Opinion
No. 01-04-00697-CV
Opinion issued April 6, 2006.
On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 25959.
Panel consists of Justices TAFT, HIGLEY, and BLAND.
MEMORANDUM OPINION
Appellant, Willie Ashton Jr., appeals from the trial court's judgment dismissing his personal-injury lawsuit against appellee, Texas Department of Criminal Justice — Institutional Division ("TDCJ — ID"), pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. 14.001-.014 (Vernon 2002). We determine whether the misnomer doctrine or the misidentification doctrine allowed appellant to assert his claims against TDCJ — ID, despite limitations' undisputedly having run before the filing of his lawsuit. Answering that question in the negative, we affirm.
Factual Background
Ashton was an inmate at TDCJ — ID. On July 16, 18, Ashton sued a nurse, Kay Scott, and a doctor, Larry Lispcomb, both of whom had treated him during his incarceration, alleging that they had injured him by having negligently applied acid to a wart on his forehead ("the 1998 lawsuit"). See Ashton v. Tex. Dep't of Crim. Justice Sys., No. 01-98-01107-CV, 2000 WL 1714799, at *1 (Tex.App.-Houston [1st Dist.] Nov. 2, 2000, no pet.) (not designated for publication). It is undisputed that the acts underlying the 1998 lawsuit occurred on or around August 21, 1996. Ashton also named TDCJ — ID as a party defendant, but did not seek service of process on it through its executive director. See id. at *4. His petition, however, urged claims that could have been brought only against a governmental-entity defendant. See id. The trial court dismissed the 1998 lawsuit on its own motion under Civil Practice and Remedies Code chapter 14. See id. at *1, 2. On appeal, this Court affirmed the dismissal, after having modified the judgment to indicate that the dismissal was without prejudice, for the reason that Ashton had sued individual defendants against whom his governmental-entity claims could not be asserted. See id. at 4.
Ashton then sued TDCJ — ID on September 18, 2003 ("the 2003 lawsuit"), again asserting the same negligence claims. The petition in the 2003 lawsuit also named Scott as a defendant, although it was unclear whether she was sued in her individual or official capacity. Upon the motion of the Texas Attorney General, acting as friend of the court, the trial court dismissed the 2003 lawsuit pursuant to chapter 14, without stating the basis for its ruling. Ashton appealed. Appellees have not filed a brief.
It is also somewhat unclear whether Scott, if she was sued in her individual capacity, was served before the 2003 lawsuit suit was dismissed. No documentation of service on her appears in the record, although a docket notation indicates that return of service on her was made. In any event, Ashton does not raise any challenges on appeal that concern the dismissal of his claims against Scott to the extent that those claims might have been asserted against her individually and to the extent that she might have been served in that capacity before dismissal. See Garcia v. Nat'l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.App.-Houston [1st Dist.] 1999, no pet.) ("Garcia does not complain of the granting of summary judgment on his conversion claim. Therefore, that part of the trial court's judgment is affirmed."). To the extent that Scott was sued in her official capacity, those claims were, in effect, claims against TDCJ — ID. See DeMino v. Sheridan, 176 S.W.3d 359, 366 (Tex.App.-Houston [1st Dist.] 2004, no pet.) ("[A] suit against government employees in their official capacities is, in all respects, a suit against the State. . . .").
Standard of Review
We review a chapter 14 dismissal for abuse of discretion. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.App.-Houston [1st Dist.] 2002, no pet.). That is, we will reverse the trial court only if it acted without reference to any guiding rules or principles. See id.
Dismissal of Ashton's Claims
In his sole point of error, Ashton raises three arguments. First, he argues that the trial court did not hold an evidentiary hearing. Second, he complains that the trial court did not specify in the order why the suit was frivolous. Third, he argues that the trial court should not have dismissed the 2003 lawsuit on the basis that the claims had no arguable basis in law or fact. See TEX. CIV. PRAC. REM. CODE ANN. 14.003 (Vernon 2002). This Court has already disposed of Ashton's first two arguments in the opinion on appeal in the 1998 lawsuit, and we again overrule them for the reasons stated in our prior opinion. See Ashton, 2000 WL 1714799, at *4-5. Accordingly, we write here only on Ashton's third argument.
