Opinion by Justice MOSELEY.
Twenty-seven-year-old Sammy Burchinal was employed by Texmecana Management, LLC (Texmecana), as a truck driver. Among his duties was to deliver trailers which had been manufactured by PJ Trailers Manufacturing, Inc. (Manufacturing), and loaded by it onto flatbed haulers owned by Texmecana. On March 21 or 22, 2007, Sammy drove from Texas to California
Although Sammy originally filed suit by himself, claiming for damages he maintained that he had sustained, he was eventually joined in the suit by his wife, Ashley, for derivative damages arising from Sammy's injuries. The ultimate basis of the lawsuit was an allegation that the damages had been sustained because the trailers had been negligently stacked on the flatbed, causing one of them to topple when CCT attempted to remove it from the flatbed. The Burchinals appeal the grant of a motion for summary judgment entered in favor of Texmecana, PJ Trailers-Seminole Management Company, LLC (Seminole), and Manufacturing.
The function of a summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue, but to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). When reviewing a traditional summary judgment, we take as true all evidence favorable to the Burchinals and indulge every reasonable inference and resolve any doubts in their favor. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). On appeal, PJ Trailers must show that there is no material fact issue and that they are entitled to judgment as a matter of law based upon the limitations defense. McNamara, 71 S.W.3d at 311; Steel, 997 S.W.2d at 223; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979).
A no-evidence summary judgment is essentially a pretrial directed verdict. Seidler v. Morgan, 277 S.W.3d 549, 552 (Tex.App.-Texarkana 2009, pet. denied). Therefore, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). In this no-evidence summary judgment, Texmecana and PJ Trailers represented that no evidence existed as to one or more essential elements of the Burchinals' claims, upon which they would have the burden of proof at trial. See TEX.R. CIV. P. 166a(i); Seidler, 277 S.W.3d at 552. The Burchinals were then required to present evidence raising a genuine issue of material fact on the challenged elements. Seidler, 277 S.W.3d at 552. To defeat a no-evidence motion for summary
We must determine whether the Burchinals produced any evidence of probative force to raise a fact issue on the material questions presented. Id. at 552-53 (citing Woodruff v. Wright, 51 S.W.3d 727 (Tex.App.-Texarkana 2001, pet. denied)). The Burchinals will defeat a no-evidence summary judgment motion if they presented more than a scintilla of probative evidence on each element of their claim. Id. at 553 (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003)).
In our review, we consider all the summary judgment evidence in the light most favorable to the Burchinals, disregarding all contrary evidence and inferences. Id.; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). Where, as here, a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed if any of the theories advanced are meritorious. See Hyde v. Hoerauf, 337 S.W.3d 431, 434 (Tex.App.-Texarkana 2011, no pet.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995)).
The interrelationship between Texmecana, Manufacturing, and Seminole is critical to an understanding of the issues. PJ Trailers manufactures and sells custom-made trailers throughout the United States. After the trailers are manufactured, they are loaded onto a flatbed, stacked one atop the other so that multiple trailers can be delivered in a single haul. The ownership of the flatbed "depends on who contracts to haul that order." Shipping options include "Texmecana, hired trucks, [and] contract carriers."
Once the carrier's flatbed is in place on PJ Trailers' property, the trailers are loaded on top of one another by four to six "stackers" and a crane operator, all of whom are employed by Manufacturing. In order to keep the trailers balanced, secure, and free from damage, stackers cut wooden boards and use the boards and trailer tires to level the load. Because PJ Trailers is a custom operation, the manner in which loads are stacked varies, and there are no written standards in place for stackers. Rather, stackers undergo a two-week training period, and each loading is coordinated by a stacking bay supervisor who personally inspects each flatbed before it goes out.
At that point, the driver of the truck pulling the loaded flatbed has the responsibility of strapping the loaded trailers to the flatbed using driver-owned straps or chains. In addition to written guidelines drivers receive instructing them how the load should be strapped down, they are encouraged to communicate with the stacking bay supervisor. Once on the road, the drivers report to dispatchers employed by PJ Trailers.
