R.C. MARTINEZ BAKERY & TORTILLA FACTORY, INC. v. HIDALGO COUNTY, EDCOUCH-ELSA I.S.D., CITY OF ELSA, HIDALGO-KENEDY COUNTY EDUCATION DISTRICT #10, AND SOUTH TX COMMUNITY COLLEGE--Appeal from 93rd District Court of Hidalgo County

NUMBER 13-03-709-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

R.C. MARTINEZ BAKERY AND TORTILLA

FACTORY, INC., Appellant,

v.

HIDALGO COUNTY, EDCOUCH-ELSA I.S.D. CITY

OF ELSA, HIDALGO-KENEDY COUNTY EDUCATION

DISTRICT#10, AND SOUTH TEXAS COMMUNITY

COLLEGE, Appellees.

On appeal from the 93rd District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Yanez

Opinion by Chief Justice ValdezAppellant, R.C. Martinez Bakery & Tortilla Factory, Inc., appeals from the order of the trial court denying injunctive relief and allowing the execution of a judgment via a tax sale on behalf of appellees, Hidalgo County, Edcouch-Elsa Independent School District, City of Elsa, Hidalgo-Kenedy County Education District #10, and South Texas Community College. Because we conclude appellant was properly served with notice of the underlying tax suit, we affirm.

Background

In 1993, appellees filed a lawsuit in Hidalgo County against appellant for unpaid ad valorem taxes. When the case went to trial in 1998, appellant failed to file an answer or appear, and a default judgment was entered in favor of appellees. In 2003, the Hidalgo County constable scheduled a tax sale of appellant s real property in order to satisfy the default judgment. Appellant filed a request to enjoin the tax sale, alleging that the underlying judgment was void due to a misnomer on the citation and judgment. The trial court denied injunctive relief, and appellant filed this interlocutory appeal. // Appellant then filed a motion with this Court requesting that we temporarily stay the impending tax sale until resolution of its interlocutory appeal. We granted appellant s motion and stayed the tax sale by an order dated December 1, 2003. See Tex. R. App. P. 24.4(c).

Rule 28

Appellant argues by one issue on appeal that the trial court erred in denying appellant a temporary injunction enjoining the tax sale of appellant s real estate because appellant was never made a party to the tax lawsuit in which the judgment was rendered. Appellant bases its argument on the fact that the entity named in the underlying judgment was R.C. Martinez, Inc., doing business as R.C. Martinez Bakery & Tortilla Factory. Appellant s actual corporate name is R.C. Martinez Bakery & Tortilla Factory, Inc. It also does business under the assumed name (or d/b/a ) of R.C. Martinez, Inc. Appellant asserts, however, that because the judgment was taken against R.C. Martinez, Inc., doing business as R.C. Martinez Bakery & Tortilla Factory, which is not its proper name, the judgment does not apply to appellant and is therefore either void or applies to someone other than appellant.

Civil suits may only be maintained against parties having an actual or legal existence. See Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987). However, under Texas Rule of Civil Procedure 28, a private corporation doing business under an assumed name may sue or be sued in its assumed name or common name for the purpose of enforcing a judgment against it. See Tex. R. Civ. P. 28. The true name of the party can be substituted for the assumed name if there is a motion to do so by any party or by the court. See id.

According to the Texas Supreme Court s interpretation of rule 28, a party can bring suit against an individual doing business under the name of a corporation even if that corporation does not exist. Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex. 1998). If there is such a mistake, the party must amend the petition to add the correct legal name of the actual defendant and demonstrate that the misnamed party had actual knowledge of the suit against it. See id. This occurrence is referred to as a misnomer, and arises when a plaintiff attempts to sue the correct legal entity but misnames it. See id. at 828.

Appellant argues that this lawsuit presents an example of a misnomer, and because appellees failed to amend the petition in order to correct the improper name of the defendant, the judgment is void as applied to it.

We disagree. The doctrine of misnomer cannot operate to the exclusion of rule 28 when there are facts that call rule 28 into play. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003) (citing Chilkewitz, 22 S.W.3d at 828). In this case, the primary party named in the 1993 tax lawsuit was R.C. Martinez, Inc. // This was, as conceded by appellant and verified by a certification from the Texas Secretary of State, the assumed name of appellant. Under rule 28, appellant could be sued under this assumed name. See Tex. R. Civ. P. 28; Chilkewitz, 22 S.W.3d at 830 ( Rule 28 allows suit directly against the correct party in its assumed name. ); Matsushita Elec. Corp. v. McAllen Copy Data, 815 S.W.2d 850, 853 (Tex. App. Corpus Christi 1991, writ denied) ( [T]he corporation may sue and be sued in the assumed name. ). Therefore, the underlying suit could be properly enforced against it, and there is no need to require that appellees amend the petition in order to name the proper party.

We find support for this conclusion in the supreme court s Sixth RMA Partners opinion. In that case, Sixth RMA Partners initiated a lawsuit under the name RMA Partners, L.P. See Sixth RMA Partners, 111 S.W.3d at 49. The defendant, who lost the suit, argued on appeal that Sixth RMA could not be awarded a judgment against him because it was never properly a party to the suit; only RMA Partners could be considered a plaintiff. The court disagreed, finding that Sixth RMA used RMA Partners as an assumed name, and accordingly, the original petition filed . . . under the name RMA Partners, L.P. was effective to commence suit against [defendant] on behalf of Sixth RMA. Id. at 53. Similarly, here, R.C. Martinez, Inc. was the assumed name of appellant, and therefore the petition filed against appellant under its assumed name was effective to commence the tax suit against appellant. Accordingly, we overrule appellant s only issue on appeal.

Conclusion

We affirm the judgment of the trial court. Furthermore, with this opinion, we lift the stay of the tax sale imposed by our December 1, 2003 order and allow those proceedings to go forward.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 12th day of May, 2005.