Bishop v. Wilson Quality Homes

Bishop v. Wilson Quality Homes
1999 OK 60
986 P.2d 512
70 OBJ 2023
Case Number: 89458
Decided: 06/22/1999
Mandate Issued: 07/22/1999
Supreme Court of Oklahoma

John D. BISHOP, Petitioner,
v.
WILSON QUALITY HOMES and the Workers' Compensation Court, Respondents.

[986 P.2d 513]
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II

¶0 The claimant in a Workers' Compensation case received an award for temporary total disability benefits, which the respondent, Wilson Quality Homes, appealed. The award was sustained and mandate issued. The claimant sought and received an order from the Workers' Compensation Court certifying the award to the district court pursuant to

CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF CIVIL APPEALS VACATED;
ORDER OF THE WORKERS' COMPENSATION COURT SUSTAINED.

Joey Chiaf, CHIAF LAW OFFICES, P.C., Oklahoma City, Oklahoma For Petitioner, 
W. Jeffrey Dasovich, Oklahoma City, Oklahoma For Respondent.

Alma Wilson, Justice:

¶1 On November 19, 1993, the petitioner, John Bishop, filed a Form 3, "Employee's First Notice of Accidental Injury and Claim for Compensation," with the Workers' Compensation Court seeking compensation for a work-related injury to his back on September 28, 1993, naming as his employer, "Wilson Quality Homes and/or Gross Construction." The order of June 10, 1994, awarding temporary total disability benefits found that Bishop was an employee of Gross Construction, which had no Workers' Compensation coverage, and that Gross Construction was a subcontractor of Wilson Quality Homes, which had secondary liability. Wilson Quality Homes appealed. A three-judge panel affirmed the award. The Court of Civil Appeals sustained the award by the three-judge panel and mandate subsequently issued.

¶2 When neither Gross Construction nor Wilson Quality Homes paid the award, Bishop obtained a Judgment and Certification of Unpaid Award on April 3, 1996. On May 8, 1996, Bishop filed another Form 3, this time naming "William 'Bill' Wilson" for the same injury in an attempt to obtain an order with Wilson's name on it as the respondent. The attempt was unsuccessful because the Form 3 was given the same court number as Bishop's original claim and placed in the original file. Bishop then attempted to have the final orders awarding compensation

¶3 The issue is whether under these facts, an order nunc pro tunc can properly issue. In a Memo Brief to the Workers' Compensation Court Bishop stated that it had been brought to the attention of counsel that any efforts to collect and satisfy the judgment through the district court process would be unsuccessful as the full name of the respondent was not included within the order. Bishop characterized the proposed order as a correction or substitution of the name of the respondent. Wilson Quality Homes characterized this as adding another party retroactively to the present lawsuit. The respondent argued that common law post-judgment nunc pro tunc proceedings do not apply to the Workers' Compensation Court because it is a creature of statute, and is bound by specific guidelines for adjudicating cases. The respondent continued that an order of the Workers' Compensation Court is final on all questions between the parties after twenty days unless it is properly appealed, citing

¶4 In the answer brief on appeal of Wilson Quality Homes, the respondent asserts that William "Bill" Wilson is not one and the same as Wilson Quality Homes, and although the respondent asserts that this Court "will receive this party's argument clearly defining the difference between the two" the respondent does not address this subject as promised. The respondent never denies that Wilson Quality Homes is a sole proprietorship owned by William "Bill" Wilson, nor does the respondent claim Wilson Quality Homes is a partnership or corporation.

I. CERTIFICATION OF AWARD

¶5 The record reveals that neither Gross Construction nor Wilson Quality Homes had secured compensation to employees pursuant to § 61

¶6 Title

¶7 Therefore, after the certification order is filed in the district court, Bishop may proceed to enforce it as he would any district court judgment. Bishop's actual concern is how he can collect on his Workers' Compensation award. After the certification order is filed in the district court, Bishop may collect his judgment against Wilson Quality Homes as he would from any business whose judgment was pronounced as a result of trial in district court. He does not need a nunc pro tunc order inserting William "Bill" Wilson into the original award from the Workers' Compensation Court to proceed in district court.

