Capital One Bank v. Tafoya , 31 Neb. Ct. App. 875 ( 2023 )

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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
CAPITAL ONE BANK V. TAFOYA
Cite as 31 Neb. App. 875Capital One Bank (USA), N.A., appellee,
v. Scott A. Tafoya, appellant.
___ N.W.2d ___
Filed May 9, 2023. No. A-22-052.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law. An appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court below.
2. Judgments: Abatement, Survival, and Revival. An order of revivor
is a mere continuation of the original action and continues the vital-
ity of the original judgment with all of its incidents from the time of
its rendition.
3. ____: ____. The only defenses available against an action to revive are
(1) there is no judgment to revive, (2) the purported judgment is void,
and (3) the judgment was paid or otherwise discharged. When the revi-
vor of a dormant judgment is sought, a defendant must show cause why
the dormant judgment should not be revived.
4. Judgments: Abatement, Survival, and Revival: Jurisdiction:
Evidence. While a defendant in revival proceedings may not use extrin-
sic evidence to relitigate the merits of the case, the defendant can intro-
duce extrinsic evidence to show that the original judgment was void
because the court entered it without jurisdiction.
5. Parties: Names: Intent. The intent of the plaintiff is a pivotal inquiry
in the determination of whether a particular case involves a misnomer
or mistaken identity; the objective manifestations of a plaintiff’s intent
which existed at the time of the lawsuit are the most reliable indicators
of whom counsel intended to sue.
6. Service of Process: Parties: Names: Waiver. If a defendant is person-
ally served, even if the name is incorrect, the defendant must appear and
call attention to the defect. Failing to do so waives the objection to the
misnomer and allows a judgment to be rendered against the defendant
by default.
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CAPITAL ONE BANK V. TAFOYA
Cite as 31 Neb. App. 8757. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
Appeal from the District Court for Sarpy County, George
A. Thompson, Judge, on appeal thereto from the County Court
for Sarpy County, Robert C. Wester, Judge. Judgment of
District Court affirmed.
James Polack, P.C., L.L.O., for appellant.
Shawn D. Flint and David C. Hepperlen, of Gurstel Law
Firm, P.C., for appellee.
Moore, Riedmann, and Bishop, Judges.
Bishop, Judge.
INTRODUCTION
Scott A. Tafoya appeals from the Sarpy County District
Court’s order affirming the decision of the county court for
Sarpy County, which revived a dormant monetary judgment
against Tafoya. We affirm.
STATEMENT OF FACTS
In June 2010, Capital One Bank (USA), N.A. (Capital One),
filed a complaint in the county court against “Scott A Tafoya
DBA Arcosant Homes Inc” seeking a $22,720.11 judgment
for the balance and interest owed on a credit card account.
The county court entered a default judgment against “Scott
A Tafoya” on March 16, 2011. (We note that Arcosant is sup-
posed to be Arcosanti; however, we will spell the name as we
find it in our record.)
Almost 10 years later, on March 1, 2021, Capital One filed
a revivor motion in the county court related to the March
16, 2011, judgment, and on the same day, the court entered
a “Conditional Order of Revivor” and “Notice of Hearing.”
Tafoya filed an objection to the revivor, claiming the judgment
was void because Arcosanti Homes, Inc., was a legal entity
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Cite as 31 Neb. App. 875with the capacity to be sued and was a separate party from
Tafoya, its president. Tafoya admitted that Arcosanti Homes,
Inc., “had an open account with Capital One but ceased using
it when the Corporation ceased doing business”; according to
the objection, the corporation was dissolved in April 2010, just
a couple months before Capital One filed its action against
“Scott A Tafoya DBA Arcosant Homes Inc” to obtain a judg-
ment for the amount owed on the credit card account. Tafoya’s
objection further alleged that to sue Tafoya, the corporation’s
president, it was necessary to pierce the corporate veil and that
the county court did not have jurisdiction to pierce the corpo-
rate veil. He therefore claimed that the March 2011 judgment
was void. A hearing on the revivor motion took place on April
20, 2021. Tafoya attempted to offer three exhibits: exhibit 1
(Tafoya’s affidavit), exhibit 2 (Capital One’s documents related
to the motion for revivor), and exhibit 3 (Nebraska Secretary of
State record for Arcosanti Homes, Inc.). Capital One objected
to exhibit 1 on relevancy grounds; the objection was taken
under advisement.
