, DePaula obtained a $1.5 million default judgment

against “SSP Partners,” a different entity which had not been sued. On January 4,

2012, Stripes, as successor by merger to “SSP Partners” (henceforth “Stripes”), filed a

motion to set aside the default judgment and for new trial, which was granted.

       Finally, on February 9, 2012, DePaula filed her third amended original petition,

naming Stripes as a defendant and asserting claims against Stripes for the personal

injuries she sustained on January 18, 2007, when she tripped and fell on a sidewalk


       1
           See Acts 1995, 74th Leg., ch. 136, § 1, amended by Acts 2003, 78th Leg., ch. 204, §§ 4.03,
4.04, 4.10(2), repealed by Act of May 30, 2011, 82nd Leg., R.S., ch. 203, § 5.02, 2011 Tex. Sess. Law
Serv. 203.


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owned by Stripes and located at 4433 Baldwin Boulevard in Corpus Christi, Texas.2 On

February 14, 2012, Stripes filed its original answer and asserted an affirmative defense

based on the applicable two-year statute of limitations. See TEX. CIV. PRAC. & REM.

CODE ANN. § 16.003(a). On March 20, 2012, Stripes filed a traditional and no evidence

motion for summary judgment in which it argued the following:

        [T]here is no genuine issue as to any material fact on Stripes’ affirmative
        defense of the statute of limitations and Stripes is entitled to summary
        judgment on [DePaula’s] claim because its defense of limitations is
        established as a matter of law. Alternatively, there is no evidence which
        supports [DePaula’s] premises liability claim and gross negligence claim
        and summary judgment is proper on the issue of liability as to Defendant
        Stripes arising from [DePaula’s] claims alleged herein; as such, [DePaula]
        should take nothing from Stripes by reason of this action as a matter of
        law.

        On July 19, 2012, the trial court entered an order granting Stripes’ traditional and

no evidence motion for summary judgment. The trial court did not state the basis for its

ruling. This appeal ensued.

                                       II. SUMMARY JUDGMENT

        In her first issue, DePaula argues that the trial court erred in granting a traditional

summary judgment because Stripes “failed to carry its summary judgment burden to

negate the doctrine of misnomer.”

A. Summary Judgment Proceedings

        As set forth above, Stripes sought a traditional summary judgment based on the

applicable statute of limitations. See id. In its motion, Stripes argued that DePaula’s

claims accrued on January 18, 2007, when she sustained personal injuries in a trip-and-

        2
          Stripes was the only defendant named in DePaula’s third amended original petition. Therefore,
the claims pending against all other defendants were effectively nonsuited. See FKM P'ship v. Bd. of
Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 632 (Tex. 2008) (“In civil causes generally, filing
an amended petition that does not include a cause of action effectively nonsuits or voluntarily dismisses
the omitted claims as of the time the pleading is filed. No hearing is necessary to effect the nonsuit.”).

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fall accident, as alleged in her third amended original petition. Stripes further argued

that DePaula’s claims were barred by the statute of limitations because she did not file

suit against Stripes until February 9, 2012, well after the two-year limitations period had

expired on January 18, 2009. See id.

       In her response to Stripes’ motion for summary judgment, DePaula argued that

her claims against Stripes were not time-barred because the trial court had designated

“SSP Partners, Inc.” as a responsible third party on July 1, 2011, and she had timely

filed her second amended original petition naming “SSP Partners, Inc.” as a defendant

on July 11, 2011, within 60 days of the trial court’s order, as provided by former section

33.004(e). See id. § 33.004(e).

       In its reply, Stripes argued that “[t]he summary judgment evidence conclusively

established SSP Partners, Inc., not Stripes, was designated as a responsible third party;

accordingly, [DePaula] had no basis upon which to circumvent the statute of limitations

defense of Stripes.” Stripes further argued, “It would clearly be an absurd result if

[DePaula] was allowed to bypass Stripes’ statute of limitations defense by implementing

§ 33.004(e)’s joinder provision when Stripes was never designated as a responsible

third party in this case and the order authorizing the responsible third party claim never

applied to Stripes.”

B. Standard of Review

       We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390

(Tex. App.—Corpus Christi 2002, no pet.).         In a traditional motion for summary

judgment, the movant has the burden of showing both that there is no genuine issue of

material fact and entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c);



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see also Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Ortega v. City Nat’l Bank,

97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003, no pet.). In deciding whether

there is a genuine issue of material fact, evidence favorable to the nonmovant is taken

as true, and all reasonable inferences are made, and all doubts are resolved, in favor of

the nonmovant.       Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

Summary judgment is proper if the movant disproves at least one element of each of

the plaintiff’s claims or affirmatively establishes each element of an affirmative defense

to each claim. Id.

