Full title: JALEN BELL AND CHESTER SMITH, Appellants v. XTC CABARET (DALLAS), INC.…
Court: Court of Appeals of Texas, Fifth District, Dallas
Date published: May 5, 2022
Facts
Appellants alleged that on May 5, 2018, they went to an XTC Cabaret gentlemen’s club in Dallas. Appellants were involved in an altercation with other people at the club, and appellants were asked to leave. Appellants alleged that they were assaulted and injured by appellees’ employees and security personnel.
On May 1, 2020, appellants brought suit against “XTC Cabaret Inc.” and “John Does 1 – 5” alleging assault and battery and negligent hiring, supervision, and retention of employees. XTC Cabaret, Inc. was served on May 11, 2020, by service on its registered agent, Robert Axelrod.
On June 1, 2020, XTC Cabaret, Inc. filed its answer including verified denials to appellants’ allegations (1) that it was liable to appellants in the capacity in which it was sued, (2) that it does business as “XTC Cabaret Dallas,” (3) that it operates a gentleman’s club at a particular address in Dallas, and (4) that it had any employees acting within the course and scope of their employment at the location where the alleged acts and omissions occurred.
On November 30, 2020, more than two years and six months after the incident, appellants filed an amended petition adding as defendants XTC Cabaret (Dallas), Inc., RCI Hospitality Holdings, Inc., and RCI Holdings, Inc., who are the appellees in this case. This petition also added a claim for intentional infliction of emotional distress. Appellees answered alleging the affirmative defense that appellants’ claims were barred by the statute of limitations (as well as many other affirmative defenses). 2
Appellees moved for summary judgment contending appellants’ suit was barred because the appellants did not bring suit against them within two years after the claims accrued. Appellants responded, asserting their failure to timely sue appellees was due to a misnomer or misidentification that did not prejudice appellees and that the amended petition related to the timely filed original petition. The trial court granted the appellees’ motion for summary judgment and ordered that appellants take nothing by their claims and that the appellees “be dismissed with prejudice from this suit.” The trial court then ordered the appellants’ claims against appellees severed from the rest of the proceedings.
Issue
Decision
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees XTC CABARET (DALLAS), INC.; RCI HOSPITALITY HOLDINGS, INC.; and RCI HOLDINGS, INC. recover their costs of this appeal from appellants JALEN BELL AND CHESTER SMITH.