Sammy filed his original petition a few days prior to the expiration of the statute of limitations, naming only Texmecana and Seminole as defendants. The factual portion of the petition recited:
The sole cause of action for negligence claimed:
It is uncontested that the California forklift operator was not employed by or in any manner affiliated with Texmecana, Seminole, or Manufacturing.
A few days after the statute of limitations expired, Sammy filed an amended petition on March 24, 2009, including Ashley as a party. The petition was substantively identical to the original petition, with the exception of the addition of loss of consortium and loss of household services asserted by Ashley.
Seminole
On September 22, 2009, Seminole and the Burchinals entered into a Rule 11 agreement because "it wasn't an accident that occurred on [Seminole's] premises, [and] they weren't the employer:"
Seminole was dismissed without prejudice October 2, 2009, pursuant to the Burchinals' motion.
With Texmecana still involved in the lawsuit, Sammy's deposition was taken March 9, 2010. He testified that he was supposed to watch the unloading process
Next, he described the incident in a manner different from the original petition. When Sammy arrived at CCT, he
Although he knew the forklift operator was experiencing difficulty in attempting to remove the trailer using different strategies, Sammy stood close to the flatbed upon which it and the other trailers were stacked. Sammy was not concerned because he "figured that's [the operator's] job." The forklift operator's efforts to remove the trailer without damaging it were unsuccessful, and the trailer being removed fell off the stacked trailers toward the place where Sammy was standing. Sammy turned to run and "didn't get far until [the trailer] hit the ground behind [him]." Afterward, Sammy called dispatcher Judd Oates to "let them know what happened, you know, that a trailer hit the ground and all that." He did not inform Oates that he had been injured because he "didn't figure" he was. Sammy experienced no pain "until after I left and the adrenaline wore off. That's when I figured: Okay. I just pulled my back or whatever. It will go away. And it just kept getting worse." He testified, "If they would have stacked it right [the operator] wouldn't have had this problem and it wouldn't have fell [sic] off."
Following depositions of the Burchinals and Sammy's supervisor, Abe Wall, a second amended petition was filed June 16, 2010, reinstating claims against Seminole in addition to the claims against Texmecana. The factual portions of this petition were amended as follows:
In line with Sammy's deposition, the focus of the petition was the falling trailer as opposed to the forklift and the failure to properly stack the load instead of failure to secure the forklift on the trailer.
On August 26, 2010, Texmecana filed a no-evidence motion for summary judgment arguing that Seminole was no longer a party to the suit and there was no evidence of Ashley's claims, medical causation, or that Texmecana (who only hired truck drivers) was negligent because it was not responsible for the stackers' acts or omissions.
The following month, the Burchinals filed a third amended petition listing Manufacturing for the first time, in addition to Seminole and Texmecana. While the factual portion of the petition remained the same as in the second amended petition, claims of joint enterprise and res ipsa loquitur were added. A fourth amended petition added the theory of single business enterprise.
Texmecana supplemented its motion for summary judgment to respond to joint enterprise claims and pointed out that Manufacturing was not added to the lawsuit until after the expiration of the statute of limitations. Manufacturing and Seminole also filed a no-evidence motion for summary judgment, in addition to a traditional motion for summary judgment based upon the defense of limitations.
The trial court ultimately granted both motions for summary judgment.
It is uncontested that Manufacturing was not sued within the two-year window.
The Burchinals and Manufacturing both argue that notice is the key issue. The Burchinals claim Manufacturing knew it was the proper party and was not misled or disadvantaged by the mistake in pleading.
PJ Trailers responds there was no suggestion that either Seminole or Manufacturing was responsible for the claims asserted in the original petition under which the Rule 11 agreement was made.
