Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00363-CV
Joseph Andrew BURT, II, Appellant
v.
DENNY’S, INC., Appellee
From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2017CV02727-A Honorable Karen Crouch, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Sandee Bryan Marion, Chief Justice Irene Rios, Justice Liza A. Rodriguez, Justice
Delivered and Filed: March 25, 2020
AFFIRMED
Joseph Andrew Burt, II appeals a summary judgment granted in favor of Denny’s, Inc. On
appeal, Burt contends the trial court erred in granting the summary judgment because: (1) he timely
filed suit against Denny’s, Inc. under a common or assumed name pursuant to Texas Rule of Civil
Procedure 28; and (2) the misidentification doctrine precluded the summary judgment. We affirm
the trial court’s judgment. 04-19-00363-CV
BACKGROUND
On July 19, 2015, Burt was injured when he tripped and fell on a walkway at a Denny’s
restaurant. On March 8, 2016, the insurance adjuster for Denny’s, Inc. sent Burt’s attorney a letter
identifying the adjuster’s client as “Denny’s Restaurant” and concluding “responsibility for
[Burt’s] incident does not rest with Denny’s Restaurant.”
On May 16, 2017, Burt sued Denny’s a/k/a Denny’s Restaurant, which the petition
identified as a Texas Corporation that could be served through its registered agent EYM Diner of
Florida, LLC, 2730 N. Stemmons Freeway, Suite 908, Dallas, Texas 75207. On May 30, 2017,
Burt’s attorney sent a copy of the petition to the insurance adjuster for Denny’s, Inc. with a letter
stating all prior offers were rejected. 1
After the answer date had passed, the paralegal for Burt’s attorney sent the insurance
adjuster an email on October 26, 2017, inquiring whether Denny’s, Inc. intended to file an answer.
The paralegal used “Joseph Burt v. Denny’s” as the subject line for her email. On October 30,
2017, the insurance adjuster responded by email identifying the subject in the same manner used
by the paralegal and asking whether a demand package was available. All future emails identified
the subject in the same manner first used by the paralegal.
On November 27, 2017, the insurance adjuster sent the paralegal an email acknowledging
receipt of a “Stowers Demand” and requesting a ten-day extension of time to respond to the
demand. On November 28, 2017, the insurance adjuster sent the paralegal another email noting
he had not received a response to the email he sent the previous day and repeating his request for
an extension of time. On November 29, 2017, the insurance adjuster sent the paralegal an email
1 The attorney who sent this letter and all other correspondence referred to in the opinion is a different attorney than the attorney to whom the insurance adjuster sent the March 8, 2016 letter.
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referring to his client as “Denny’s Inc.” and concluding “responsibility for [Burt’s] incident does
not rest with Denny’s Restaurant.”
On December 4, 2017, Burt filed an amended petition adding Denny’s Inc. a/k/a Denny’s
Restaurant as a defendant. The amended petition identified Denny’s Inc. as a Texas corporation
which could be served with process by serving its registered agent CT Corporation System, 1999
Bryan Street, Suite 900, Dallas, Texas 75201. On January 29, 2018, Denny’s, Inc. filed an answer
and asserted Burt’s claims against it were barred by limitations because it was not named as a
defendant until the amended petition was filed on December 4, 2017.
On July 13, 2018, Denny’s, Inc. filed its motion for summary judgment. Denny’s, Inc. first
moved for a traditional summary judgment asserting Burt’s claims were barred because Burt did
not amend his petition to name Denny’s, Inc. as a defendant until 137 days after the statute of
limitations had expired. Denny’s, Inc. also asserted the filing of the amended petition did not relate
back to the filing of the original petition because the doctrines of misnomer and misidentification
did not apply. Denny’s, Inc. also moved for a no-evidence summary judgment asserting:
Pursuant to TEX. R. CIV. P. 166a(i), after more than adequate time for discovery, there is no credible evidence that Denny’s, Inc. was timely sued and served within the applicable two year statute of limitations period for this personal injury case. As a result of the foregoing, the Plaintiff must now come forward as required by TEX. R. CIV. P. 166a(i) with competent summary judgment evidence which raises a genuine issue of material fact as to each element of his claims as set out above upon which he has the burden of proof herein. Since he will be unable do so, Denny’s Inc. is entitled to judgment in its favor as a matter of law.
