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Click here for the full text of this decision FACTS:Rehab 2112, L.L.C., d/b/a Rehab 2112, North Texas MRI, and White Rock MRI (“Rehab”) appeals the summary judgment granted in this breach of contract suit in favor of Audio Images International Inc., as assignee of Imagine Media Inc. HOLDING:Reversed and remanded. The judgment is titled “Final Judgment” and grants Audio Images’ motion for summary judgment and supplemental motion for summary judgment. It awards Audio Images judgment against Rehab for the sum of $18,693 plus prejudgment interest, attorneys’ fees through trial and conditional awards for appeals, and post-judgment interest. The judgment does not expressly mention Rehab’s counterclaims. However, it states: “This is the Final Judgment of the Court disposing of all parties and all claims. All other relief not expressly granted is herewith denied.” The court concludes this is a final judgment for purposes of appeal, although it does not expressly dispose of Rehab’s counterclaims. Rehab contends that White Rock Open MRI L.L.C. and North Texas Open MRI L.L.C. are separate limited liability companies, and the trial court did not have jurisdiction to render judgment against these entities, because they were never served with process and never appeared or waived service of process. However, the trial court did not render judgment against these entities. The judgment was rendered against Rehab 2112 L.L.C., doing business as Rehab 2112, North Texas MRI and White Rock MRI. Moreover, Rehab appeared and filed an answer and a counterclaim under the assumed names alleged in the petition. Rehab did not file a verified denial of the capacity in which it was sued, of the execution of the contracts on its behalf, or that it was doing business under an assumed name as alleged. Texas Rules of Civil Procedure 93.2, 93.7, 93.14. Nor did Rehab submit any summary judgment proof indicating the agreements were with separate legal entities rather than assumed names of the same company. The court concludes that the trial court had jurisdiction over the named defendant Rehab 2112, L.L.C. d/b/a Rehab 2112, North Texas MRI and White Rock MRI. The only summary judgment evidence that Audio Images performed its obligations under the contracts and provided valuable services to Rehab is Axt’s statement that “[p]ursuant to written contract, Audio Images provided audio services to [Rehab],” and that when Audio Images provided the audio services it expected to be paid. However, Rehab offered summary judgment evidence that the contracts required Audio Images to provide four productions per year for each of the locations, and that Audio Images failed to provide a new production for the up-coming 2002 holidays despite Naughton’s repeated requests to Eggleston. Reviewing the evidence in the light most favorable to Rehab, the non-movant, and indulging every reasonable inference in its favor, the court concludes there is a genuine issue of material fact as to whether Audio Images as assignee of Imagine Media performed or tendered performance of its obligations under the contracts and provided valuable audio services to Rehab. Accordingly, the trial court erred in granting summary judgment for Audio Images. Rehab presented summary judgment evidence that Audio Images was required to provide four productions per year for each of the locations under the contracts and that despite requests made to the only representative known to Rehab, Audio Images failed to provide a new production for the holiday season of 2002. There was also summary judgment evidence that when the renewal contracts were signed, the representative failed to disclose the sale of the business to Audio Images located in Florida. The court concludes there is at least some evidence that Audio Images or its assignor made fraudulent representations by failing to disclose the sale of the business and engaged in false, misleading, or deceptive acts by passing off its services as the services of another, causing confusion as to the source of the services, and making deceptive representations regarding the geographic origin of the services. The court concludes there is more than a scintilla of evidence on the challenged elements and therefor the no-evidence summary judgment was improper. OPINION:Moseley, J.; Moseley, Bridges and Lang-Miers, JJ.

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