As we have stated in Pierson v. SMS Financial II, L.L.C.,
959 S.W.2d 343, 347 (Tex.App.-Texarkana 1998, no pet.) (citations omitted). The cases cited by the Burchinals involve situations where notice of the suit would necessarily put the defendant on notice that it could be the proper party. The language of the original petition here focuses on the forklift operator. In this circumstance, we find that even if Manufacturing had notice of the original petition, it would not be put on notice that it was the intended defendant; thus, it could not be considered the "correct entity" or proper defendant under the original petition because this petition did not allege that Manufacturing committed any tortious act.
PJ Trailers and Texmecana are affiliated companies. The Burchinals argue that there is some evidence that Texmecana, Seminole, and Management were engaged in a joint enterprise to acquire, manufacture, sell, and deliver trailers for the use and benefit of the Thiesen family and that these businesses were possibly alter egos of one another. The Burchinals argue that the corporate veils should be pierced and conclude that these entities are in reality a single entity with a single purpose. The Burchinals believe that by suing Texmecana and Seminole, they simultaneously sued Manufacturing, avoiding the statute of limitations issue.
Sammy initially believed he worked for both Texmecana and PJ Trailers, which is why his medical records and health insurance claim forms reflect the names of both companies. This confusion may have been warranted. Texmecana policy manuals contained the statement "[y]ou can take great pride in being a part of PJ's labor force." The Burchinals' bank statements reflect automated clearinghouse deposits (ACH) made by "P.J. Trailers-Payroll" as early as 2006. Collard identified herself as an employee of PJ Trailers Manufacturing Company, but admitted that she acted as "HR" for Texmecana without pay because they did not have "an HR person." She used Texmecana letterhead in correspondence relating to this incident. Further, responses to requests for disclosure and answers to interrogatories by Texmecana, Seminole, and Manufacturing list Collard as the human relations manager and custodian of records for all of the entities.
In day-to-day operations, the Texmecana driver would be required to report to PJ Trailer dispatchers, and were required to get permission from them if they had to "go out of [their] route for any reason." Wall responded, "Yes" when asked if "it [would] be a fair statement to say that in terms of being told where to go and what to do and pretty much every aspect of his job, a driver for Texmecana is being supervised and managed by a PJ employee." Collard also testified that Texmecana drivers were directed by "a PJ employee," and minutes of meetings demonstrated that regular communication between drivers and dispatchers was not only encouraged, it was required in cases of accident. While PJ Trailers did not have safety policies for Texmecana drivers, the drivers had Texmecana safety meetings, written Texmecana policies relating to reporting accidents and personal injuries, and were required to follow Department of Transportation policies. If a driver was faced with issues regarding miles driven and receipts, which impacted their pay scale, they were instructed to contact Wall.
Texmecana, Seminole, and Manufacturing denied that they were under common ownership.
"Joint enterprise is a theory involving derivative liability whereby one enterprise participant may be held responsible for a cause of action proven against another participant." In re Tex. Dep't of Transp., 218 S.W.3d 74, 78 (Tex.2007) (orig. proceeding) (per curiam) (citing Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611-16 (Tex.2000)). Texas has adopted the restatement standard, finding that the elements which are essential to a joint enterprise are: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried
With respect to the second element, the Burchinals argue, and we agree, that the evidence creates a fact issue as to whether the entities have the common purpose of manufacturing and delivering custom built trailers. However, analysis of the remaining elements determines that summary judgment was proper.
As in Seidler, we find that "the summary judgment evidence contains no written agreements among these parties, and there is no direct evidence of such an agreement. The evidence pointed to by [the Burchinals] consists of no more than the commonality of officers in the entities, with suggestions that we should ascribe some sinister motive thereto," and shared business addresses. 277 S.W.3d at 556.
With respect to community of pecuniary interest, "[t]he mere existence of monetary benefits to both [entities] by virtue of their relationship is insufficient to establish the third element of a joint enterprise." Chesser, 356 S.W.3d at 626. "[E]vidence must exist of a monetary interest in the enterprise common to each member of the enterprise; the monetary interest of each member of the group in the enterprise must be `shared without special or distinguishing characteristics.'" Id. at 625 (quoting St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 531 (Tex.2002)). While the payroll was sent by ACH deposit by PJ Trailers, there is no evidence suggesting that Texmecana, Seminole, and Manufacturing shared monetary interest without special or distinguishing characteristics. Moreover, an indirect, potential financial interest is insufficient. Wolff, 94 S.W.3d at 532.
