Suits in Assumed Name

Any partnership, unincorporated association, private corporation, or individual doing business under an
assumed name may sue or be sued in its partnership, assumed or common name for the purpose of
enforcing for or against it a substantive right, but on a motion by any party or on the court's own motion the
true name may be substituted.

Seidler argues that the court erred because filing suit against "Fish Creek Ranch" properly sued whatever
entity it was as a "common name" under Tex. R. Civ. P. 28.

There are several problems with this position.

On a very basic level, the summary judgment evidence shows that no entity (neither the parties named in the
lawsuit nor the unnamed Kelley Enterprises) ever did business under the name of Fish Creek Ranch. The
evidence clearly shows that although the property upon which business was conducted was identified as Fish
Creek Ranch and can easily be considered as the "common name" of the property, there is no evidence to
support the predicate requirement. Before the use of a common name is adequate under Rule 28, there must
be a showing that the named entity is in fact doing business under that common name.

Simply because a place name may be commonly informally used (as has apparently been done here) does
not mean that the name of the site and the type of business conducted there is "doing business as." There
was evidence that neither Morgan Land nor Morgan had ever done business under that name and there was
no evidence that they ever did. Payments to the employees and to suppliers were not made under the name
of Fish Creek Ranch; rather, they were made by Morgan Land. Neither Morgan nor Morgan Land ever
adopted the formal assumed name of "Fish Creek Ranch" as allowed by statute; there is nothing in this
record to reflect that the use of the name informally was done in any way other than a way to identify a
physical asset of the corporation and the kind of business which was operated at that site. The only part of
the summary judgment proof that might be said to even indicate that anyone ever did business under "Fish
Creek Ranch" is the way that the property was listed on a property insurance policy--along with the
then-owner, Kelley Enterprises. (2) The insurance policy generated by the Colorado Farm Bureau insurance
company dated May 31, 2007, contains a summary of coverages on a number of pieces of property.

Morgan and Morgan Land argue that this was just the insurance company which so identified the property.
We do recognize that an insurance policy is not a unilateral contract; although the insurance company issued
the policy, Kelley Enterprises appears to have accepted it, presumably paid for it, and has possibly accepted
benefits under it. However, that isolated use in such an unclear setting is not sufficient to stand as evidence
that Kelley Enterprises actually did business in that name. It is no more than a scintilla, and only a scintilla
that might raise an implication, rather than show a fact.

Further, even if the mention of Fish Creek Ranch in the insurance policy were strong evidence, it would be
evidence only of a relationship between Kelley Enterprises and the "Fish Creek Ranch" name. It is no
evidence of such a relationship between Morgan Land or Morgan and Fish Creek Ranch. The only way in
which this could morph into relevant evidence is if we concluded that there was a fact issue as to whether
Morgan Land and Kelley Enterprises were so intertwined as to be the same entity.

In addition, it is more likely that this identification was intended to limit the liability of the insurance company
under the policy to the business which was being conducted at that site and not Kelley Enterprises's entire
business operations.

Even if we concluded that this is some evidence that both Kelley Enterprises and Morgan Land each did
business as Fish Creek Ranch, that does not indicate that Morgan Land would be responsible for liabilities
which arose during the time that Kelley Enterprises owned the place and operated under that name, and
there is no summary judgment evidence that this kind of liability was assumed by Morgan Land in its
purchase of that asset.

Think of an ocean-going tanker which has a name (let us choose "Laura"), which is owned by corporation A;
everyone refers to the business operations of that tanker as things done by the "Laura." The "Laura" has a
huge oil spill and corporation A thereafter sells the tanker to corporation B, but the name remains the same
and everyone still refers to her as the "Laura." Is corporation B going to be responsible for the oil spill? If the
sale is an arms-length transaction, it would not be so.

We must also recognize that Seidler did not bring suit against the assumed name. She brought suit against
Morgan and Morgan Land, with the notation that those entities were doing business as Fish Creek Ranch.
That separates this situation from the one described in Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999). In
that case, the plaintiff sued Hyson as Morton Hyson, M.D., but was informed that the correct defendant would
be Morton Hyson, M.D., Professional Association. Plaintiff promptly amended his pleading. The Texas
Supreme Court determined that there was some evidence that a professional association comprised of only
one professional did business in the name of the individual and had listings and advertisements under the
physician's name, which made no mention of the professional association; therefore, suit against the
individual under those circumstances would serve to sue the actual defendant, his professional association.

