                                                                              2013 WI 49

                  SUPREME COURT                OF     WISCONSIN
CASE NO.:                2011AP1121
COMPLETE TITLE:          Paul Davis Restoration of S.E. Wisconsin, Inc.,
                                   Plaintiff-Respondent-Petitioner,
                              v.
                         Paul Davis Restoration of Northeast Wisconsin,
                                   Defendant-Appellant,
                         Denmark State Bank,
                                   Garnishee.


                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 343 Wis. 2d 678, 819 N.W.2d 562
                                      (Ct. App. – Unpublished)

OPINION FILED:           June 4, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 14, 2013

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Brown
   JUDGE:                Donald R. Zuidmulder

JUSTICES:
   CONCURRED:            ROGGENSACK, ZIEGLER, J.J., concur.
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the plaintiff-respondent-petitioner, there were briefs
by    Adam    A.       Bardosy   and    Sean   D.    Lanphier,     and    Mallery      &
Zimmerman,          S.C.,   Milwaukee,    with      oral   argument      by    Adam   A.
Bardosy.


       For    the       defendant-appellant,        the    cause   was    argued      by
Natalie M. Sturicz, with whom on the brief was Robert E. Bellin,
Jr.
                                                                              2013 WI 49
                                                                      NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2011AP1121
(L.C. No.   2010TJ154)

STATE OF WISCONSIN                                 :             IN SUPREME COURT

Paul Davis Restoration of S.E. Wisconsin, Inc.,

             Plaintiff-Respondent-Petitioner,

      v.                                                                   FILED
Paul Davis Restoration of Northeast Wisconsin,
                                                                       JUN 4, 2013
             Defendant-Appellant
                                                                         Diane M. Fremgen
                                                                      Clerk of Supreme Court
and

Denmark State Bank,

             Garnishee.




      REVIEW of a decision of the Court of Appeals.                       Reversed and

cause remanded.



      ¶1     N.     PATRICK    CROOKS,      J.     This      case      centers       on    a

garnishment        action     in   which     the       alleged      judgment        debtor

challenged the ability of the judgment creditor to enforce a

judgment by garnishment.           The case arises from territory-related

disputes between two franchisees, Paul Davis Restoration of S.E.

Wisconsin,        Inc.   (Southeast)       and   Paul      Davis      Restoration         of

Northeast    Wisconsin        (Northeast).         Pursuant      to     the    franchise
                                                                No. 2011AP1121



agreement,   binding   arbitration       is   prescribed   to    resolve   such

disputes, and the results of an arbitration process included an

award for Southeast in the amount of $101,693 against Northeast,

which is the name under which EA Green Bay, LLC, does business.

The   problem   we   now   address   arose     when   Southeast     sought   to

enforce a judgment, via a garnishment action under Wis. Stat.

§ 812.01 (2009-10)1, for the money damages it had been awarded by

the arbitration panel.

      ¶2   Following the arbitration, there was no objection to

confirming the award by entry of judgment against Northeast in

circuit court.2      Nor has there been any dispute that Northeast


      1
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
      2
       There was a dispute in proceedings in Milwaukee County
Circuit Court, before the Honorable William S. Pocan, concerning
"the appropriate form of the judgment confirming the award." At
a hearing related to that dispute, Southeast's counsel expressed
concern that a judgment naming only Northeast, EA Green Bay,
LLC's "d/b/a" name, might be unenforceable and sought to have
the judgment entered against Northeast, Matthew Everett and EA
Green Bay, LLC,     on the basis that the franchise agreement
contemplated joint and several liability in such a circumstance.
In asking the court to confirm the arbitration award against
Northeast but not also against EA Green Bay, LLC, Northeast's
counsel made the following statement:

      [T]his business about all this hypothetical difficulty
      that [Southeast] may or may not encounter in enforcing
      the judgment is not appropriate in this particular
      proceeding, number one. It's not supported by any
      evidence, number two.     . . . And thirdly, the idea
      that as a matter of law an entity operating as a quote
      [d/b/a], meaning it's operating under a trade name,
      the idea that a judgment can't be enforced against it
      is simply untrue as a matter of law.

                                     2
                                                                                No. 2011AP1121



was   the      name    under     which      EA   Green       Bay,       LLC,    did    business.

Nevertheless,          EA     Green      Bay,        LLC,    opposed           the    subsequent

garnishment action            in circuit         court       on    the     grounds         that   the

judgment, entered against only Northeast, the name under which

it did business, was unenforceable.

        ¶3     The     circuit      court    for      Brown       County,       the    Honorable

Donald R. Zuidmulder presiding, relied on two Wisconsin cases3

for the proposition that                  Northeast, the name under which EA

Green        Bay,     LLC,    did     business,        had        "no    independent          legal

significance          apart    from    the   underlying            business"         and    applied

that principle in this context to mean that the names "refer to

the   same      legal    entity."           It   therefore          held    that      any     valid

judgment against Northeast is also enforceable against EA Green

Bay, LLC.           The court of appeals reversed.                  It cited to the same

cases as the circuit court, stating that where a company does

business under a name different from the legal entity's name,

that name is "merely descriptive of" and "not . . . distinct

from" the person or corporation operating the business and is "a

The circuit court, for reasons that cannot be determined on the
record before us, did as Northeast requested and confirmed the
award on August 18, 2010, as to Northeast in the amount of the
arbitration award, $101,693, and entered judgment on September
3, 2010.
        3
       Jacob v. West Bend Mut. Ins. Co., 203 Wis. 2d 524, 537
n.7, 553 N.W.2d 800 (Ct. App. 1996) (stating that the
designation "'d/b/a' means 'doing business as' and is merely
descriptive of the person or corporation who does business under
some other name; it does not create or constitute an entity
distinct from the person operating the business"); and Binon v.
Great N. Ins. Co., 218 Wis. 2d 26, 35, 580 N.W.2d 370 (Ct. App.
1998) (citing the language from Jacob).

