Opinion issued August 10, 2023

In The

Court of Appeals 

For The 

First District of Texas 

———————————

NO. 01-22-00523-CV

———————————

J.R. ARGO, Appellant

V. 

USAA CASUALTY INSURANCE COMPANY, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Case No. 2021-30588

MEMORANDUM OPINION

Appellant, J.R. Argo, challenges the trial court’s rendition of summary 

judgment in favor of appellee, USAA Casualty Insurance Company (“USAA-CIC”), 

in his suit against USAA-CIC for breach of contract, breach of the duty of good faith 
2

and fair dealing, and violations of the Texas Insurance Code. In two issues, Argo

contends that the trial court erred in granting USAA-CIC summary judgment.

We affirm.

Background

Argo filed an original petition bringing claims against USAA-CIC on May 21, 

2021, but that petition was not served on USAA-CIC. On July 28, 2021, Argo filed 

his first amended petition and a “Request for Issuance of Service” by citation to 

“USAA Casualty Insurance Company” through its agent, Corporation Service 

Company, in Austin, Texas. USAA-CIC’s registered agent was served with citation

on August 24, 2021.

In his first amended petition, Argo alleged that he owned a property in 

Cypress, Harris County, Texas (“the property”) that was insured by “USAA.” On 

or about May 9, 2019, “a hailstorm and/or windstorm” caused “extensive damage” 

to the “roof and interior” of the property. 

Argo “submitted a claim to USAA” for property damage and “requested that 

USAA cover the cost of repairs,” including the “replacement of the roof[].” 

According to Argo, an adjuster working under contract for USAA “conducted a 

substandard inspection” of the property and “failed to recognize” that the damages 

to the property “were caused by the [s]torm.” After Argo notified USAA “of the 

improper adjustment,” USAA hired an engineer to inspect the property. The
3

engineer “concluded that he could find no wind or hail damage to [Argo’s] roof.” 

As a result, USAA denied Argo’s insurance claim.

Based on those allegations, Argo brought claims against USAA-CIC for 

breach of contract, breach of the duty of good faith and fair dealing, and violations

of the Texas Insurance Code.

1

 On November 5, 2021, he filed a second amended 

petition which asserted substantially the same claims as his first amended petition

and named “USAA” as the defendant in the body of his pleading. But Argo did not

request issuance of service by citation on USAA or otherwise seek to join USAA as 

a defendant.

2

 

USAA-CIC answered, generally denying Argo’s allegations and including a

verified plea in which it denied having issued “the homeowner’s insurance policy” 

for the property. USAA-CIC argued that there was “a misidentification because 

[Argo] named and served the incorrect entity.” USAA-CIC also asserted that Argo 

failed to provide the proper written notice required” for his claims under the Texas 

Insurance Code. And USAA-CIC maintained that Argo’s claims were “barred by 

[the statute of] limitations because [Argo had] failed to exercise diligence in 

procuring service . . . within the limitations period.”

1 See TEX. INS. CODE ANN. §§ 541.060(a)(4), (7), 542.060.

2 USAA did not file an answer and is not a party to this appeal.
4

USAA-CIC then moved for summary judgment, arguing that it was entitled 

to judgment as a matter of law on Argo’s claims against it because it was not the 

entity that had issued Argo’s homeowner’s insurance policy. USAA-CIC explained 

that the insurance company that had issued Argo’s homeowner’s insurance policy, 

USAA, was “a separate legal entity” from USAA-CIC. Thus, according to 

USAA-CIC, Argo’s breach-of-contract claim failed as did his extra-contractual 

claims for violations of the Texas Insurance Code and breach of the duty of good 

faith and fair dealing.

Second, USAA-CIC argued that it was entitled to judgment as a matter of law 

on Argo’s claims “because they [were] barred by [the applicable statute of]

limitations.” Argo’s claims accrued on May 22, 2019, the date that USAA denied 

coverage under his homeowner’s insurance policy. Further, Argo’s homeowner’s 

insurance policy “permissibly shortened” the applicable statute of limitations period

by providing “that claims for breach of the insurance policy [had to] be brought

within two years and one day after the cause of action accrues.”

3

 (Internal quotations 

omitted.) The same contractual two-year limitations period also applied to Argo’s 

claims for violations of the Texas Insurance Code and breach of the duty of good 

faith and fair dealing. Thus, according to USAA-CIC, the statute of limitations 

3 See TEX. CIV. PRAC. & REM. CODE ANN. § 16,070(a); Hewlett Packard Co. v. 

Benchmark Elecs., 142 S.W.3d 554, 560 (Tex. App.—Houston [14th Dist.] 2004, 

pet. denied).
5

expired no later than May 23, 2021, and Argo did not serve USAA-CIC until August 

24, 2021, “after limitations had expired.” 