On June 11, 2021, the county court entered an order stat-
ing only that the judgment “against Scott A. Tafoya of March
16, 2011 is revived.” On June 14, Tafoya filed a “Motion
for Detailed Findings,” and on June 16, he filed a notice of
appeal. Although not included in our record, Capital One rep-
resents in its brief that Tafoya’s motion requesting detailed
findings was subsequently withdrawn. A hearing on Tafoya’s
appeal to the district court took place on November 5, and
an “Opinion and Order” was filed by the district court on
December 29.
In the district court’s December 29, 2021, order, it cited to
Neb. Rev. Stat. § 25-1420 (Reissue 2016) which allows for
the revival of a judgment that has become dormant, so long
as it is commenced within 10 years after the judgment became
dormant. The court also cited to Cave v. Reiser, 268 Neb.
539, 684 N.W.2d 580 (2004), observing that the only defenses
available against an application to revive a judgment are that
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Cite as 31 Neb. App. 875there is no judgment to revive, the judgment is void, or the
judgment was paid or otherwise discharged. The court indicated
that Tafoya was not seeking to attack the judgment for any
other reason than “to show the judgment is void.” The court
pointed out that in the underlying county court action, Capital
One did not plead a cause of action to pierce the corporate veil,
and that although Capital One added “doing business as” after
Tafoya’s name, that did not “establish a cause of action for
piercing the corporate veil.” The court explained:
Essentially, [Tafoya’s] argument comes down to one
matter, namely, what is the effect of suing a defendant
with the moniker ‘doing business as’. For [Tafoya], it
makes all the difference in the world. If it is improper,
then the Default Judgment is void and [Capital One] can-
not revive the judgment. [Tafoya] relies [on an Illinois
case that] is heavily grounded on Illinois statutes and
Illinois caselaw [which] are separate and distinct from
Nebraska authority. As such, it is comparing apples
to oranges.
Perhaps a better starting point is Toulousaine de
Distribution et de Servs. v. Tri-State Seed & Grain, 2
Neb. App. 937, 520 N.W.2d 210 (1994). In Toulousaine,
the Nebraska Court of Appeals stated Neb.Rev.Stat.
§ 25-312 provides that in an action on a written instru-
ment, it is sufficient to designate the defendant “by the
name or part of name by which he is designated in the
instrument upon which action is brought.” Furthermore,
the Court of Appeals stated, [although] no cases could be
found directly on point in Nebraska, other jurisdictions
have held that so long as the defendant can be identified
as the one against whom the judgment was rendered, he
is as much bound by the judgment, and those claiming
under the judgment are as much entitled to its benefits,
to all intents and purposes, as if the defendant had been
sued by his right name. Later, the Court stated, the
law from other jurisdictions also indicates that doing
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Cite as 31 Neb. App. 875business under another name or several names does not
create an entity separate and distinct from the person
operating the business, and the person remains personally
liable for all his or her obligations[, and that] if a defend­
ant is personally served, even if the name is incorrect, he
must appear and call attention to the defect. Failing to
do so waives the objection to the misnomer and allows a
judgment to be rendered against him by default.
The district court also pointed out that the Nebraska
Supreme Court expanded on Toulousaine de Distrib. v. Tri-
State Seed & Grain, 2 Neb. App. 937, 520 N.W.2d 210 (1994),
in Hall v. Auto-Owners Ins. Co., 265 Neb. 716, 658 N.W.2d
711 (2003), identifying additional cases in support of the legal
principle that doing business under another name does not
create an entity separate and distinct from the person operat-
ing the business. The court concluded that Capital One’s 2010
complaint alleged that the “Defendant is a resident of Sarpy
County, Nebraska,” and that “Defendant is not a member of
the Armed Forces of the United States.” It also pointed out that
the summons was directed to “Scott A. Tafoya” and service
was sought by first-class mail at “Defendant’s usual place of
residence.” The court determined that Tafoya was “too late to
raise his argument,” since he was “served with a lawsuit” and
he “failed to respond.” The court further stated that Tafoya did
not appeal nor move to vacate the judgment within the term of
the court, and “now, some 9 years later, . . . he desires to go
back in time.” “He is not permitted now, at this late juncture,
to challenge the judgment.” The district court affirmed the
county court’s judgment.
Tafoya appeals.