                                                 3
                                                                      No. 2011AP1121



legal nonentity"; it therefore reasoned that a judgment against

such a name is unenforceable and cannot serve as a basis for a

garnishment action.4

      ¶4     Wisconsin      courts     have   not     directly    addressed       the

precise question presented: whether an otherwise valid judgment

can be enforced against a legal entity when the judgment is

entered    against    the     name    under   which    the    legal     entity    does

business.5     The cases relied on by the circuit court and court of

appeals state that when a person or corporation does business

under a name, that name "is merely descriptive of the person or

corporation" and "it does not create or constitute an entity

distinct from the person operating the business." Jacob v. West

Bend Mut. Ins. Co., 203 Wis. 2d 524, 537 n.7, 553 N.W.2d 800

(Ct. App. 1996).         In Capsavage v. Esser, 224 Wis. 2d 404, 415,

591   N.W.2d    888    (Ct.    App.    1999),    which       involved     a    dispute

concerning     the    type     of    legal    entity     involved,       the     court

clarified     that    the    name    under    which    the    company,        Sundance



      4
       Paul Davis Restoration of S.E. Wis., Inc. v. Paul Davis
Restoration of Northeast Wis., No. 2011AP1121, unpublished slip
op., ¶¶7-9 (Wis. Ct. App. June 12, 2012).
      5
       When deciding a duty-to-defend case that did not present
this question directly, the court of appeals noted, "We are not
required to decide in this case whether the default judgment
against [an entity named in the complaint], a legal nonentity,
is of any enforceable effect against the estate of [its deceased
owner, who was not personally named as a defendant]."     Jacob,
203 Wis. 2d at 537 n.7 (emphasis added).       In that case, a
separate ruling from a probate court dismissing a related claim
on the basis of the unenforceability of the judgment was not
before the court. Id. at 531.

                                         4
                                                                     No. 2011AP1121



Marine,      was    doing   business    was    not   "a   distinct     entity"     but

rather was "simply another way to refer to Sundance Marine."6

       ¶5     It follows from this principle that if the name under

which a person or corporation does business is "simply another

way to refer to" a single legal entity and constitutes no entity

distinct from the person or corporation who does business, then

a judgment against the "doing business as" or "d/b/a" name is

enforceable         against    the     legal    entity     from     which     it   is

indistinct.         This result is consistent with the approach taken

on this question by the majority of other jurisdictions that

have addressed it.            Based on this principle in Wisconsin case

law concerning a d/b/a designation or trade name, and consistent

with the approaches of the majority of other jurisdictions, we

hold       that    the   judgment    against    EA   Green    Bay     LLC's    d/b/a


       6
       The Capsavage court made note of the fact that California-
based Sundance Marine had made a fictitious name filing or d/b/a
filing "to do business as SDSR."    Capsavage v. Esser, 224 Wis.
2d 404, 415, 591 N.W.2d 888 (Ct. App. 1999).

       [T]he purpose of a fictitious name statute is to
       protect the public against false identification of the
       character of a business by use of certain words in the
       name employed by the enterprise, or to ensure that
       those who do business with persons operating under a
       fictitious name will know the true identities of the
       individuals with whom they are dealing or to whom they
       are giving credit or becoming bound. . . . By filing
       an assumed-name certificate as authorized by statute,
       a corporation puts the public on notice that it is
       doing business under an assumed name . . . .

18A Am. Jur. 2d Corporations § 237.



                                          5
                                                                              No. 2011AP1121



designation, Paul Davis Restoration of Northeast Wisconsin, is

enforceable         against      EA     Green    Bay,    LLC,    and     the     account    at

Denmark State Bank; Northeast and EA Green Bay, LLC, are not two

distinct legal entities; and EA Green Bay, LLC, was undisputedly

doing        business      under      the    name    Northeast.          We    reverse     the

decision of the court of appeals and remand to the circuit court

for further proceedings consistent with this opinion.

                                        I.     BACKGROUND

        ¶6        After the arbitration proceedings described above were

complete          and    the   judgment        was   entered     in     Milwaukee       County

Circuit Court, Northeast refused to pay the arbitration award.

Southeast commenced the action that is now before us, a separate

and     independent        garnishment          action    in    Brown    County      Circuit

Court, to collect the judgment from a Denmark State Bank account

titled       in    the    name     of    "EA    Green    Bay    LLC    d/b/a     Paul    Davis

Restoration & Remodeling of NE WI d/b/a Building Werks."                                   The

record7 reflects that the checks on the account bear only the

name "Paul Davis Restoration & Remodeling of NE WI."                                    In its
answer to the garnishment complaint, garnishee defendant Denmark

State       Bank    stated     that      "EA    Green    Bay    LLC    d/b/a     Paul    Davis


        7
         The record we have is the record from the garnishment
action filed in Brown County Circuit Court. The record in this
case does not include the arbitration ruling or any documents
from the arbitration proceedings.     It does not contain the
record from the Milwaukee County Circuit Court case confirming
the arbitration award either, though portions of the record in
that case, such as briefs and partial transcripts, have been
included in the garnishment case record as exhibits attached to
filings.

                                                 6
                                                                       No. 2011AP1121



Restoration & Remodeling of NE WI d/b/a Building Werks is a

Denmark State Bank customer.”             It also stated that

      [a]s of the date and time Denmark State Bank was
      served with the Garnishment Summons and Complaint,
      Denmark State Bank was indebted to EA Green Bay LLC
      d/b/a Paul Davis Restoration & Remodeling of NE WI
      d/b/a Building Werks in the full amount of the
      . . . garnishment, by virtue of a deposit account.
In its ruling, the circuit court stated, "It cannot be disputed

that EA [Green Bay, LLC] was the principal name on the account
on [the date of the service of the garnishee summons] and that

it was EA [Green Bay, LLC]'s Employer Identification Number."

It also noted that "checks continued to be deposited for Paul

Davis Restoration of Northeast Wisconsin . . . ."

