Capital One Bank (U.S.) v. Tafoya

• Citation: 31 Neb.App. 875
• Decision Date: 09 May 2023
• Docket Number: A-22-052
• Parties: Capital One Bank (USA), N.A., appellee v. Scott A. Tafoya, appellant.
• Court: Court of Appeals of Nebraska

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31 Neb.App. 875

Capital One Bank (USA), N.A., appellee v. Scott A. Tafoya, appellant.

No. A-22-052

Court of Appeals of Nebraska

May 9, 2023

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law. An appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

2. Judgments: Abatement, Survival, and Revival. An order of revivor is a mere continuation of the original action and continues the vitality of the original judgment with all of its incidents from the time of its rendition.

3. ____: ____. The only defenses available against an action to revive are (1) there is no judgment to revive, (2) the purported judgment is void, and (3) the judgment was paid or otherwise discharged. When the revivor of a dormant judgment is sought, a defendant must show cause why the dormant judgment should not be revived.

4. Judgments: Abatement, Survival, and Revival Jurisdiction: Evidence. While a defendant in revival proceedings may not use extrinsic evidence to relitigate the merits of the case, the defendant can introduce extrinsic evidence to show that the original judgment was void because the court entered it without jurisdiction.

5. Parties: Names: Intent. The intent of the plaintiff is a pivotal inquiry in the determination of whether a particular case involves a misnomer or mistaken identity; the objective manifestations of a plaintiff's intent which existed at the time of the lawsuit are the most reliable indicators of whom counsel intended to sue.

6. Service of Process: Parties: Names: Waiver. If a defendant is personally served, even if the name is incorrect, the defendant must appear and call attention to the defect. Failing to do so waives the objection to the misnomer and allows a judgment to be rendered against the defendant by default.

7. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.

Appeal from the District Court for Sarpy County, George A. Thompson Judge, on appeal thereto from the County Court for Sarpy County, Robert C. Wester, Judge. Judgment of District Court affirmed.

James Polack, P.C., L.L.O., for appellant.

Shawn D. Flint and David C. Hepperlen, of Gurstel Law Firm, P.C for appellee.

Moore Riedmann, and Bishop, Judges.

Bishop, Judge.

INTRODUCTION

Scott A. Tafoya appeals from the Sarpy County District Court's order affirming the decision of the county court for Sarpy County, which revived a dormant monetary judgment against Tafoya. We affirm.

STATEMENT OF FACTS

In June 2010, Capital One Bank (USA), N.A. (Capital One), filed a complaint in the county court against "Scott A Tafoya DBA Arcosant Homes Inc" seeking a $22,720.11 judgment for the balance and interest owed on a credit card account. The county court entered a default judgment against "Scott A Tafoya" on March 16, 2011. (We note that Arcosant is supposed to be Arcosanti; however, we will spell the name as we find it in our record.)

Almost 10 years later, on March 1, 2021, Capital One filed a revivor motion in the county court related to the March 16, 2011, judgment, and on the same day, the court entered a "Conditional Order of Revivor" and "Notice of Hearing." Tafoya filed an objection to the revivor, claiming the judgment was void because Arcosanti Homes, Inc., was a legal entity with the capacity to be sued and was a separate party from Tafoya, its president. Tafoya admitted that Arcosanti Homes, Inc., "had an open account with Capital One but ceased using it when the Corporation ceased doing business"; according to the objection, the corporation was dissolved in April 2010, just a couple months before Capital One filed its action against "Scott A Tafoya DBA Arcosant Homes Inc" to obtain a judgment for the amount owed on the credit card account. Tafoya's objection further alleged that to sue Tafoya, the corporation's president, it was necessary to pierce the corporate veil and that the county court did not have jurisdiction to pierce the corporate veil. He therefore claimed that the March 2011 judgment was void. A hearing on the revivor motion took place on April 20, 2021. Tafoya attempted to offer three exhibits: exhibit 1 (Tafoya's affidavit), exhibit 2 (Capital One's documents related to the motion for revivor), and exhibit 3 (Nebraska Secretary of State record for Arcosanti Homes, Inc.). Capital One objected to exhibit 1 on relevancy grounds; the objection was taken under advisement.