As to the last requirement, Texmecana argues there is no evidence suggesting it, as the company who only hired drivers, had an equal right to a voice in the direction of the enterprise, which gave it an equal right of control. The factor requires an authoritative voice, some right to do more than make suggestions that could be adopted or rejected. Triplex Commc'ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.1995). The Burchinals argue that the fact that members of the Thiesen family owned the different entities was sufficient to raise a fact issue as to this element. However, "[w]here one party has overriding control over another, a joint enterprise does not exist." N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 117 (Tex.App.-Beaumont 2001, pet. denied). We conclude no fact issue was raised with respect to joint right of control.
The Burchinals failed to raise a genuine issue of material fact with respect to their joint enterprise theory.
Next, the Burchinals believe that alter ego should be applied to this case. Alter ego is one basis for piercing
The Texas Supreme Court has set forth when regarding entities as alter egos is appropriate:
Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 (Tex.1975); see also Marchand, 83 S.W.3d at 799.
The facts argued by the Burchinals which they cite as support for applying alter ego are reminiscent of the following factors considered when employing the single business enterprise theory: (1) common employees; (2) common offices; (3) centralized accounting; (4) payment of wages by one corporation to another corporation's employees; (5) common business name; (6) services rendered by the employees of one corporation on behalf of another corporation; (7) undocumented transfers of funds between corporations; and (8) unclear allocation of profits and losses between corporations. See Hoffmann v. Dandurand, 180 S.W.3d 340, 348 (Tex.App.-Dallas 2005, no pet.). The Texas Supreme Court completely rejected the single-business entity doctrine as a valid mechanism for piercing the corporate veil and imposing liability in Texas in SSP Partners when it wrote:
275 S.W.3d at 452 (footnotes omitted); see Big Easy Cajun Corp. v. Dallas Galleria Ltd., 293 S.W.3d 345, 347 (Tex.App.-Dallas 2009, pet. denied).
Rather, alter ego "is shown from the total dealings of the corporation and the individual, including the degree to which ... corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes." Pinebrook Props., 77 S.W.3d at 499 (quoting Castleberry, 721 S.W.2d at 272). Evidence as proof of an alter ego includes: (1) the payment of alleged corporate debts with personal checks or other commingling of funds; (2) representations that the individual will financially back the corporation; (3) the diversion of company profits to the individual for the individual's personal use; (4) inadequate capitalization; and (5) other failure to keep corporate and personal assets separate. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 229 (Tex. 1990). This type of evidence was not included as summary judgment evidence. Accordingly, Texmecana, Seminole, and Manufacturing were entitled to summary judgment in their favor on the Burchinals' alter ego theory as a matter of law.
Also, SSP Partners reminds:
275 S.W.3d at 455. Thus, "the relationship between two entities" is one consideration to disregarding the corporate form, "[t]he other consideration is whether the entities' use of limited liability was legitimate." Id. There was no evidence raising a fact question with respect to this requirement, either.
To survive a no-evidence summary judgment on the negligence claim, the Burchinals were required to present more than a scintilla of evidence demonstrating the existence of a legal duty, a breach of that duty, and damages that were proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). The two elements of proximate cause are cause-in-fact and foreseeability. Id. (citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002)). Both elements of proximate cause are required and were challenged in this case. Id.; Lopez-Juarez v. Kelly, 348 S.W.3d 10, 28 (Tex.App.-Texarkana 2011, pet. denied).
"Cause-in-fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." Kelley, 348 S.W.3d at 28. Foreseeability requires that "the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Hickman v. Am. Pawn & Jewelry, Inc., 972 S.W.2d 144, 147 (Tex.App.-Texarkana 1998, no pet.).
