CAUSE NO. 05-10-00481-CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS -DALLAS, TEXAS ANGELA NOLAN Appellant DENNIS HUGHES, operating under assumed name Rolando s Mexican Grill a/k/a/ Rolando s Mexican Restaurant Appellee Appeal from cause no. 366-01532-2010 366 Judicial District Court of Collin County Hon Ray Wheless Presiding APPELLANT S REPLY BRIEF Submitted by: Patricia J. Matassarin Counsel for Appellant 3075 Rustler Canyon Lake, Texas 78133 Phone/Fax: (830)899-2557 Texas Bar. No. 00789004 v.
TABLE OF CONTENTS: CONCLUSION AND PRAYER...................................6 CERTIFICATE OF SERVICE.................................... 7 Table of Authorities: In Re Greater Houston Orthopaedic Specialists, Inc. Original Proceeding, Cause No. 08-0820, On Petition for Writ of Mandamus from the Court of Appeals for the Thirteenth District of Texas, Per Curiam, delivered August 28, 2009 by the Texas Supreme Court...................................................... 3 i
COMES NOW, Angela Nolan, Appellant, by and through her counsel, Patricia J. Matassarin and for her Reply to the Brief of Appellee, she responds as follows: I. Appellant complains that Nolan offered no timely evidence in response to Hughes s First Amended Motion for Summary Judgment so as to create a fact issue. Hughes set out specifically and rightly in his First Amended Motion for Summary Judgment that : Mr. Hughes Motion for Summary Judgment is based on the pleadings and other documents on file with the court, and on other summary judgment evidence the Court may properly consider... (R.O.A., pg 153). The fact is that this appeal and Mr. Hughes Motion should be considered on the pleadings on file and most importantly just when those pleadings were filed. Affidavits and other evidence was/is not necessary when the Court file includes all of the information necessary to make an informed decision. II. The thrust of Appellee s argument is that the statute of limitations bars suit against later named defendants when they are added after the statute of limitations runs in a case. (Appellee s Brief, pg. 11). This statement, of course, is tempered by the policy and wording of Rule 28 which allows for suit to be brought in the assumed or common name of a Defendant. Nolan contends that she sued any and all persons operating 1
under the assumed or common name of Rolando s Mexican Restaurant located in Farmersville, Texas, when she filed her Original Petition on March 20, 2009. Appellee contends rather, that Nolan misidentified the correct entity and thus relation back allowed under Rule 28 does not attach. Hughes, then correctly states:... Misidentification occurs when two separate legal entities with similar names actually exist and the plaintiff sues the wrong one because he is mistaken about which entity is the correct defendant (Appellee s Brief, pg. 13) The operative portions of the cited reference are legal entities and mistaken about which entity is the correct defendant. Rolando s Mexican Restaurant a/k/a/ Rolando s Mexican Grill is not a legal entity. Legal entities are corporations and persons. A non-incorporated business entity is not a legal entity. Corporations may be served with process through a number of avenues, registered agents, corporate officers etc. Individuals are identifiable for service as well. Non-incorporated business entities may not be served without the designation of a legal entity which is available to be served. Sometimes that legal entity is a corporation which, in fact, does business under assumed or common names. Otherwise, a person must be designated for service so as to convey jurisdiction on a Court. The style of this case, from the Original Petition on, clearly sets out Rolando s 2
Mexican Restaurant as well as some other named non-legal entities which could have been common names. The restaurant was prominently named within the style of Nolan s Original Petition. The cases speaking to mistake as compared to misnomer generally involve a situation where a Plaintiff is injured, say in a traffic accident by a vehicle owned by a prospective Defendant. The true name of the Defendant entity may be similar to other business names. At the time of the accident, Plaintiff only knows that some business entity with a name like such-n-such was written on the side of the truck that hit her and that some Defendant is culpable and that other business entities with similar names may not be. In such an instance a Plaintiff may be mistaken about which entity, with similar names, is the one which caused injury. Such is not the case with Angela Nolan. She absolutely knows that she was injured by the Rolando s Mexican Restaurant located in Farmersville, Texas on March 22, 2007. She is not speculating as to which Rolando s Mexican Restaurant injured her. She never conveyed nor assumed that another Rolando s Mexican Restaurant located in another place might be the entity that injured her. She knew what entity caused injury. She was not mistaken, rather she specified in the Nature of the Case exactly which entity was that which caused her injury and specified by location and time which entity it was. She was not mistaken that Rolando and Linda Lopez Rolando s Mexican Restaurant in Bonham, Texas was the entity which caused injury. 3