USAA-CIC also explained that the statute of limitations could not have been 

tolled under the “equitable tolling doctrine” because Argo’s initial error in not 

identifying the proper defendant constituted misidentification, not misnomer, and 

when a plaintiff sues the wrong party limitations is not tolled.

Third, USAA-CIC argued that it was entitled to judgment as a matter of law 

on Argo’s claims because they were barred by the statute of limitations and his delay 

in effecting service “demonstrate[d] a lack of due diligence as a matter of law.” Argo 

“delayed for [sixty-four] days before requesting citation on the correct registered 

agent,” and then it did not serve USAA-CIC’s registered agent until twenty-seven 

days after that request.

In his response to USAA-CIC’s summary-judgment motion, Argo argued that 

his “partial error” in suing USAA-CIC rather than USAA was a “case of misnomer” 

because he had served “the correct agent and clearly referenced the USAA policy in 

his petition.” “USAA [was] the parent company of USAA-CIC,” and “[t]hey 

share[d] the same registered agent, phone number, fax number, and business 

address.” Further, according to Argo, “USAA could not have been prejudiced [by 

his mistake] because it received notice of the []suit when the correct registered agent 

was served with [his] petition that referenced th[e] correct USAA policy number.” 
6

Thus, Argo asserted that his “amended petition should relate back to the original 

petition’s filing date,” which was “within the [statute of] limitations period.”

Argo also asserted that he had raised a fact issue as to whether he had 

exercised due diligence in serving “USAA’s registered agent.” He “mistakenly and 

unintentionally” served the wrong registered agent after having listed the wrong 

registered agent in his original petition. He did not realize his mistake until after the 

deadline for a defendant to file an answer had passed. Argo then “filed his [f]irst 

[a]mended [p]etition” to name “USAA’s correct registered agent,” but “[d]ue to an 

absence of the normal filing staff” in his attorney’s law office, another staff member 

filed the first amended petition, and it was only later “discovered that citations were 

not issued for the [f]irst [a]mended [p]etition.” “Immediately upon discovery” of 

that error, citations were requested and “service was perfected shortly after.” 

In its reply, USAA-CIC pointed out that Argo did not offer any evidence to 

dispute the fact that USAA-CIC and USAA were “separate legal entities,” making 

this a case of misidentification and not misnomer. Further, according to USAA-CIC, 

the equitable tolling doctrine did not apply because the correct entity did not have 

notice of the suit within the statute of limitations period.

The trial court granted summary judgment in favor of USAA-CIC on Argo’s 

claims against it and ordered that Argo take nothing on his claims.
7

Standard of Review

We review a trial court’s decision to grant summary judgment de novo. 

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life 

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our 

review, we take as true all evidence favorable to the non-movant, and we indulge 

every reasonable inference and resolve any doubts in the non-movant’s favor. 

Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. When, as here,

the trial court does not specify the grounds on which it granted summary judgment, 

we must affirm if any of the summary-judgment grounds are meritorious. See

Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 

2005, pet. denied).

To prevail on a matter-of-law summary-judgment motion, a movant has the 

burden of establishing that there is no genuine issue of material fact and it is entitled 

to judgment as a matter of law. TEX.R.CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 

339, 341 (Tex. 1995). When a defendant moves for summary judgment on the 

plaintiff’s claim, it must either (1) disprove at least one essential element of the 

plaintiff’s cause of action or (2) plead and conclusively establish each essential 

element of its affirmative defense, thereby defeating the plaintiff’s cause of action. 

Cathey, 900 S.W.2d at 341; Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 

(Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant 
8

to raise a genuine issue of material fact precluding summary judgment. See Siegler, 

899 S.W.2d at 197; Transcont’l Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685, 691 

(Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine 

issue of fact if reasonable and fair-minded jurors could differ in their conclusions in 

light of all the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 

236 S.W.3d 754, 755 (Tex. 2007).

Summary Judgment

In his first issue, Argo argues that the trial court erred in granting summary 

judgment in favor of USAA-CIC on his claims against it because he raised a fact 

issue as to whether his claims against USAA related back to the date of the filing of 

his original petition and thus were not barred by the applicable two-year statute of 

limitations period. Argo asserts that it was misnomer, and not misidentification,

when he “inadvertently named [USAA-CIC] instead of [USAA]” in his petition. 

“[A] misnomer occurs when a party misnames itself or another party, but the 

correct parties are involved.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 594 

(Tex. 2017) (internal quotations omitted); see also Giles v. Giles, No. 

01-20-00571-CV, 2022 WL 2251814, at *4 (Tex. App.—Houston [1st Dist.] Jan. 8, 

2009, no pet.) (mem. op.) (when correct defendant is served under wrong or 

misspelled name, case is one of misnomer); Cybiz, Inc. v. Gaskill, No. 

