Chapter 17-12 Satisfying the Statute of Limitations

• Jurisdiction: United States

17-12 Satisfying the Statute of Limitations

This section discusses how a plaintiff satisfies the statute of limitations. The mere filing of a petition within the limitations period does not satisfy the statute of limitations unless it is accompanied by the plaintiff's due diligence in securing issuance and service of the citation and petition on the defendant or defendants.¹⁰⁷ If the plaintiff exercises due diligence in securing issuance and service of the citation and petition, the date of service relates back to the time of the filing of the petition.¹⁰⁸

At summary judgment, once the defendant has pled limitations and affirmatively demonstrated that service occurred after the limitations period expired, the burden shifts to the plaintiff to explain the delay.¹⁰⁹ The inquiry is "whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served."¹¹⁰ The plaintiff's diligence is a question of fact and, if the plaintiff, at summary judgment, raises a fact issue as to diligence, the burden shifts back to the defendant to conclusively establish why the explanation is insufficient as a matter of law.¹¹¹ Some explanations for delay are insufficient as a matter of law.¹¹²

17-12:1 Misnomer and Misidentification of Defendants

When a plaintiff names the wrong party in the petition, the issue is often whether or not the filing of such a suit tolls the statute of limitations. The statute of limitations is tolled when the plaintiff commits a "misnomer."¹¹³ The statute of limitations is generally not tolled when the plaintiff commits a "misidentification." A plaintiff commits a misnomer when it sues the correct party, but misnames the defendant in the peti-tion.¹¹⁴ A plaintiff commits a misidentification when two separate legal entities actually exist and a plaintiff mistakenly sues the entity with a name similar to that of the correct entity.¹¹⁵

Generally, a misidentification does not toll the statute of limitations.¹¹⁶ However, the plaintiff's misidentification of the defendant will toll the statute of limitations if the correct defendant:

• Knew or should have known of the lawsuit within the limitations period;¹¹⁷
• Maintained a business relationship with the named defendant;¹¹⁸
• Chose to operate under a confusing set of names with the named defendant;¹¹⁹
• Would not be prejudiced by tolling; and¹²⁰
• Both the named and correct defendants were entities.¹²¹

17-12:2 Suit Against Defendant in Assumed or Common Name

Texas Rule of Civil Procedure 28 allows for any partnership, unincorporated association, private corporation or individual doing business under...