      ¶7        The   Brown    County    Circuit     Court        denied   Northeast's

motion to dismiss and directed the bank to release the funds in

the account to Southeast.               As noted above, the court based the

ruling on the Jacob and Binon cases and on its determination

that "[r]ather than separating the [Northeast] non-entity from

the 'EA     Green      Bay,   LLC'   legal       entity,    the    d/b/a   designation

simply means that the two names refer to the same legal entity."
It considered EA Green Bay, LLC's arguments an "attempt[] to

create a legal distinction where none exists."

      ¶8        The court of appeals reversed in an unpublished, per

curiam opinion.         It read the Jacob and Binon cases as supporting

the   proposition       that    because      a    d/b/a    designation      "does   not

create     or    constitute     an   entity      distinct    from    the   person   [or

corporation] operating the business," a judgment against a d/b/a

designee alone is unenforceable. Paul Davis Restoration of S.E.

                                           7
                                                                                No. 2011AP1121



Wis., Inc. v. Paul Davis Restoration of Northeast Wis., No.

2011AP1121, unpublished slip op., ¶¶7-9 (Wis. Ct. App. June 12,

2012).       It drew parallels to the facts discussed in Jacob, in

which the court found that a plaintiff had improperly named a

deceased         person,           rather      than          the        estate's       personal

representative,          as    a     party    to       the   suit.           Id.     Southeast

petitioned this court for review, which we granted.

                  II.     STANDARD OF REVIEW AND APPLICABLE LAW

       ¶9    The question presented here arises in the context of a

garnishment action, which is governed by Wis. Stat. § 812.01.

The statute states:

       Any creditor may proceed against any person who is
       indebted to or has any property in his or her
       possession or under his or her control belonging to
       such creditor's debtor or which is subject to
       satisfaction of an obligation described under s.
       766.55(2),   as   prescribed    in   this  subchapter.
       "Plaintiff" as used in this subchapter includes a
       judgment creditor and "defendant", a judgment debtor
       or the spouse or former spouse of a judgment debtor if
       the judgment is rendered in connection with an
       obligation described under s. 766.55(2).
Wis.     Stat.    § 812.01(1).               Application           of    a   statute    to     an
undisputed       set    of    facts    is     a       question     of    law.       Nichols    v.

Nichols, 162 Wis. 2d 96, 103, 469 N.W.2d 619 (1991).

       ¶10   We    also       note    that     it       is   well       established     that     a

garnishment action is an action independent of the judgment for

which it seeks to recover payment and is instituted separately

according to statute.                See Wis. Stat. § 812.01.                   See Butler v.

Polk, 592 F.2d 1293, 1295-1296 (5th Cir. 1979) (observing that

"garnishment           actions       against           third-parties          are    generally

                                                  8
                                                                        No. 2011AP1121



construed as independent suits, at least in relation to the

primary action");        Randolph    v.      Emp'rs      Mut.   Liab.    Ins.    Co.     of

Wis., 260 F.2d 461, 464 (8th Cir. 1958) ("The only issue is the

liability     of   the   garnishee      on       its    insurance   contract.      . . .

[T]he    amount    of    such   liability         has    been   established      by     the

judgment against [the insured] in the state court action.");

Adriaenssens v. Allstate Ins. Co., 258 F.2d 888, 890 (10th Cir.

1958) (garnishments are "original and independent actions [by]

the holders of the judgments").

        ¶11   Noting, in the context of a garnishment case, that

"[t]he judgment carries the presumption of validity," this court

cited the settled law on judgments:

    The   general    rule    is    stated  in    49   C.J.S.
    Judgments . . . as follows: "A judgment rendered by a
    court having jurisdiction of the parties and the
    subject matter, unless reversed or annulled in some
    proper proceeding, is not open to contradiction or
    impeachment, in respect of its validity, verity, or
    binding effect, by parties or privies, in any
    collateral   action   or   proceeding,  except . . . for
    fraud in its procurement."


Zrimsek v. Am. Auto. Ins. Co., 8 Wis. 2d 1, 3, 98 N.W.2d 383

(1959).        Where     a   judgment     debtor         asserts    claims      about     a

judgment's legitimacy, "it is in the context of that [first]

suit and not [in the garnishment suit] that those claims should

[be] asserted."          Schultz v. Sykes, 2001 WI App 260, ¶16, 248

Wis. 2d 791, 638 N.W.2d 76.                      Further, "[t]he fact that the

judgment is contested materially affects the nature of mistakes


                                             9
                                                                              No. 2011AP1121


that might be complained of and the considerations involved in

determining whether relief is warranted.                          . . . An application

for relief after a           contested       proceeding           [as    distinct      from    a

default     judgment]       therefore           partakes      of        a     petition      for

reconsideration, and all the reasons for finality of judgment

are arrayed against such an application."                         Restatement (Second)

of Judgments § 71 cmt. a (1982).                 We also note that "a valid and

final award by arbitration has the same effects under the rules

of   res     judicata,       subject        to       the      same          exceptions      and

qualifications, as a judgment of a court."                        Restatement (Second)

of   Judgments      § 84(1).         "If   the       arbitration            award    were   not

treated     as    the    equivalent        of    a    judicial          adjudication        for

purposes of claim preclusion, the obligation to arbitrate would

be   practically        illusory."    Id.,       § 84      cmt.    b.         The    following

provisions       appear     in   Wis.       Stat.       ch.       788,       which    governs

arbitration.       After an award is made, any party has one year in

which it "may apply to the court . . . for an order confirming

the award, and thereupon the court must grant such an order

 . . . ."        Wis. Stat. § 788.09.            "Upon the granting of an order

confirming, modifying or correcting an award, judgment may be

entered in conformity therewith in the court wherein the order

was granted."       Wis. Stat. § 788.12.

                                 III.      DISCUSSION



                                            10
                                                                           No. 2011AP1121


     ¶12    In    this     case,          the   application      of      the   garnishment

statute    requires      us     to    determine        whether     the    holder         of    the

Denmark State Bank account, "EA Green Bay, LLC d/b/a Paul Davis

Restoration & Remodeling of NE WI d/b/a Building Werks," is the

debtor against whom the judgment was entered.