14-16-00405-CV, 2017 WL 1015560, at *2 (Tex. App.—Houston [14th Dist.] Mar. 
9

14, 2017, no pet.) (mem. op.). Generally, courts allow parties to correct a misnomer 

if it is not misleading. Rincones, 520 S.W.3d at 594.

Misidentification, on the other hand, occurs “when two separate legal entities 

actually exist and a plaintiff mistakenly sues the entity with a name similar to that of 

the correct entity.” Reddy P’ship v. Harris Cnty. Appraisal Dist., 370 S.W.3d 373, 

376 (Tex. 2012) (internal quotations omitted); Giles, 2022 WL 2251814, at *3. The 

consequences of misidentification are “generally harsh.” Rincones, 520 S.W.3d at

594; Reddy P’ship, 370 S.W.3d at 376. For example, if a “plaintiff is mistaken as to 

which of two defendants is the correct one and there is actually existing a corporation 

with the name of the erroneously named defendant (misidentification), then the 

plaintiff has sued the wrong party and [the statute of] limitations is not tolled.” 

Enserch Corp. v. Parker, 794 S.W.2d 2, 5 (Tex. 1990).

Here, the undisputed evidence shows that USAA-CIC and USAA are two 

separate legal entities, making this a case of misidentification. Yet USAA-CIC and 

USAA are related entities. When misidentification involves related entities, an 

equitable exception to the general rule for misidentification cases may apply. See

Flour Bluff Indep. Sch. Dist. v. Bass, 133 S.W.3d 272, 274 (Tex. 2004). “The statute 

of limitations will be tolled in misidentification cases if there are two separate, but 

related, entities that use a similar trade name and the correct entity had notice of the 

suit and was not misled or disadvantaged by the mistake.” Id. This exception
10

requires proof that the correct entity received actual notice of the plaintiff’s suit 

within the statute of limitations period. See Bell v. XTC Cabaret (Dallas), Inc., No. 

05-21-00294-CV, 2022 WL 1420974, at *3 (Tex. App.—Dallas May 5, 2022, no 

pet.) (mem. op.); Burchinal v. PJ Trailers-Seminole Mgmt. Co., LLC, 372 S.W.3d 

200, 212–13 (Tex. App.—Texarkana 2012, no pet.); Mishak v. Wilhelm, No. 

10-05-00177-CV, 2006 WL 949891, at *1 (Tex. App.—Waco Apr. 12, 2006, no 

pet.) (mem. op.); Torres v. Johnson, 91 S.W.3d 905, 908 (Tex. App.—Fort Worth 

2002, no pet.). 

Argo notes that USAA-CIC and USAA “share[d] a registered agent, as well 

as an address, telephone number, and fax number” and “they also share[d] the same 

law firm.” He also points out that he identified his insurance policy as a USAA 

policy and put the policy number in his petition. But that evidence does not raise a 

fact issue as to whether USAA had actual notice of Argo’s suit. See Bell, 2022 WL 

1420974, at *3 (“The fact that businesses have the same registered agent and the 

same attorneys is not evidence that they were aware of whom [plaintiffs] intended 

to sue.”). Texas law presumes that two separate corporations are distinct entities, 

and no evidence shows that “the corporate form has been used as part of a basically 

unfair device to achieve an inequitable result” such that USAA-CIC’s knowledge 

should be imputed to USAA. See SSP Partners v. Gladstrong Invs. (USA) Corp., 
11

275 S.W.3d 444, 451 (Tex. 2008); cf. BMC Software Belgium, N.V. v. Marchand, 83 

S.W.3d 789, 798 (Tex. 2002). 

Further, the record shows that while Argo filed his suit within the statute of 

limitations period, he did not serve USAA-CIC with citation until after the statute of 

limitations had expired.4 That delay precludes Argo from showing that USAA 

received actual notice of Argo’s suit within the limitations period as required to 

qualify for the equitable exception to the general rule for misidentification cases. 

Thus, we conclude that the trial court did not err in granting summary judgment in 

favor of USAA-CIC based on the statute of limitations.

We overrule Argo’s first issue.5

Conclusion

We affirm the order of the trial court.

Julie Countiss

Justice

4 We express no opinion about whether or how this equitable tolling doctrine applies

to a contractual limitations period. See TEX. R. APP. P. 47.1.

5 Because of our disposition of Argo’s first issue, we do not reach his second issue. 

See id.; Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston 

[1st Dist.] 2005, pet. denied) (appellate courts affirm summary judgment if any 

asserted ground is meritorious).
12

Panel consists of Justices Landau, Countiss, and Guerra.