The Texas Supreme Court in, In re Greater Houston Orthopaedic Specialists, Inc., No. 08-0820, On Petition for Writ of Mandamus From the Court of Appeals for the Thirteenth District of Texas, a per curiam opinion delivered on August 28, 2009 said the following: Misidentification the consequences of which are generally harsh arises when two separate legal entities exist (Nolan s emphasis) and a plaintiff mistakenly sues an entity with the name similar to that of the correct entity. Chilkewitz v. Hyson, 22 S.W.3d 825,828 (Tex. 1999). A misnomer occurs when a party misnames itself or another party, but the correct parties are involved. Id. (Noting that [m]isnomer arises when a plaintiff sues the correct entity but misnames it ) see also Chen v. Breckenridge Estates Homeowners Ass n, Inc., 227 S.W.3d 419,421 (Tex.App. - Dallas 2007, no pet.) (Holding that misnomer occurred when enforcement order referred to actual plaintiff Breckenridge Estates Homeowners Association, Inc. as Breckenridge Park Estates, No. 1 and No. 2 Homeowner s Association, a Texas non-profit corporation, also identified in the pleadings and knows as Breckenridge Estates Hoeowners Assocation, Inc. ); Pierson v. SMS Fin. II, L.L..C., 959 S.W.2d 343,347 (Tex.App. - Texarkana 1998, no pet.)(determining that misnomer occurred when actual plaintiff, SMS II, instead named another entity, SMS I, in its original petition). Courts generally allow parties to correct a misnomer so long as it is not misleading. See, e.g. Enserch, 794 S.W.2d at 4-5 (holding that [when] a plaintiff misnames a defendant, limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition): Chen, 227 S.W. 3d at 420( misnomer does not invalidate a judgment as between parties where the record and judgment together point out, with certainty, the persons and subject matter to be bound. )(Nolan s emphasis); Cheldon v. Emergency Med. Consultants, I.P.A., 43 S.W.3d 701,702 (Tex.App. Fort Worth 2001, no pet.)( [W]hen an intended defendant is sued under an incorrect name, the court acquires jurisdiction after service with the misnomer if it is clear that no one was misled or placed at a disadvantage by the error. ). Typically, misnomer cases involve a plaintiff who has misnamed the defendant, and a petition involving this type of misnomer is nonetheless 4
.. effective, for limitations purposes, when filed, with any subsequent amendment relating back to the date of the original filing. See I William v Dorsaneo, III ET Al., Texas Litigation Guide [section] 12.02[4](2009) Angela Nolan knew what entity a non-legal entity injured her and it was the Rolando s Mexican Restaurant located in Farmersville, Texas on March 22, 2007. At the time that suit was brought that entity had not been in business for almost two years. She sued Rolando s Mexican Restaurant, naming it in the style of the case and in the Nature of the Case specifically describing the injuring entity. Rolando and Linda Lopez were asserted to be the owners/operators of that entity. That was a misnomer which was immediately corrected with an Amended Petition filed and served on Dennis Hughes within 37 days of the Original Petition filing. There was nothing misleading about the misnomer correction set out in Nolan s First Amended Petition. Hughes has not asserted that he was disadvantaged. The court file, the record as well as the judgment in this case clearly identified the persons, those with actual association with the Rolando s Mexican Restaurant located in Farmersville, Texas, and clearly indicated the subject matter to be considered and bound, i.e. that of an injury occurring as a result of hot sizzling fajitas being spilled on the arm of Nolan at the restaurant in Farmersville, Texas on March 22, 2007. Nolan sued the correct Farmersville restaurant when she filed her Original Petition, but misnamed the legal entity (person) which was doing business as that 5
Farmersville restaurant. She corrected that misnomer with the filing of her First Amended Petition, which relates back to the filing of her Original Petition within the statute of limitations. CONCLUSION: Nolan Respectfully prays that this honorable Court find that pursuant to the authorities cited in this and her Initial Brief that her cause of action was commenced within the statute of limitations, remand this matter back to the trial court for discovery and trial and that she be awarded attorneys fees and costs for this appeal and for such other and further relief to which she may be lawfully entitled. Respectfully Submitted: Patricia J. Matassarin Attorney for Appellant 3075 Rustler Canyon Lake, Texas 78133 Phone/Fax: (830)899-2557 Texas Bar No. 00789004 6
Certificate of Service The undersigned certifies that she served a true and correct copy of the above and foregoing Reply Brief on Appellee s counsel Mr. Jason L. Wren, Walter, Balido & Crain, L.L.P., 900 Jackson Street, Founders Square, Suite 600, Dallas, Texas 75202 by depositing a copy of same properly addressed in the U.S. Mail, on this 7 th day of September, 2010. Patricia J. Matassarin 7