ASSIGNMENTS OF ERROR
Tafoya assigns, reordered and restated, that the district
court erred by not reversing the county court’s order reviv-
ing the 2011 judgment, since that judgment was void for the
following reasons: (1) the county court lacked subject matter
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Cite as 31 Neb. App. 875jurisdiction “to pierce the corporation and enter a judgment
against ‘Scott A. Tafoya, d/b/a Arcosant Homes, Inc.’”; (2)
the county court lacked subject matter jurisdiction “to enter
a judgment against ‘Scott A. Tafoya, d/b/a Arcosant Homes,
Inc.’”; (3) the county court “had no jurisdiction to enter the
original judgment, which required piercing the corporation, an
equitable remedy”; and (4) the county court abused its discre-
tion by reviving the judgment against Tafoya in his “individual
capacity.” (Emphasis omitted.) Tafoya also assigns error to
the district court for not reversing the county court’s decision
based on its failure to “receive or rule on evidence offered as
Exhibit 1, on April 20, 2021, . . . because extrinsic evidence is
to be allowed to show the original judgment was void because
the court entered it without jurisdiction.”
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law.
Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377 (2019).
An appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
below. Id.ANALYSIS
Generally, a judgment becomes dormant if it has not been
executed upon within 5 years. Id. Neb. Rev. Stat. § 25-1515(Reissue 2016) states:
If execution is not sued out within five years after the
date of entry of any judgment that now is or may here-
after be rendered in any court of record in this state, or
if five years have intervened between the date of the last
execution issued on such judgment and the time of suing
out another writ of execution thereon, such judgment, and
all taxable costs in the action in which such judgment was
obtained, shall become dormant and shall cease to operate
as a lien on the estate of the judgment debtor.
[2-4] Even if a judgment creditor allows a judgment to
become dormant, Nebraska law allows the judgment creditor
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Cite as 31 Neb. App. 875to seek to revive it. Nelssen, supra. Section 25-1420 provides,
“If a judgment becomes dormant, it may be revived in the
same manner as is prescribed for reviving actions before judg-
ment; Provided, no judgment shall be revived unless action
to revive the same be commenced within ten years after such
judgment became dormant.” (Emphasis in original.) An order
of revivor is a mere continuation of the original action and
continues the vitality of the original judgment with all of its
incidents from the time of its rendition. Cave v. Reiser, 268
Neb. 539, 684 N.W.2d 580 (2004). The court, however, cannot
retry the merits of the original suit in the revivor proceedings.
Id. Rather, the only defenses available against an applica-
tion to revive are (1) there is no judgment to revive, (2) the
purported judgment is void, and (3) the judgment was paid or
otherwise discharged. Id. When the revivor of a dormant judg-
ment is sought, a defendant must show cause why the dormant
judgment should not be revived. See id. While a defendant in
revival proceedings may not use extrinsic evidence to relitigate
the merits of the case, the defendant can introduce extrinsic
evidence to show that the original judgment was void because
the court entered it without jurisdiction. Id.Tafoya claims the 2011 judgment against him was void
because the county court lacked jurisdiction over Capital
One’s complaint.
County Court’s Jurisdiction
Over 2011 Lawsuit
The first three assignments of error will be addressed
together, since they all relate to Tafoya’s argument that by
naming the defendant in its original action as “Scott A Tafoya
DBA Arcosant Homes Inc,” Capital One was attempting to
obtain a judgment against Tafoya in his capacity as president
of a corporation, and to do so would require “piercing the cor-
poration,” which was an equitable action not within the county
court’s jurisdiction.
Capital One contends Tafoya’s argument is “wholly irrel-
evant to the present case” because the record reflects that
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CAPITAL ONE BANK V. TAFOYA
Cite as 31 Neb. App. 875Capital One “named . . . Tafoya individually, served . . .
Tafoya with summons, and . . . Tafoya failed to respond.”
Brief for appellee at 10. “It was at this time that . . . Tafoya
had the opportunity to raise any corporate shield defenses he
believed he may have had; not 11 years later.” Id. Capital
One further asserts that if Tafoya “had raised such issues at
the appropriate time, evidence could have been presented to
the finder of fact, and [Capital One] could have provided evi-
dence showing that [Tafoya] agreed to be individually liable
on the debt.” Id.As noted by the district court, Tafoya’s argument “comes
down to one matter, namely, what is the effect of suing a
defendant with the moniker ‘doing business as.’”
