Hart v. Chaves Londonderry Gravel Pit, LLC, No. 464-9-09 Wmcv (Wesley, J., Apr. 7, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT                                                                WINDHAM SUPERIOR COURT
WINDHAM COUNTY                                                                  DOCKET NO. 464-9-09 Wmcv

DORENNA HART and KRAIG HART
d/b/a FROG’S LEAP INN,
       Plaintiffs,

             v.

CHAVES LONDONDERRY GRAVEL
PIT, LLC, DAVID CHAVES EXCAVATING,
INC., DAVID CHAVES, THOMAS DRILLING
AND BLASTING CORPORATION,
       Defendants.


                                   OPINION AND ORDER ON MOTIONS

           Plaintiffs Dorenna and Kraig Hart allege damages stemming from blasting and

other industrial activities conducted by Defendants at a gravel pit located near Plaintiffs’

inn in Londonderry, Vermont. Defendants now move to dismiss, arguing Plaintiffs failed

to register the inn’s trade name, “Frog’s Leap Inn,” prior to bringing suit. In response,

Plaintiffs moved to amend the Complaint, clarifying that the real parties in interest are

Dorenna and Kraig Hart, individually. Plaintiffs are represented by Attorney Hans

Huessy; Defendant Chaves Londonderry Gravel Pit, LLC, is represented by Attorney

Amy Clarise Ashworth; Defendants David Chaves and David Chaves Excavating, Inc.,

are represented by Attorney Richard Windish; and Defendant Thomas Drilling and

Blasting Corporation is represented by Attorney Brian Joslin.

           In support of dismissal, Defendants argue Plaintiffs brought this action as

“Dorenna Hart and Kraig Hart d/b/a Frog’s Leap Inn” without first registering the name

“Frog’s Leap Inn” with the Secretary of State. Defendants argue that failure to register
the trade name deprives the Court of jurisdiction. See 11 V.S.A. § 1634 (requiring

“registration” of trade name prior to institution of action).

       On November 17, 2009, Plaintiffs filed an Opposition, which included a copy of a

“tradename registration” form recently filed in response to Defendants’ Motion, as well

as the Affidavit of Dorenna Hart, which stated:

       ...

       4.          On or about August 10, 1998, we incorporated Dorenna Hart
                   Enterprises, Incorporated . . . .
       5.          We [Dorenna and Kraig Hart] were the sole directors and officers of
                   Dorenna Hart Enterprises and each owned 50% of its stock.
       6.          On or about August 10, 1998, Dorenna Hart Enterprises, Inc. registered
                   the “frog’s Leap Inn” tradename for the bed and breakfast with the
                   Vermont Secretary of State’s Office.
       7.          Dorenna Hart Enterprises, Inc., d/b/a Frog’s Leap Inn, continuously
                   operated the bed and breakfast from 1998 through February 2008,
                   when Dorenna Hart Enterprises was dissolved.
       8.          All of the assets and liability of Dorenna Hart Enterprises, Inc. passed
                   to my husband and I as its sole shareholders upon its dissolution.
       9.          Since the dissolution of Dorenna Hart Enterprises, we have continued
                   to operate the business as a sole proprietorship.
       10.         All of Dorenna Hart Enterprises’ rights to the trade name the “Frog’s
                   Leap Inn” passed to us upon its dissolution.
       11.         The sole proprietorship recently filed an application to re-register the
                   trade name Frog’s Leap Inn.

       Plaintiffs argue in their Opposition that their case, though titled “Dorenna and

Kraig Hart d/b/a Frog’s Leap Inn,” in fact was brought by the Harts, individually, and

that at the dissolution of Dorenna Hart Enterprises, Inc., “they assumed all corporate

liabilities and received all corporate assets, including the real property referred to in the

Complaint.” Plaintiffs argue that no action should be dismissed on the ground that it is

not prosecuted in the name of the real party in interest until a reasonable time for

objection has passed (see V.R.C.P. 17(a)), and that they have now clarified that Dorenna

and Kraig Hart, individually, are the real parties in interest.



