Reinol Gonzalez and Michael Wallum v. Zachry Industrial, Inc.

Opinion issued December 4, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00230-CV
———————————
REINOL GONZALEZ AND MICHAEL WALLUM, Appellants
V.
ZACHRY INDUSTRIAL, INC., Appellee

On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 121131-CV

MEMORANDUM OPINION

This is an appeal from a take-nothing summary judgment rendered against

Appellants in favor of Zachry Industrial, Inc. (“Zachry Inc.”) on statute of limitations

grounds. Appellants do not dispute that they sued Zachry Inc. after the statute of

limitations expired. Nevertheless, they argue the trial court erred in refusing to apply
the narrow “Hilland doctrine” on misidentification to equitably toll limitations.

Cont’l S. Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex. 1975).

The Hilland misidentification doctrine permits equitable tolling of the statute

of limitations when a plaintiff alleging misidentification shows that he or she sued

the incorrect entity, there are two separate but related entities that use a similar trade

name, the correct entity had notice of the suit, and the correct entity was not misled

or disadvantaged by the mistake. See Chilkewitz v. Hyson, 22 S.W.3d 825, 828, 830

(Tex. 1999); Flour Bluff Indep. Sch. Dist. v. Bass, 133 S.W.3d 272, 274 (Tex. 2004).

But as set forth below, that narrow Hilland doctrine does not apply under these

circumstances because there was no misidentification here. Because the Hilland

doctrine does not apply to toll the limitations period, we affirm.

BACKGROUND

This case arose from a 2018 shuttle bus accident. Appellants were on the bus

when the accident occurred and suffered multiple injuries. The bus driver was an

employee of Zachry Inc.1

1
As Appellants note, the record reflects that the shuttle bus was owned by “C/Z,
CB&I Inc. and Zachry Joint Venture.”
2
A. Appellants initially filed multiple lawsuits concerning the accident—
including suing Zachry Inc. (the defendant at issue here)—but none of
those is the live lawsuit.

In December 2018, Appellants filed a lawsuit naming Zachry Inc. and other

parties as defendants.2 In that lawsuit, Zachry Inc. responded to Appellants’

discovery requests, admitting that the shuttle bus driver was Zachry Inc.’s employee

and that he was acting within the scope of his employment at the time of the accident.

In March 2019, Appellants nonsuited that lawsuit, dismissing all of their

claims against all defendants. The trial court issued an order acknowledging the

nonsuit.

That same month, Appellants filed a petition to intervene in a lawsuit brought

by other passengers involved in the accident.3 See TEX. R. CIV. P. 60. In their petition

to intervene, Appellants named Zachry Inc. and other parties as defendants.

However, Zachry Inc. moved to strike the petition, and the district court granted the

motion. See id.

2
The 2018 Brazoria County Action was filed by Appellant Gonzalez on December
10, 2018, Cause No. 100014-CV in the 239th District Court, Brazoria County,
Texas. Appellant named the following defendants: (1) Zachry Inc.; (2)
CB&I-Zachary Joint Venture; (3) CB&I LLC; and (4) Gabriel Pinillos-Ramirez.
3
Appellants sought to intervene in the lawsuit filed by Plaintiffs Luis A Cruz and
Oliverio Garcia, filed October 24, 2018, styled Luis A. Cruz and Oliverio Garcia v.
Zachry, LLC et al., Cause No. 2018-77430 in the 190th District Court, Harris
County, Texas.
3
Unable to intervene, Appellants filed a new lawsuit in May 2019, again

naming Zachry Inc. and other parties as defendants.4 But in June 2020, Appellants

again nonsuited the vast majority of their claims. The trial court ultimately issued an

order acknowledging the nonsuit and dismissing the remainder of the case for want

of prosecution.5

B. In the underlying lawsuit, Appellants did not sue Zachry Inc. until after
limitations expired.

On April 6, 2020, Appellants filed the underlying lawsuit in this case. In their

original petition in this action, Appellants named only the following four defendants:

(1) Zachry, LLC, (2) CB&I-Zachry Joint Venture, (3) CB&I LLC, and (4) Gabriel

Pinillos-Ramirez (the bus driver). In this filing—unlike in the lawsuits mentioned

above—Appellants did not name Zachry Inc. as a defendant.

The parties do not dispute that the statute of limitations expired in

October 2020. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (statute of limitations

for personal-injury claim is two years after date of accrual).