     ¶13    The    question,              as     the     circuit      court         correctly

identified it, is whether "the underlying judgment against Paul

Davis Restoration of Northeast Wisconsin can apply to [the legal

entity, EA Green Bay, LLC]" so that the assets in the bank

account     belonging      to        EA     Green      Bay,   LLC,    are      subject         to

garnishment in satisfaction of the judgment.                             To answer that

question,    we   need     to    examine         principles      related       to    a    legal

entity such as a corporation or a person doing business as or

under a name different from the corporation’s or person’s name.

In doing so, we examine Wisconsin case law and also consider how

other jurisdictions have approached the issue.

     ¶14    First,    we      consider          what   Wisconsin      courts    have          said

about the names under which a legal entity such as a corporation

or person does business.8                 The parties, as noted previously, rely



     8
       In this case we discuss use of a d/b/a designation or
trade name interchangeably.    Black's Law Dictionary (9th ed.
2009) states that "d/b/a" is the abbreviation for "doing
business as"; the definition continues:

     [Usually] precedes              a person's or business's assumed
     name <Paul Smith                d/b/a Paul's Dry Cleaners>. It
                                                11
                                                                  No. 2011AP1121


on the same cases yet reach opposite conclusions about how the

stated principle applies in the context of an action under the

garnishment statute.

       ¶15   The three cases that mention the principle or rule of

law that we consider here——that a d/b/a designation "is merely

descriptive of the person or corporation who does business under

some other name; it does not create or constitute an entity

distinct     from    the   person   operating     the   business"——are       Jacob,

Binon    and   Capsavage.       In    each   of    these      cases,   the    brief

discussion about       the   "doing   business     as"    name   appears      to be

secondary to the legal question being decided in the case, and

none    of   these   cases   directly    addresses       an   action   under      the

garnishment statute.


       ¶16   The first, Jacob, was a case concerning construction

defects and a contractor's insurer's duty to defend, and the


       signals   that  the   business  may   be  licensed                    or
       incorporated under a different name. Cf. tradename.

Black's Law Dictionary defines "tradename" this way:

       A name, style, or symbol used to distinguish a
       company, partnership, or business (as opposed to a
       product or service); the name under which a business
       operates. A tradename is a means of identifying a
       business — or its products or services — to establish
       goodwill. It symbolizes the business's reputation. Cf.
       brand; d/b/a; trademark.

Black's Law Dictionary 455 (9th ed. 2009) (emphasis added).



                                        12
                                                                         No. 2011AP1121



court     of     appeals     made        the    observation          about    the    d/b/a

designation in a footnote in which the court commented on a

tactical decision by a subcontractor's attorney not to answer

the complaint.           Jacob, 203 Wis. 2d at 537 n.7.                      The case to

which    the    Jacob footnote       cited,          Duval    v.   Midwest    Auto City,

Inc., 425 F. Supp. 1381, 1387 (D. Neb. 1977), aff'd, 578 F.2d

721 (8th Cir. 1978), was an odometer-tampering case, and the

plaintiffs had listed six defendants in the amended complaint,

including two d/b/a designations.                    Though there is no indication

that it was a contested issue in the case, the court stated:

    Under the evidence there are four entities only –
    Midwest Auto City, Inc., David Studna, Ervin Delp, and
    Bernard Flaherty. The designation "d/b/a" means "doing
    business as" but is merely descriptive of the person
    or corporation who does business under some other
    name.    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. So
    also with a corporation which uses more than one name.
Id. (Emphasis added.)
        ¶17    The second case, Binon, concerned whether a policy-

holder was a motor vehicle handler for purposes of a statute
giving    such    entities     permission            to     restrict   coverage.       The

policy was issued to "Arrow Motors, Inc., d/b/a Lease Associates
Group."        Binon v. Great N. Ins. Co., 218 Wis. 2d 26, 35, 580

N.W.2d 370 (Ct. App. 1998).                     Plaintiffs had argued that the
d/b/a designation of "Lease Associates Group" was not a motor

vehicle handler, even if Arrow Motors was.                         The court of appeals

quoted    the    Jacob     court    as    the       basis    for   treating    the   d/b/a

                                               13
                                                                        No. 2011AP1121



designation     as    an   entity    that     was    not    distinct         from   Arrow

Motors, Inc.     In determining whether the restricted coverage was

permitted under the statute in that case, the court "look[ed] to

all the activities and services of the insured . . . and not

merely the activities of its leasing division . . . , which has

no independent legal status or significance."                    Id.

       ¶18   A third Wisconsin case in which a company's "doing

business as" name is discussed is Capsavage.                           The Capsavages

were seeking to hold a shareholder of a corporation personally

liable for a breach of contract by the corporation after they

paid $291,987 for a yacht that was never delivered.                           Capsavage,

224 Wis. 2d at 407-409.           The contract was with Sundance Marine

d/b/a San Diego Sea Ray (SDSR).                 Id. at 407.            The Capsavages

sought to argue that SDSR was actually a joint venture or a

partnership and that the shareholder was personally liable for

the contract as a participant in the partnership.                            Id. at 414-

415.    The court of appeals rejected the argument, noting that "a

fictitious     name   filing     was     made   for    Sundance         Marine      to   do

business     as SDSR."      Id.     at   415.       The    court      added,     "When    a

corporation does business under another name, it does not create

a distinct entity.          Rather, SDSR [the              d/b/a   designation]          is

simply another way to refer to Sundance Marine."                       Id.

       ¶19   Northeast     and   Southeast      both      rely   on     the    principle

cited in the above cases that the name under which a person or

corporation does business is not a "distinct entity."                          Northeast

argues that that means that such a name is not an entity against

which a judgment can be enforced.                It analogizes the situation
                                         14
                                                       No. 2011AP1121



to cases in which a party has failed to identify and serve the

proper party,9 citing Johnson v. Cintas Corp. No. 2, 2011 WI App

5, 331 Wis. 2d 51, 794 N.W.2d 475, aff'd, 2012 WI 31, 339 Wis.

