COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00227-CV

LOU ANNE PERKINS APPELLANT

V.

BARRY HICKS D/B/A SUNSHINE 

REMODELING

APPELLEE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 15-09007-362

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MEMORANDUM OPINION1

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Lou Anne Perkins sued “B[a]rry Hicks d/b/a Sunshine Remodeling” for 

negligence, breach of contract, and breach of warranties.2 Hicks moved for 

summary judgment, arguing that Perkins did not file her negligence claim within 

 1See Tex. R. App. P. 47.4.

2Perkins sued various other people and entities, but none is a party to this 

appeal, and so we discuss only Perkins’s claims against Hicks.
2

the two-year limitations period and that Perkins had contracted with Sunshine 

Sunrooms, Inc., not with Hicks personally, on her two remaining claims. The trial 

court granted Hicks’s motion.

Perkins appealed. In three issues, she argues that the trial court erred 

because (1) Hicks was the proper party to sue, (2) even if Hicks was not the 

proper party, Hicks failed to file special exceptions, and (3) there were genuine 

factual issues on her claims.3

Holding that Perkins sued the wrong party on her breach-of-contract and 

breach-of-warranties claims, we affirm the trial court’s judgment as to them. 

Holding that Perkins filed her negligence claim within the two-year limitations

period, however, we reverse the trial court’s judgment as to that claim and 

remand the case to the trial court.

Background

According to Perkins’s live pleading, when Perkins discovered water 

damage in her master bedroom, she contacted her insurance agent, who 

 3Hicks argues that Perkins, who wrote her “Appellant’s First Amended

Brief” pro se, waived all her complaints due to inadequate briefing. Perkins’s pro 

se brief provides legal authorities and record references, and her reply brief, 

which counsel wrote, gives additional record references and citations to 

authorities. Construing Perkins’s pro se and reply briefs liberally and in the 

interests of justice, we will consider her complaints on their merits. See Tex. R. 

App. P. 38.9 (“Briefing Rules to Be Construed Liberally”); Evans v. Abbott, 

No. 03-02-00719-CV, 2003 WL 22207219, at *1 n.2 (Tex. App.—Austin Sept. 25, 

2003, no pet.) (mem. op.). But to the extent Perkins’s reply brief raises additional 

issues, we do not consider them. See In re. M.D.H., 139 S.W.3d 315, 318 (Tex. 

App.—Fort Worth 2004, pet. denied) (mem. op. on reh’g).
3

discouraged her from filing a claim but instead suggested that she use a 

contractor that he himself had used. Following her insurance agent’s advice, 

“[Perkins] hired Defendant Sunshine Remodeling to repair the damage to her 

home.” Dissatisfied with the work that was begun, Perkins then “requested that 

the employees of Sunshine Remodeling leave her home and not return.”

Sunshine Remodeling, which Hicks’s summary-judgment evidence 

established was a d/b/a of Sunshine Sunrooms, Inc. (a company wholly owned 

by Hicks), later sent Perkins a bill for $175 for the work it had begun before she

asked its workers to leave. The invoice does not have Hicks’s name anywhere on 

it—except arguably in the email address, barry@sunshinesunrooms.com, that is 

part of the invoice’s header—and the unsigned signature block on Sunshine 

Remodeling’s invoice to Perkins refers to “Sunshine Sunrooms, Inc.” Perkins 

then sued Hicks individually, doing business as Sunshine Remodeling, for 

negligence, breach of contract, and breach of warranties. She filed her suit within 

the two-year limitations period for negligence but did not serve Hicks until about a 

year after that two-year period expired.

Hicks filed his original answer under the name “Barry Hicks d/b/a Sunshine 

Remodeling,” exactly as Perkins had alleged. About two months later, however, 

he filed an amended answer as “Barry Hicks,” denied any contractual privity 

between himself and Perkins, and denied individually selling Perkins any 

services.
4

A few days after filing his amended answer, Hicks moved for summary 

judgment and argued that Perkins had sued the wrong party on her breach-ofcontract and breach-of-warranties claims. On her negligence claim, Hicks 

(mistakenly) relied on his date of service as the filing date, contending that 

Perkins had not filed her suit within the two-year limitations period.

