Nolan v. Hughes
349 S.W.3d 209
Tex. App.2011Background
- Nolan was injured March 22, 2007 at a Farmersville Mexican restaurant; action accrues on injury, so deadline was March 22, 2009.
- Original petition (March 20, 2009) named Rolando Lopez and Linda Lopez as owners/operators of Rolando's Mexican Restaurant in Farmersville.
- Original petition alleged the Lopezes owned the restaurant at the time of injury and later sold it, and that they could be served at a Bonham location.
- Nolan amended on April 23, 2009 to name Dennis Hughes (operating as Rolando's Mexican Grill/a.k.a. Rolando's Mexican Restaurant) as an alternative/additional defendant.
- Hughes moved for summary judgment asserting limitations; Nolan argued misidentification or misnomer tolling and relation back.
- Trial court granted summary judgment; suit against Hughes severed and final judgment entered for Hughes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Nolan sue Hughes within the statute of limitations? | Nolan argues amended petition naming Hughes relates back and tolls limitations. | Hughes contends original suit misidentified Hughes; no tolling or relation back. | No; limitations bar claim against Hughes. |
| Does misidentification tolling apply when two related entities use similar trade names? | Two entities with similar names; correct entity had notice of suit. | Two separate entities; Hughes had no notice; misidentification does not toll. | Misidentification tolling does not apply; no notice to Hughes. |
| Can an amended pleading adding a new party relate back under §16.068? | Amendment naming Hughes should relate back to original filing. | Amendment adding a new party does not relate back; §16.068 not applicable here. | Amendment did not relate back; not saved from limitations. |
Key Cases Cited
- Bass v. Flour Bluff Indep. Sch. Dist., 133 S.W.3d 272 (Tex. 2004) (misidentification requires notice and no prejudice to correct party)
- Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999) (misnomer vs misidentification distinction; tolling rules vary)
- Bailey v. University of Texas Health Sci. Ctr., 332 S.W.3d 395 (Tex. 2011) (amendments naming new parties generally not relation back)
- Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113 (Tex. 2004) (amendments and relation back principles, statutory timing)
- Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex. 1990) (misidentification doctrine in tolling analysis)
- Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) (premises owner duty and related negligence considerations)