A trial court may dismiss a claim under section 14.003 if, among other things, the court concludes that the claim is frivolous or malicious. See TEX. CIV. PRAC. REM. CODE ANN. § 14.003(a)(2) (Vernon 2002); Rayford v. Masselli, 73 S.W.3d 410, 422 (Tex.App.-Houston [1st Dist.] 2002, no pet.). However, "[w]hen the trial court dismisses a claim without a hearing, the issue on appeal is whether the claim had no arguable basis in law." Moreland, 95 S.W.3d at 394.
The Attorney General's motion to dismiss requested dismissal under section 14.003(a)(2) because limitations had run. As a general rule, "[a] cause of action accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy." Johnson Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998). The allegations in Ashton's petition in the 2003 lawsuit show that his cause of action arose on or about August 21, 1996.
The statute of limitations for personal-injury claims like Ashton's is two years. See TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a). As a matter of law, that period expired on August 21, 1998 or very soon thereafter. Ashton's having mistakenly sued incorrect defendants within the limitations period in the 1998 lawsuit did not toll limitations on those same claims when they were later asserted against the correct defendant after final judgment in the 1998 lawsuit and more than two years after the occurrence. See Ensearch Corp. v. Parker, 794 S.W.2d 2, 5 (Tex. 1990) (explaining that such misidentification of defendant generally does not toll limitations); see also Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 761 (Tex. 1995) (holding that, when plaintiff initially sues incorrect defendant, plaintiff must amend petition to add correct defendant some time before judgment in order for claim against correct defendant to have chance of relating back to date of suit's filing; further holding, "This court declines to correct [the plaintiff's] error [in suing incorrect defendant] by retroactively substituting in the correct party on his behalf."), disapproved on other grounds by Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex. 1999). Therefore, the 1998 lawsuit's prosecution did not toll or restart the statute of limitations for the current claims against TDCJ — ID. As a result, the 2003 lawsuit was filed over five years after limitations had run.
Ashton alleged that the acid almost immediately burned his face and eye and caused him pain, and he alleged that he sought follow-up treatment for the resulting injury very shortly thereafter. Ashton did not plead the discovery rule.
In response, Ashton relies on Price v. Estate of Anderson, in which the Texas Supreme Court recognized the "misnomer" rule, in which "the statute of limitations is interrupted by institution of suit against the intended defendant under an incorrect name, provided the true defendant is not misled but appears and has an opportunity to defend the suit before the statute of limitations has run." 522 S.W.2d 690, 691 (Tex. 1972). The court elaborated:
Various reasons have been given for the holdings in the misnomer cases. The courts have spoken of waiver, estoppel, mistake not discoverable in the exercise of reasonable diligence, and relation back of the amended petition in which the defendant is correctly named.
Id. at 692. Relying on Price and on the misnomer line of cases, Ashton argues that his suing Scott and Lipscomb individually in 1998 in his first lawsuit invoked this rule, allowing him now, in a totally separate lawsuit, to sue TDCJ — ID long after limitations has run.
This line of authority does not avail Ashton. The misnomer rule is intended to allow relation back, for limitations purposes, within the same lawsuit. That was the situation in Price, in which the correct defendant was added during the lawsuit, but after limitations had run. See id. That is not, however, the situation here: here, Ashton has brought an independent lawsuit, which he instituted after the judgment in the first lawsuit was affirmed, without remand, by this Court. See Ashton, 2000 WL 1714799, at *5. Our having modified the judgment in the first suit to dismiss the cause without prejudice, before having affirmed that judgment, did not restart the limitations period. Cf. Taylor, 4 S.W.3d at 65 (holding that "[t]he filing of the lawsuit alone does not interrupt the running of limitations.").
