                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00227-CV


LOU ANNE PERKINS                                                    APPELLANT

                                        V.

BARRY HICKS D/B/A SUNSHINE                                            APPELLEE
REMODELING

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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. 15-09007-362

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                        MEMORANDUM OPINION 1

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      Lou Anne Perkins sued “B[a]rry Hicks d/b/a Sunshine Remodeling” for

negligence, breach of contract, and breach of warranties. 2 Hicks moved for

summary judgment, arguing that Perkins did not file her negligence claim within


      1
       See Tex. R. App. P. 47.4.
      2
       Perkins sued various other people and entities, but none is a party to this
appeal, and so we discuss only Perkins’s claims against Hicks.
the two-year limitations period and that Perkins had contracted with Sunshine

Sunrooms, Inc., not with Hicks personally, on her two remaining claims. The trial

court granted Hicks’s motion.

      Perkins appealed. In three issues, she argues that the trial court erred

because (1) Hicks was the proper party to sue, (2) even if Hicks was not the

proper party, Hicks failed to file special exceptions, and (3) there were genuine

factual issues on her claims. 3

      Holding that Perkins sued the wrong party on her breach-of-contract and

breach-of-warranties claims, we affirm the trial court’s judgment as to them.

Holding that Perkins filed her negligence claim within the two-year limitations

period, however, we reverse the trial court’s judgment as to that claim and

remand the case to the trial court.

                                      Background

      According to Perkins’s live pleading, when Perkins discovered water

damage in her master bedroom, she contacted her insurance agent, who


      3
        Hicks argues that Perkins, who wrote her “Appellant’s First Amended
Brief” pro se, waived all her complaints due to inadequate briefing. Perkins’s pro
se brief provides legal authorities and record references, and her reply brief,
which counsel wrote, gives additional record references and citations to
authorities. Construing Perkins’s pro se and reply briefs liberally and in the
interests of justice, we will consider her complaints on their merits. See Tex. R.
App. P. 38.9 (“Briefing Rules to Be Construed Liberally”); Evans v. Abbott,
No. 03-02-00719-CV, 2003 WL 22207219, at *1 n.2 (Tex. App.—Austin Sept. 25,
2003, no pet.) (mem. op.). But to the extent Perkins’s reply brief raises additional
issues, we do not consider them. See In re. M.D.H., 139 S.W.3d 315, 318 (Tex.
App.—Fort Worth 2004, pet. denied) (mem. op. on reh’g).


                                          2
discouraged her from filing a claim but instead suggested that she use a

contractor that he himself had used. Following her insurance agent’s advice,

“[Perkins] hired Defendant Sunshine Remodeling to repair the damage to her

home.” Dissatisfied with the work that was begun, Perkins then “requested that

the employees of Sunshine Remodeling leave her home and not return.”

      Sunshine    Remodeling,     which    Hicks’s   summary-judgment     evidence

established was a d/b/a of Sunshine Sunrooms, Inc. (a company wholly owned

by Hicks), later sent Perkins a bill for $175 for the work it had begun before she

asked its workers to leave. The invoice does not have Hicks’s name anywhere on

it—except arguably in the email address, barry@sunshinesunrooms.com, that is

part of the invoice’s header—and the unsigned signature block on Sunshine

Remodeling’s invoice to Perkins refers to “Sunshine Sunrooms, Inc.” Perkins

then sued Hicks individually, doing business as Sunshine Remodeling, for

negligence, breach of contract, and breach of warranties. She filed her suit within

the two-year limitations period for negligence but did not serve Hicks until about a

year after that two-year period expired.

      Hicks filed his original answer under the name “Barry Hicks d/b/a Sunshine

Remodeling,” exactly as Perkins had alleged. About two months later, however,

he filed an amended answer as “Barry Hicks,” denied any contractual privity

between himself and Perkins, and denied individually selling Perkins any

services.




                                           3
      A few days after filing his amended answer, Hicks moved for summary

judgment and argued that Perkins had sued the wrong party on her breach-of-

contract and breach-of-warranties claims. On her negligence claim, Hicks

(mistakenly) relied on his date of service as the filing date, contending that

Perkins had not filed her suit within the two-year limitations period.