On June 11, 2021, the county court entered an order stating only that the judgment "against Scott A. Tafoya of March 16, 2011 is revived." On June 14, Tafoya filed a "Motion for Detailed Findings," and on June 16, he filed a notice of appeal. Although not included in our record, Capital One represents in its brief that Tafoya's motion requesting detailed findings was subsequently withdrawn. A hearing on Tafoya's appeal to the district court took place on November 5, and an "Opinion and Order" was filed by the district court on December 29.

In the district court's December 29, 2021, order, it cited to Neb. Rev. Stat. § 25-1420 (Reissue 2016) which allows for the revival of a judgment that has become dormant, so long as it is commenced within 10 years after the judgment became dormant. The court also cited to Cave v. Reiser, 268 Neb. 539, 684 N.W.2d 580 (2004), observing that the only defenses available against an application to revive a judgment are that there is no judgment to revive, the judgment is void, or the judgment was paid or otherwise discharged. The court indicated that Tafoya was not seeking to attack the judgment for any other reason than "to show the judgment is void." The court pointed out that in the underlying county court action, Capital One did not plead a cause of action to pierce the corporate veil, and that although Capital One added "doing business as" after Tafoya's name, that did not "establish a cause of action for piercing the corporate veil." The court explained:

Essentially, [Tafoya's] argument comes down to one matter, namely, what is the effect of suing a defendant with the moniker 'doing business as'. For [Tafoya], it makes all the difference in the world. If it is improper, then the Default Judgment is void and [Capital One] cannot revive the judgment. [Tafoya] relies [on an Illinois case that] is heavily grounded on Illinois statutes and Illinois caselaw [which] are separate and distinct from Nebraska authority. As such, it is comparing apples to oranges.

Perhaps a better starting point is Toulousaine de Distribution et de Servs. v. Tri-State Seed &Grain, 2 Neb.App. 937, 520 N.W.2d 210 (1994). In Toulousaine, the Nebraska Court of Appeals stated Neb.Rev.Stat. § 25-312 provides that in an action on a written instrument, it is sufficient to designate the defendant "by the name or part of name by which he is designated in the instrument upon which action is brought." Furthermore, the Court of Appeals stated, [although] no cases could be found directly on point in Nebraska, other jurisdictions have held that so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name. Later, the Court stated, the law from other jurisdictions also indicates that doing business under another name or several names does not create an entity separate and distinct from the person operating the business, and the person remains personally liable for all his or her obligations[, and that] if a defendant is personally served, even if the name is incorrect, he must appear and call attention to the defect. Failing to do so waives the objection to the misnomer and allows a judgment to be rendered against him by default.

The district court also pointed out that the Nebraska Supreme Court expanded on Toulousaine de Distrib. v. TriState Seed &Grain, 2 Neb.App. 937, 520 N.W.2d 210 (1994), in Hall v. Auto-Owners Ins. Co., 265 Neb. 716, 658 N.W.2d 711 (2003), identifying additional cases in support of the legal principle that doing business under another name does not create an entity separate and distinct from the person operating the business. The court concluded that Capital One's 2010 complaint alleged that the "Defendant is a resident of Sarpy County, Nebraska," and that "Defendant is not a member of the Armed Forces of the United States." It also pointed out that the summons was directed to "Scott A. Tafoya" and service was sought by first-class mail at "Defendant's usual place of residence." The court determined that Tafoya was "too late to raise his argument," since he was "served with a lawsuit" and he "failed to respond." The court further stated that Tafoya did not appeal nor move to vacate the judgment within the term of the court, and "now, some 9 years later, . . . he desires to go back in time." "He is not permitted now, at this late juncture, to challenge the judgment." The district court affirmed the county court's judgment.

Tafoya appeals.

ASSIGNMENTS OF ERROR

Tafoya assigns, reordered and restated, that the district court erred by not reversing the county court's order reviving the 2011 judgment, since that judgment was void for the following reasons: (1) the county court lacked subject matter jurisdiction "to pierce the corporation and enter a judgment against 'Scott A Tafoya, d/b/a Arcosant Homes, Inc.'"; (2) the county court lacked subject matter jurisdiction "to enter a judgment against 'Scott A. Tafoya, d/b/a Arcosant Homes, Inc.'"; (3) the county co...