MISNOMER VS. MISIDENTIFICATION - TEXAS SUPREME COURT CASE
Barth v. Bank of America, N.A., No. 10-0659 (Tex. Aug. 26, 2011)(per curiam opinion) (misnomer)
Jerry L. Barth sued "Bank of America Corporation". Bank of America, N.A. answered, asserting that it had been,
in its words, "incorrectly named". At trial, the witnesses referred simply to "Bank of America", with one exception:
Bank of America, N.A.'s corporate representative testified, in response to a question by Bank of America, N.A.'s
counsel regarding the "actual entity [involved in the dispute] that we're here over today", that it was "Bank of
America National Association". Bank of America Corporation was not mentioned in the evidence. During the jury
charge conference after the close of the evidence, the trial court granted Barth a trial amendment to correct the
misnomer, but the liability questions submitted to the jury and answered in Barth's favor all referred to Bank of
America Corporation. The trial court rendered judgment against Bank of America, N.A. on the verdict. The court
of appeals reversed and rendered, holding that the verdict does not support the judgment. ___ S.W.3d ___
(Tex. App.-Corpus Christi 2010). We disagree.
JERRY L. BARTH v. BANK OF AMERICA, N.A.; from Hidalgo County; 13th district (13-08-00612 CV, ___ SW3d
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion [pdf]
Link to e-briefs: BARTH v. BANK OF AMERICA, N.A.
A misnomer differs from a misidentification. Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990).
Misidentification—the consequences of which are generally harsh1—arises when two separate legal entities
exist and a plaintiff mistakenly sues an entity with a name similar to that of the correct entity. Chilkewitz v. Hyson,
22 S.W.3d 825, 828 (Tex. 1999).
A misnomer occurs when a party misnames itself or another party, but the correct parties are involved. Id.
(noting that “[m]isnomer arises when a plaintiff sues the correct entity but misnames it”); see also Chen v.
Breckenridge Estates Homeowners Ass’n, Inc., 227 S.W.3d 419, 421 (Tex. App.—Dallas 2007, no pet.) (holding
that misnomer occurred when enforcement order referred to actual plaintiff “Breckenridge Estates Homeowners
Association, Inc.” as “Breckenridge Park Estates No. 1 and No. 2 Homeowner’s Association, a Texas non-profit
corporation, also identified in the pleadings and known as Breckenridge Estates Homeowners Association,
Inc.”); Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343, 347 (Tex. App.—Texarkana 1998, no pet.) (determining
that misnomer occurred when actual plaintiff, SMS II, instead named another entity, SMS I, in its original petition).
Courts generally allow parties to correct a misnomer so long as it is not misleading. See, e.g., Enserch, 794 S.W.
2d at 4-5 (holding that when a plaintiff misnames a defendant, limitations is tolled and a subsequent
amendment of the petition relates back to the date of the original petition); Chen, 227 S.W.3d at 420 (“A
misnomer does not invalidate a judgment as between parties where the record and judgment together point out,
with certainty, the persons and subject matter to be bound.”); Sheldon v. Emergency Med. Consultants, I.P.A.,
43 S.W.3d 701, 702 (Tex. App.—Fort Worth 2001, no pet.) (“[W]hen an intended defendant is sued under an
incorrect name, the court acquires jurisdiction after service with the misnomer if it is clear that no one was misled
or placed at a disadvantage by the error.”).
Typically, misnomer cases involve a plaintiff who has misnamed the defendant, and a petition involving this type
of misnomer is nonetheless effective, for limitations purposes, when filed, with any subsequent amendment
relating back to the date of the original filing. See 1 William V. Dorsaneo, III et al., Texas Litigation Guide § 12.02
 (2009); Enserch, 794 S.W.2d at 4-5. Courts are flexible in these cases because the party intended to be
sued has been served and put on notice that it is the intended defendant. Pierson, 959 S.W.2d at 347; see also
Charles Brown, L.L.P. v. Lanier Worldwide, Inc., 124 S.W.3d 883, 895 (Tex. App.—Houston [14th Dist.] 2004, no
pet.) (holding that a misnomer does not render a judgment void “provided the intention to sue the correct
defendant is evident from the pleadings and process, such that the defendant could not have been misled”);
see also Adams v. Consol. Underwriters, 124 S.W.2d 840, 841 (Tex. 1939) (“When a corporation intended to be
sued is sued and served by a wrong corporate name . . . and suffers judgment to be obtained, it is bound by
such judgment . . . .”).
In a case like this, in which the plaintiff misnames itself, the rationale for flexibility in the typical misnomer case–in
which a plaintiff misnames the defendant–applies with even greater force. At this stage in the litigation, there is
no risk that Griswold and Zavaletta would not know that GHOS, the sole plaintiff, and the entity named in the
caption of the notice of nonsuit, was the entity that had filed the nonsuit. Griswold and Zavaletta counter that
“Orthopaedic Specialists, L.L.P.” is a nonexistent entity, as their search of Secretary of State records
revealed no organization by that name. But this demonstrates only that Griswold and Zavaletta were not under
the mistaken assumption that a nonparty with this name filed the notice of nonsuit.
In Re Greater Houston Orthopaedic Specialists, Inc. No. 08-0820 (Tex. Aug. 28, 2009)(per curiam)
(effect of misnomer, nonsuit and counterclaim)
IN RE GREATER HOUSTON ORTHOPAEDIC SPECIALISTS, INC.; from Cameron County;
3th district (13-08-00366-CV, ___ SW3d ___, 09-11-08)
stay order issued October 17, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c),
without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Per Curiam Opinion