      In Perkins’s summary-judgment response, relying on the $175 invoice from

Sunshine Remodeling, she argued that she had properly sued Hicks individually

and, relying on her filing date and not the service date, argued that she had

timely sued. In her supporting affidavit, Perkins stated, “The bill [for $175]

showed d/b/a as Sunshine Remodeling which is not listed as a corporation with

the Secretary of State [and] therefore is not a corporation under Texas Law[;]

therefore[,] Barry Hicks should not be dismissed from this case.”

      The trial court granted Hicks’s motion and rendered summary judgment on

all of Perkins’s claims against Hicks.

                                Standard of review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,


                                          4
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant that conclusively

negates at least one essential element of a plaintiff’s cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P.

166a(b), (c).

                                Breach of Contract

A. Hicks establishes that Sunshine Remodeling is an assumed name for
   Sunshine Sunrooms, Inc. and is not an assumed name for him
   individually.

      In Hicks’s amended answer, he asserted, among other defenses, that

“Perkins has no standing to bring causes of action against Hicks,” that there was

no privity of contract between Perkins and Hicks, and that Hicks individually did

not sell services to Perkins.

      Hicks then sought summary judgment along the same lines, arguing that

there was no breach of contract because there was no contractual privity

between him individually and Perkins. In his supporting affidavit, Hicks stated that

he was the president and sole owner of Sunshine Sunrooms, Inc., which

operated under the assumed name of Sunshine Remodeling. He also stated that

he did not conduct business in his individual capacity or in his individual capacity

doing business as Sunshine Remodeling.




                                          5
B. Perkins correctly points out that Hicks failed to file special exceptions,
   but Hicks correctly responds that Perkins did not object to his failure
   and thereby waived this complaint.

         In her pro se brief, Perkins complains that filing special exceptions,

something Hicks did not do, is the proper way to challenge a pleading defect.

Hicks responds that Perkins waived this complaint by not presenting it in the trial

court.

         It is true that the proper procedure for identifying and objecting to a defect

in pleadings is to specially except rather than move for summary judgment. See

Friesenhahn v. Ryan, 960 S.W.2d 656, 659 (Tex. 1998); Vawter v. Garvey,

786 S.W.2d 263, 264 (Tex. 1990). But a plaintiff who fails to object waives this

issue. Dickey v. Jansen, 731 S.W.2d 581, 583 (Tex. App.—Houston [1st Dist.]

1987, writ ref’d n.r.e.) (“‘[T]here being no complaint in the trial court that the

attack upon the pleading defect came in the form of a motion for summary

judgment rather than special exception,’ this matter could not be raised for the

first time on appeal.” (quoting Farrell v. Crossland, 706 S.W.2d 158, 160 (Tex.

App.—El Paso 1986, writ dism’d)). Here, Perkins did not object in the trial court

that Hicks should have specially excepted; instead, she raises this issue for the

first time on appeal. 4 The issue was not properly preserved and is thus waived.

See id.




         4
          Perkins responded pro se to Hicks’s motion for summary judgment.


                                            6
C. Perkins admits dealing with Sunshine Remodeling.

      In Perkins’s second amended petition, she sued “Berry [sic] Hicks d/b/a

Sunshine Remodeling,” asserting that:

            16. On or about October 19, 2013, [Perkins] called [her
      insurance agent] and requested to make a claim again. Again she
      was told not to make a claim. Instead, he recommended [Perkins]
      contact a contractor he knew who could fix the water damage.
      Defendant Sunshine Remodeling Company came out to the property
      between October 20, 2013 and November 4, 2013. [Perkins] hired
      Defendant Sunshine Remodeling to repair the damage to her home.
      They failed to properly make repairs and failed to make any effort to
      contain the damage found in the [bedroom]. Eventually, [Perkins]
      requested that the employees of Sunshine Remodeling leave her
      home and not return. While there, Sunshine Remodeling Company
      exposed interior walls with water damage and did not make any
      attempt to contain the damage. The result was further damage to
      [Perkins’s] home.

Hicks contends this constitutes a judicial admission that Perkins contracted with

“Sunshine Remodeling.”