Attached to the motion for summary judgment were the following documents:
(1) the affidavit of Tanya Waters, the Senior Manager, Risk and Worker’s Compensation for Denny’s, Inc., stating: (1) the Denny’s restaurant where Burt fell was owned and operated by Denny’s, Inc.; (2) the corporate headquarters for Denny’s, Inc. is located at 203 East Main Street, Spartanburg, South Carolina; (3) Denny’s, Inc. has no business relationship with EYM Diner of Florida, LLC; (4) the Bexar County Appraisal District website and real property records identify Denny’s, Inc. as the owner of the Denny’s restaurant where Burt fell; and (5) the
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registered agent for Denny’s, Inc. on file with the Texas Secretary of State is CT Corporation System, 1999 Bryan St., Ste. 900, Dallas, Texas 75201-3136;
(2) a copy of the Bexar County Appraisal District’s website identifying “DENNY’S INC” as the owner of the Denny’s restaurant where Burt fell and listing the owner’s mailing address as 203 E Main Street, Spartanburg, SC;
(3) records from the Texas Secretary of State identifying the registered agent for Denny’s, Inc. as CT Corporation System, 1999 Bryan St., Ste. 900, Dallas, Texas 75201-3136; and
(4) an amendment to a deed of trust on file in the real property records identifying Denny’s, Inc. as the owner of the Denny’s restaurant where Burt fell.
Burt filed a response to the motion for summary judgment asserting his original petition
sued Denny’s, Inc. under its assumed or common name; therefore, Denny’s, Inc. either was timely
sued within the limitations period or a genuine issue of material fact existed as to whether Denny’s,
Inc. was timely sued under its assumed or common name. Alternatively, Burt responded he
exercised due diligence in effecting service on Denny’s, Inc. or a genuine issue of material fact
existed as to whether he exercised due diligence. Burt attached the email correspondence and
letters referenced above to his summary judgment response. Burt also attached: (1) the
“Bizapedia” search results for “Denny’s” that his attorney relied on in filing the original petition
which identifies EYM Diner of Florida, LLC as the owner of Denny’s; and (2) the “Bizapedia”
search results for “Denny’s, Inc.” which his attorney ran after receiving the November 29, 2017
letter from the insurance adjuster and which his attorney relied on in filing the amended petition.
The second “Bizapedia” search accurately identified the registered agent for Denny’s, Inc.
Denny’s, Inc filed a reply to Burt’s response asserting Denny’s, Inc. “was never a party to
the original filing, is not related to the entity Plaintiff originally served, and was not timely sued.”
Denny’s, Inc. also asserted “[c]orporate and property ownership information” regarding its
ownership of the Denny’s restaurant where Burt fell is “information [that] is publicly filed and
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readily electronically accessible from” the Bexar County Appraisal District, Bexar County deed
records, and the Texas Secretary of State. Denny’s, Inc. questioned Burt’s attorney’s reliance on
“Bizapedia” given the public records available on government websites. Finally, Denny’s, Inc.
asserted Rule 28 was inapplicable because it was “never timely named nor served . . . under a d/b/a
or common name.”
As previously noted, the trial court granted summary judgment in favor of Denny’s, Inc.
Burt appeals.
STANDARD OF REVIEW
We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). “When reviewing a summary judgment, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor.” Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003). “If a party moves for summary judgment on both traditional and no-evidence
grounds, as the [appellee] did here, we first consider the no-evidence motion.” Lightning Oil Co.
v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).
A trial court must grant a no-evidence motion for summary judgment unless the nonmovant
produces evidence raising a genuine issue of material fact. TEX. R. CIV. P. 166a(i). “A genuine
issue of material fact exists if more than a scintilla of evidence establishing the existence of the
challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
“Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create
a mere surmise or suspicion of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003) (internal quotation marks omitted). “To prevail on a traditional summary-judgment motion,
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a movant must show that no genuine issue of material fact exists and that it is entitled to judgment
as a matter of law.” Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
In his opening appellant’s brief, Burt asserts the summary judgment was precluded by Rule
28 and the misidentification doctrine. 2 In its appellee’s brief, Denny’s, Inc. asserts this court
should affirm the summary judgment because the trial court could have granted the no evidence
motion on the basis of Burt’s failure to exercise due diligence in service, and Burt failed to
challenge that basis for summary judgment in his brief. In his reply brief, Burt asserts he did not
waive any argument based on his exercise of due diligence in serving Denny’s, Inc. because he
was “not required to anticipate every argument [Denny’s, Inc.] might raise in its response in order
to avoid waiver — especially when the adverse party fails to raise it in the trial court.”
