Renfroe v. Taggares

• Citation: 21 Wn.App. 922,586 P.2d 1213
• Decision Date: 21 November 1978
• Docket Number: No. 2287-III,2287-III
• Parties: Toy RENFROE, d/b/a Columbia Drilling Co., Respondent, v. Stanley TAGGARES and Delores Taggares, husband and wife, Individually and the marital community of them composed, Appellants.
• Court: Washington Court of Appeals

Page 922

21 Wn.App. 922

586 P.2d 1213

Toy RENFROE, d/b/a Columbia Drilling Co., Respondent, v. Stanley TAGGARES and Delores Taggares, husband and wife Individually and the marital community of them composed, Appellants.

No. 2287-III.

Court of Appeals of Washington, Division 3, Panel Two.

Nov. 21, 1978.

Richard R. Greiner, Yakima, for appellants.

Blechschmidt, Bingman & Maxwell, Arthur Bingman, Grandview, for respondent.

MUNSON, Chief Judge.

Defendants appeal from a judgment awarding damages to the plaintiff in a breach of contract action.

Defendants' first assignment of error relates to the failure of proof on the part of plaintiff of compliance with RCW 19.80.010, ¹ which is the filing of a certificate of assumed name with the county clerk of the county in which the business is conducted. Failure to file is controlled by RCW 19.80.040, which states, in part, "No person . . . transacting business . . . shall hereafter be entitled to maintain any suit in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in RCW 19.80.010, . . ."

Here, plaintiff did allege compliance with the statute; this allegation was challenged by the defendants in their answer. The trial court in finding of fact No. 3 found that the certificate had been filed. However, a thorough search of the record fails to disclose any evidence of that compliance. The plaintiff in his brief states at page 4 that:

he made an offer of proof of such fact to the Court. The record does not show such fact; and therefore, that argument will not be pursued herein until such record may be corrected.

Plaintiff's brief was filed on January 9, 1978, and up through the time of oral argument, which was waived by both counsel, and to the writing of this opinion, the record has not been corrected nor has there been any evidence that certificate was filed with the county clerk. This court stated in Reese Sales Co. v. Gier, 16 Wash.App. 664, 667, 557 P.2d 1326, 1329 (1977), that:

The failure of plaintiff . . . to plead and prove filing of a certificate of assumed name is fatal to commencement or maintenance of this action. The statutory language is clear and without exception. ²

Plaintiff relies on Neill v. Bennett, 34 Wash.2d 128, 208 P.2d 137 (1949). That case is not controlling in that the parties were doing business under a corporate name which incorporated their surnames, I. e., Neill Electric. Also Falls v. Soles, 138 Wash. 407, 244 P. 707 (1926), is not apropos. The court in Falls found the owners did not conduct their business under an assumed business style or name but in their proper individual names. Here, the contract is captioned Columbia Drilling Co., although it is signed by Toy Renfroe.

Notwithstanding, we find that there is no proof to support the finding by the court of compliance with RCW 19.80 and this judgment must be reversed. ³ Under Peterson v. Morris, 119 Wash. 335, 343-46, 205 P. 408 (1922), if the statute of limitations has not run, the cause of action may be reinstituted if in fact such a certificate is in existence; but at this time, there is no right in the plaintiff to...