In Perkins’s summary-judgment response, relying on the $175 invoice from 

Sunshine Remodeling, she argued that she had properly sued Hicks individually 

and, relying on her filing date and not the service date, argued that she had

timely sued. In her supporting affidavit, Perkins stated, “The bill [for $175] 

showed d/b/a as Sunshine Remodeling which is not listed as a corporation with 

the Secretary of State [and] therefore is not a corporation under Texas Law[;]

therefore[,] Barry Hicks should not be dismissed from this case.”

The trial court granted Hicks’s motion and rendered summary judgment on 

all of Perkins’s claims against Hicks.

Standard of review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the 

light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if reasonable jurors could, and disregarding evidence contrary to the 

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every 

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, 
5

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant that conclusively 

negates at least one essential element of a plaintiff’s cause of action is entitled to 

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 

494, 508 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 

166a(b), (c).

Breach of Contract

A. Hicks establishes that Sunshine Remodeling is an assumed name for 

Sunshine Sunrooms, Inc. and is not an assumed name for him 

individually.

In Hicks’s amended answer, he asserted, among other defenses, that 

“Perkins has no standing to bring causes of action against Hicks,” that there was 

no privity of contract between Perkins and Hicks, and that Hicks individually did 

not sell services to Perkins.

Hicks then sought summary judgment along the same lines, arguing that 

there was no breach of contract because there was no contractual privity 

between him individually and Perkins. In his supporting affidavit, Hicks stated that 

he was the president and sole owner of Sunshine Sunrooms, Inc., which 

operated under the assumed name of Sunshine Remodeling. He also stated that 

he did not conduct business in his individual capacity or in his individual capacity 

doing business as Sunshine Remodeling.
6

B. Perkins correctly points out that Hicks failed to file special exceptions, 

but Hicks correctly responds that Perkins did not object to his failure 

and thereby waived this complaint.

In her pro se brief, Perkins complains that filing special exceptions, 

something Hicks did not do, is the proper way to challenge a pleading defect. 

Hicks responds that Perkins waived this complaint by not presenting it in the trial 

court.

It is true that the proper procedure for identifying and objecting to a defect 

in pleadings is to specially except rather than move for summary judgment. See 

Friesenhahn v. Ryan, 960 S.W.2d 656, 659 (Tex. 1998); Vawter v. Garvey, 

786 S.W.2d 263, 264 (Tex. 1990). But a plaintiff who fails to object waives this

issue. Dickey v. Jansen, 731 S.W.2d 581, 583 (Tex. App.—Houston [1st Dist.] 

1987, writ ref’d n.r.e.) (“‘[T]here being no complaint in the trial court that the 

attack upon the pleading defect came in the form of a motion for summary 

judgment rather than special exception,’ this matter could not be raised for the 

first time on appeal.” (quoting Farrell v. Crossland, 706 S.W.2d 158, 160 (Tex. 

App.—El Paso 1986, writ dism’d)). Here, Perkins did not object in the trial court 

that Hicks should have specially excepted; instead, she raises this issue for the 

first time on appeal.

4 The issue was not properly preserved and is thus waived. 

See id.

 4Perkins responded pro se to Hicks’s motion for summary judgment.
7

C. Perkins admits dealing with Sunshine Remodeling.

In Perkins’s second amended petition, she sued “Berry [sic] Hicks d/b/a 

Sunshine Remodeling,” asserting that:

16. On or about October 19, 2013, [Perkins] called [her 

insurance agent] and requested to make a claim again. Again she 

was told not to make a claim. Instead, he recommended [Perkins]

contact a contractor he knew who could fix the water damage. 

Defendant Sunshine Remodeling Company came out to the property 

between October 20, 2013 and November 4, 2013. [Perkins] hired 

Defendant Sunshine Remodeling to repair the damage to her home. 

They failed to properly make repairs and failed to make any effort to 

contain the damage found in the [bedroom]. Eventually, [Perkins]

requested that the employees of Sunshine Remodeling leave her 

home and not return. While there, Sunshine Remodeling Company 

exposed interior walls with water damage and did not make any 

attempt to contain the damage. The result was further damage to 

[Perkins’s] home.

Hicks contends this constitutes a judicial admission that Perkins contracted with 

“Sunshine Remodeling.”

