                            NUMBER 13-08-00612-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


BANK OF AMERICA, N.A.,                                                      Appellant,

                                           v.

JERRY L. BARTH,                                                              Appellee.


                 On appeal from County Court at Law No. 2
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Rodriguez

      Appellee Jerry L. Barth sued Bank of America Corporation claiming that he paid

more than he owed on a line of credit. Appellant Bank of America, N.A. answered stating

that it was incorrectly named as Bank of America Corporation. Bank of America, N.A.

asserted various affirmative defenses and sought recovery of its attorney's fees by

counterclaim. The case was tried to a jury. Although the jury found liability against Bank
of America Corporation,1 the trial court rendered final judgment against Bank of America,

N.A.

         On appeal, Bank of America, N.A. contends that: (1) the trial court erred in

rendering judgment against it because the issue of Bank of America, N.A.'s liability was not

before the jury and the court's judgment did not conform to the jury's verdict; (2) the claims

are barred by limitations; (3) there was no evidence or insufficient evidence of fraud; (4)

the trial court erred by awarding exemplary damages and recovery of attorney's fees; (5)

the trial court abused its discretion in its evidentiary rulings; and (6) it was entitled to

judgment notwithstanding the verdict or, alternatively, a new trial. We reverse and render.

                                                 I. DISCUSSION

         By the first issue, Bank of America, N.A. asserts that the trial court erred in

rendering judgment against it because Barth failed to obtain any finding adverse to Bank

of America, N.A. See AlliedSignal, Inc. v. Moran, 231 S.W.3d 16, 21 (Tex. App.–Corpus

Christi 2007, pet. granted, judgm't vacated w.r.m.) (op. on reh'g) (en banc). Bank of

America, N.A. further complains that because the judgment grants Barth relief against an

entity other than the one against which the jury made findings, it does not conform to the

verdict. See TEX . R. CIV. P. 301.

                                                 A. Misnomer

         Barth originally sued Bank of America Corporation.2                         Bank of America, N.A.

appeared and filed its answer as "Bank of America, N.A. incorrectly named as Bank of


         1
        The jury awarded $28,663.31 in actual dam ages, $350,000 in exem plary dam ages capped at
$257,326.62, and $350,000 in DTPA dam ages reduced to $85,989.93. See T EX . C IV . P RAC . & R EM . C OD E A N N .
§ 41.008(b) (Vernon Supp. 2009); T EX . B U S . & C O M M . C OD E A N N . § 17.50 (Vernon Supp. 2009).

         2
            The style of the first am ended original petition reads, "Jerry L. Barth vs. Bank of Am erica Corportaion"
[sic]; in its opening paragraph, Barth com plains "of BANK OF AMERICA COPORATION" [sic]. In the parties
section of his petition, Barth also identifies "Bank of Am erica Corporation" as the defendant.

                                                          2
America Corporation." Throughout pretrial proceedings, Bank of America, N.A. filed

documents indicating that it was incorrectly named. At trial, Robert Messina, Bank of

America, N.A.'s representative, testified that Bank of America, N.A., owned the line of

credit at issue in this case.3           Nonetheless, Barth's pleadings remained unchanged,

reflecting what both parties correctly refer to as a "misnomer."4


        3
         Barth also refers this Court to Plaintiff's Exhibit 9, Bank of Am erica, N.A.'s responses to Barth's
interrogatories, where Bank of Am erica, N.A. acknowledges that in 1999, Nations Bank, National Association,
through m erger and nam e change, becam e "Bank of Am erica, N.A." Furtherm ore, it is undisputed that Bank
of Am erica Corporation and Bank of Am erica, N.A. are separate entities and that "Bank of Am erica
Corporation, N.A.," referred to infra, note 8, is a non-entity.