2d 493, 811 N.W.2d 756 (holding that a court had no personal

jurisdiction over defendant when there was a fundamental defect

in a summons and complaint that named, rather than the intended

defendant,   the   similarly   named   parent   corporation   of   the

intended defendant).    Southeast argues that the "not a distinct

entity" language means that a judgment against the name under

which a company does business is simply a judgment against the

legal entity from which the "doing business as" name is legally

indistinct.10

     ¶20   The principle or rule of law stated in these cases——

that the name under which a person or corporation does business


     9
       We note, as did the circuit court, that there is no
"evidence calling into question whether any other business
operated as Paul Davis Restoration of Northeast Wisconsin and
had [the same address], as is indicated on the Milwaukee County
judgment."   Nor is there any allegation or evidence of lack of
notice or improper service in this case.
     10
        The parties also make arguments concerning judicial
estoppel and a collateral attack against a judgment. Because we
resolve this case on the grounds that the judgment can be
validly enforced against the account held by Denmark State Bank,
we do not address the parties' other arguments.        Northeast
additionally argues that the money in the Denmark State Bank
account in question cannot be reached under the garnishment
statute because it "does not belong to [Northeast]" but belongs
to EA Green Bay, LLC, instead.    This argument merely restates
the   question  we   address  concerning  the   nature  of   the
relationship between a legal entity and the name under which it
does business; therefore, there is no need to address that
argument separately.

                                 15
                                                                        No. 2011AP1121



is    indistinct        from    the     underlying          legal    entity——is        more

logically consistent with the circuit court's approach.                                 The

circuit court held that "the two names refer to the same legal

entity." The court of appeals' approach implicitly treated the

name as a distinct but legally meaningless entity.

      ¶21   A    case    concerning      a    judgment       against    a    name    under

which a legal entity is doing business is very different from

the   category      of     cases      involving      a     plaintiff's       failure       to

identify    and    serve       the   proper       party.    Such    cases    turn     on    a

different       question       (i.e.,   which       of     several     distinct       legal

entities is the proper defendant) and, more importantly, involve

different considerations, such as notice.                           See Mared Indus.,

Inc. v. Mansfield, 2005 WI 5, ¶¶34, 38, 277 Wis. 2d 350, 690

N.W.2d 835 (discussing the "policy of ensuring that a defendant

receives    notice       of    an    action"       and     acknowledging      that     "the

consequences for failing to strictly comply with the statutory

rules of service are harsh"); Johnson v. Cintas Corp. No. 2,

2012 WI 31, ¶24, 339 Wis. 2d 493, 811 N.W.2d 756 ("Indeed,

notice   that     apprises       a   party     of   the     pendency    of    an     action

against it and affords the opportunity to present objections is

regarded as '[a]n elementary and fundamental requirement of due

process.'").       As the court specifically noted in Cintas Corp.

No. 2,

      Unlike the single corporation in Hoesley, which the
      plaintiff correctly sued but simply misnamed as "La
      Crosse VFW Chapter, Thomas Rooney Post," see 46 Wis.2d
      at 502, 175 N.W.2d 214, Cintas and Cintas No. 2 are
      two, distinct legal entities, and Johnson mistakenly
      sued the first instead of the second.

                                             16
                                                                              No. 2011AP1121



Cintas Corp. No. 2, 339 Wis. 2d 493, ¶41 (emphasis added).                                    The

court further stated that the plaintiff did not dispute "that

his summons and complaint named the wrong party . . . and that

the party he intended to sue . . . is an independent legal

entity." Id., ¶42 (emphasis added).                    Although it is relied upon

by Northeast, Cintas Corp. No. 2 does not support its argument

in this garnishment action.

     ¶22     The   majority        of    courts        from     other         jurisdictions

confronted     with      similar       cases     in     which       a    judgment       debtor

challenges the enforceability of a judgment against an entity

using a name under which an entity does business have reached

the same conclusion we reach in this case.                          See Acad. of IRM v.
LVI Envtl. Serv., Inc., 687 A.2d 669, 677 (Md. 1997) (holding

that "notice that an order for default had been entered against

Trade Name was notice to Debtor that an order for default had

been entered against it, since Trade Name was simply another

name by which Debtor was known"); Aman Collection Serv., Inc. v.

Burgess, 612 S.W.2d 405, 408-409 (Mo. App. 1981) (holding that a

judgment   solely        against   a    d/b/a     designation           may     be    enforced

against the entity operating under the trade name on the grounds

that "the trial court committed no error in finding that Dako

Products   Co.     was    merely    a    trade    name       under      which        Robert   V.

Burgess    operated       and   that      they        were    one       and    the     same");

Toulousaine de Distribution et de Services v. Tri-State Seed and

Grain, 520 N.W.2d 210, 215 (Neb. Ct. App. 1994) (stating that

"[t]he law from other jurisdictions also indicates that doing

business under another name or several names does not create an
                                           17
                                                                     No. 2011AP1121



entity   separate    and     distinct     from     the     person    operating      the

business, and the person remains personally liable for all his

or her obligations," and holding that where evidence is that a

sole   proprietor    is    doing   business        under   a   trade    name      and   a

judgment    is    obtained     against    the      trade    name,      the   judgment

creditor may execute the registered judgment); Beneficial Fin.