“Admissions in trial pleadings are judicial admissions in the case in which 

the pleadings are filed; the facts judicially admitted require no proof and preclude 

the introduction of evidence to the contrary.” In re A.E.A., 406 S.W.3d 404, 

410 (Tex. App.—Fort Worth 2013, no pet.). “This rule is based on the public 

policy that it would be absurd and manifestly unjust to permit a party to recover 

after he has sworn himself out of court by a clear and unequivocal statement.” Id.

We agree with Hicks that Perkins’s own petition constitutes an admission 

that she dealt with Sunshine Remodeling. But the question remains: Who or what 

is Sunshine Remodeling?
8

D. Sunshine Remodeling is not a corporation.

In the affidavit Perkins filed in support of her response to Hicks’s summaryjudgment motion, she stated that “Sunshine Remodeling . . . is not listed as a 

corporation with the Secretary of State.”5 By definition, an assumed name for a 

corporation is “a name other than the name stated in [the corporation’s] 

certificate of formation or a comparable document.” See Tex. Bus. & Com. Code 

Ann. § 71.002(2)(F) (West 2015). We are not persuaded that simply because 

Sunshine Remodeling does not show up as a corporation that it necessarily 

follows that Sunshine Remodeling is an assumed name for Hicks. The only thing 

Perkins showed was the uncontested fact that Sunshine Remodeling was not 

incorporated.

Significantly, Perkins does not state whether she ever searched for an 

assumed-name certificate. Under the business and commerce code, “[a]

corporation . . . must file a certificate . . . if the entity . . . regularly conducts 

business or renders professional services in this state under an assumed name.” 

Id. § 71.101(1) (West 2015). And even if an entity does not file an assumed-

 5Hicks objected to this statement in Perkins’s affidavit. Nothing in the 

record shows that the trial court considered or ruled on Hicks’s objection. See 

Towncreek Indus., LLC v. Wells Fargo Bank, N.A., No. 02-15-00393-CV, 

2016 WL 6305257, at *4 (Tex. App.—Fort Worth Oct. 27, 2016, no pet.) (mem. 

op.) (stating that objections to summary-judgment evidence arguably not 

preserved where record did not show trial court considered or ruled on them). We 

note that in Perkins’s response proper, she asserts that “Sunshine Sunrooms, 

Inc. . . . is not a corporation according to the Secretary of State, [so she] dealt 

with Barry Hicks as an individual.” But in her affidavit, she switches from 

“Sunshine Sunrooms, Inc.” to “Sunshine Remodeling” for this proposition.
9

name certificate, if evidence shows that the entity was doing business under 

another name, it may be held liable. Broemer v. Houston Lawyer Referral Serv., 

407 S.W.3d 477, 482 (Tex. App.—Houston [14th Dist.] 2013, no pet.). So if 

Sunshine Sunrooms, Inc. had filed an assumed-name certificate, it would have 

definitively answered the question of who was doing business as Sunshine 

Remodeling. Conversely, even if Sunshine Sunrooms, Inc. had not filed an 

assumed name certificate, it would not have definitively resolved the issue in 

Perkins’s favor. That is because both individuals and corporations can do 

business under assumed names. See Tex. Bus. & Com. Code Ann. 

§ 71.002(2)(A), (F).

E. Sunshine Remodeling is an assumed name (or d/b/a).

In Perkins’s live petition, she asserts: “Defendant Berry [sic] Hicks d/b/a 

Sunshine Remodeling entered into a contract with [Perkins] to [fix] the damage in 

her home.” By this allegation, Perkins has judicially admitted that she was aware 

that Sunshine Remodeling was an assumed name. See A.E.A., 406 S.W.3d at 

410. Both sides thus agree that “Sunshine Remodeling” was a “doing business 

as,” or an assumed name. See Tex. Bus. & Com. Code Ann. § 71.002(2); Dall. 

Cty. Flood Control Dist. No. 1 v. Cross, 815 S.W.2d 271, 273 n.3 (Tex. App.—

Dallas 1991, writ denied) (“D/b/a means ‘doing business as’. A d/b/a is an 

assumed name for a business.”). The next question is: For whom or what is 

Sunshine Remodeling an assumed name?
10

F. Perkins’s own summary-judgment evidence does not show that she 

contracted with Hicks individually but, instead, shows she contracted 

with a business using the names Sunshine Sunrooms, Inc. and 

Sunshine Remodeling.