II. COLLECTION PROCEEDINGS AGAINST A SOLE PROPRIETORSHIP

¶8 This Court has long held that in the case of a sole proprietorship, the firm name and the sole proprietor's name are but [986 P.2d 515] two names for one person. National Surety Co. v. Oklahoma Presbyterian College for Girls, 38 Okla. 429, 132 P. 652, 654 (1913). In the Syllabus by the Court, the Court observed "Where a person engages in business and executes contracts under such name, he may be sued under such name." National Surety Co., 132 P. at 654. Doing business under another name does not create an entity distinct from the person operating the business. The individual who does business as a sole proprietor under one or several names remains one person, personally liable for all his obligations. Doing business under another name does not create an entity distinct from the person operating the business. "The individual who does business as a sole proprietor under one or several names remains one person, personally liable for all his obligations." Duval v. Midwest Auto City, Inc., 425 F. Supp. 1381, 1387 (D. Neb. 1977).

¶9 In Roberts v. Mosier, 35 Okla. 691, 132 P. 678 (1913), the defendant "Jacob Mosier" had adopted the name "Fred Mosier" for the purpose of transacting his business. The Court observed, "There appears to be no statute in this state forbidding a man adopting a name for a business purpose."

¶10 Title

¶11 "[O]ne doing business in a trade name has fair notice that a complaint alleging a cause of action arising out of his business may lead to personal liability." Hughes v. Cox, 601 So. 2d 465, 471 (Ala. 1992). Wilson Quality Homes is merely a trade name, and a judgment against the trade name is the same as a judgment against the individual, sole properietor. Hughes, 601 So. 2d at 472, citing Samples v. Mutual Insurance Co., 110 Ga.App. 297, 299, 138 S.E.2d 463, 465 (1964). Where a summons is served upon an individual, i.e., the sole proprietor, and the circumstances indicate that he is the person intended to be sued, then he is subject to the judgment, even though the process and the judgment do not refer to him by his correct name. Janove v. Bacon, 6 Ill. 2d 245, 250, 128 N.E.2d 706, 709 (1955), citing Pennsylvania Co. v. Sloan, 125 Ill. 72, 17 N.E. 37; Pond v. Ennis, 69 Ill. 341; cf. Proctor v. Wells Bros. Co., 262 Ill. 77, 81, 104 N.E. 186.

¶12 Pursuant to

¶13 SUMMERS, C.J., HODGES, LAVENDER, SIMMS, OPALA, WILSON, and KAUGER, JJ., concur. 

¶14 [986 P.2d 516] HARGRAVE, V.C.J., concurs in part, dissents in part.

¶15 WATT, J., dissents.

FOOTNOTES

1 The order rendered February 2, 1996, was filed on February 5, 1996. That order was corrected nunc pro tunc on February 6, 1996, and was filed February 7, 1996.

2 85 O.S.1991, § 3.6(B) provided: "The order, decision or award of the Court shall be final and conclusive upon all questions within its jurisdiction between the parties, unless, within twenty (20) days after a copy of such order, decision or award has been sent by the Administrator to the parties affected, an action is commenced in the Supreme Court of the state, to review such order, decision or award." Although this sentence is now found in subsection C, it has remained unchanged through three revisions to the statute, 1993 Okla.Sess.Laws, ch. 349, § 4, 1994 Okla.Sess.Laws, 2nd Ex.Sess., ch. 1, § 18, and 1997 Okla.Sess.Laws, ch. 262, § 1. The respondent also cites Ferguson v. Ferguson Motor Company, 1988 OK 137, 766 P.2d 335.

3 85 O.S.Supp.1998, § 61. At the date of Bishop's injury, September 28, 1993, the applicable amendment was 1993 Okla.Sess.Laws, ch. 349, § 12. The statute was amended again in 1994, 1994 Okla.Sess.Laws, ch. 22, § 2.

4 85 O.S.Supp.1998, § 42. At the date of the hearing, April 3, 1996, the applicable amendment was 1994 Okla.Sess.Laws, ch. 1, § 32. The statute was amended again in 1998, 1998 Okla.Sess.Laws, ch. 374, § 5.

5 1994 Okla. Sess. Laws, 2nd Ex.Sess., ch. 1, § 32, 1998 Okla. Sess. Laws, ch. 374, § 5.

6 Regarding given names and surnames, this Court has held: "In the absence of illegal or fraudulent purposes, the common law freely permitted name changes, and even though the Change of Name Act, 12 O.S. 1981 §§ 1631- 1640, is now the exclusive method for changes of name not arising from marriage, divorce, or adoption, it incorporates the common law antecedents." Keltch v. Alfalfa County Election Bd., 1987 OK 8, ¶8, 737 P.2d 908, 910, citing Sneed v. Sneed, 1978 OK 138, ¶4, 585 P.2d 1363, 1365.