A. Summary Judgment Burden for Claim or Defenses to Limitations Defense
A defendant may file a no evidence motion for summary judgment to challenge any claim
or defense a plaintiff asserts in response to a defendant’s affirmative defense of limitations if the
plaintiff would have the burden of proof on that claim or defense at trial. See Timothy Patton,
Summary Judgments in Texas: Practice, Procedure and Review, § 9.04[1] (3rd ed. 2019). Due
diligence in service and misidentification are types of such claims or defenses which may be
properly challenged by a no evidence motion. See id. Although Rule 28 allows a corporation to
be sued under an assumed or common name, “[t]o take advantage of Rule 28, there must be a
showing that the named entity is in fact doing business under that common name.” Storguard
2 In arguing this issue, Burt also asserts Denny’s, Inc. had actual notice of the lawsuit through the insurance adjuster. We first note this argument makes Burt’s first issue multifarious, and this court is not required to address multifarious issues. See Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied). We also note “[a] suit mistakenly filed against the wrong defendant imposes no duty on the correct defendant to intervene and point out plaintiff’s error. Moreover, this rule applies even though the correct defendant may have known of the suit.” Matthews Trucking Co. v. Smith, 682 S.W.2d 237, 239 (Tex. 1984).
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Invs., LLC v. Harris Cty. Appraisal Dist., 369 S.W.3d 605, 617 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (internal quotation marks omitted; emphasis in original); see also Seidler v. Morgan,
277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009, pet. denied) (same). Accordingly, similar to
misidentification and due diligence in service, Rule 28 is a claim or defense to the affirmative
defense of limitations on which the plaintiff would have the burden of proof at trial.
The Texas Supreme Court has explained the shifting summary judgment burdens when a
plaintiff raises a claim or defense in response to the affirmative defense of limitations in the context
of a due diligence in service defense. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). “[O]nce
a defendant has affirmatively pled the limitations defense and shown that service was effected after
limitations expired, the burden shifts to the plaintiff to explain the delay.” Id. (internal quotation
marks omitted). “Thus, it is the plaintiff’s burden to present evidence regarding the efforts that
were made to serve the defendant, and to explain every lapse in effort or period of delay.” Id. “[I]f
the plaintiff’s explanation for the delay raises a material fact issue concerning the diligence of
service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of
law, the explanation is insufficient.” Id. Applying these shifting burdens in the context of Rule
28, once a corporate defendant has affirmatively pled the limitations defense and shown it was not
sued in its corporate name, the burden shifts to the plaintiff to show the corporate defendant is in
fact doing business under the assumed or common name used in the petition. See Storguard Invs.,
LLC, 369 S.W.3d at 617; Seidler, 277 S.W.3d at 553. In Lozano v. Broussard Int’l, No. 04-09-
00047-CV, 2009 WL 3222820 (Tex. App.—San Antonio Oct. 7, 2009, pet. denied), this court
applied the shifting burdens in the context of Rule 28.
In Lozano, Mike Lozano was injured when he tripped and fell on the upturned edge of a
masonite sheet on March 20, 2006. 2009 WL 3222820, at *1. On March 19, 2008, Lozano filed
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suit naming Broussard International as the defendant based on his recollection of the company
name on the side of the truck used by the workers who had placed the masonite sheet on the floor
while moving furniture. Id. Lozano then served his petition on an entity entirely unrelated to the
correct defendant. Id. On June 25, 2008, Lozano served the correct defendant, Bret Broussard,
Inc. d/b/a Broussard Group. Id. Broussard Group moved for summary judgment asserting a
limitations defense which the trial court granted. Id.
One of the issues Lozano raised on appeal was that he sued the correct defendant using its
common name. Id. at *3. After reviewing the summary judgment evidence and resolving all doubt
in Lozano’s favor, this court held “the summary judgment evidence fail[ed] to raise a genuine issue
of material fact that Broussard International is an assumed or common name for Broussard Group.”