In her response to Hicks’s summary-judgment motion, Perkins states 

unequivocally that she had a valid contract with Hicks and attached as proof the 

$175 invoice she received.

The caption on that invoice identifies “Sunshine Remodeling,” and 

immediately below the caption are the company’s website and contact 

information:

• www.sunshinesunrooms.com

• email: barry@sunshinesunrooms.com

The signature line on page 2 of the invoice is for “Sunshine Sunrooms, Inc.” 

Nothing on this document shows contractual privity with Hicks.

Perkins argues that she did not know for whom Hicks worked until she 

received that invoice. That may well be: when Sunshine Remodeling’s 

employees showed up and started work, Perkins had not signed a contract.6

Although Perkins asserts that she thought she was dealing with Hicks 

individually, this is conclusory, consisting of her subjective belief, which is not 

 6Hicks asserts that he gave Perkins a proposed contract bearing the same 

identifying information as the invoice for $175 before any work started, but 

Perkins denies it. We thus examine only the $175 invoice, which Perkins herself 

relies on for summary-judgment evidence.
11

enough to raise a fact issue. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 

122 (Tex. 1996); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

And when Perkins received the invoice for $175, she was certainly put on 

notice then that Hicks was affiliated with or worked for some form of business 

acting under “Sunshine Remodeling” that was somehow affiliated with “Sunshine 

Sunrooms, Inc.” Although the “barry” in the email address undoubtedly refers to 

Hicks, the remainder of the email address identifies “sunshinesunrooms.” 

Nothing in the invoice suggests that Sunshine Remodeling is an assumed name 

for Hicks, nor does his full name appear anywhere on the invoice. Regardless of 

what Perkins thought before receiving this invoice, she had this information

before she sued Hicks. Her own summary-judgment evidence rebuts her 

assertion that she was dealing with Hicks individually.

G. Perkins misidentified—she did not simply misname—the identity behind 

the assumed name.

“A misnomer occurs when the plaintiff misnames . . . the correct defendant, 

but the correct parties are actually served.” Diamond v. Eighth Ave. 92, L.C., 

105 S.W.3d 691, 695 (Tex. App.—Fort Worth 2003, no pet.). When the plaintiff 

does not merely misname the correct defendant but files suit against and serves 

the wrong party entirely, misnomer does not apply. Id.

“Misidentification occurs when two separate legal entities with similar 

names actually exist and the plaintiff sues the wrong one because she is 

mistaken about which entity is the correct defendant.” Id. “In cases of 
12

misidentification where the wrong legal entity is sued, the limitation period may 

be equitably tolled if the plaintiff can prove that the proper defendant was not 

prejudiced by the mistake in pleading.” Id.

Hicks asserts that Perkins sued the wrong party—that is, that she 

misidentified the correct defendant—because Sunshine Remodeling is Sunshine 

Sunroom, Inc.’s assumed name, not his. Hicks provided summary-judgment 

evidence supporting his position that he has never individually done business as 

Sunshine Remodeling but that Sunshine Sunrooms, Inc., has. Perkins has not 

produced any controverting summary-judgment evidence.

H. A plaintiff must sue the correct party behind the assumed name.

The rules of civil procedure permit suing a business in its assumed name. 

Tex. R. Civ. P. 28. “Rule 28 is predicated on the notion that a case has already 

commenced against the proper party, but the party’s legal name is incorrect.” 

Molinet v. Kimbrell, 356 S.W.3d 407, 412 (Tex. 2011). “Of course, at some point 

before judgment, the plaintiff must amend the petition to add the correct legal 

name of the actual defendant.” Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex. 

1999).

But Perkins did not sue “Sunshine Remodeling,” whoever or whatever that 

might be; rather, she sued “Berry [sic] Hicks d/b/a Sunshine Remodeling.” That 

is, she sued Hicks individually under the assumed name of Sunshine 

Remodeling and has never sued Sunshine Sunrooms, Inc., d/b/a Sunshine 
13

Remodeling. Despite Hicks’s having identified Sunshine Sunrooms, Inc. as the 

proper party, Perkins did not seek to include it in her lawsuit.