4
Appellants filed the 2019 Harris County Action on May 31, 2019, Cause No.
2019-37684 in the 129th District Court, Harris County, Texas. Appellants named
the following defendants: (1) CB&I-Zachry Joint Venture; (2) Zachry, LLC;
(3) Zachry Inc.; (4) CB&I LLC; and (5) Gabriel Pinillos-Ramirez.
5
Appellants first nonsuited their claims against all the defendants except Zachry Inc.
The district court ultimately dismissed the entire case for want of prosecution.
4
Litigation proceeded, and on September 1, 2022—almost two years after the

statute of limitations had expired—Appellants filed a Second Amended Petition

(their live pleading) in which they sought to name Zachry Inc. as a defendant.

Zachry Inc. answered with a general denial and asserted that Appellants’

claims against it were barred by the affirmative defense of statute of limitations.

C. Summary Judgment Proceedings

Zachry Inc. sought traditional summary judgment, arguing that the statute of

limitations had expired on Appellants’ claims against it. Appellants responded that

they mistakenly omitted Zachry Inc. from their petition; they argued that the Hilland

doctrine applied to toll the statute of limitations.

The trial court granted Zachry Inc.’s motion for summary judgment. The trial

court then severed Appellants’ claims against Zachry Inc., and Appellants timely

appealed.

DISCUSSION

It is undisputed that Appellants filed their lawsuit against Zachry Inc. after the

statute of limitations expired. Because the narrow Hilland doctrine (the only basis

for tolling argued by Appellants here) does not apply to toll the limitations period,

we affirm.

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A. Legal Principles

We review a summary judgment ruling on statute of limitations grounds de

novo. See Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019); TEX. R. CIV. P.

166a(c). A trial court must grant a traditional motion for summary judgment if the

summary judgment evidence shows that there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law. See TEX. R. CIV.

P. 166a(c); Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021).

“[W]e apply a burden shifting standard to review summary judgment issues

concerning limitations.” Mathewson v. Anglia Homes, L.P., No. 01-23-00874-CV,

2025 WL 2471799, at *4 (Tex. App.—Houston [1st Dist.] Aug. 28, 2025, no pet. h.)

(citing Draughon, 631 S.W.3d at 88–89). To begin, a “defendant moving for

summary judgment on the affirmative defense of limitations has the burden to

conclusively establish that defense.” Draughon, 631 S.W.3d. at 88 (quoting Exxon

Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017)).

To obtain summary judgment on a limitations defense, the defendant must

prove (1) when the cause of action accrued, and (2) that the plaintiff brought its suit

later than the applicable number of years thereafter. Id. at 89. At this stage, the

defense also bears the burden “regarding any issues raised that affect which days

count toward the running of limitations.” Id. at 88; accord Mathewson, 2025 WL

2471799, at *4.

6
As applicable here, the Texas Supreme Court has concluded that, after the

defendant establishes its limitations defense, the burden shifts to the plaintiff to raise

a fact issue in support of a misidentification equitable tolling argument under Hilland

and its progeny:

The narrow doctrine allowing misidentification to defeat limitations . . .
[is] equitable in nature, applying if the correct party had notice of the
suit and was not misled or disadvantaged by the mistake. . . . [I]t
belongs in this [plaintiff burden] category.

Draughon, 631 S.W.3d at 92 n.11 (citations omitted); see id. at 92–94.6

B. The trial court did not err in granting summary judgment to Zachry Inc.
based on its limitations defense.

Appellants admit that they made a mistake in omitting Zachry Inc. as a

defendant in their original petition in this proceeding. They further concede that they

sued Zachry Inc. after the statute of limitations expired. They argue that this should

not bar their claims, however, because they say this is a case of misidentification

(between Zachry Inc. and Zachry, LLC), and they argue that the statute of limitations

should have been equitably tolled under the narrow Hilland doctrine. We disagree.

6
We express no view on the burden categories identified in Draughon; we merely
follow the statement by the majority of the Texas Supreme Court. Moreover,
because the Texas Supreme Court has directly determined that the burden to prove
the Hilland misidentification equitable tolling doctrine falls on the plaintiff, we do
not address the parties’ dispute over where the burden should lie. See Draughon,
631 S.W.3d at 92 n.11; see also Gill v. Hill, 688 S.W.3d 863, 870 (Tex.
2024) (“Ultimately, the distinction Draughon draws [between the parties’ summary
judgment burdens on limitations issues] is between defenses that avoid the statute
of limitations entirely and those that toll certain days.”).
7
1. The Hilland misidentification equitable tolling doctrine.