Id. Citing Proulx, Lozano also asserted “he was diligent in securing service on Broussard Group
so that this service, after limitations had run, should relate back to the date of filing.” Id. This
court rejected Lozano’s argument, reasoning:
Lozano misapplies Proulx; there the plaintiff named the correct defendant and timely filed suit, but did not serve the defendant until eight months after limitations had run. Here, Lozano filed suit before limitations had run, but failed to use the correct defendant’s name, or its assumed or common name. Because Lozano failed to raise a genuine issue of material fact that Broussard International is an assumed or common name for Broussard Group, Lozano cannot use Proulx’s diligence provision to relate his date of service on Broussard Group back to his filing date.
Id. (internal citations omitted) (emphasis in original).
B. Due Diligence in Service
“When the trial court does not specify the basis for its summary judgment, the appealing
party must show it is error to base it on any ground asserted in the motion.” Star-Telegram, Inc.
v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). “If the appellant fails to challenge each ground on
which summary judgment could have been granted, we must uphold the summary judgment on
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the unchallenged ground.” Ramirez v. First Liberty Ins. Corp., 458 S.W.3d 568, 572 (Tex. App.—
El Paso 2014, no pet.). Additionally, “[t]he Rules of Appellate Procedure do not allow an appellant
to raise an issue in a reply brief which was not included in his original brief.” Moore v. City of
Wylie, 319 S.W.3d 778, 781 (Tex. App.—El Paso 2010, no pet.) (citing TEX. R. APP. P. 38.3); see
also Marquis Acquisitions, Inc. v. Steadfast Ins. Co., 409 S.W.3d 808, 816 (Tex. App.—Dallas
2013, no pet.) (holding argument regarding ground to defeat summary judgment was waived when
it was not raised in original appellate brief but was first raised in appellant’s reply brief); Lopez v.
Montemayor, 131 S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (“A reply brief is
not intended to allow an appellant to raise new issues.”). Accordingly, if an appellant fails to
challenge a ground for summary judgment in the appellant’s brief, the trial court’s judgment as to
that ground must be affirmed as any complaint regarding that ground has been waived. See
Vidaurri v. Harris, No. 04-16-00453-CV, 2017 WL 2457079, at *1 (Tex. App.—San Antonio June
7, 2017, no pet.) (mem. op.) (“An appellant’s failure to specifically challenge every possible
ground for summary judgment waives any error.”); City of Glenn Heights v. Sheffield Dev. Co., 55
S.W.3d 158, 163 (Tex. App.—Dallas 2001, pet. denied) (noting “when an appellant does not
properly challenge each independent ground asserted for summary judgment as to a claim, the
claim will be affirmed”).
Although Burt raised due diligence in service as a possible basis for avoiding limitations
in his summary judgment response, 3 Burt did not raise any challenge to the trial court’s granting
3 We question whether the no evidence motion filed by Denny’s, Inc. asserting “there is no credible evidence that Denny’s, Inc. was timely sued and served” complies with the specificity requirements of Rule 166a(i). See TEX. R. CIV. P. 166a(i). A few of our sister courts have held the lack of specificity can be waived if not raised in the trial court. See Timothy Patton, Summary Judgments in Texas: Practice, Procedure and Review, § 5.03[2][b] (3rd ed. 2019). Because the Texas Supreme Court has analogized the purpose of Rule 166a(i)’s specificity requirements to the “fair notice” pleading requirement and Burt was able to timely raise his Rule 28 and due diligence defenses in his summary judgment response, we need not address whether the no evidence motion was sufficiently specific or whether Burt waived the specificity requirements. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009).
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summary judgment on that basis in his opening brief. Accordingly, he waived any complaint that
summary judgment was not proper because he exercised due diligence in serving Denny’s, Inc.
See Marquis Acquisitions, Inc, 409 S.W.3d at 816; Moore, 319 S.W.3d at 781; Lopez, 131 S.W.3d
at 61; TEX. R. APP. P. 38.3.