      “Admissions in trial pleadings are judicial admissions in the case in which

the pleadings are filed; the facts judicially admitted require no proof and preclude

the introduction of evidence to the contrary.” In re A.E.A., 406 S.W.3d 404,

410 (Tex. App.—Fort Worth 2013, no pet.). “This rule is based on the public

policy that it would be absurd and manifestly unjust to permit a party to recover

after he has sworn himself out of court by a clear and unequivocal statement.” Id.

      We agree with Hicks that Perkins’s own petition constitutes an admission

that she dealt with Sunshine Remodeling. But the question remains: Who or what

is Sunshine Remodeling?



                                         7
D. Sunshine Remodeling is not a corporation.

      In the affidavit Perkins filed in support of her response to Hicks’s summary-

judgment motion, she stated that “Sunshine Remodeling . . . is not listed as a

corporation with the Secretary of State.” 5 By definition, an assumed name for a

corporation is “a name other than the name stated in [the corporation’s]

certificate of formation or a comparable document.” See Tex. Bus. & Com. Code

Ann. § 71.002(2)(F) (West 2015). We are not persuaded that simply because

Sunshine Remodeling does not show up as a corporation that it necessarily

follows that Sunshine Remodeling is an assumed name for Hicks. The only thing

Perkins showed was the uncontested fact that Sunshine Remodeling was not

incorporated.

      Significantly, Perkins does not state whether she ever searched for an

assumed-name certificate. Under the business and commerce code, “[a]

corporation . . . must file a certificate . . . if the entity . . . regularly conducts

business or renders professional services in this state under an assumed name.”

Id. § 71.101(1) (West 2015). And even if an entity does not file an assumed-

      5
         Hicks objected to this statement in Perkins’s affidavit. Nothing in the
record shows that the trial court considered or ruled on Hicks’s objection. See
Towncreek Indus., LLC v. Wells Fargo Bank, N.A., No. 02-15-00393-CV,
2016 WL 6305257, at *4 (Tex. App.—Fort Worth Oct. 27, 2016, no pet.) (mem.
op.) (stating that objections to summary-judgment evidence arguably not
preserved where record did not show trial court considered or ruled on them). We
note that in Perkins’s response proper, she asserts that “Sunshine Sunrooms,
Inc. . . . is not a corporation according to the Secretary of State, [so she] dealt
with Barry Hicks as an individual.” But in her affidavit, she switches from
“Sunshine Sunrooms, Inc.” to “Sunshine Remodeling” for this proposition.


                                          8
name certificate, if evidence shows that the entity was doing business under

another name, it may be held liable. Broemer v. Houston Lawyer Referral Serv.,

407 S.W.3d 477, 482 (Tex. App.—Houston [14th Dist.] 2013, no pet.). So if

Sunshine Sunrooms, Inc. had filed an assumed-name certificate, it would have

definitively answered the question of who was doing business as Sunshine

Remodeling. Conversely, even if Sunshine Sunrooms, Inc. had not filed an

assumed name certificate, it would not have definitively resolved the issue in

Perkins’s favor. That is because both individuals and corporations can do

business under assumed names. See Tex. Bus. & Com. Code Ann.

§ 71.002(2)(A), (F).

E. Sunshine Remodeling is an assumed name (or d/b/a).

      In Perkins’s live petition, she asserts: “Defendant Berry [sic] Hicks d/b/a

Sunshine Remodeling entered into a contract with [Perkins] to [fix] the damage in

her home.” By this allegation, Perkins has judicially admitted that she was aware

that Sunshine Remodeling was an assumed name. See A.E.A., 406 S.W.3d at

410. Both sides thus agree that “Sunshine Remodeling” was a “doing business

as,” or an assumed name. See Tex. Bus. & Com. Code Ann. § 71.002(2); Dall.

Cty. Flood Control Dist. No. 1 v. Cross, 815 S.W.2d 271, 273 n.3 (Tex. App.—

Dallas 1991, writ denied) (“D/b/a means ‘doing business as’. A d/b/a is an

assumed name for a business.”). The next question is: For whom or what is

Sunshine Remodeling an assumed name?




                                       9
F. Perkins’s own summary-judgment evidence does not show that she
   contracted with Hicks individually but, instead, shows she contracted
   with a business using the names Sunshine Sunrooms, Inc. and
   Sunshine Remodeling.