Tafoya contends that Capital One’s use of “Scott A Tafoya
DBA Arcosant Homes Inc” means it was alleging “a person
was ‘doing business as a corporation,’ when the named cor-
poration has its own legal existence separate from the person,
which is not legally permissible.” Brief for appellant at 8
(emphasis omitted). He claims the county court lacked subject
matter jurisdiction to hold him liable for acts of the corpora-
tion because in order to hold Tafoya liable, the court needed to
“pierce the corporation.” Id. at 22. Tafoya contends the “evi-
dence is irrefutable that the Corporation was registered with
the Nebraska Secretary of State, putting Capital One on notice
of its existence.” Id. at 27. “Therefore, without any other legal
theory to support Capital One’s Complaint, the Corporation’s
President is not personally liable for its debts.” Id. Tafoya
asserts that the county court lacked authority to consider equi-
table theories of recovery and that piercing the corporate veil
is an equitable action. See Moss v. Associated Underwriters, 28
Neb. App. 739, 948 N.W.2d 273 (2020) (proceedings seeking
disregard of corporate entity, that is, piercing corporate veil to
impose liability on shareholder for corporation’s debt or other
obligation, are equitable actions).
Tafoya also relies on Capital One Bank, N.A. v. Czekala,
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Cite as 31 Neb. App. 875(2008), which he claims is “a case nearly identical to the case
at bar.” Brief for appellant at 18. In Czekala, Capital One
filed a complaint against “‘Joseph Czekala DBA SEALAND
FOODS’” and had previously sent a collection demand letter
to “‘FOODS INC SEALAND’” seeking payment on a credit
card account. Id. at 739, 884 N.E.2d at 1208, 318 Ill. Dec.
at 937. An affidavit attached to the complaint designated the
corporation, Sealand Foods, Inc., as the debtor for the credit
card charges. Joseph Czekala was served and attended an
initial court proceeding to inform the court he had retained
an attorney to represent the corporation in a bankruptcy pro-
ceeding, but that attorney was not present at the initial Capital
One collection hearing. Czekala was given 21 days to file an
appearance or answer, but he did not do so. A default judgment
was entered against Czekala in 2001; there was no reference
in the judgment to the corporation, just Czekala. Five years
later, after a wage deduction summons and affidavit for with-
holding wages was served on Czekala’s employer, Czekala
filed a petition to vacate the default judgment, including an
affidavit representing that Czekala was not aware of the judg-
ment against him, that he believed the bankruptcy attorney had
disposed of the case, and that any judgment would have been
entered against the corporation. Czekala also attached an origi-
nal letter from Capital One approving the corporation Sealand
Foods for a credit card, with monthly billing statements issued
to the corporation. Czekala’s affidavit also indicated that the
corporation was involuntarily dissolved in 2003. The trial
court rejected Czekala’s petition to vacate the judgment. See
Czekala, supra.
On appeal, Czekala claimed that the trial court did not have
personal jurisdiction over him and that therefore, the judgment
was void. In considering the personal jurisdiction issue, the
Illinois appellate court examined the complaint and its attached
affidavit, the summons, the proof of service, and the default
judgment. It pointed out that the caption of the complaint
“identified both an individual and a business by linking them
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Cite as 31 Neb. App. 875together with this language, ‘Joseph Czekala DBA SEALAND
FOODS.’” Czekala, 379 Ill. App. 3d at 742, 884 N.E.2d at
1211, 318 Ill. Dec. at 940. It observed that the complaint “con-
tradicted the creditor’s affidavit,” which “identified only one
debtor, the business, ‘Sealand Foods, Inc.,’ solely, without any
reference to . . . Czekala.” Id. Further, the appellate court noted
that it was undisputed that Sealand Foods was a registered
corporation, Czekala served as president, and the corporation
had not been dissolved as of the date of the default judg-
ment. It pointed out that the corporation’s registered name was
“Sealand Foods, Inc.,” and not simply Sealand Foods, and that,
“[t]herefore, the complaint appears to carelessly misname the
company and then link Czekala to a misnamed, noncorporate
business.” Id.
The Illinois appellate court went on to acknowledge that
“[t]he effect of misnomer is that the party called by the wrong
name is still subject to the court’s jurisdiction after receiving
notice of the lawsuit,” id., and that “[a] complaint may be
amended at any time, even after judgment enters, to correct
a misnomer.” Czekala, 379 Ill. App. 3d at 743, 884 N.E.2d
at 1211, 318 Ill. Dec. at 940. However, the court also noted
that “the effect of a mistaken identity is that the court does
not acquire personal jurisdiction over the person named by
mistake but served,” and “[t]his is especially true when the
mistaken identity involves a nonexistent business.” Id. “Based
on the record, Sealand Foods is an unknown business without
a relationship to either Czekala or Capital One. Therefore, a
judgment against Czekala DBA SEALAND FOODS is void
ab initio because he could not do business for a company that
does not exist.” Id. at 743, 884 N.E.2d at 1212, 318 Ill. Dec.