Co. of Colo. v. Bach, 665 P.2d 1034, 1037 (Colo. Ct. App. 1983)

(in a garnishment action, affirming a trial court's finding that

where an entity on a lease was a trade name for a corporation,

the corporation was liable under the lease, and noting that "a

valid judgment against Compass Real Estate, Limited, must also

be premised upon the fact that Realty World Senti, the named

defendant   and     judgment    debtor,       is    the    trade     name    of    that

corporation"); Becker v. Truitt, 154 S.E. 262, 263 (Ga. 1930)
(holding that "[a] judgment rendered against a person in his

assumed or trade name is not void"); Long v. Carolina Baking

Co., 3 S.E.2d 46, 50 (S.C. 1939) (where a corporation was doing

business under a trade name, a "verdict and judgment against

[the trade name] is binding upon the existent corporate entity

and its assets" and judgment against a trade name "would not

invalidate the judgment, where . . . the corporate defendant has

suffered no prejudice"); Bishop v. Wilson Quality Homes, 986

P.2d 512, 514 (Okla. 1999) (where plaintiff sought to amend a

Workers' Compensation judgment against a d/b/a designation to

add the legal entity to which it was attached, court held that

plaintiff    "may     collect      his    judgment         against      [the      d/b/a

designation] as he would from any business whose judgment was
                                         18
                                                                              No. 2011AP1121



pronounced as a result of trial in district court" and "does not

need a nunc pro tunc order inserting [the legal entity's name]

into the original award"); and Hughes v. Cox, 601 So. 2d 465,

471    (Ala.          1992)   ("[W]e       affirmatively         hold    that    a    judgment

entered          against      a    trade       name    is    a   judgment       against      the

individual doing business under that trade name, at least so

long        as    the      individual          was     personally       served       with     the

complaint.").

       ¶23       The Louisiana courts have, based on an interpretation

of a Louisiana statute, held that a "doing business as" name is

not a separate legal entity against which a judgment can be

entered11        but    mitigated        the     consequences      for    a     plaintiff      by

employing         an    "equitable         remedy      the   Louisiana        Supreme       Court

crafted" in such cases: while they have held that a judgment

entered against a legal nonentity cannot stand, the courts have

granted plaintiffs a remand for a new trial and instructions to

the trial court that the plaintiff be allowed leave to amend the

petition         to    name       the   proper       party   defendant.          Assensoh     v.
Diamond Nails, 897 So. 2d 806, 812 (La. App. 2005); Walker v.

Self-Serv. Storage and Mini Warehouses, Inc., 519 So. 2d 771

(La. 1988).




       11
       "Underlying this line of jurisprudence is the principle
codified in La. C.C.P. art. 736 that a trade name is not a
separate legal entity capable of being sued."        Assensoh v.
Diamond Nails, 897 So. 2d 806, 810 (La. Ct. App. 2005).



                                                 19
                                                                           No. 2011AP1121



       ¶24    In light of the principle that the name under which a

legal entity does business "does not create or constitute an

entity distinct from the person operating the business," "is

merely       descriptive      of    the     person       or     corporation     who   does

business under some other name," and "is simply another way to

refer" to the legal entity, we find no basis for holding that a

judgment against such a name, indistinct from the legal entity

to which it is attached, cannot be enforced against that entity.

Nothing in Wisconsin law precludes our conclusion, and the case

law    from    the   majority       of     other   jurisdictions          provides    ample

support for it.

       ¶25    As     noted    above,        the    question       presented      in   this

garnishment action is whether, under Wis. Stat. § 812.01, the

money in the Denmark State Bank is "property . . . belonging to

[the] creditor’s debtor."                  Northeast, the name under which EA

Green Bay, LLC, does business, is not an entity distinct from EA

Green Bay, LLC.            The account at Denmark State Bank is in the

name    of    "EA    Green    Bay    LLC     d/b/a    Paul       Davis    Restoration       &
Remodeling      of    NE     WI    d/b/a    Building      Werks."        The   account    is

"property       . . . belonging to such creditor's debtor or which is
subject to satisfaction of an obligation                        . . . ." in an action

under Wis. Stat. § 812.01, and therefore can be used to satisfy
the judgment granted which confirmed the arbitration award.

                                    IV.     CONCLUSION
       ¶26    Wisconsin       courts       have    not        directly    addressed      the

precise question presented: whether an otherwise valid judgment

can be enforced against a legal entity when the judgment is
                                             20
                                                                             No. 2011AP1121



entered     against      the     name    under      which      the   legal     entity    does

business.        The cases relied on by the circuit court and court of

appeals state that when a person or corporation does business

under a name, that name "is merely descriptive of the person or

corporation" and "it does not create or constitute an entity

distinct from the person operating the business." Jacob, 203

Wis. 2d at 537 n.7.               In Capsavage, which involved a dispute

concerning        the    type     of     legal      entity      involved,       the     court

clarified        that    the    name     under      which      the    company,     Sundance

Marine,     was    doing       business    was      not   "a    distinct       entity"    but

rather was "simply another way to refer to Sundance Marine."

      ¶27    It follows from this principle that if the name under

which a person or corporation does business is "simply another

way to refer to" a single legal entity and constitutes no entity

distinct from the person or corporation who does business, then

a judgment against the "doing business as" name is enforceable

against the legal entity from which it is indistinct.                                    This

result is consistent with the approach taken on this question by

the   majority      of    other    jurisdictions          that       have   addressed     it.
Based on this principle in Wisconsin case law concerning a d/b/a

designation or trade name, and consistent with the approaches of
the majority of other jurisdictions, we hold that the judgment

against     EA    Green    Bay,        LLC's    d/b/a       designation,        Paul    Davis
Restoration of Northeast Wisconsin, is enforceable against EA

Green Bay, LLC, and the account at Denmark State Bank; Northeast

and Green Bay, LLC, are not two distinct legal entities; and EA

Green Bay, LLC, was undisputedly doing business under the name
                                               21
                                                  No. 2011AP1121



Northeast.   We reverse the decision of the court of appeals and

remand to the circuit court for further proceedings consistent

with this opinion.

    By the Court.— Reversed and cause remanded.




                               22
                                                                               No.     11AP1121.pdr




        ¶28      PATIENCE      DRAKE       ROGGENSACK,         J.     (concurring).            The

majority opinion concludes that the judgment in favor of Paul

Davis        Restoration       of     Southeast       Wisconsin,          Inc.    (Southeast),

entered as the confirmation of an arbitration award against Paul

Davis Restoration of Northeast Wisconsin (Northeast) (which is a

"doing business as" (d/b/a) designation employed by EA Green

Bay, LLC), is enforceable in a garnishment action against an

account at Denmark State Bank that is held in the name of EA

Green Bay, Northeast and other d/b/a's of EA Green Bay.1                                         I

agree.

