White v. Aunt Sarah's Franchise, Inc.

20 Va. Cir. 333, 1990 Va. Cir. LEXIS 235

• Court: Richmond County Circuit Court
• Decided: July 17, 1990
• Docket: Case No. LR3522-1
• Status: Published

Opinion

By JUDGE MELVIN R. HUGHES, JR.

[The] defendants’ Motion for Summary Judgment [was] argued on July 6, 1990. The motion is based on the ground that, in this slip and fall case, plaintiff has sued the wrong corporate party, that another corporate party is the right one, and that an amendment cannot be made now to relate back against the proper corporate defendant because the statute of limitations has run in the meantime.

While the two corporations, Aunt Sarah’s Franchise, Inc., the corporate entity set up to give franchises, and Dankos Enterprises, Inc., the corporate entity set up to own and operate Aunt Sarah’s restaurants, including the one where plaintiff claims she slipped and fell, are related, it is undisputed they are separate corporate entities, not the same. As the defendant corporation is not the proper party, the question is whether the pleadings are amendable now to state the proper party defendant. I find the pleadings cannot be amended now because the statute of limitations bars plaintiff’s claim. Further, the situation is not one of misnomer because the undisputed facts do not present a case of misnaming a proper party, with service on that party, but one of not naming the proper party on filing the lawsuit before the statute of limitations ran and while the action remained pending, the statute runs against the proper party.

Accordingly, the motion is granted.