Hebertson v. Willowcreek Plaza
| Decision Date | 20 September 1996 |
| Docket Number | No. 950264,950264 |
| Citation | 923 P.2d 1389 |
| Parties | Randi HEBERTSON, Plaintiff and Petitioner, v. WILLOWCREEK PLAZA, Defendant and Respondent. |
| Court | Utah Supreme Court |
Brian S. King, Salt Lake City, for plaintiff.
John Clyde Hansen, Salt Lake City, for defendant.
ON CERTIORARI TO THE UTAH COURT OF APPEALS
On a writ of certiorari, plaintiff Randi Hebertson asks us to review a court of appeals decision upholding a trial court's dismissal of her complaint against defendant Willowcreek Plaza. Hebertson v. Willowcreek Plaza, 895 P.2d 839 (Ct.App.), cert. granted, 910 P.2d 425 (Utah 1995). We affirm.
In reviewing a motion to dismiss, "we accept the factual allegations in the complaint as true and draw all reasonable inferences from those facts in a light most favorable to plaintiffs." Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252, 1253 (Utah 1996) (citing Roark v. Crabtree, 893 P.2d 1058, 1059-60 (Utah 1995)). "We recite the facts accordingly." Id.
On December 31, 1988, Hebertson allegedly slipped and fell on the premises of a commercial building located at 8160 South Highland Drive, known as Willowcreek Plaza. Within three days after the alleged accident, Hebertson contacted the building manager, who referred her to an adjuster at State Farm Insurance. In November of 1992, approximately one month before the statute of limitations expired, Hebertson filed a complaint against "Willowcreek Plaza" and served the complaint on one of the managers of Willow Creek Plaza, L.C., which owned the building at the time the complaint was filed. Willow Creek Plaza, L.C., moved to dismiss the complaint because it did not own the building at the time of the alleged accident.
At the time Hebertson allegedly fell, the building was owned by Bank One, Utah, formerly known as Valley Bank and Trust Company ("Valley Bank"), subject to an undivided eighty percent interest in the property held by Dime Savings Bank of New York, FSB ("Dime Savings"), pursuant to a participation agreement. The banks acquired title to the property after Willow Creek Shopping Village, Ltd., defaulted on its construction loan. Thereafter, Valley Bank entered into various leases with tenants at the building. On all leases, Valley Bank was designated as the landlord, and all leases were executed by Valley Bank and Trust Company. The leases variously referred to the building as "Willow Creek Shopping Village," "Willow Creek Plaza Executive Offices," "Willow Creek Plaza," and "Willow Creek Plaza Development."
On the basis of these facts, the trial court dismissed the original complaint without prejudice. 1 Hebertson then refiled her complaint under the savings statute, section 78-12-40 of the Utah Code, again naming Willowcreek Plaza in the caption but this time serving the complaint on Valley Bank and Dime Savings, naming them as defendants in the body of the complaint. Valley Bank and Dime Savings moved to dismiss, arguing that they could not be sued under the name "Willowcreek Plaza." Hebertson opposed the motion to dismiss, arguing that Valley Bank and Dime Savings could be sued under the name "Willowcreek Plaza" because they were "transact[ing] business under a common name." See Utah R.Civ.P. 17(d). Valley Bank and Dime Savings produced the affidavit of Brad R. Baldwin, general counsel for Valley Bank, asserting that "[a]t no time ... did Valley Bank and Dime Savings transact business as 'Willowcreek Plaza.' " The trial court granted the banks' motion to dismiss. 2
Hebertson appealed the dismissal to this court, and we poured the case to the Utah Court of Appeals. The court of appeals affirmed the trial court, reasoning that there was Hebertson, 895 P.2d at 841. The court of appeals concluded that "the mere name accorded a piece of property does not constitute doing business under that name for purposes of Rule 17(d)." Id. Hebertson sought review by this court, and we granted certiorari. Hebertson v. Willowcreek Plaza, 910 P.2d 425 (Utah 1995).
We first identify the appropriate standard of review. "On certiorari, we review the decision of the court of appeals, not the decision of the trial court." State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995) (citing Butterfield v. Okubo, 831 P.2d 97, 101 n. 2 (Utah 1992)). In reviewing the court of appeals' opinion, we adopt the same standard of review used by that court: "[Q]uestions of law are reviewed for correctness, and the trial court's factual findings are reversed only if clearly erroneous." Id. (citing Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990)). The court of appeals, after noting that Valley Bank and Dime Savings conceded that they were doing business together, went on to find "that the mere name accorded a piece of property does not constitute doing business under that name for purposes of Rule 17(d)." Hebertson, 895 P.2d at 841. This is a conclusion of law which we review for correctness. State v. Pena, 869 P.2d 932, 936 (Utah 1994).
We begin by examining Utah Rule of Civil Procedure 17(d), which provides, "When two or more persons associated in any business ... not a corporation, transact such business under a common name ... they may sue or be sued by such common name." Utah R.Civ.P. 17(d). Clearly the rule contemplates two factors: (i) parties transacting business, and (ii) transacting such business under a common name. In this case, the parties conceded at oral argument that Valley Bank and Dime Savings were transacting business when they assumed title to the property, pursuant to a participation agreement, and entered into leases with various tenants for portions of the property. However, there was simply no evidence before the court suggesting that Valley Bank and Dime Savings ever transacted business under the name "Willowcreek Plaza." All evidence of business transacted by the two banks, i.e., the leases entered into with various tenants and the participation agreement itself, indicate that business was done in the name of Valley Bank and Trust Company. Even the leases themselves do not consistently refer to the property by the name "Willowcreek Plaza."
We do not here articulate a test for determining when parties are transacting business under a common name. We simply hold that the name of a building owned by parties transacting business together, even if such business relates...
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