“Misidentification—the consequences of which are generally harsh—arises

when two separate legal entities exist and a plaintiff mistakenly sues an entity with

a name similar to that of the correct entity.” In re Greater Houston Orthopaedic

Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding) (footnote

omitted). If “the 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

limitations is not tolled.” Enserch Corp. v. Parker, 794 S.W.2d 2, 5 (Tex. 1990)

(emphasis added).7

The Texas Supreme Court has carved out a limited equitable exception to the

misidentification rule, often referred to as the Hilland doctrine.8 Under this

exception, in misidentification cases, limitations may be tolled when a plaintiff

shows that he or she sued the incorrect entity, there are two separate but related

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

correct entity was not misled or disadvantaged by the mistake. Chilkewitz, 22 S.W.3d

7
Misidentification is distinct from misnomer. “If the plaintiff merely misnames the
correct defendant (misnomer), limitations is tolled and a subsequent amendment of
the petition relates back to the date of the original petition.” Parker, 794 S.W.2d at
4–5. Appellants do not argue misnomer on appeal.
8
Texas courts have also referred to the Hilland doctrine as the Hilland Rule, the
Hilland exception, the misidentification doctrine, and the misidentification
exception.
8
at 828, 830 (citing Hilland, 528 S.W.2d at 831); see also Bass, 133 S.W.3d at 274

(same); In re Greater Houston, 295 S.W.3d at 325 n.1 (discussing doctrine and citing

Hilland and Bass).

In Hilland, the plaintiff was injured getting off a bus marked “Continental

Trailways.” Hilland, 528 S.W.2d at 829. “Continental Trailways” was a trade name

used by 26 separate bus corporations. Id. The plaintiff initially sued Continental

Trailways, Inc. Id. But the evidence revealed that Continental Trailways, Inc. never

owned equipment, buses or terminals, or transported passengers. Id. After the statute

of limitations expired, the plaintiff then sued the correct defendant, Continental

Southern Lines, Inc. Id.

In addressing limitations, the Texas Supreme Court found it “apparent” that

the companies “made a conscious effort to make it appear to the public and to their

customers that they are ‘Continental Trailways.’” Id. at 830. The evidence further

showed that service of citation had been forwarded to the correct party, and a strong

inference could be made that the proper party had prompt notice of the suit and ample

time to investigate. See id. at 831. On the record before it, the court held that the

plaintiff should have been given the opportunity to show that the correct defendant

had adequate notice of the lawsuit, and if so, the statute of limitations would not

serve to bar the plaintiff’s claims. Id.

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2. The trial court did not err here.

Absent equitable tolling under the Hilland misidentification doctrine,

Appellants’ claims are time-barred. Again, the narrow Hilland doctrine applies “in

misidentification cases,” where a plaintiff sues an incorrect entity, there are two

separate but related entities that use a similar trade name, the correct entity had notice

of the suit, and the correct entity was not misled or disadvantaged by the mistake.

See Chilkewitz, 22 S.W.3d at 830; Bass, 133 S.W.3d at 274; see also Exxon Mobil

Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017) (“Once the movant establishes

that the action is barred, the non-movant must present summary-judgment evidence

raising a fact issue on each element of his affirmative defense in avoidance [of

limitations].”).

Ultimately, Appellants here are arguing for tolling of limitations, grounded in

equity, on the basis that they misidentified the correct party.

But the record shows no misidentification; “this is not a misidentification

case.” Kilpatrick v. Vasquez, No. 01-09-00731-CV, 2011 WL 1233468, at *6 (Tex.

App.—Houston [1st Dist.] Mar. 31, 2011, no pet.). Rather, the record conclusively

shows that Appellants had prior knowledge of Zachry Inc. (as well as Zachry, LLC)

before limitations ran. They just omitted Zachry Inc. from their petition.

The Texas Supreme Court has rejected equitable tolling claims similar to the

one at issue here when the plaintiff had knowledge of the defendant at issue prior to

10
the expiration of limitations. See Rincones, 520 S.W.3d at 593–95. In Rincones, after

the plaintiff failed a drug test, he tried to sue the drug testing administrator but sued

an alleged “misidentified” party instead. Id. at 578. After the statute of limitations

had run, the plaintiff amended his petition to add the administrator as a defendant.