at 941. The court went on to state that even if the complaint
had “identified ‘Joseph Czekala DBA Sealand Foods, Inc.,’
the result would not be different” because “[a] corporation is
a legal entity unto itself” and “[n]o person, individually, not
even the president of the corporation, ‘does business as’ a
corporation.” Id. at 743, 884 N.E.2d at 1212, 318 Ill. Dec. at
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Cite as 31 Neb. App. 875941. It added that “courts are reluctant to pierce the corporate
veil”; “this record shows that Sealand Foods, Inc. accumu-
lated the credit card debt in the ordinary course of corporate
business”; and the “indebted holder of the credit card was
the corporation, doing business on its own behalf through its
president, by obtaining and using a business credit card issued
in the name of Sealand Foods, Inc.” Id.The court in Czekala added that the “‘intent of the plaintiff
is a pivotal inquiry in the determination of whether a particu-
lar case involves a misnomer or mistaken identity,’” and that
the “‘objective manifestations’” of a plaintiff’s intent which
existed at the time of the lawsuit, are “the most reliable indi-
cators of whom counsel intended to sue.” 379 Ill. App. 3d at
743, 744, 884 N.E.2d at 1212, 318 Ill. Dec. at 941. The court
considered the affidavit attached to the complaint to be “the
best objective evidence of plaintiff’s intent,” and the affidavit
identified “the entity ‘justly’ indebted to plaintiff as the cor-
poration, Sealand Foods, Inc.” Id. at 744, 884 N.E.2d at 1212,
318 Ill. Dec. at 941. “When an affidavit attached as an exhibit
contradicts the averments of the complaint, the allegations in
the exhibit control,” and an affidavit “should be construed
as a judicial admission and is binding on the party who pre-
pared the affidavit.” Id. at 744, 884 N.E.2d at 1212-13, 318
Ill. Dec. at 941-42. The court concluded that Capital One’s
“admission” in that case, that “the debt belonged only to the
corporation, Sealand Foods, Inc., [was] compelling objective
evidence of intent to sue the business and not the individual.”
Id. at 744, 884 N.E.2d at 1213, 318 Ill. Dec. 942. Further, the
credit application showed that “Czekala repeatedly and care-
fully identified himself as an agent for the corporation in the
application,” and therefore, “pursuant to the UCC, he could
not be held legally responsible for the debt of the business.”
Id. at 745, 884 N.E.2d at 1213, 318 Ill. Dec. at 942. The
court further observed that Capital One filed its complaint in
2001, well before the corporation contemplated bankruptcy
or was involuntarily dissolved in 2003. The appellate court
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Cite as 31 Neb. App. 875ultimately vacated the default judgment against Czekala for
lack of personal jurisdiction.
Capital One contends Czekala, supra, is distinguishable
from the present case, in that “there is nothing on the record
that would prove [Capital One’s] clear, objective intent in
using ‘dba’ was to sue a corporate entity, and therefore be
required to pierce the corporate veil to obtain a judgment on
. . . Tafoya individually.” Brief for appellee at 9. It points out
that Tafoya was named specifically as a defendant, was listed
on the summons, and was served with process. “No attempts
at serving a corporate entity were ever made.” Id. “[T]his is
clearly a case of misnomer, and not mistaken identity, and
therefore the County Court would have retained jurisdiction
over the case.” Id.
In support of its position, Capital One suggests that the
case relied upon by the district court, Toulousaine de Distrib.
v. Tri-State Seed & Grain, 2 Neb. App. 937, 520 N.W.2d 210(1994), “appears to be clearly dispositive” for the proposition
that “if a defendant is personally served, even if the name is
incorrect, he must appear and call attention to the defect,” and
“[f]ailing to do so waives the objection to the misnomer and
allows a judgment to be rendered against him by default.”
