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.