Texmecana argued that no assertion of direct negligence could be made against it with respect to improper stacking since stackers were all PJ Trailer employees. It also maintains that there was no evidence of a policy requiring Sammy to stand close to a forklift to observe the unloading process which would create a duty between Texmecana and Sammy.
The Burchinals argued that Texmecana breached a duty to provide a safe working environment by delegating it to PJ Trailers "when it directed Mr. Burchinal to work according to PJ Trailers['] instructions and with the unsafe equipment (improperly stacked load)." Sammy testified "PJ's" had a policy requiring him to "stand there to make sure" the trailer was not damaged.
PJ Trailers' human relations and safety manager, Collard, testified that she was unaware of any instructions requiring drivers to observe the unloading process. Wall testified, "I'm not aware of a policy that somebody is to stand there and observe" the unloading of the trailers. He pointed out that a customer is liable for unloading trailers and would thus be responsible for damages occasioned by a trailer falling during the unloading process. While the Burchinals' brief stated, "Texmecana breached its duty when it directed Mr. Burchinal to work according to PJ Trailers['] instructions," Sammy did not testify whether Texmecana was aware of these instructions or whether the instructions required Sammy to stand in close proximity to the load.
While Sammy's testimony created a fact issue as to whether he was required to observe the unloading, it did not specify from what proximity or vantage point that observation must take place. "An employer ... is not an insurer of its employees' safety." Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 311 (Tex.
The Burchinals also asserted that Texmecana failed to provide a safe working environment in directing Sammy to work with an unbalanced, and thus, unsafe load. However, as explained below, the Burchinals failed to provide more than a scintilla of evidence that the load of trailers was unbalanced or unsafe. Therefore, summary judgment against Texmecana was proper.
With respect to avoidance of the statute of limitations via the misidentification doctrine, the Burchinals argued that Manufacturing was the correct entity which should have been sued. Whereas Seminole was a distribution center in another location, Manufacturing was the entity that claimed the stackers as its employees.
Out of an abundance of caution, and because Collard and Wall failed to specify which entity employed the stackers in their testimony, we address Seminole's argument that there was no evidence of the standard of care or evidence demonstrating that any negligent stacking occurred.
The Burchinals argue that res ipsa loquitur establishes that negligence occurred because an "improperly stacked load" fell toward Sammy. "Res ipsa loquitur, meaning `the thing speaks for itself,' is an evidentiary rule applied when the circumstances surrounding an accident are sufficient to support an inference of negligence." Traut v. Beaty, 75 S.W.3d 661, 664 (Tex.App.-Texarkana 2002, no pet.). It is not a separate cause of action. It applies to situations in which two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Id. (citing Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990)). Also, it applies only when the "defendant's negligence is probable." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex.2004). "The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the
We find that the Burchinals have not successfully invoked the doctrine of res ipsa loquitur. Because the load was balanced during transit, and there is no allegation to the contrary, it is difficult for the Burchinals to argue that the likelihood of negligence of the forklift operator was so reduced that a reasonable jury could find that the negligence lay with Seminole. Even if the first element of res ipsa was met, the instrumentality causing the injury was the forklift, which was in CCT's control. Moreover, res ipsa loquitur may not be applied in those circumstances when the use of the instrumentality is not within common knowledge of laymen. See Haddock, 793 S.W.2d at 950.
Thus, the Burchinals were required to raise more than a scintilla of evidence on the issue of breach of the standard of care. They claim:
Wall testified there is a standard policy that trailers are required to be separated from each other during the stacking process. Sammy testified that "they are going to stick boards on top of [the trailer] in order not to scratch up the floor or the paint or whatever. And they are going to stick boards in there until — wherever they can get them at to make it level or right or whatever." Sammy testified the loads are "all stacked different," he was "not an expert on stacking," and "did not see [the board] placed there." The load would have been stacked according to a stacking bay supervisor, who would have approved the load prior to Sammy's pick-up. Sammy surmised that the forklift operator was having difficulty and that "right there where them boards were at is where [the prongs of the forklift] needed to be." He indicated that the placement of the boards was interfering with the forklift operator's ability to balance the trailer prior to removing it from the flatbed. However, absent further evidence, negligent stacking cannot be assumed, as Sammy experienced no issues with regard to the balancing of the load until external forces of the forklift were applied. Importantly, there was no testimony suggesting that the load could have been balanced without the placement of the board at issue.
