Affirmed and Memorandum Opinion filed July 21, 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00673

- CV

MERCED AGUILERA , INDIVIDUALLY AND D / B / A DMB CONCRETE READY MIX, LLC. , A ppellant

V.
IPFS CORPORATION , Appellee

On Appeal from Co unty Civil C our t at Law N o . 1

Harris County, Texas Trial Court Cause No. 115710 2

MEMOR ANDU M OPINION

Appellee IPFS Corporation filed suit on a note against appellan t Merce d Aguil e ra, individu ally and doin g business as DMB Con crete Ready Mix, LLC (the

“ LLC ” ) , on Ju l y 23, 2020

. F ollowing a be nch trial , at which no reporter ’s record

was t aken , t he trial court granted judgment in favor of appellee on October 21
, 2021. From that judgment, appellant bri ngs thi s appeal

.2 B ACKGROUND

The record ref

lects the LLC ha d forfeited the right to transact bus iness in
Texas for failure to satisfy fr an chise tax requiremen ts as of September 27, 2019

. The note on whi ch the suit is based was signed after that date
, as follows :

The note identifies the insured as “ DMB Concrete Ready Mix, L L C. ”

C itation was issued against “ Defendant Merce d Aguil e ra, i ndividu ally and
doin g business as DMB Con crete Ready Mix, LLC

. ” The affidavit of service states

“ Merce d A guil e ra, individu ally and doin g business as DMB Con crete Ready Mix,
LLC ” was “ INDIV IDUAL L Y/ PERSONALLY served. ” T he judgment orders

“ that the said Plaintiff, IPFS CORPORATION, do have and recover of the Defendant, MERCED AGUILERA, in dividually and doing business as DMB CONCRETE READY MIX, LLC, jointly and severally where mor e than one
Defenda n t

. . . . ” Appellant timely filed a motion to modify the judgment , arguing as
follows:
The form of the judgment either lacks clarity or fails to comply with the law of parties. The pleadings indicate plaintiff sought a pe rsonal judgment against Defendant, a natural person. T he additional mention of the [sic] an LLC which was never made party to this suit is inappropriate. Defunct corporations may be sued as such and citation issued pursuant to Texas Rule of Civil Procedure 29. This procedure

was not utilized in this case, as plaintiff chose strategically to seek a personal judgment. Only one citation was issued in this case, and therefore the judgment may only be against one party. Because the judgment can only be against o ne party, the mention of the LLC in t he judgment is co nfusing and inappropriate. Therefore, Defendant3

requests the judgment be modified or clarified to reflect that judgment is taken against the proper party to this suit and no other.

A NALYSIS

In his brie f, a

ppellant contends “[t] here canno t be two parties t o a judgment in a case where only one citation was issued.” Appellant claim s error in the judgment since no citation was issued to the LLC or any officer of the LLC in his capacity as such

. The only aut hority appellant cites in support of t his argument are Rules 124 1 and 29 2 of the Texas Rules of Civil Procedure. Neither of these rul es are applicable in this case

.

“ A DBA is no more than an assumed or trade name
, ” and as such has no legal existence. Ka hn v. Imperial Airport, L.P. , 308 S. W.3 d 432, 43 8 (Tex . App.

— Dallas 2010, no p et.)

. A person may do business under an assumed name and may be sued in its assumed or common name

. See Tex. R. Civ. P. 28 ; see also Hawk ins
v. State , No. 14

- 17

- 00713

- CV, 2018 WL 4624082, at *4 (Tex. App.

— Houston [ 14t h Dist.] Sept. 27, 2018, no pet.) (mem. op.). Appellant cites no authority , and

our re view has fou nd none, that the inclusion of an assu med or trade n ame in a

p leading, citation, or judgment, requires modification of the judgment.
Although the judgment re cites “ joint an d severally, ” it then states “ where
more tha n one Defend ant

. ” I n th is case there is not more than one
, and the judgment consistent ly and repeatedly refers to defenda nt in the singular

.

1 “ I n no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressl y provided by law or t hese rules. ” T ex. R. Civ. P. 124

.

2 “ When no receiver has been appointed for a corporation which has dissolved, suit may be instituted on any claim against said corporation as though the same had not been dissolved, and service of pro cess may be obtained o n the presiden t, directors, gene ral manager, trustee, assignee, or other person in charge of the affairs of the corporation at the time it was dissolved, and judgment may be rendered as though the corporation had not been dissolved. ” Tex. R. Civ. P. 29.4

The relief a

ppell ant seeks is “ a clear and modified j udg ment against Me rced
A guilera in his personal capa city only. ” However, t o the exten t appellant may be challenging the capacity in which he was sued, no verified p leading to that effect
was filed

. See T ex. R. Civ. P. 93 (2) ; Hawkins v. State
, No. 14

- 17

- 007 13

- CV, 2018
WL 462 4082, at *4 (Tex. App.

— Houston [14th Dist.] Sept. 27, 2018, no pet.) (mem. op.).
For these reasons, the judgment of the trial court is affirmed.

PER CURIAM

The panel consists of Chief Justice Christo pher and Justices Wise and Jewell.