Id. The administrator then moved for summary judgment, arguing that the suit was

time-barred. Id. at 578, 590–91. The plaintiff sought to avoid limitations by raising

various equitable defenses, including equitable estoppel, misnomer,

misidentification, and due diligence in suing the administrator. Id. at 593–95.

The Texas Supreme Court rejected that effort. In doing so, the court explained

that there was “conclusive evidence [plaintiff] had knowledge about [the

administrator] well before limitations ran,” including from his own deposition, in

which he referred to the administrator several times. See id. The plaintiff’s “failure

to name [the administrator] as a party before the statute of limitations expired [could]

not be excused.” Id. at 594.

That principle applies directly here. This record shows that Appellants knew

about Zachry Inc. long before the limitations ran. Indeed, after the police officer’s

report from the accident in the record identified Zachry Inc. as the shuttle bus carrier,

Appellants sued (and then nonsuited) Zachry Inc. multiple times during the

limitations period. Not only did Appellants previously sue Zachry Inc. (concerning

the same accident) before limitations expired, but those parties also engaged in

11
discovery. And as the record shows, more than a year before limitations expired, in

its discovery responses in an earlier action, Zachry Inc. identified itself as the

employer of the shuttle bus driver involved in the accident.

On this record, Appellants did not misidentify the wrong party for Zachry Inc.

Instead, just as in Rincones, “conclusive evidence shows [Appellants] knew about

[Zachry Inc.] well before limitations ran.” See id. at 593–95.

Notably, Appellants do not even allege that they mistakenly sued the incorrect

defendant instead of Zachry Inc. Appellants instead assert that they omitted Zachry

Inc. from the underlying lawsuit by mistake.9 See Chilkewitz, 22 S.W.3d at 830

(explaining that Hilland doctrine may apply and “limitations may be tolled when a

plaintiff sues an incorrect entity”).

Our sister court addressed an analogous issue and reached a similar conclusion

in Wilson v. City of Austin, No. 03-18-00806-CV, 2019 WL 6336187 (Tex. App.—

Austin Nov. 27, 2019, no pet.). There, after a car accident, the plaintiff timely sued

the driver and the driver’s employer—the City of Austin. But later, after limitations

had expired, the plaintiff filed an amended petition that did not mention the City. Id.

at *1. After noticing the “mistake,” the plaintiff sought to amend her petition to

9
Indeed, when Appellants filed their Second Amended Petition in 2022 and added
Zachry Inc., they retained Zachry, LLC and the same defendants from the original
and first amended petitions, without nonsuiting their claims against Zachry, LLC
(or any defendant).
12
include the City as a defendant and explained that she mistakenly omitted the City

from the previous petition. Id. at *1–2. But she was too late. As the court explained:

“[T]here [was] no misidentification,” nor anything showing the plaintiff had

“misnamed the City; rather, [plaintiff] omitted the City as a defendant. And not only

did [plaintiff] omit the City as a defendant, she omitted all discussion and reference

to the City.” Id. at *4 (cleaned up) (citing Chilkewitz, 22 S.W.3d at 828); see also

Johnson v. Coca-Cola Co., 727 S.W.2d 756, 758 (Tex. App.—Dallas 1987, writ

ref’d n.r.e.) (similar).

So too here. For all the reasons explained, Appellants did not “misidentify

their defendant,” and the trial court did not err in granting summary judgment. See

Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 401 (Tex.

2011); Rincones, 520 S.W.3d at 593–95; Wilson, 2019 WL 6336187, at *4; see also

Levinson Alcoser Associates, L.P. v. El Pistolon II, Ltd., 670 S.W.3d 622, 628 (Tex.

2023) (“Our Court has invoked equitable tolling sparingly, and, even then, we have

emphasized its limited scope.”).10

* * *

10
Because the Hilland doctrine does not apply here, we need not reach the other
arguments raised by the Appellants. See TEX. R. APP. P. 47.1; see, e.g., Broadway
v. Lean on 8, Inc., No. 03-21-00663-CV, 2022 WL 3691678, at *4 n.5 (Tex. App.—
Austin Aug. 26, 2022, no pet.).
13
We hold that Appellants’ claims against Zachry Inc. are time-barred. The trial

court did not err in granting Zachry Inc.’s motion for summary judgment.

CONCLUSION

We affirm the trial court’s judgment.

Jennifer Caughey
Justice

Panel consists of Justices Rivas-Molloy, Gunn, and Caughey.

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