      In her response to Hicks’s summary-judgment motion, Perkins states

unequivocally that she had a valid contract with Hicks and attached as proof the

$175 invoice she received.

      The caption on that invoice identifies “Sunshine Remodeling,” and

immediately below the caption are the company’s website and contact

information:

          • www.sunshinesunrooms.com

          • email: barry@sunshinesunrooms.com

The signature line on page 2 of the invoice is for “Sunshine Sunrooms, Inc.”

Nothing on this document shows contractual privity with Hicks.

      Perkins argues that she did not know for whom Hicks worked until she

received that invoice. That may well be: when Sunshine Remodeling’s

employees showed up and started work, Perkins had not signed a contract. 6

Although Perkins asserts that she thought she was dealing with Hicks

individually, this is conclusory, consisting of her subjective belief, which is not




      6
        Hicks asserts that he gave Perkins a proposed contract bearing the same
identifying information as the invoice for $175 before any work started, but
Perkins denies it. We thus examine only the $175 invoice, which Perkins herself
relies on for summary-judgment evidence.


                                        10
enough to raise a fact issue. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120,

122 (Tex. 1996); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

      And when Perkins received the invoice for $175, she was certainly put on

notice then that Hicks was affiliated with or worked for some form of business

acting under “Sunshine Remodeling” that was somehow affiliated with “Sunshine

Sunrooms, Inc.” Although the “barry” in the email address undoubtedly refers to

Hicks, the remainder of the email address identifies “sunshinesunrooms.”

Nothing in the invoice suggests that Sunshine Remodeling is an assumed name

for Hicks, nor does his full name appear anywhere on the invoice. Regardless of

what Perkins thought before receiving this invoice, she had this information

before she sued Hicks. Her own summary-judgment evidence rebuts her

assertion that she was dealing with Hicks individually.

G. Perkins misidentified—she did not simply misname—the identity behind
   the assumed name.

      “A misnomer occurs when the plaintiff misnames . . . the correct defendant,

but the correct parties are actually served.” Diamond v. Eighth Ave. 92, L.C.,

105 S.W.3d 691, 695 (Tex. App.—Fort Worth 2003, no pet.). When the plaintiff

does not merely misname the correct defendant but files suit against and serves

the wrong party entirely, misnomer does not apply. Id.

      “Misidentification occurs when two separate legal entities with similar

names actually exist and the plaintiff sues the wrong one because she is

mistaken about which entity is the correct defendant.” Id. “In cases of



                                        11
misidentification where the wrong legal entity is sued, the limitation period may

be equitably tolled if the plaintiff can prove that the proper defendant was not

prejudiced by the mistake in pleading.” Id.

      Hicks asserts that Perkins sued the wrong party—that is, that she

misidentified the correct defendant—because Sunshine Remodeling is Sunshine

Sunroom, Inc.’s assumed name, not his. Hicks provided summary-judgment

evidence supporting his position that he has never individually done business as

Sunshine Remodeling but that Sunshine Sunrooms, Inc., has. Perkins has not

produced any controverting summary-judgment evidence.

H. A plaintiff must sue the correct party behind the assumed name.

      The rules of civil procedure permit suing a business in its assumed name.

Tex. R. Civ. P. 28. “Rule 28 is predicated on the notion that a case has already

commenced against the proper party, but the party’s legal name is incorrect.”

Molinet v. Kimbrell, 356 S.W.3d 407, 412 (Tex. 2011). “Of course, at some point

before judgment, the plaintiff must amend the petition to add the correct legal

name of the actual defendant.” Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex.

1999).

      But Perkins did not sue “Sunshine Remodeling,” whoever or whatever that

might be; rather, she sued “Berry [sic] Hicks d/b/a Sunshine Remodeling.” That

is, she sued Hicks individually under the assumed name of Sunshine

Remodeling and has never sued Sunshine Sunrooms, Inc., d/b/a Sunshine




                                        12
Remodeling. Despite Hicks’s having identified Sunshine Sunrooms, Inc. as the

proper party, Perkins did not seek to include it in her lawsuit.