Brief for appellee at 8. “This Court further held that doing
business under another name or several names does not create
an entity separate and distinct from the person operating the
business, and the person remains personally liable for all his
or her obligations.” Id.In Toulousaine de Distrib., supra, a French company sought
to register in Nebraska a judgment it had obtained in New
York against Tri-State Seed and Grain. After it was registered
without objection, Clifford E. Olson, a Nebraska resident and
sole proprietor of Tri-State Seed and Grain, sought a perma-
nent injunction to prevent the French company from enforc-
ing its judgment against Olson or his property. The trial court
found that there was no evidence Olson ever held himself
out to be doing business as Tri-State Seed and Grain and
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Cite as 31 Neb. App. 875therefore granted the requested permanent injunction. In
reviewing that decision on appeal, this court cited a Missouri
case for the proposition that “a misnomer is not automati-
cally fatal, and if the judgment creditor can show who the true
defendant is, it may proceed to enforce a judgment against
the debtor.” Id. at 943-44, 520 N.W.2d at 214. Further, “if a
defendant is personally served, even if the name is incorrect,
he must appear and call attention to the defect. Failing to do so
waives the objection to the misnomer and allows a judgment
to be rendered against him by default.” Id. at 944, 520 N.W.2d
at 214. This court pointed out that Olson had been doing busi-
ness under variations of the name “Tri-State Seed Company,”
the company’s address was Olson’s home address, and Olson
admitted he had entered into the contract with the French com-
pany. Olson had been clearly identified as the “‘“one against
whom the judgment was rendered.”’” Id. at 944, 520 N.W.2d
at 214-15 (quoting Aman Collection Service, Inc. v. Burgess,
612 S.W.2d 405 (Mo. App. 1981)).
In Toulousaine de Distrib., this court further observed that
the “law from other jurisdictions also indicates that doing busi-
ness under another name or several names does not create an
entity separate and distinct from the person operating the busi-
ness, and the person remains personally liable for all his or
her obligations.” 2 Neb. App. at 944, 520 N.W.2d at 215. See,
also, Hall v. Auto-Owners Ins. Co., 265 Neb. 716, 658 N.W.2d
711 (2003) (citing to Toulousaine de Distrib. for proposition
that doing business under another name or several names does
not create entity separate and distinct from person operating
business, and noting many courts in other jurisdictions are
in agreement). In Toulousaine de Distrib., this court deter-
mined that the evidence was clear that “it was Olson, doing
business as a sole proprietor, who entered into this contract
with [the French company] to deliver seed and subsequently
breached that contract.” 2 Neb. App. at 945, 520 N.W.2d
at 215. Therefore, the New York judgment was “against a
sole proprietor from whom [the French company] purchased
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Cite as 31 Neb. App. 875seed” and “[t]hat sole proprietor was Olson.” Id. (emphasis
omitted). Accordingly, “[t]he misnomer was not fatal.” Id. This
court also pointed out that Olson had not “attack[ed] the juris-
diction of the New York court to enter the judgment,” and there
was “nothing in the record suggesting that court did not have
jurisdiction to enter the judgment.” Id. Ultimately, this court
concluded, “The district court erred in granting the permanent
injunction against [the French company] because Olson, as
the sole proprietor who contracted to sell the . . . seed, is per-
sonally liable, even if the main judgment documents use the
wrong name.” Id.We find both Capital One Bank, N.A. v. Czekala, 379 Ill.
App. 3d 737, 884 N.E.2d 1205, 318 Ill. Dec. 934 (2008), and
Toulousaine de Distrib. v. Tri-State Seed & Grain, 2 Neb. App.
937, 520 N.W.2d 210 (1994), to have distinguishing factors
from the case before this court, but the legal principles in both
cases guide our review of the record before us. Some obvious
differences in the cases are the alleged errors in the captions
used in the complaints in each case. In Czekala, Capital One
sought to collect an unpaid credit card debt by bringing a
lawsuit against “Joseph Czekala DBA SEALAND FOODS.”
379 Ill. App. 3d at 742, 884 N.E.2d at 1211, 318 Ill. Dec. at
940. The Illinois appellate court saw the caption as identifying
“both an individual and a business by linking them together
with this language.” See id. However, Sealand Foods was
determined to be a “misnamed, noncorporate business” and
an attached affidavit specifically identified the corporation
as the debtor. Id. In Toulousaine de Distrib., the French com-
pany filed its action against Tri-State Seed and Grain; it was
determined to be a sole proprietorship, and although the sole
proprietor of the business was not named, he was ultimately
held liable on the judgment. In the present case, Capital One
filed its action against “Scott A Tafoya DBA Arcosant Homes
Inc.” As noted by Tafoya, a person cannot do business as a
corporation. See Czekala, 379 Ill. App. 3d at 743, 884 N.E.2d
at 1212, 318 Ill. Dec. at 941 (“[n]o person, individually, not
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Cite as 31 Neb. App. 875even the president of the corporation, ‘does business as’ a cor-
poration”; a corporation “conducts its own business”).