The same reasoning applies to the extent that Ashton bases his appellate challenges on the related "misidentification" line of authority. "Texas courts have recognized a distinction between misnomer and misidentification. If the plaintiff merely misnames the correct defendant (misnomer), limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition. If, however, the plaintiff is mistaken as to which of two defendants is the correct one and there is actually existing a corporation with the name of the erroneously named defendant (misidentification), then the plaintiff has sued the wrong party and limitations is not tolled." Parker, 794 S.W.2d at 4-5. However, Ashton relies on Wright v. Texas Department of Criminal Justice — Institutional Division for an exception to this rule: "limitations may be tolled when a plaintiff sues an incorrect entity if (1) there are two separate but related entities that use a similar trade name, (2) the correct entity had notice of the suit, and (3) was not misled or disadvantaged by the mistake." Id., 68 S.W.3d 788, 791 (Tex.App.-Houston [14th Dist.] 2001, no pet.). In Wright, however, the plaintiff had added the correct defendant (TDCJ — ID) before final judgment, but after limitations had run; the Wright court held that the timely suing of TDCJ — ID's then director, when TDCJ — ID was not misled or prejudiced and knew that it was the intended defendant, allowed the later amended petition naming TDCJ — ID to relate back to the original petition's filing date. Id. This is, as noted above, not the situation here, in which the individuals sued were not TDCJ — ID's executive directors (and were thus not authorized to receive service for it) and when TDCJ — ID was not added before final judgment. See Bailey, 894 S.W.2d at 761.
Moreover, it is unclear from the record before us and from our earlier opinion whether, in the 1998 lawsuit, TDCJ — ID or any defendant filed an answer or participated to any significant extent before the suit was dismissed. See Ashton, 2000 WL 1714799 at *1 (indicating that trial court dismissed suit sua sponte; also indicating that defendants did not file brief in appellate court). In Price, in contrast, "[t]he purpose of the suit and the nature of the claim asserted were clear from the outset," and the defendant, who was the estate's temporary administrator (and thus the proper defendant, rather than the "estate," which was the entity originally sued) "answered for the `estate' and participated in all proceedings affecting the case." Price, 522 S.W.2d at 692. Similarly, in Wright, the improper defendant was TDCJ — ID's then director; nothing indicated that TDCJ — ID was misled or prejudiced by the misnaming of its former director; the former director's answer never asserted that TDCJ — ID should have been sued instead; and the suit progressed sufficiently enough (over four years) for the former director to move to dismiss the suit for want of prosecution, for the defendants to file jurisdictional pleas, and for the case to be called to trial. See Wright, 68 S.W.3d at 790, 791 n. 2. The factual context of Price and Wright is important because "[t]he primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds." Price, 522 S.W.2d at 692. If the individual defendants in the first lawsuit did not have that opportunity — and the current record does not show if they did and implies that they did not, given the procedurally early dismissal — we cannot conclude that the trial court abused its discretion if it implicitly determined that limitations was not tolled under the misnomer or misidentification doctrine — even assuming that those doctrines could somehow apply outside of the same lawsuit.
The Price court noted:
Respondent was [at the time of the original petition's filing] notified of the nature of the claim and the occurrence or transaction out of which it arose. He and his attorneys, who have represented him throughout this litigation, were then given timely opportunity to interview witnesses and to obtain such evidence as they deemed advisable to defend the suit. . . . [R]espondent was at all times fully cognizant of the facts and could not have been misled as to the basis of the suit, nor was he placed at any disadvantage in obtaining relevant evidence to defend the same.
Id. at 692.
Ashton alternatively argues that his having sued the wrong parties in the first lawsuit was the result of his not having had legal training. However, "[p]ro se litigants are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure." Hope's Fin. Mgt. v. Chase Manhattan Mortgage Corp., 172 S.W.3d 105, 107 (Tex.App.-Dallas 2005, pet. denied).
For these reasons, we overrule Ashton's sole point of error.
Conclusion
We affirm the judgment of the trial court.