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Civil Litigation No. 14-02-00883-CV, 6/12/2003. Click here for the full text of this decision FACTS: Robinetta Wilkins sued Methodist Health Care System, owner of Methodist Hospital in Houston, alleging personal injuries caused by the temporary loss of a surgical instrument in her abdomen during her gall bladder surgery. One year after the case was filed and long after limitations had expired, the System objected that it was not the proper defendant but the Hospital was. Wilkins amended her petition to name both, and sent it by mail to the System’s attorney of record. She did not request any new citation. The trial court granted summary judgment for the System (because it was not her health care provider), and dismissed without prejudice claims against the Hospital (because it was never served). Wilkins filed a motion for new trial making new arguments and attaching additional proof. In a comprehensive and detailed order, the trial judge granted the motion for new trial, expressly took into consideration the new arguments and proof, and then entered the same judgment as before. Wilkins filed nothing further until her notice of appeal 90 days later. HOLDING: Affirmed. The question presented is whether new service of citation is required when there is a misidentification between two related entities. Texas Rule of Civil Procedure 124 provides “In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules.” Sending the amended petition to a defendant’s attorney does not constitute service of citation. Nor did the System’s attorney ever agree to accept service or make an appearance on the Hospital’s behalf. While the System’s responses to discovery clearly required the assistance of Hospital personnel, helping a related corporate entity with discovery responses does not constitute a general appearance in this litigation. It is true there was some evidence placing this case among those allowing an equitable tolling of limitations due to misidentification. This rule tolls limitations when 1. two separate but related entities; 2. use a similar trade name; and 3. the correct entity has notice of the suit and is neither misled nor disadvantaged by misdirected service. Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999). Here, the System admits it owned the Hospital, so there is no question the two entities were related. While the court must disregard the assumed name certificates Wilkins attached for the first time to her appellate brief (which show the Hospital does business under the System’s name, and vice versa), Mabon Ltd. v. Afri-Carib Enters., 29 S.W.3d 291 (Tex. App. – Houston [14th Dist.] 2000, no pet.), there was other evidence offered that the Hospital and the System used a similar trade name. It is hard to imagine, the court states, how the Hospital was either misled or disadvantaged, as many of its employees and agents participated extensively in the discovery process and were already designated to testify at trial. But assuming limitations was tolled, the question remains – tolled until what? Obviously, until the proper defendant was joined. Absent an appearance, waiver of service, or some other express provision of law, the Texas rules allow such joinder only by service of citation. In the six misidentification cases in the past 50 years in which the Supreme Court has found the requirements met for equitable tolling of limitations, there is not a single instance in which new service of citation appears to have occurred; in every case the plaintiff merely filed an amended petition without citation or formal service. But in each of those cases, the proper party voluntarily appeared to litigate the limitations issue; citation was unnecessary because there was a general appearance. In this case, the Hospital avoided making such an appearance. It is hard to justify what happened in this case, the court states. The System must have been immediately aware of Wilkins’s mistake, but did not point out the error until the last possible moment. There is no suggestion how the Hospital would have been prejudiced by joinder when the System finally objected. Moreover, it is hard to see what citation adds in these circumstances. Equitable tolling never applies unless the correct defendant got notice of the suit, was not misled, and suffered no prejudice from the original error. And by filing a verified objection, the wrong affiliate has insisted that the right affiliate be added. It appears the federal courts are headed in the direction of not requiring a new citation. A similar change has already occurred in Texas assumed name cases, which formerly “tolled limitations” (suggesting new citation was necessary), but now clearly do not require new citation. Further, assumed name and misidentification cases frequently overlap – that is, the misidentified defendant bears an assumed name recognized by the public. It is somewhat anomalous in these overlapping cases that citation appears to be required if pleaded as misidentification, but not required if pleaded as an assumed name. OPINION: Brister, C.J.; Brister, C.J., Fowler and Edelman, JJ.

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