## Facts

- Wee Haul, Inc. was a Texas moving company founded in 1978; George B. Killick was its president and a director.
- Wee Haul’s corporate privileges and charter were forfeited in March 1996 for failure to file a franchise tax report.
- Wee Haul’s privileges and charter were reinstated in August 2008 after required filings.
- Lucky Dawg Movers, Inc. (a Georgia corporation) became a franchisee of Wee Haul in 2006 under a written franchise agreement signed by Killick for Wee Haul and by Charles Manry for Lucky Dawg.
- Lucky Dawg sued Wee Haul and Killick, asserting claims including violations of the Texas Deceptive Trade Practices–Consumer Protection Act (DTPA).
- A jury found Wee Haul committed false, misleading, or deceptive acts on which Lucky Dawg relied and awarded $35,725.26 in damages; judgment was entered against Wee Haul.
- Post-verdict, Lucky Dawg sought to impose joint and several liability on Killick, arguing (1) officer/director liability for corporate “debts” during forfeiture under Texas Tax Code § 171.255, and (2) personal liability based on an assumed-name certificate and Texas Rule of Civil Procedure 28.
- Killick had filed an assumed-name certificate for “Wee Haul Inc.” in April 2006, testifying he considered converting the corporation to a sole proprietorship but did not do so and did not represent to Manry that he had.
- The trial court denied the request to hold Killick jointly and severally liable.

## Issues

1. Whether Killick was personally liable under Texas Tax Code § 171.255 for the judgment as a corporate “debt” allegedly created or incurred while Wee Haul’s privileges and charter were forfeited.
2. Whether Killick could be held personally liable under Texas Rule of Civil Procedure 28 based on filing an assumed-name certificate for “Wee Haul Inc.” and allegedly doing business under that assumed name.

## Decision

- The court of appeals affirmed the trial court’s refusal to impose joint and several liability on Killick.
- The court held Lucky Dawg did not establish that the DTPA damages constituted a “debt” created or incurred in Texas within the meaning of Tax Code § 171.255 during the forfeiture period.
- The court held Rule 28 did not support personal liability because the record did not show Killick actually operated as an individual doing business under the assumed name, and the assumed-name theory was not properly pleaded, tried, or submitted for findings tying Killick’s individual assumed-name conduct to the damages.

## Legal Principles

- Texas Tax Code § 171.255 imposes personal liability on corporate officers and directors only for corporate “debts” created or incurred in Texas after forfeiture of corporate privileges; the statute is strictly construed.
- Statutory or tort-based liabilities are not automatically treated as “debts” for purposes of § 171.255; the proponent must show the obligation fits the statute’s scope and timing requirements.
- Texas Rule of Civil Procedure 28 is procedural and permits suit in an assumed name to enforce a substantive right against the true legal person; it does not itself create substantive personal liability.
- Filing an assumed-name certificate, without proof that an individual actually conducted business as a sole proprietor under the assumed name and without proper pleading and fact findings, does not justify imposing personal liability for a corporate judgment.

## Conclusion

The court affirmed the judgment against Wee Haul alone, holding that Lucky Dawg failed to prove the DTPA award triggered officer liability for a qualifying corporate “debt” under Tax Code § 171.255 and failed to plead and prove that Killick personally did business under an assumed name in a way that would allow enforcement of a substantive right against him under Rule 28.


Lucky Dawg Movers, Inc. v. Wee Haul, Inc., No. 05-10-00222-CV, 2011 Tex. App. LEXIS 8398 (Tex. App.—Dallas Oct. 21, 2011)