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Civil Litigation No. 02-0179, 5/22/2003. Click here for the full text of this decision FACTS: Texas Rule of Civil Procedure 28 permits a partnership doing business under an assumed name to file suit in that name. However, before judgment, the partnership’s correct legal name must be substituted for its assumed name. The first issue in this case is whether there is legally sufficient evidence that Sixth RMA Partners L.P. used “RMA Partners L.P.” as an assumed name so that the original petition filed under the name RMA Partners L.P. was effective to commence suit on behalf of Sixth RMA Partners L.P. The second issue is whether Sixth RMA Partners L.P.’s second supplemental pleadings were effective to substitute its correct legal name. The final issue is whether Sixth RMA Partners L.P. is prohibited from prosecuting its claims in Texas courts because it has never filed an assumed name certificate. After a bench trial, the trial court rendered judgment in favor of Sixth RMA Partners L.P. The court of appeals, holding that Sixth RMA Partners L.P. “was never made a plaintiff,” reversed the trial court’s judgment and rendered judgment that Sixth RMA Partners L.P. take nothing. HOLDING: Reversed and remanded. Sixth RMA Partners L.P. asserts that the court of appeals’ decision is based on the erroneous determination that, as a matter of law, it never became a party to this case. Specifically, it argues that under Texas Rule of Civil Procedure 28, the original petition filed in July 1995 under the name RMA Partners L.P. was effective to commence suit against Sibley on behalf of Sixth RMA. Sixth RMA is one of 16 similarly named limited partnerships. In July 1995, when the consolidated lawsuits in this case were originally filed, Sixth RMA and RMA Partners L.P. (RMA) were separate legal entities. Although they shared some limited partners, the entities had different general partners, limited partnership agreements, and tax identification numbers. In December 1995, RMA dissolved pursuant to the terms of its limited partnership agreement and forfeited its Delaware charter. Because Sixth RMA and RMA were separate but related business entities that had similar names, the parties have made numerous and lengthy arguments in this court and the courts below regarding the common-law doctrines of misnomer and misidentification. However, this court has held that neither of those doctrines “operates to the exclusion of Rule 28 when there are facts that call Rule 28 into play.” Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999). The court concludes that some evidence supports the implied finding of fact that Sixth RMA used the name RMA Partners L.P. as an assumed name. Accordingly, the original petition filed in July 1995 under the name RMA Partners L.P. was effective to commence suit against Sibley on behalf of Sixth RMA. The court of appeals held that Sixth RMA’s failure to join the case through an amended petition precludes application of Rule 28. As the court of appeals in this case recognized, some courts of appeals have concluded that a party’s correct legal name may be substituted by a supplemental pleading if the facts raised in the supplemental pleading are included as a response to the last preceding pleading by the other party. Thus, in some circumstances, a supplemental pleading may properly be used to substitute a party’s correct legal name. In this case, however, the second supplemental pleadings were not filed in reply to any factual or legal allegation contained in Sibley’s preceding pleadings. Under the circumstances, Sixth RMA’s use of the second supplemental pleadings to substitute its correct legal name was improper. The factual allegations regarding Sixth RMA’s true name would properly have been set forth in amended original pleadings. Nevertheless, Sixth RMA’s procedural mistake did not render the factual allegations in the second supplemental pleadings void and of no effect. Reading Sixth RMA’s original and supplemental pleadings together, Sixth RMA’s pleadings are sufficient to substitute the true party name and to support the trial court’s judgment in favor of Sixth RMA. The respondent never raised Sixth RMA’s failure to file an assumed name certificate in any pleading or motion in the trial court. Therefore, he waived the complaint. OPINION: Smith, J., delivered the opinion of the court.

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