       ¶29       Prior    to        entering      the    judgment           confirming         the

arbitration award, Southeast's counsel requested that the court

name        EA   Green   Bay     as    a    defendant     in    the        judgment       because

Northeast was a d/b/a designation for EA Green Bay and not a

separate         legal    entity.          In   response,       counsel          for    Northeast

represented to the court that a judgment solely in the name of

Northeast         was    fully        enforceable,       even       though        "Paul     Davis

Restoration        of    Northeast         Wisconsin"    was        not    a     legal    entity.

Northeast         now    asserts      that      the   judgment       is     not      enforceable

because, although Northeast's name was on the bank account to be

garnished, Northeast is not a legal entity and therefore has no

legal ownership in the bank account.

        1
            Majority op., ¶5.

                                                 1
                                                                             No.    11AP1121.pdr


       ¶30   Because         of         Northeast's                prior       inconsistent

representations to the circuit court, which the circuit court

apparently      accepted,    I    conclude         that      Northeast       is     judicially

estopped from challenging the garnishment on the ground that the

judgment is not enforceable because Northeast is not a legal

entity.      Accordingly, I respectfully concur with the majority

opinion's reversal of the               decision        of    the     court        of    appeals,

albeit on a different rationale.

                                   I.    BACKGROUND

       ¶31   Both Southeast and EA Green Bay are franchisees of

Paul    Davis    Restoration,        Inc.          EA     Green       Bay     operated           its

franchise     under    the   name       of   Northeast.             Northeast           is    not    a

corporate entity, but rather it is a trade name, or "d/b/a," of

EA Green Bay.

       ¶32   Southeast and Northeast entered into arbitration for

claims that each franchisee was doing business in the exclusive

territory of the other and therefore each owed certain payments

to     the   other.        The      arbitration           panel      agreed         that        both

franchisees had been selling in the other's exclusive territory,

but that Northeast had done so much more frequently.                                    The panel

issued a net       award     that    required        Northeast         to    pay        Southeast

$101,693.10.

       ¶33   Southeast's         counsel       moved         the     circuit            court       of

Milwaukee    County to       confirm         the   award.           During    that           process

counsel for Southeast sought to have EA Green Bay and others

added as defendants.         Southeast's counsel said,

       [If the court] confirms the award in such a manner
       that it is only against . . . Paul Davis Restoration
                                2
                                                              No.   11AP1121.pdr

     of Northeast Wisconsin, I'm not even sure how to go
     about collecting against a company operating as a
     trade name.    How do you separate the company's trade
     name from the underlying entity? And not just any
     underlying entity, but the underlying entity that's
     required    to    be   there   under   the   franchise
     agreement. . . . The only way to give [e]ffect to the
     award in this case is to make it against . . . the
     underlying entities.    To do otherwise would tie the
     hands of the party who received the award in this case
     from enforcing any judgment.     Because I'm not sure
     how——I'm sure that you can't own property under a
     DBA. . . . Without that, we'll have a judgment that I
     believe would be worthless.
     ¶34   In   response,   Northeast's       counsel     urged   the    circuit

court to reject Southeast’s argument and refuse to add EA Green

Bay to the judgment:

     First of all, the fact that someone operates under——an
     entity operates under a trade name does not mean that
     it is not also a business entity of its own.       That
     doesn't follow as a matter of law.            Secondly,
     regardless of that, a business operating under a trade
     name certainly can own all sorts of assets. And—— And
     thirdly, the idea that as a matter of law an entity
     operating as a quote DBA, meaning it's operating under
     a trade name, the idea that a judgment can't be
     enforced against it is simply untrue as matter of law.
After considering the arguments of counsel, the circuit court

issued a judgment against Northeast and not against EA Green

Bay, consistent with Northeast's contention.

    ¶35    When   the   garnishment       action   from   which   this    review

springs was filed in Brown County Circuit Court, it named only

Northeast as the debtor and Denmark State Bank as the garnishee.

The bank responded that it had an account in the name of EA




                                      3
                                                                              No.    11AP1121.pdr


Green Bay LLC d/b/a Paul Davis Restoration & Remodeling of NE WI2

d/b/a Building Werks.              The Bank said that on the date that it

received       the       garnishment,      the          account     had      a      balance      of

$102,772.87, which the Bank would hold until further order of

the court.

       ¶36    Northeast       objected     to       release       of   the        funds    and    a

hearing on its objection was held before the circuit court of

Brown County.            At the conclusion of that hearing, the circuit

court found that

       [Northeast] has had ample opportunity to make some
       kind of showing that EA [Green Bay] is not in fact the
       same entity as is named in the Milwaukee County
       judgment as a defense to garnishment, and yet the
       record is devoid of any evidence that the owner of the
       account and the judgment debtor are two different
       business entities.
Thereafter, the circuit court concluded that the bank account

was properly subject to Southeast's garnishment action.

       ¶37    The court of appeals reversed, concluding that because

Northeast      is    a    d/b/a    and    not       a    legal    entity,         the   judgment

against      Northeast      is    unenforceable           against      the       bank   account.

Paul       Davis    Restoration      of    S.E.          Wis.,    Inc.       v.     Paul   Davis

Restoration of Ne. Wis., No. 2011AP1121, unpublished slip op.,

¶9 (Wis. Ct. App. June 12, 2012).

       ¶38    Before us, Northeast again contends that a judgment

against a trade name is unenforceable.                            Northeast agrees that

       2
       No one has argued that the slight difference in the names
of Paul Davis Restoration of Northeast Wisconsin and Paul Davis
Restoration & Remodeling of NE WI is significant or that both do
not refer to the same d/b/a for EA Green Bay, so I do not
consider it further.

