Winding down our update of the first round of Case Watch opinions, the Virginia Supreme Court has finally released its long awaited decision in Tir Conaill Properties, L.C. v. 2401 Wilson, LLC, Record Number 090855. Although the opinion is quite short at only three pages, it is chock full of warnings to the unwary litigator.
This case involved a commercial lease dispute between Tir Conaill Properties, L.C., the tenant, and 2401 Wilson, LLC, the landlord. The day before trial, 2401 Wilson filed a pre-trial memorandum, arguing for the first time that Tir Conaill’s complaint should be dismissed because it failed to file a certificate for transacting business under an assumed name as required by Virginia Code Section 59.1-69 (A).
Section 59.1-69 (A) requires entities conducting business under a fictitious name to file a certificate with the name of the entity, the entity’s address, the fictitious name and the date of certificate of registration or authority to transact business in the court clerk’s office of the county or city where the entity transacts business. Under Section 59.1-76, an entity that fails to file the Section 59.1-69 (A) certificate cannot maintain a law suit unless and until the certificate has been filed.
Tir Conaill responded by arguing that it was in compliance, pointing to a certificate filed by “Tirconaill Properties LLC” stating that it was conducting business in the name of “Kitty O’Shea’s.” But on the morning of trial, the trial court granted 2401 Wilson’s motion to dismiss, rejecting the argument that “Tir Conaill Properties, L.C.” and “Tirconaill Properties, LLC” were in essence the same entities.
The Virginia Supreme Court affirmed, pointing out that Tir Conaill’s only argument was that the certificate it produced purportedly complied with Section 59.1-69 (A). The Court noted specifically that Tir Conaill did not request a continuance to have time to file the required certificate or argue that it was prejudiced by 2401 Wilson’s decision to raise this argument so late in the game.
A final issue raised in this case was the trial court’s use of deposition testimony to decide the Section 59.1-69 (A) argument. Although Virginia litigators would love to have more direction from the Court on the pre-trial use of depositions, the Court sidestepped the issue. Instead, the Court found that Tir Conaill waived this argument by failing to object to the trial court’s use of deposition testimony in deciding the Section 59.1-69 (A) issue.
Here are the lessons to take from this opinion.
- First, be consistent! In every lease, contract, pleading and other document, include both the entity’s corporate name and fictitious name. Make sure the corporate name matches exactly what you have on record with the State Corporation Commission, and don’t assume that a name is “close enough.”
- Second, if you have or represent a business that uses a fictitious name, take the time to make sure you have filed certificates in each jurisdiction where your entity conducts business. And if you find yourself filing suit on behalf of the business, do one final check to make sure that certificate has been filed!
- Third, object, object, object! Be aware that the appellate courts are always on the lookout for procedural default and waiver.
Only one more opinion to go to finish out last year’s Case Watch! Stay posted for the outcome of Advance Towing Co., LLC, et al. v. Fairfax County Board of Supervisors.