        4
            The Texas Suprem e Court recently described a "m isnom er" as follows:

        A m isnom er occurs when a party m isnam es itself or another party, but the correct parties are
        involved. Chilkewitz v. Hyson, 22 S.W .3d 825, 828 (Tex. 1999) (op. on reh'g) (noting that
        "[m ]isnom er arises when a plaintiff sues the correct entity but m isnam es 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 m isnom er occurred when enforcem ent order [in an underlying
        sum m ary judgm ent case] referred to actual plaintiff "Breckenridge Estates Hom eowners
        Association, Inc." as "Breckenridge Park Estates No. 1 and No. 2 Hom eowner's Association,
        a Texas non-profit corporation, also identified in the pleadings and known as Breckenridge
        Estates Hom eowners Association, Inc."); Pierson v. SMS Fin. II, L.L.C., 959 S.W .2d 343, 347
        (Tex. App.–Texarkana 1998, no pet.) (determ ining that m isnom er occurred when actual
        plaintiff, SMS II, instead nam ed another entity, SMS I, in its original petition). Courts
        generally allow parties to correct a m isnom er so long as it is not m isleading. See, e.g.,
        Enserch [Corp. v. Parker], 794 S.W .2d [2,] . . . 4-5 [(Tex. 1990)] (holding that when a plaintiff
        m isnam es a defendant, lim itations is tolled and a subsequent am endm ent of the petition
        relates back to the date of the original petition); Chen, 227 S.W .3d at 420 ("A m isnom er does
        not invalidate a [sum m ary] judgm ent as between parties where the record and judgm ent
        together point out, with certainty, the persons and subject m atter to be bound."); Sheldon v.
        Emergency Med. Consultants, I.P.A., 43 S.W .3d 701, 702 (Tex. App.–Fort W orth 2001, no
        pet.) ("[W ]hen an intended defendant is sued under an incorrect nam e, the court acquires
        jurisdiction after service with the m isnom er if it is clear that no one was m isled or placed at
        a disadvantage by the error."). . . .

        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 W orldwide, Inc., 124 S.W .3d 883, 895 (Tex. App.–Houston
        [14th Dist.] 2004, no pet.) (holding that a m isnom er does not render a sum m ary judgm ent
        void "provided the intention to sue the correct defendant is evident from the pleadings and
        process, such that the defendant could not have been m isled"); see also Adams v. Consol.
        Underwriters, 133 Tex. 26, 124 S.W .2d 840, 841 (Tex. 1939) ("W hen a corporation intended
        to be sued is sued and served by a wrong corporate nam e . . . and suffers judgm ent to be
        obtained, it is bound by such judgm ent . . . .").

In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W .3d 323, 325-26 (Tex. 2009) (per curiam ) (orig.
proceeding). Texas courts have recognized a distinction between m isnom er and m isidentification. Enserch

                                                        3
         After the parties rested, Bank of America, N.A. requested a directed verdict, arguing,

in part, the following:

         [T]he party to this case is Bank of America Corporation. Bank of America
         Corporation didn't have anything to do with this loan. We're Bank of
         America, N.A. as we testified here today.

                So we're entitled to directed verdict on that basis too. Bank of
         America Corporation never loaned any money or had anything to do with Mr.
         Barth.

Barth responded that,

                  If you look at the documents which have the heading Bank of
         America, they say Bank of America on it. If that's an issue, I'll ask for a trial
         amendment to amend to correct the name because it's clearly a misnomer
         if that's the issue to correct the name to Bank of America, N.A. instead of
         Bank of America Corporation to correct the misnomer.

                 As the Court's well aware, trial amendments in order to correct
         misnomers, things of that such, should be liberally granted at times even
         after a verdict's come in if that's the issue.

The trial court denied Bank of America, N.A.'s request for a directed verdict. It did not rule

on Barth's requested trial amendment.

         At the charge conference, when the jury charge continued to identify the defendant

as Bank of America Corporation, Bank of America, N.A. again objected on the basis that

there was no evidence that Bank of America Corporation ever had any relationship with

Barth. In response, the following exchange occurred between Barth's counsel and the trial

court:

         [COUNSEL]:                 I would like a ruling from the Court granting my trial
                                    amendment in the event that it's necessary to correct


Corp., 794 S.W .2d at 4. A m isnom er is when the plaintiff m isnam es the correct defendant, while a
m isidentification occurs when two separate legal entities with sim ilar nam es actually exist and the plaintiff sues
the wrong one because he is m istaken about which entity is the correct defendant. Chilkewitz, 22 S.W .3d at
828. Because Barth was not m istaken about which entity was the correct defendant, this is not a case of
m isidentification. See id.