                                                4
                                                                       No.    11AP1121.pdr


Southeast      attempted      to    convince      the     Milwaukee    County    Circuit

Court to add EA Green Bay as a debtor and that the circuit court

did not do so.         At oral argument, Chief Justice Abrahamson asked

counsel       for     Northeast      whether        a    predecessor       attorney    had

represented to the Milwaukee County Circuit Court that EA Green

Bay was bound by the judgment even without being named.                          Counsel

admitted that that had happened, but asserted that it was an

erroneous statement to the court, which she characterized as a

mistake insufficient to support judicial estoppel.

                                    II.   DISCUSSION

                              A.    Standard of Review

      ¶39     Whether judicial estoppel applies presents a question

of law for our independent review.                      State v. Petty, 201 Wis. 2d

337, 346-47, 548 N.W.2d 817 (1996).

                      B.    Principles of Judicial Estoppel

        ¶40   Statements of law upon which a circuit court relies

may give rise to the equitable doctrine of judicial estoppel.

Under    that       doctrine,   a    party     is       precluded   from    asserting    a
position      in     litigation      after     having       previously      asserted    an

inconsistent position at a different stage in the litigation, or

in another proceeding.              See State v. Ryan, 2012 WI 16, ¶¶32–34,

338     Wis. 2d      695,    809     N.W.2d       37     (discussing       elements    and

application of judicial estoppel in two separate, but factually

interrelated proceedings).

      ¶41     Judicial estoppel is intended to protect the integrity

of the judicial process against parties playing "fast and loose

with the courts by asserting inconsistent positions."                             Petty,

                                              5
                                                                                 No.       11AP1121.pdr


201     Wis. 2d       at     347     (internal        quotation          marks       and       citation

omitted).         The doctrine, therefore,                       does    not   operate          on   the

relationship between the parties, but instead operates on the

relationship between each party and the judicial system.                                             See

id. at 346 (noting that "judicial estoppel is not directed to

the relationship between the parties").

        ¶42    As with other equitable doctrines, the application of

judicial       estoppel       is     typically        within       the    discretion            of   the

circuit       court.         State    v.     Fleming,        181     Wis.2d      546,       558,     510

N.W.2d 837 (Ct. App. 1993).                       However, because the elements of

judicial       estoppel        are    questions         of       law,    a     circuit          court's

failure to address the doctrine will not preclude an appellate

court      from      doing     so.          See    Petty,         201    Wis. 2d          at     346–47

(recognizing          propriety       of    appellate        court       addressing            judicial

estoppel where doctrine had not been applied by circuit court).

        ¶43    For a party to be judicially estopped from maintaining

a particular position in litigation, three elements must be met.

Id.   at      348.         First,    the     party's        position         must     be       "clearly
inconsistent" with an earlier position.                            Id.       Second, the facts

relevant to the party's position must have been the same at both

points in litigation.                 Id.     Third, the party to be judicially

estopped       "must       have     convinced         the    first      court       to     adopt     its

position."           Id.     Additionally, because judicial estoppel "looks

toward        cold     manipulation          and       not       unthinking          or        confused

blunder,"       the        doctrine    will       not       be    applied       to       inadvertent

representations.             Id. at 347.



                                                  6
                                                                             No.    11AP1121.pdr


                                    C.   Application

     ¶44    Northeast's           representations           to    the    Milwaukee           County

Circuit Court meet the three criteria necessary for judicial

estoppel.       Therefore, I conclude that Northeast is estopped from

contending that the judgment upon which the garnishment is based

may not be enforced because Northeast is not a legal entity.

First,    the       facts    relevant    to     whether          Northeast      was      a    legal

entity did not change between the hearing before the Milwaukee

County Circuit Court and the commencement of this garnishment

action.     During the relevant time period, Northeast remained a

d/b/a or trade name of EA Green Bay.

     ¶45    Second, Northeast represented to the Milwaukee County

circuit court that EA Green Bay's use of the d/b/a designation

would not prevent enforcement                   of    the    judgment.             Counsel      for

Northeast   said, "the            idea   that     a    judgment         can't      be    enforced

against it is simply untrue as a matter of law."                                   Northeast's

contention was made to the court when Southeast moved to add EA

Green Bay as a party to the judgment and argued that EA Green

Bay must be added in order to prevent the judgment from being

unenforceable.         Southeast said that without a legal entity as a

party to the judgment, "we'll have a judgment that I believe

would be worthless."               After consideration of the arguments of

counsel, the circuit court denied Southeast's request to add EA

Green Bay as a party to the judgment.

     ¶46    Third,          as   repeated       more    fully        in    the          quote   in

paragraph       7    above,      Northeast's      legal      position        was        carefully

stated and urged the circuit court not to name EA Green Bay as a

                                              7
                                                                           No.    11AP1121.pdr


party     to       the    judgment.             Northeast's     contention             was   not

inadvertently made but was placed before the court in direct

response to Southeast's position that without the addition of EA

Green Bay, Southeast would have a judgment that was "worthless."

Before us, Northeast attempts to make the judgment worthless in

this garnishment action.

     ¶47       Accordingly, Northeast's position before us meets all

the elements for judicial estoppel.                     Therefore, I conclude that

Northeast      is     estopped      from    asserting        that    its     bank       account

cannot be          garnished   based       on    Northeast     not    having          the legal

status that would permit it to have ownership rights in the

account.

                                    III.    CONCLUSION

     ¶48       Because         of         Northeast's          prior         inconsistent

representations to the circuit court, which the circuit court

apparently         accepted,   I     conclude        that    Northeast     is     judicially

estopped from challenging the garnishment on the ground that the

judgment is not enforceable because Northeast is not a legal

entity.        Accordingly, I respectfully concur with the majority

opinion's      reversal of          the    decision     of    the    court       of    appeals,

albeit on a different rationale.

     ¶49       I     am   authorized        to       state    that     Justice          ANNETTE

KINGSLAND ZIEGLER joins this concurrence.




                                                 8
    No.   11AP1121.pdr




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