Chapter 23-2 Addressing the Mispleading of Parties

• Jurisdiction: United States

23-2 Addressing the Mispleading of Parties

Despite efforts to correctly name adverse parties in pleadings, on occasion a defendant or third-party defendant will contend that a pleading has not correctly named the party. The consequences of using a name other than the legal name of a party can range from being of no consequence at all to being fatal to a claim.

If, in response to a claim of misidentification or misnomer, it can be shown that a party has in fact been sued in an assumed name,²² then there is no adverse consequence. Tex. R. Civ. P. 28 expressly permits a defendant to be sued in an assumed name. When a defendant has been correctly sued in an assumed name, the filing has the same legal effect as utilizing the legal name of the defendant.²³

As a second alternative, if it can be shown that service was actually accomplished on the correct party, albeit using an incorrect name, then the rules of misnomer apply.²⁴ Assuming the defendant has not been misled by the misnomer, then the statute of limitations are tolled as of the date of filing of the suit, and correction of the pleadings to reflect the defendant's true name will relate back to the original date of filing.²⁵ A misnamed defendant who simply ignores the suit based on the misnomer does so at the risk of default judgment.²⁶

The separate classification of misidentification occurs when an incorrect defendant has been named and served, and the correct defendant has therefore been left out of the suit.²⁷ As a general rule, misidentification does nothing to toll the running of limitations.²⁸ An equitable exception to this general rule exists in the situation where the unnamed and unserved business entity which should have been joined is related to and has a similar name to the business entity which was incorrectly named and served,²⁹ and had actual knowledge of the suit so that it was not prejudiced by the mistake.³⁰ Equitable tolling for misidentification has been held to be applicable only to business entities and not to individuals.³¹

To aid in early identification of a misidentification or misnomer, a request for disclosure can be served on each defendant asking the defendant to disclose the correct names of the parties to the lawsuit and the name, address, and telephone number of any potential parties.³²

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Notes:

^[22] See the discussion of assumed name filings in the preceding section.

^[23] Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex. 1999).

^[24] In re Greater Houston Orthopaedic...