                                                         4
                                   the name Bank of America to Bank of America, N.A. If
                                   that's what the reasoning for the last issue was that
                                   there's a misnomer and it's supposed to be Bank of
                                   America N.A. as opposed to Bank of America, then I
                                   ask that the Court –

        THE COURT:                 Bank of America Corp. to Bank of America, N.A.?

        [COUNSEL]:                 N.A., yes. I would ask the Court for a trial amendment
                                   to correct that misnomer. We don't have to change
                                   anything, but that would be a correction of the -- of a
                                   misnomer if it's supposed to be N.A.

        THE COURT:                 If that's as to a misnomer, that'll be allowed.

Later, Bank of America, N.A. asked the trial court to sign and write “refused” on its

requested objections so that the court's ruling would be part of the record. The court

responded, “Sure. That’ll be fine.”

                                  B. The Jury Charge and Verdict

        Although Barth corrected Bank of America, N.A.'s name in his pleadings through his

trial amendment, the jury charge was not changed to reflect the correct name of Bank of

America, N.A. Barth's jury questions referenced only Bank of America Corporation.5 Thus,

the charge was submitted only on Bank of America Corporation's liability.6




        5
         Bank of Am erica, N.A. was m entioned only once in the entire jury charge; question 14 asked the jury
to award attorney's fees to Bank of Am erica, N.A. It is apparent that this question was proposed by Bank of
Am erica, N.A. based on its counterclaim for attorney's fees.

         6
           The trial court read the charge to the jury as written. Counsel for Bank of Am erica, N.A. never agreed
that Bank of Am erica Corporation as used in the charge m eant Bank of Am erica, N.A. Cf. W & F Transp., Inc.
v. W ilhelm, 208 S.W .3d 32, 45 (Tex. App.–Houston [14th Dist.] 2006, no pet.) (op. on reh'g) (rejecting
appellants' claim that the jury's findings did not support the verdict against W &F Transportation, Inc. when,
at the charge conference, counsel for W &F Transportation, Inc. asserted that "W &F Transportation" as used
in the charge m eant defendant W &F Transportation, Inc. and even requested that the parties enter a
stipulation to this effect, or that the jury be instructed "that W &F Transportation m eans W &F Transportation,
Inc."). Neither did Bank of Am erica, N.A.'s counsel request a stipulation or ask that the jury be instructed to
that effect. Cf. id.

                                                        5
        When the verdict was rendered, the jury found that Bank of America Corporation,

not Bank of America, N.A., had engaged in a false, misleading, or deceptive act or

practice; had engaged in unconscionable conduct; had committed fraud; had made

negligent misrepresentations; and had obtained an unjust enrichment.7 There were no

liability findings against Bank of America, N.A. because there were no issues submitted

pertaining to Bank of America, N.A.

        "When a jury renders a verdict, any issue which has not been submitted to the jury

is waived." AlliedSignal, 231 S.W.3d at 21 (citing Boatright v. Tex. Am. Title Co., 790

S.W.2d 722, 727 (Tex. App.–El Paso 1990, writ dism'd)). Because the issue of Bank of

America, N.A.'s liability was not submitted, that jury issue was waived. Id.

                                          C. The Judgment

        Moreover, a judgment cannot be rendered on an omitted issue. Id. (citing Boatright,

790 S.W.2d at 727); Sentry Ins. v. Siurek, 748 S.W.2d 104, 106 (Tex. App.–Houston [1st

Dist.] 1987, no writ); Howard P. Foley Co. v. Cox, 679 S.W.2d 58, 66 (Tex. App.–Houston

[14th Dist.] 1984, no writ) (modifying the judgment to delete liability of two defendants

against whom "no special issue was submitted and finding was made"); see TEX . R. CIV.

P. 301. "By rendering judgment against [the defendants], in the absence of a special issue

or finding of fact, the trial court gave [plaintiff] relief that he was not entitled to." Foley, 679

S.W.2d at 66 (citing TEX . R. CIV. P. 301).




        7
          W hen the verdict was read into the record, it was Bank of Am erica Corporation that was identified
as the liable entity, not Bank of Am erica, N.A.