Next, while we find the evidence sufficient to create a fact issue with respect to the foreseeability prong of the proximate cause element, it is insufficient to create an issue on cause-in-fact.
Seminole argues that the causal connection between any alleged negligent stacking and the alleged injury is too tenuous to create legal liability. The Burchinals argue that this testimony establishes that "the forklift operator was unable to get a balanced grip on the stacked trailers due to the improper placements of the wooden blocks used for stacking. As a result, the stacked trailers became unbalanced during the unloading process." The Burchinals urge, "This testimony clearly represents evidence that the improper placement of the wooden blocks used for stacking was a substantial factor in bringing about Mr. Burchinal's injury."
Cause-in-fact "cannot be established by mere conjecture, guess, or speculation." W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). "If the defendant's negligence merely furnished a condition that made the injuries possible, there can be no cause in fact." Id. (citing Mason, 143 S.W.3d at 799).
Ashley testified that the accident "altered [Sammy] being able to work, to help out around the house, just help with the baby. He couldn't pick him up; he couldn't really do anything with him." She stated Sammy could be hard to live with when he was taking his medicine. The family was down to one income and had to move into her parent's home. She was required to "quit working to take care of him" at certain points in time. According to Ashley, the stress upon the marriage caused three or four overnight separations, loss of sleep, improper eating habits, and contributed to two miscarriages.
We have determined that Sammy's claims against Manufacturing were untimely asserted, Texmecana's duty was not established, and that more than a scintilla of evidence was not presented on breach of standard of care and cause in fact with respect to Sammy's claims against Seminole. Because Ashley's claims are derivative claims, they must likewise fail.
We affirm the trial court's judgment.
Texas was a different corporation with different officers and directors from Continental Southern Lines, Inc., the Louisiana corporation (Louisiana) who owned the bus. Id. Continental Trailways was merely a trade name used by a number of separate bus corporations, and Louisiana was listed on Hilland's ticket as one of twenty-six corporations all doing business as "Continental Trailways, Dallas, Texas." Id. Texas was not one of those corporations. In fact, it had no equipment, buses, or terminals, transported no passengers, and its sole purpose was to preserve the trade name. Id.
Upon discovering these facts after the statute of limitations had run, Hilland amended her petition to add Louisiana. Louisiana asserted the statute of limitations defense based upon the general rule
Id. at 829. The Hilland court concluded that the bus companies "made a conscious effort to make it appear to the public and to their customers" that they were Continental Trailways. Id. at 830. Given the confusion, the court wrote:
Id. at 831. It also recited that the driver of the bus filled out an accident report with Louisiana, and the two corporations had the same agent for service, the same attorneys in the area, and some indication that service of citation was forwarded to Louisiana, all facts relating to the suggestion of notice. Id. at 830-31. With these facts in mind, the court remanded the case in order to allow the trial court to determine whether Louisiana was put on notice of Hilland's claims within the limitations period in spite of the misidentification. The Burchinals argue, based on Hilland, that PJ Trailers had common counsel, common employees, etc. However, unlike Hilland, the claims filed by the plaintiff did not morph. PJ Trailers acknowledges that they may have had notice of something before the limitations period, but did not have notice of any claims asserted against them for which they would have responsibility prior to the limitations period.
TEX. CIV. PRAC. & REM.CODE ANN. § 16.068 (West 2008). As in Maher, we may not look to this rule in deciding this issue since it was not presented to the trial court. Maher, 69 S.W.3d at 339. We are "confine[d] ... to the misidentification doctrine." Id.
(West Supp.2011).
