Lucky Dawg Movers, Inc. v. Wee Haul, Inc.

George Killick (defendant) founded Wee Haul, Inc. (Wee Haul) (defendant), a residential moving-services company, in 1978 and served as Wee Haul’s president and director thereafter. In April 2006, Killick filed an assumed name certificate for “Wee Haul Inc.” (no-comma Wee Haul), which omitted the comma between “Haul” and “Inc.” found in Wee Haul’s corporate charter. Two months later, Lucky Dawg Movers, Inc. (Lucky Dawg) (plaintiff), which was owned by Charles Manry, entered into a franchise agreement to become a franchisee of Wee Haul. Manry and Killick signed the franchise agreement on behalf of Lucky Dawg and Wee Haul, respectively. In August 2007, Lucky Dawg filed a lawsuit alleging that Wee Haul had breached the franchise agreement and engaged in deceptive trade practices. During the proceedings, Lucky Dawg amended its complaint three times. None of the complaints named no-comma Wee Haul as a party or pleaded a theory that Killick should be held personally liable for doing business under the assumed name and infringing upon Lucky Dawg’s substantive rights (the assumed-name theory). At trial, Killick testified that he filed the assumed-name certificate for no-comma Wee Haul because he had been contemplating changing Wee Haul from a corporation to a sole proprietorship but that he had never told Manry about the same. Lucky Dawg offered no evidence to show that Killick had actually done any business as no-comma Wee Haul and consented to a jury charge identifying Killick separately from Wee Haul. The jury entered a verdict in Lucky Dawg’s favor against Wee Haul and awarded substantial damages. However, the trial court denied Lucky Dawg’s motion to make Killick jointly and severally liable for the judgment pursuant to the assumed-name theory. Lucky Dawg appealed the trial court’s denial of its motion.