Adriana Garcia v. Bazan Enterprise, Inc. D/B/A Taco Ole Restaurant

Citation: Not availableDocket: 13-21-00390-CV

Court: Court of Appeals of Texas; August 4, 2022; Texas; State Appellate Court

Original Court Document: View Document

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Adriana Garcia appeals the trial court's order granting summary judgment in favor of Bazan Enterprises, Inc., doing business as Taco Ole Restaurant. On June 27, 2017, Garcia, an employee of Taco Ole, sustained injuries while operating an allegedly unsafe machine. She filed a lawsuit on June 13, 2019, claiming premises liability and negligence, and attempted to serve the company through registered agent Elias Bazan Jr. However, service was executed on Elias Bazan III, who was not the registered agent. Taco Ole moved to quash the service, asserting it was improper. The court granted this motion, deeming service effective as of June 18, 2020.

Garcia attempted to serve Taco Ole again shortly after, but the service was again directed at the wrong individual. Taco Ole subsequently filed for summary judgment, arguing that Garcia failed to serve the process within the two-year statute of limitations for personal injury claims. Garcia contended that her diligent attempts at service warranted relation back to the filing date. The trial court ruled that her claims were barred by limitations, leading to the filing of a second amended petition that included additional claims, which were later dismissed. Garcia's motion for a new trial, asserting equitable tolling due to misnomer and misidentification, went unaddressed by the trial court. In her appeal, Garcia argues that the trial court erred in denying her claims based on service issues and her diligent efforts to notify Taco Ole of the suit.

The standard of review for a trial court's summary judgment is de novo, with all evidence favoring the nonmovant taken as true, and reasonable inferences and doubts resolved in their favor. To obtain traditional summary judgment, the movant must demonstrate no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. A defendant can achieve summary judgment if they conclusively establish an affirmative defense. Personal injury claims in Texas are subject to a two-year statute of limitations, requiring plaintiffs to file suit and diligently serve the defendant within this timeframe.

If a suit is timely filed, but service occurs after the limitations period, the service date can relate back to the filing date only if the plaintiff demonstrated diligence in service. The burden shifts to the plaintiff to explain any delay once the defendant proves late service. Diligence is assessed based on whether the plaintiff acted as a reasonably prudent person would under similar circumstances and whether they were diligent until the defendant was served.

Diligence is typically a factual question, evaluated by the efforts and time taken to secure service. However, it may be determined as a matter of law if there are unexplained or unreasonable lapses in service attempts. A lack of diligence may be established if the plaintiff failed to exhaust available service options, did not provide a valid excuse for the service delay, or if the circumstances negate diligence. The responsibility for ensuring proper service lies with the party requesting it, not the process server, as any deficiencies in service are attributed to the plaintiff. Reliance solely on the process server does not satisfy the requirement of due diligence.

Garcia contends she acted diligently in serving Taco Ole, arguing that service should relate back to her suit filing date. Taco Ole raised a limitations defense, highlighting that Garcia was injured on June 27, 2017, filed suit on June 13, 2019, and the limitations period expired on June 27, 2019, while service was not completed until June 18, 2020. The burden shifted to Garcia to demonstrate diligence during the 371 days of delay, which she failed to do. Her evidence consisted solely of service return forms showing service on Elias Bazan III at Taco Ole Edinburg, a separate entity from Taco Ole, with a different registered agent, Elias Bazan Jr. Despite her belief that proper service had been achieved, reliance on the process server did not fulfill the diligence requirement, as errors in service are attributed to the plaintiff. Garcia’s claim that Taco Ole’s actions misled her regarding service was not raised in the trial court and is thus waived on appeal. Additionally, she presented no evidence or legal authority to support these claims, undermining her position further. The court concluded that Garcia's summary judgment evidence failed to establish due diligence in effecting service.

Elias Bazan Jr. died prior to Garcia filing suit, and Taco Ole's registered agent, Maria Delia Bazan, was accessible for service of process, which Garcia failed to utilize despite her obligation to show diligence in serving the correct party. The court found no merit in Garcia's claims, confirming that her late service of Taco Ole did not meet the required legal standards. Garcia attempted to argue her case under equitable doctrines of misnomer and misidentification. Misnomer involves serving the correct entity but using an incorrect name, which can toll the statute of limitations if the intended defendant is notified. In contrast, misidentification occurs when the wrong entity is served altogether, and the limitations period is not tolled unless specific criteria are met, including timely notice to the correct entity. Although Taco Ole and Taco Ole Edinburg have similar trade names, Garcia did not demonstrate that Taco Ole had notice of the suit within the limitations period or that it was related to Taco Ole Edinburg without being disadvantaged. Consequently, Garcia did not satisfy the burden of proof required to toll the limitations period due to misidentification.

Garcia presented two arguments to establish that Taco Ole had notice of her lawsuit. First, she claimed that Taco Ole must have had actual notice because it filed a motion to quash service of process, but this only indicated notice on May 20, 2020, nearly eleven months after the statute of limitations had expired. Second, Garcia referenced Rule 28 of the Texas Rules of Civil Procedure, asserting that Taco Ole was served when Elias Bazan III received notice before the limitations period ended. However, the rule does not permit suing an entity under its assumed name by serving a registered agent of a similarly named entity. Furthermore, Garcia failed to provide evidence that serving Bazan at Taco Ole Edinburg constituted actual notice to Taco Ole. Consequently, she did not meet the burden required to toll the limitations period under the misidentification doctrine, leading to the overruling of her first issue and the affirmation of the trial court's order. The decision was delivered on August 4, 2022, by Chief Justice Dori Contreras.