      Suing the wrong company or person behind an assumed name has

consequences. In Continental Southern Lines, Inc. v. Hilland, the plaintiff was

injured while getting off a “Continental Trailways” bus. 528 S.W.2d 828, 829 (Tex.

1975). At the time, rule 28 did not allow corporations to sue or be sued in their

assumed names. Id. at 830. Within the limitations period, the plaintiff sued

“Continental Trailways, Inc.” Id. at 829. Unfortunately for the plaintiff, she sued

the wrong corporation; the correct entity was “Continental Southern Lines, Inc.,”

and by the time the plaintiff had discovered her error and amended her petition,

limitations had run. Id. The supreme court thus reversed the judgment that the

plaintiff had procured against Continental Southern Lines, Inc. Id. at 830.

      But the supreme court did not reverse and render; instead, it remanding to

have the trial court determine whether the correct defendant “was cognizant of

the facts, was not misled, or placed at a disadvantage in obtaining relevant

evidence to defend the suit.” Id. at 831. If the trial court so found, the limitations

period would not bar the plaintiff’s suit against the correct company behind the

assumed name, Continental Southern Lines, Inc. See id.

      Here, of course, Perkins never amended to sue Sunshine Sunrooms, Inc.;

neither does the record show whether that corporation was “cognizant of the

facts” and was “not misled” by Perkins’s having sued Hicks.




                                         13
I. Conclusion

      Based on the state of the record, we hold that the trial court properly

granted summary judgment on Perkins’s breach-of-contract claim because Hicks

was not the party with whom she had contracted.

                              Breach of Warranties

      “The elements of a claim for breach of warranty for services are (1) the

defendant sold services to the plaintiff; (2) the defendant made a representation

to the plaintiff about the characteristics of the services by affirmation of fact, by

promise, or by description; (3) the representation became part of the basis of the

bargain; (4) the defendant breached the warranty; (5) the plaintiff notified the

defendant of the breach; and (6) the plaintiff suffered injury.” Paragon Gen.

Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 886 (Tex. App.—Dallas

2007, no pet.).

      For the same reason that the trial court properly granted summary

judgment on Perkins’s breach-of-contract claim, the trial court properly granted

summary judgment on her breach-of-warranties claim: Perkins sued the wrong

party. Hicks individually did not sell Perkins any services. See id.

                                    Negligence

      Unlike with the breach-of-contract and breach-of-warranties claims, Hicks

did not seek summary judgment on Perkins’s negligence claim because she had

sued the wrong party but rather because her negligence claim was ostensibly

barred by the two-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann.


                                         14
§ 16.003 (West 2017). Because work ceased on November 4, 2013, Hicks

argued that limitations ran on November 4, 2015, but Perkins did not file her

petition until November 28, 2016.

      On appeal, Hicks admits—and the record confirms—that Perkins filed her

original petition on October 16, 2015, which is within the two-year limitations

period. The trial court thus erred by granting summary judgment on Perkins’s

negligence claim on that basis.

      But on appeal, Hicks contends for the first time that the summary judgment

was nevertheless proper because Perkins did not exercise due diligence to serve

him with the lawsuit. The supreme court has held that “a summary judgment

cannot be affirmed on grounds not expressly set out in the motion or response.”

Stiles v. Resolution Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993); see Henkel v.

Norman, 441 S.W.3d 249, 251 n.1 (Tex. 2014). Because Hicks did not move for

summary judgment on this basis, we may not use it to affirm the summary

judgment. See Henkel, 441 S.W.3d at 251 n.1, Stiles, 867 S.W.2d at 26.

                                         Conclusion

      We affirm the trial court’s summary judgment on Perkins’s breach-of-

contract and breach-of-warranties claims. We reverse the trial court’s summary

judgment on Perkins’s negligence claim and remand that cause of action to the

trial court for further proceedings. 7


      7
       We express no opinion about whether, on remand, Perkins can amend
her petition to include Sunshine Sunrooms, Inc.


                                            15
                                         /s/ Elizabeth Kerr
                                         ELIZABETH KERR
                                         JUSTICE

PANEL: WALKER, KERR, and BIRDWELL, JJ.

DELIVERED: August 16, 2018




                               16
