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On appeal from the 28th District Court of Nueces County, Texas.


This case involves a single issue. That is, “When a party appealing a decision by the workers’ compensation board files suit within the statutory time period but does not name and serve the correct defendant within that time period, can the statute of limitations be tolled by the doctrine of misidentification?” We hold that it can, disagreeing with the holdings of Johnson v. United Parcel Service, 36 S.W.3d 918, (Tex. App.–Dallas 2001, pet. denied), Roberts v. Tarrant County Junior College, 842 S.W.2d 835, 836-37 (Tex. App.–Fort Worth 1992, writ denied) and Garcia v. Employers Cas. Co., 519 S.W.2d 685, 688 (Tex. Civ. App.–Amarillo 1975, writ ref’d n.r.e.). We hold that, when the appealing party misidentifies the defendant in a workers’ compensation appeal under Texas Labor Code section 410.252, the 40-day statute of limitations may be tolled if the appealing party establishes that the proper defendant was cognizant of the facts of the lawsuit and was not misled or placed at a disadvantage by the appealing party’s pleading error. Accord Ealey v. Insurance Co. of North America, 660 S.W.2d 50, 52-53 (Tex. 1983); cf. Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975). Accordingly, we reverse the summary judgment granted in favor of Flour Bluff Independent School District.

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