Suing the wrong company or person behind an assumed name has 

consequences. In Continental Southern Lines, Inc. v. Hilland, the plaintiff was 

injured while getting off a “Continental Trailways” bus. 528 S.W.2d 828, 829 (Tex. 

1975). At the time, rule 28 did not allow corporations to sue or be sued in their 

assumed names. Id. at 830. Within the limitations period, the plaintiff sued 

“Continental Trailways, Inc.” Id. at 829. Unfortunately for the plaintiff, she sued 

the wrong corporation; the correct entity was “Continental Southern Lines, Inc.,” 

and by the time the plaintiff had discovered her error and amended her petition, 

limitations had run. Id. The supreme court thus reversed the judgment that the 

plaintiff had procured against Continental Southern Lines, Inc. Id. at 830.

But the supreme court did not reverse and render; instead, it remanding to 

have the trial court determine whether the correct defendant “was cognizant of 

the facts, was not misled, or placed at a disadvantage in obtaining relevant 

evidence to defend the suit.” Id. at 831. If the trial court so found, the limitations

period would not bar the plaintiff’s suit against the correct company behind the 

assumed name, Continental Southern Lines, Inc. See id.

Here, of course, Perkins never amended to sue Sunshine Sunrooms, Inc.; 

neither does the record show whether that corporation was “cognizant of the 

facts” and was “not misled” by Perkins’s having sued Hicks.
14

I. Conclusion

Based on the state of the record, we hold that the trial court properly 

granted summary judgment on Perkins’s breach-of-contract claim because Hicks 

was not the party with whom she had contracted.

Breach of Warranties

“The elements of a claim for breach of warranty for services are (1) the 

defendant sold services to the plaintiff; (2) the defendant made a representation 

to the plaintiff about the characteristics of the services by affirmation of fact, by 

promise, or by description; (3) the representation became part of the basis of the 

bargain; (4) the defendant breached the warranty; (5) the plaintiff notified the 

defendant of the breach; and (6) the plaintiff suffered injury.” Paragon Gen. 

Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 886 (Tex. App.—Dallas 

2007, no pet.).

For the same reason that the trial court properly granted summary 

judgment on Perkins’s breach-of-contract claim, the trial court properly granted 

summary judgment on her breach-of-warranties claim: Perkins sued the wrong 

party. Hicks individually did not sell Perkins any services. See id.

Negligence

Unlike with the breach-of-contract and breach-of-warranties claims, Hicks 

did not seek summary judgment on Perkins’s negligence claim because she had 

sued the wrong party but rather because her negligence claim was ostensibly 

barred by the two-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. 
15

§ 16.003 (West 2017). Because work ceased on November 4, 2013, Hicks 

argued that limitations ran on November 4, 2015, but Perkins did not file her 

petition until November 28, 2016.

On appeal, Hicks admits—and the record confirms—that Perkins filed her 

original petition on October 16, 2015, which is within the two-year limitations

period. The trial court thus erred by granting summary judgment on Perkins’s 

negligence claim on that basis.

But on appeal, Hicks contends for the first time that the summary judgment 

was nevertheless proper because Perkins did not exercise due diligence to serve 

him with the lawsuit. The supreme court has held that “a summary judgment 

cannot be affirmed on grounds not expressly set out in the motion or response.” 

Stiles v. Resolution Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993); see Henkel v. 

Norman, 441 S.W.3d 249, 251 n.1 (Tex. 2014). Because Hicks did not move for 

summary judgment on this basis, we may not use it to affirm the summary 

judgment. See Henkel, 441 S.W.3d at 251 n.1, Stiles, 867 S.W.2d at 26.

Conclusion

We affirm the trial court’s summary judgment on Perkins’s breach-ofcontract and breach-of-warranties claims. We reverse the trial court’s summary 

judgment on Perkins’s negligence claim and remand that cause of action to the 

trial court for further proceedings.7

 7We express no opinion about whether, on remand, Perkins can amend 

her petition to include Sunshine Sunrooms, Inc.
16

/s/ Elizabeth Kerr

ELIZABETH KERR

JUSTICE

PANEL: WALKER, KERR, and BIRDWELL, JJ.

DELIVERED: August 16, 2018