Monday, August 31, 2015

It ain't me, babe, It ain't me you're looking for...: Misnomer and Misidentification

What do you do if your client is incorrectly named in the Plaintiff’s Petition?  Can you let limitations run and seek dismissal?  Do you have to let Plaintiff know that they sued the wrong party?  It depends.

Misnomer is an error in which the correct party is sued, but is named incorrectly.  See Chiklewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999).  Any amended pleading with the proper name would relate back to the original filing.  See id; In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009).

Misidentification occurs when there are two entities with similar names and the plaintiff sues the wrong entity.  See Chilkewitz, 22 S.W.3d at 828.  The correct defendant is also not required to intervene.   See Mathews Trucking Co. v. Smith, 682 S.W.2d 237, 239 (Tex. 1984).  Misidentification does not apply to toll the statute of limitations or relate the amended petition back to the original pleading.  Courts can only apply an equitable tolling if the plaintiff can show that (1) there were two separate but related entities (not individuals) using a similar name; (2) the correct entity had notice of the suit, and (3) the correct entity was not misled or prejudiced by the mistake.  Chilkewitz, 22 S.W.3d at 830.

Example A: Plaintiff sues The Widget Company.  The proper name of the defendant is The Widget Corporation.  Plaintiff can later amend to the proper name.  The amended pleading would relate back to the original filing, precluding summary judgment on limitations.

Example B: Plaintiff sues The Widget Company.  The proper defendant is The Gidget Company.  Gidget and Widget are unrelated companies.  Widget is not obligated to tell Plaintiff, “I think you meant to sue us!”  An amended petition naming Widget must be filed within the statute of limitations.

Example C: Plaintiff sues The Widget Company.  The proper defendant is The Worldwide Widget Corporation.  Widget Company is owned and operated by the same people as Worldwide Widget Corp.  Worldwide Widget had knowledge of the suit.  Worldwide Widget is not misled or prejudiced.  The court could apply an equitable remedy, tolling the statute of limitations, to allow an amended petition naming Worldwide Widget.

Practice tip:  Get familiar with the Texas Secretary of State website, especially SOS Direct, which is the business filings page.  http://www.sos.state.tx.us/corp/sosda/index.shtml  You can set up a temporary log-in to do searches.  I always search the client’s name to ensure that we have the correct name for the clinic, practice group or professional association.  You can also identify any other business entities that a person is affiliated with.  You can view the articles of incorporation, franchise reports, and agents for service.  Searches are only $1 each.  This simple search can save you the headache of naming the wrong entity or not properly identifying your client.


  

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