Juan Jose Lara-Robledo v. Robert Salmons D/B/A Saga City Development Co.

Opinion issued November 13, 2008 In The Court of Appeals For The First District of Texas NO. 01-08-00230-CV JUAN LARA-ROBLEDO, Appellant V. ROBERT SALMONS d/b/a SAGA CITY DEVELOPMENT CO., Appellee On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2006-44442 MEMORANDUM OPINION The trial court granted the combined traditional and no-evidence motion for summary judgment of appellee, Robert Salmons. In his sole issue, appellant, Juan Lara-Robledo, contends that he presented sufficient evidence to create a genuine issue of material fact on the issue of partnership liability. We affirm.Facts Lara-Robledo cut his hand with a saw while working on a residential remodeling job. He sued both Aurelio Ramirez, who had hired him, and Salmons “d/b/a Saga City Development Co.” Salmons answered, specifically denying that Saga City, a general partnership in which Salmons and Ramirez were partners, had been involved in the project on which Lara-Robledo had been hurt. Lara-Robledo took a default judgment against Ramirez. The trial court severed the actions, and Salmons filed a combined traditional and no-evidence motion for summary judgment. The trial court granted the motion. In his sole issue, Lara-Robledo contends that the trial court erred because the default judgment he obtained against Aurelio Ramirez constitutes a judgment against the Saga City partnership for which Salmons is jointly and severally liable. We disagree. A partnership is an entity legally distinct from its partners. See Texas Westheimer Corp. v. 5647 Westheimer Associates, 68 S.W.3d 15, 21 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing Haney v. Fenley, Bate, Deaton, and Porter, 618 S.W.2d 541, 542 (Tex. 1981)); Tex. Rev. Civ. Stat. Ann. art. 6132b, § 2.01 (Vernon Supp. 2008). In order to assert a cause of action against a partnership, a petition must allege that a partnership exists and state the name of the partnership; it then must list all of the partners and state that they are being sued in their capacity as partners. See Ben Fitzgerald Realty Co. v. Muller, 846 S.W.2d 110, 115 (Tex. App.—Tyler 1993, writ denied); see also Texaco, Inc. v. Wolfe, 601 S.W.2d 737, 740 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). A judgment may be entered against a partner who has been served with process in a suit against the partnership. See Tex. Rev. Civ. Stat. Ann. art. 6132b, § 3.05(c) (Vernon Supp. 2008). While appellant served both Ramirez and appellee, his original petition did not allege a partnership. Appellant’s later pleadings, while they discuss the Saga City partnership, do not allege a cause of action against the partnership, name the partnership as a defendant, or state that the partners are being sued in their capacity as partners. Appellant named Ramirez and Salmons as defendants “d/b/a Saga City Development Co.” in his original petition, but alleging that a person is doing business as an entity does not make that entity a party to the lawsuit unless the entity is also named as a defendant. See Wolfe, 601 S.W.2d at 741-42 (suing individual partners “doing business as Wolfe Construction Company ... jointly and severally” did not make Wolfe Construction Company a party to the suit). Because Lara-Robledo failed to file suit against the Saga City partnership, we hold that Salmons cannot be held liable on the basis of Lara-Robledo’s default judgment against Ramirez. We overrule Lara-Robledo’s sole issue.Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Bland