In this case, the suit as filed sought to recover for the alleged negligence of Morgan or Morgan Land, and
then identified them as "doing business as" Fish Creek Ranch. There is no evidence that either Morgan or
Morgan Land were doing business as Fish Creek Ranch at the time of the injury and there is conclusive proof
to the contrary. Although Seidler knew of the incorrect naming shortly after the defendants answered, she
chose not to amend her pleadings to add the potentially-liable party. The way in which a suit is brought is
solely under the control of counsel, subject to later complaint by the opposing side.

The uncontradicted summary judgment evidence shows the following:

Neither Morgan nor Morgan Land owned Fish Creek Ranch when the injury occurred.
Neither Morgan nor Morgan Land used "Fish Creek Ranch" as an assumed name or did business under that
Neither Morgan nor Morgan Land conducted any business in which they identified themselves as "Fish Creek
None of the entities that did business involving the ranch when it was owned by Kelley Enterprises either sent
invoices addressed to Fish Creek Ranch nor were paid by any means which mentioned Fish Creek Ranch;
rather, only Kelley Enterprises was billed or paid. Likewise, after the property was conveyed to Morgan Land,
it did not use "Fish Creek Ranch" in its billings or payments.
There is neither any evidence that Fish Creek Ranch was recognized as a business by the public at large nor
was there any evidence that any effort was made by either owner to present it as such.
"Fish Creek Ranch" was the name of the ranch. Although that was the common name of the location, it was
not the common name of the business or owner.
Further, applying the language of the rule, even if "Fish Creek Ranch" is the common name of the entity,
there was no evidence that it was "doing business as" that name, or that it was an "assumed name" of the
business. (3)
There is no doubt that "Fish Creek Ranch" was a name commonly used to identify the property. There is no
evidence that either entity which owned the place, Morgan Land or Kelley Enterprises, or Morgan did
business as "Fish Creek Ranch."

Accordingly, unless some other rule of law intervenes, there is no evidence that the named party is a proper
party to this lawsuit, and summary judgment was therefore properly rendered.

We now move to Seidler's alternative arguments in which she attempts to interpose such alternative theories
of law.

Joint Enterprises?

Seidler argues that there is some evidence that Morgan Land and Kelley Enterprises were engaged in a joint
enterprise to acquire and hold Fish Creek Ranch for the use and benefit of the Morgan family and, on oral
argument, that the two businesses were possibly alter egos of one another. She argues that we should pierce
the corporate veils and conclude that the two entities are in reality a single entity with a single purpose. Thus,
she concludes, by suing one, she also simultaneously sued the other.

Texas has adopted the restatement standard, finding that the elements which are essential to a joint
enterprise are: (1) an agreement, express or implied, among the members of the group; (2) a common
purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the
members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of
control. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000); Shoemaker v. Estate of Whistler, 513
S.W.2d 10, 14 (Tex. 1974).

Seidler's argument is that Morgan Land, Kelley Enterprises, and Morgan entered into a joint enterprise to
purchase and operate the ranch as a joint activity. The summary judgment evidence contains no written
agreements among these parties, and there is no direct evidence of such an agreement. The evidence
pointed to by Seidler consists of no more than the commonality of officers in the entities, with suggestions
that we should ascribe some sinister motive thereto. There is summary judgment evidence that when Kelley
Enterprises conveyed Fish Creek Ranch to Morgan Land, it received a secured multi-million dollar promissory
note as a part of its compensation.

Further, in order to prove a joint enterprise between the two entities, there must be a common purpose of the
two entities. Although Seidler argues that Morgan had a common purpose with Kelley Enterprises, that is not
the correct object of an inquiry. She also suggests that the two business entities had a common purpose: to
take care of Morgan's asset (the ranch). If that is true, any two companies with common stockholders have a
common purpose: to provide for the financial benefit of the stockholders. That is not the meaning of the
concept. The term "enterprise" indicates that the entities are engaged in a common activity. Although Kelley
Enterprises managed the ranch until its sale, and Morgan Land managed it after purchasing it, that does not
suggest that the two entities were one.

Additionally, at oral argument, Seidler's lawyer stressed that both Kelley Enterprises and Morgan Land
existed for the benefit of the Morgan family and, therefore, (1) should be treated as a single entity, subjecting
both to liability and (2) that this somehow made Morgan individually liable.

The fact that the Morgan family would benefit from the actions of both entities is not a determinative factor. A
major purpose of a corporation, a limited liability company, or a limited partnership is to provide a shield to
personal liability. Although this legal shield may be inconvenient to her theory of recovery, to Seidler it is an
inconvenient truth which may not be ignored.

Even without parsing the two remaining elements (as there is no evidence of these two elements), then
neither the joint enterprise theory nor the alter ego theory could bring Kelley Enterprises into the ambit of the
named parties.