                                                     6
         In this case, the trial court entered judgment against Bank of America, N.A.8 This

judgment should not have been rendered because the issue of Bank of America, N.A.'s

liability was never included in the charge. See AlliedSignal, 231 S.W.3d at 21. Without

such findings, there is no basis for holding Bank of America, N.A. liable. Thus, the trial

court gave Barth relief to which he was not entitled. See Foley, 679 S.W.2d at 66.

         Finally, Texas Rule of Civil Procedure 301 specifically sets out that "[t]he judgment

of the court shall conform to the pleadings, the nature of the case proved and the verdict."

TEX . R. CIV. P. 301; see Walker v. Taylor, 56 S.W.2d 251, 252 (Tex. Civ. App.–Texarkana

1932, no writ) ("There is no principle of law more firmly established than that the judgment

must follow and conform to the verdict of the jury in respect to the parties for and against

whom it is given."). Because the verdict was against Bank of America Corporation and the

judgment was against Bank of America, N.A., the judgment did not conform to the verdict

returned in this case. See TEX . R. CIV. P. 301.

         In response, Barth argues that Bank of America, N.A.'s contentions regarding the

omitted jury charge issues and the nonconformity of the judgment and the verdict fail

because of the following: (1) Bank of America, N.A. failed to adhere to the requirements

of Texas Rule of Civil Procedure 93; (2) Barth obtained a trial amendment curing any

alleged defect; and (3) Bank of America, N.A. affirmatively made a counterclaim against




         8
          The final judgm ent is incorrectly styled as "Jerry L. Barth vs. Bank of Am erica Corporation, N.A."
In describing the course of the proceedings, the final judgm ent also incorrectly refers to the "Defendant, BANK
OF AMERICA CORPORATION, N.A." Appellees explain that "Bank of Am erica Corporation, N.A." is a non-
entity, and Barth does not contradict this fact. See T EX . R. A PP . P. 38.1(g) (providing that "the Court will accept
as true the facts stated unless another party contradicts them "). However, the trial court enters judgm ent
against "BANK OF AMERICA, N.A., Defendant" and adjudges that Barth recover dam ages from "BANK OF
AMERICA, N.A., Defendant."

                                                          7
Barth under the name of Bank of America Corporation. We are not persuaded by Barth's

arguments.

       First, Bank of America, N.A.'s issue in this Court does not involve the requirements

of rule 93. See TEX . R. CIV. P. 93 (providing for challenges to a defect of a party by

affidavit). Once the trial court granted Barth's trial amendment, any misnomer was cured.

Barth acknowledges this in his second responsive argument. Therefore, Bank of America,

N.A.'s alleged failure to file a verified affidavit challenging the misnomer under rule 93 is

not an issue. See id. Second, as discussed above, curing the misnomer in the pleadings

did not resolve all issues in this case—a case that was tried to a jury. Challenges to the

charge, the verdict, and the judgment remained. See TEX . R. CIV. P. 301; AlliedSignal, 231

S.W.3d at 21; Boatright, 790 S.W.2d at 727; Foley, 679 S.W.2d at 66. Finally, contrary to

Barth's assertion, our review of the record reveals that Bank of America, N.A. filed the

counterclaim for attorney's fees, not Bank of America Corporation.

       Based on the above, we conclude that the trial court erred in rendering a judgment

against Bank of America, N.A. based on the jury's verdict because (1) the issue of Bank

of America, N.A.'s liability was not submitted to the jury, (2) a judgment cannot be rendered

on an omitted issue, and (3) the judgment did not conform to the verdict returned in this

case. We further conclude that the error probably caused the rendition of an improper

judgment, as evidenced by the discrepancy between the jury's verdict and the judgment

rendered by the trial court. See TEX . R. APP. P. 44.1(a). Having so concluded, we sustain

Bank of America, N.A.'s first issue and do not address the remaining issues as they would

not entitle Bank of America, N.A. to any relief greater than its first issue. See id. R. 47.1.



                                              8
                                    II. CONCLUSION

      The judgment against Bank of America, N.A. is reversed, and we render a take

nothing judgment against Barth. See TEX . R. APP. P. 43.2(c); AlliedSignal, 231 S.W.3d at

23-24; Foley, 679 S.W.2d at 66.


                                                  NELDA V. RODRIGUEZ
                                                  Justice

Delivered and filed the
6th day of May, 2010.




                                            9
