Technicality loom large in cattle neglect case.
This case also provides a good lesson of something to check when your client has been sued – if the plaintiff is a business entity, has it filed it fictitious name certificate?
In Loomis v. Whitehead, a per curiam decision, the Nevada Supreme Court overturned the dismissal of a suit brought by individual members of a partnership that had failed to file an assumed or fictitious name certificate.
NRS 602.070 bars suits by persons who fail to file such certificates, where the suit arises from a contract made under the fictitious name. However, the court held that the statute does not partners from bringing such an action, provided the contract was not made under the fictitious name. Here, the partners conducted a cattle business under the assumed name, but had contracted for care f the cattle without reference to the partnership name. When the cattle died of neglect, they sued the party charged with care of the cattle, who had not been misled into thinking he dealt with a partnership. Justice Hardesty dissented, arguing the statute unambiguously prohibited suits by uncertificated entities, where the suit arises from the business conducted under the fictitious name.
Both sides make excellent points. From a purely statutory construction perspective, Hardesty’s view is easier to justify. The suit undoubtedly arose from the partnership business, as the loss of the cattle was to that business.
However, as the saying goes, bad facts can lead to bad law. Or, at least courts to stretch construction principles when the law as written would lead to an unjust result. Who would want to allow a person who (allegedly) agrees to feed a herd of cattle, but instead, allows them to starve to death, to escape claims of negligence and breach of contract merely because the owner of the cattle didn’t file a fictitious name registration with county clerk? As the majority points out, the statute’s intent was to insure that people know with whom they deal. It was never intended to provide a technical escape route to evade the consequences of breach.
This decision was announced February 28, 2008.