Although both Czekala and the present case involve lawsuits
brought by Capital One against a named individual “doing
business as” another name, a significant distinction in Czekala
is that in that case, Capital One attached an affidavit to its com-
plaint that specifically designated the corporation, not Czekala,
as the debtor for the credit card charges. In the present case,
Capital One did not attach such an affidavit; instead, as set
forth previously, its action was brought against the “Defendant
or Defendants, whether one or more,” who “at all pertinent
times [was] a resident of Sarpy County,” and was “not a mem-
ber of the Armed Forces.” Such allegations pertain more to an
individual than a corporation. Also, in Czekala, when Czekala
opposed enforcement of the judgment, he produced an original
letter from Capital One approving the corporation for a credit
card, with monthly billing statements issued to the corpora-
tion. No such evidence was produced in the present case. We
agree with the district court’s assessment that Capital One “did
not plead a theory of piercing the corporate veil as a cause
of action in its Complaint. Rather, the Complaint asserts a
simple collection action against [Tafoya].” We also agree with
the court that including “‘doing business as’” in the caption
did “not establish a cause of action for piercing the corporate
veil,” and Tafoya was not “permitted to relitigate the merits
of the Default Judgment” as this “would be an improper col-
lateral attack.”
Another distinction between Czekala and this case is the
timing of Capital One’s filing of the initial complaints in rela-
tion to the dissolution of the corporations. In Czekala, the
corporation was not dissolved until 2003, which was after
Capital One filed its petition and obtained a judgment in 2001.
In the present case, Capital One filed its complaint in June
2010, which was a couple months after Arcosanti Homes, Inc.,
was dissolved.
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Cite as 31 Neb. App. 875[5] These distinctions are important, since the intent of the
plaintiff is a pivotal inquiry in the determination of whether a
particular case involves a misnomer or mistaken identity; the
objective manifestations of a plaintiff’s intent which existed
at the time of the lawsuit are the most reliable indicators of
whom counsel intended to sue. See Capital One Bank, N.A. v.
Czekala, 379 Ill. App. 3d 737, 884 N.E.2d 1205, 318 Ill. Dec.
934 (2008). In Czekala, the Illinois appellate court found the
affidavit attached to the complaint to be the best objective evi-
dence of Capital One’s intent, because it specifically identified
the corporation as the entity indebted to it, and this constituted
“compelling objective evidence of intent to sue the business
and not the individual.” 379 Ill. App. 3d at 744, 884 N.E.2d at
1213, 318 Ill. Dec. at 942.
[6] In attempting to discern Capital One’s intent in the pres-
ent case, we can only look to the pleadings. As previously
discussed, Capital One’s complaint was brought against the
“Defendant or Defendants, whether one or more,” who “at all
pertinent times [was] a resident of Sarpy County,” and was “not
a member of the Armed Forces”; it was served upon Tafoya by
mail at his residential address. Summons was requested to be
served “upon the Defendant(s) by personally serving or leav-
ing at his/her place of residence.” These allegations pertain
more to an individual than a corporation. Also, Capital One’s
complaint was filed after the corporation was dissolved, which
occurred in April 2010, according to Tafoya’s objection to the
revivor. This fact would bolster Capital One’s position that
its action was directed only at Tafoya individually. We con-
clude the objective manifestations of Capital One’s intent at
the time of the lawsuit demonstrate that its action either was
intended to be against Tafoya, individually, and the corpora-
tion, see Czekala, 379 Ill. App. 3d at 742, 884 N.E.2d at 1211,
318 Ill. Dec. at 940 (caption “doing business as” identifies
“both an individual and a business by linking them together
with this language”) or, alternatively, was against only Tafoya
individually; adding the “DBA Arcosant Homes Inc” was
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Cite as 31 Neb. App. 875simply a misnomer, not a mistaken identity. There is nothing in
the record to indicate that Capital One attempted service on the
dissolved corporation, but the record does support that Tafoya
was personally served with the complaint. If a defendant is
personally served, even if the name is incorrect, the defendant
must appear and call attention to the defect. See Toulousaine
de Distrib. v. Tri-State Seed & Grain, 2 Neb. App. 937, 520
N.W.2d 210 (1994). Failing to do so waives the objection to
the misnomer and allows a judgment to be rendered against
the defendant by default. Id. Tafoya failed to call attention to
the defect and therefore waived any objection to the misnomer
in Capital One’s complaint. And as noted by the district court,
Tafoya could have responded to the lawsuit, filed an appeal, or
moved to vacate the judgment within the term of the court. He
took none of those steps and cannot now relitigate the merits
of the case. See Cave v. Reiser, 268 Neb. 539, 684 N.W.2d
580 (2004).
