Under Rule 28, is pleading the name of a popular location where a business is located sufficient to name an entity?
This was the issue in Seidler v. Morgan, a recent Texarkana Court of Appeals case.
While vacationing at Fish Creek Ranch located in Dolores, CO, the plaintiff fell from a horse and dislocated her hip. A day before the limitations ran, the plaintiff sued James A. Morgan, Morgan Land and Cattle Partners, Ltd., each doing business as Fish Creek Ranch to recover for her injuries.
Both Morgan and Morgan Land argued on summary judgment that they were not liable because they purchased the business from Kelly Enterprises, Inc. after the plaintiff’s injury occurred. They further explained that Fish Creek Ranch was the name of a place and not the name of their business.
The plaintiff argued in her response that, according to Rule 28 of the Texas Rules of Civil Procedure, by naming Fish Creek Ranch as the assumed name of a business entity, she adequately named whatever entity was responsible for her injury.
Did the plaintiff adequately name a defendant under Rule 28?
No. According to the court of appeals, under Rule 28, a plaintiff must show that the named entity is in fact doing business under the common name pleaded in the petition. The court held that "simply because a place name may be commonly and informally used does not mean that the type of business conducted there is ‘doing business as’" the name of the site. Here, Fish Creek Ranch was an actual place. The evidence showed that the defendants did not conduct any business under the Fish Creek Ranch name. Thus, summary judgment was appropriate.
Read the entire opinion here.