C. Applicable Law

       Under section 33.004(a), “[a] defendant may seek to designate a person as a

responsible third party by filing a motion for leave to designate that person as a

responsible third party.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a). Former section

33.004(e) of the Texas Civil Practice and Remedies Code provides as follows:

       If a person is designated under this section as a responsible third party, a
       claimant is not barred by limitations from seeking to join that person, even
       though such joinder would otherwise be barred by limitations, if the
       claimant seeks to join that person not later than 60 days after that person
       is designated as a responsible third party.

Id. § 33.004(e).

D. Discussion

       DePaula argues that summary judgment was improper because section

33.004(e) allows her to assert claims against Stripes that would otherwise be barred by

limitations. See id. We disagree. Stripes was never designated as a responsible third

party. See id. Therefore, the savings clause in section 33.004(e) does not apply and




                                            5
DePaula is not authorized to assert claims against Stripes that would otherwise be

barred by limitations. See id.

       Despite this, DePaula argues that, pursuant to the doctrine of misnomer, she is

authorized to assert claims against Stripes that would otherwise be barred by limitations

because the defendants designated SSP Partners, Inc. when they should have

designated SSP Partners (referred to herein as “Stripes”). See In re Greater Houston

Orthopaedic Specialists, Inc., 295 S.W.3d 323, 326 (Tex. 2009) (“Typically, misnomer

cases involve a plaintiff who has misnamed the defendant, and a petition involving this

type of misnomer is nonetheless effective, for limitations purposes, when filed, with any

subsequent amendment relating back to the date of the original filing.”). Again, we

disagree. First, there is no precedent for applying the doctrine of misnomer to section

33.004. See id. § 33.004. Second, even if the doctrine were applicable, it would not

give DePaula the authority to designate a responsible third party under section

33.004(a). See id. § 33.004(a). If the wrong party is designated by a defendant, any

party can file a motion to strike the designation. See id. § 33.004(j).     However, the

statute does not authorize a claimant, such as DePaula, to designate a different

responsible third party. See id. § 33.004(a).

       Only a defendant is authorized to designate a responsible third party. See id.

The defendants in this case did not designate Stripes. Nor did they seek to designate

Stripes after it became clear that SSP Partners, Inc. is a completely different entity that

had nothing to do with the events giving rise to this suit. However, even under these

circumstances, the statute simply does not authorize DePaula, as a non-defendant, to

request that Stripes be designated as a responsible third party.       See id. Although



                                            6
DePaula was authorized to file a motion to strike, she could not compel the defendants

to designate Stripes or do so herself. See id. § 33.004(j).

       In sum, section 33.004(e) does not apply because Stripes was never designated

as a responsible third party. See id. § 33.004(e); Jay Miller & Sundown, Inc. v. Camp

Dresser & McKee, Inc., 381 S.W.3d 635, 641 (Tex. App.—San Antonio 2012, no pet.)

(“Section 33.004(e) provides that limitations does not bar the joinder if (1) the person

was designated under section 33.004 as a responsible third party and (2) joinder was

sought within sixty days of the designation.”).            If the defendants had intended to

designate Stripes but mistakenly designated SPP Partners, Inc., as DePaula contends,

they had until on or before the 60th day before the trial date to file a motion to designate

Stripes, see TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a); however, they did not do

so. Nor did DePaula file a motion to strike the designation of SSP Partners, Inc., as she

was authorized to do. See id. § 33.004(j). Although DePaula named Stripes as a

defendant in her third amended original petition, she did so without the benefit of section

33.004(e). See id. § 33.004(e). Accordingly, because section 33.004(e) is inapplicable

and because there is no dispute that DePaula’s claims are otherwise barred by the

statute of limitations, the trial court did not err in granting Stripe’s motion for summary

judgment based on the statute of limitations. See TEX. R. CIV. P. 166a(c). Therefore,

DePaul’s first issue is overruled.3

                                     III. DEFAULT JUDGMENT

       In her fourth issue, DePaula contends that the trial court erred in granting a new

trial after a default judgment was entered against Stripes.              “Except in very limited

       3
          Furthermore, because we have already upheld the summary judgment based on limitations, it
is unnecessary to address DePaula’s second and third issues challenging the other grounds for summary
judgment. See TEX. R. APP. P. 47.1.

                                                 7
circumstances, an order granting a motion for new trial rendered within the period of the

trial court’s plenary power is not reviewable on appeal.” Wilkins v. Methodist Health

Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). The only exceptions are “when the trial

court’s order was void and when the trial court erroneously concluded that the jury’s

answers to special issues were irreconcilably in conflict.” In re Columbia Med. Ctr. of

Las Colinas, 290 S.W.3d 204, 209 (Tex. 2009). The parties do not contend that either

of those circumstances exists. As a result, we conclude that the trial court’s order

granting Stripes’s motion for new trial is not reviewable on appeal. See id. Accordingly,

DePaula’s fourth issue is overruled.

                                       IV. CONCLUSION

      The trial court’s summary judgment is affirmed.


                                                 _______________________
                                                 NORA L. LONGORIA
                                                 Justice
Delivered and filed the
19th day of September, 2013.




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