C. Rule 28
Turning our attention to Burt’s Rule 28 defense, as previously noted, Burt had the burden
to raise a genuine issue of material fact that Denny’s or Denny’s Restaurant is an assumed or
common name for Denny’s, Inc. To meet this burden, Burt was required to show Denny’s, Inc. is
in fact doing business under one of those common names. See Storguard Invs., LLC, 369 S.W.3d
at 617; Seidler, 277 S.W.3d at 553. “[A]lthough third parties may commonly and informally use
the name of [a] particular premises to refer to the business located at that premises,” the informal
use of a name by third parties in referring to a business premises, by itself, does not mean the entity
operating the business on that premises is doing business using that name. Storguard Invs., LLC,
369 S.W.3d at 617; see also Seidler, 277 S.W.3d at 553. For example, a common name for an
entity used in a property appraisal district’s records or an insurance policy is not sufficient to show
the entity is in fact doing business under that common name. See Storguard Invs., LLC, 369
S.W.3d at 617; Seidler, 277 S.W.3d at 554. Whether an entity does business under an assumed or
common name is a question of fact. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex.
2003); Storguard Invs., LLC, 369 S.W.3d at 617.
The only summary judgment evidence Burt produced to show Denny’s or Denny’s
Restaurant is a common name used by Denny’s, Inc. are the letters from the insurance adjuster one
of which identified the adjuster’s client as “Denny’s Restaurant” and both of which concluded
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“responsibility for [Burt’s] incident does not rest with Denny’s Restaurant.” Burt also produced
the emails referring to “Joseph Burt v. Denny’s” in the subject line.
We hold this “isolated use” by a third party insurance adjuster “in such an unclear setting
is not sufficient to stand as evidence that [Denny’s, Inc.] actually did business in that name.”
Seidler, 277 S.W.3d at 554. The letters are at most “a scintilla that might raise an implication,
rather than show a fact.” Id. And, the emails simply repeatedly refer to the subject initially
referenced by the paralegal. Therefore, even resolving doubts in Burt’s favor, we hold the
summary judgment evidence failed to raise a genuine issue of material fact that Denny’s or
Denny’s Restaurant is an assumed or common name for Denny’s, Inc. 4
D. Misidentification
“[A] misidentification arises when two separate legal entities actually exist and a plaintiff
mistakenly sues the entity with a name similar to that of the correct entity.” Chilkewitz v. Hyson,
22 S.W.3d 825, 828 (Tex. 1999). “The statute of limitations will be tolled in mis-identification
cases if there are two separate, but related, entities that use a similar trade name and the correct
entity had notice of the suit and was not misled or disadvantaged by the mistake.” Flour Bluff
Indep. Sch. Dist. v. Bass, 133 S.W.3d 272, 274 (Tex. 2004) (per curiam). “But where corporations
A and B have ‘no business connection or relationship between [them],’ the plaintiff’s filing suit
against A will not toll the running of the statute of limitations against B.” Lozano, 2009 WL
3222820, at *2 (quoting Matthews Trucking Co., 682 S.W.2d at 239).
Although Burt asserts the misidentification doctrine precluded summary judgment, the
burden in the trial court shifted to Burt to raise a genuine issue of material fact that Denny’s, Inc.
4 In reviewing a summary judgment, we note that we are unable to take judicial notice of facts that were not presented to the trial court. See City of Glenn Heights, 55 S.W.3d at 162-63; SEI Business Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 840-41 (Tex. App.—Dallas 1991, no writ).
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has a business connection or relationship with the Denny’s owned by EYM Diner of Florida, LLC,
the entity Burt served with the original petition. See Proulx, 235 S.W.3d at 216; Lozano, 2009
WL 3222820, at *4. Burt did not produce any evidence to raise such a genuine issue of material
fact. Denny’s, Inc., however, produced the affidavit of a senior manager stating Denny’s, Inc. has
no business relationship with EYM Diner of Florida, LLC. Although Burt argues the statement in
the affidavit was conclusory, the senior manager provided the factual basis supporting her
statement, noting she relied on her work experience and her review of documents and corporate
entity descriptions. Lowry v. Tarbox, 537 S.W.3d 599, 619 (Tex. App.—San Antonio 2017, pet.
denied) (“A conclusory statement is one that does not provide the underlying facts to support the
conclusion.”). Given the summary judgment record, we hold Burt “cannot use misidentification’s
tolling exception — that allows a plaintiff to file an amended petition — to relate his untimely
service on [Denny’s, Inc.] back to his timely filing date.” Lozano, 2009 WL 3222820, at *4
(emphasis in original).
CONCLUSION
The trial court’s judgment is affirmed.
Irene Rios, Justice
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