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       Plaintiffs also made an unopposed Motion to Amend the Complaint, striking the

term “d/b/a Frog’s Leap Inn” to make clear that the real parties in interest are the Harts,

individually, and also to clarify that they assumed all interest of Dorenna Hart

Enterprises, Inc. Plaintiffs also supplied the “Articles of Dissolution” form of Dorenna

Hart Enterprises, Inc., as well as a copy of a Quit Claim Deed in which Dorenna Hart

Enterprises relinquished property in Londonderry to the Harts.

       Undeterred, Defendants maintain dismissal is appropriate regardless of any

amendment, arguing Plaintiffs have continued to operate the inn under the name “Frog’s

Leap Inn,” even after dissolution of Dorenna Hart Enterprises, Inc., and arguing

Plaintiffs’ attempt to sue in their own names would make 11 V.S.A. § 1634 pointless.

The Court disagrees.

               Section 1634 provides:

               A person . . . shall not institute any proceedings . . . for the enforcement of
               any right or obligation unless . . . prior to the issuance of the original
               return or complaint therein, have filed the returns and paid the registration
               fee required by this chapter[.]

       The purpose of requiring registration is to provide information to those engaging

in business transactions with entities operating under assumed names. See Senesac v.

Duclos, 128 Vt. 601, 602 (1970) (statutory purpose is notice); 11 V.S.A. § 1621 (person

doing business must provide: (1) assumed name; (2) town; (3) description of business;

and (4) names and residences of individuals). States analyzing analogous “assumed

name” statutes have not applied them to dismiss tort actions brought by Plaintiffs with

unregistered assumed names, reasoning that tort actions typically arise in circumstances

unconnected to the statutes’ purpose of providing information to those doing business

with an entity utilizing an assumed name. See, e.g., Caruso v. Local Union No. 690 of



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Int'l Bhd. of Teamsters, 653 P.2d 638, 642 (Wash. Ct. App. 1982) (collecting cases)

(“[s]ince the alleged wrongful acts in this case are not based on a business transaction

contemplated by [the statute], the court properly denied the motion to dismiss for failure

to prove the filing of a certificate of assumed business name”) (rev’d on other grounds by

Caruso v. Local Union No. 690 of Int’l Bhd. of Teamsters, 670 P.2d 240 (Wash. 1983).

See also 57 Am Jur. 2d Name § 75 (assumed name statutes are generally inapplicable in

tort actions).

        Considering these well-reasoned authorities, the Court is likewise persuaded that

Vermont’s “assumed name” law is designed primarily for application in disputes in

business transactions. Indeed, each of the cases cited by Defendants appear to involve

business disputes in which plaintiffs operated under unregistered assumed names. See

Wilson Bros. Garage v. Tudor, 89 Vt. 522 (1915) (action “of general assumpsit”); Amey

v. Vt. Prods. Co., 107 Vt. 178 (1935) (action in contract for services rendered); Senesac v.

Duclos, 128 Vt. 601 (1970) (action to recover balance of purchase price of truck).

        On the other hand, Plaintiffs’ claims here sound squarely in tort, and have nothing

to do with business dealings between Plaintiffs and Defendants. Accordingly, the Court

does not apply section 1634 to dismiss the Complaint. Moreover, to the extent section

1634 has any application in tort cases like this one, the Court is satisfied by Plaintiffs’

proof that the trade name “Frog’s Leap Inn” was, at the time Plaintiffs’ claims accrued,

and is now again, registered with the Secretary of State; hopefully putting to rest any

lingering confusion about Plaintiffs’ true identity.




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WHEREFORE it is hereby ORDERED:

Defendants’ Motions to Dismiss are DENIED.

Plaintiffs’ Motion to Amend Complaint is GRANTED.



DATED                  , at Newfane, Vermont.


                                        __________________________
                                        John P. Wesley
                                        Presiding Judge




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