Finally, regarding Toulousaine de Distrib., supra, it is
important to note the distinction in that case; it involved a
default judgment obtained against Tri-State Seed and Grain,
which was determined to be a sole proprietorship, with Olson
as proprietor. The present case does not involve a misnomer
where a sole proprietorship was named as defendant rather
than the sole proprietor himself or herself; rather, the misno-
mer in this case involves naming an individual “doing business
as” a corporation. If in Toulousaine de Distrib., Tri-State Seed
and Grain had been a corporation rather than a sole proprietor-
ship, a judgment against the corporation alone would not ordi-
narily be enforceable against its shareholders and officers, and
the outcome would have likely been different. See Christian
v. Smith, 276 Neb. 867, 759 N.W.2d 447 (2008) (corporation
viewed as complete and separate entity from its shareholders
and officers, who are not, as a rule, liable for debts and obli-
gations of corporation; plaintiff seeking to pierce corporate
veil must allege and prove that corporation was under actual
control of shareholder and that shareholder exercised such
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Cite as 31 Neb. App. 875control to commit fraud or other wrong in contravention of
plaintiff’s rights). The separate entity concept of the corpora-
tion may be disregarded where the corporation is a mere shell,
serving no legitimate business purpose, and is used as an
intermediary to perpetuate fraud on the creditors. Id. However,
as Capital One points out, “there is nothing on the record that
would prove [its] clear, objective intent in using ‘dba’ was to
sue a corporate entity, and therefore be required to pierce the
corporate veil to obtain a judgment on . . . Tafoya individu-
ally.” Brief for appellee at 9. “No attempts at serving a corpo-
rate entity were ever made.” Id.In summary, we conclude the county court had jurisdiction
to enter the 2011 default judgment and no grounds existed to
defend against its revival.
Reviving Judgment Against Tafoya
in Individual Capacity
Tafoya claims the “relief granted by the county court was
substantially different from Capital One’s Request to Revive
Against Two Separate Defendants.” Brief for appellant at 23.
Tafoya claims the documents filed by Capital One in the revi-
vor proceedings changed the caption of the case from “Scott
A Tafoya DBA Arcosant Homes Inc” to “Scott A Tafoya and
Arcosant Homes, Inc.”
Tafoya’s argument is not entirely clear; he states, “Although
one may sometimes disregard captions, it was ONLY the cap-
tion of Capital One’s Complaint that ever named the Defendant
in the first place, not the body of the Complaint.” Id. He then
adds, “If this was to be relied upon as adequate notice of the
identity of the party or parties in their Complaint, it should
be adequate notice in their subsequent pleadings.” Id. Finally,
he asserts that “because an attorney is presumed to know the
contents of the pleadings they sign and submit to a court, there
is a presumption that they knew this was what they did,” and
that at the time the revivor motion, praecipe, and proposed
order were submitted, Capital One “should be responsible
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Cite as 31 Neb. App. 875for its actions herein.” Id. In the “Nature of the Case” section
of his brief, Tafoya asserts that “[a]pparently recognizing the
error” that it alleged a person was doing business as a cor-
poration, Capital One “changed their caption” in the revivor
pleadings to identify two separate defendants: Tafoya and
Arcosant Homes, Inc. Brief for appellant at 8 (emphasis omit-
ted). “Nevertheless, the Sarpy County Court granted relief dif-
ferent from that requested in [Capital One’s] Revivor Motion,
and issued an Order of Revivor against Scott A. Tafoya d/b/a
Arcosant Homes, Inc., which was not the relief requested by
Capital One.” Id. (emphasis omitted).
We note that although Capital One did change the caption as
Tafoya alleges in Capital One’s documents related to the revi-
vor proceedings, the county court’s March 16, 2011, default
judgment is captioned naming only Tafoya as the defendant;
the county court’s June 11, 2021, order reviving the judgment
against Tafoya is captioned with only Tafoya identified as the
defendant; and the district court’s December 29 order affirm-
ing the county court’s decision retains the original caption
reflecting Tafoya “d/b/a Arcosant Homes, Inc.” We fail to see
that any prejudicial error occurred; given our conclusion that
the district court properly affirmed the county court’s decision
to revive the default judgment, Tafoya’s criticism of the cap-
tions in Capital One’s revivor documents have no bearing on
that outcome.
Failure to Receive Evidence
Tafoya assigns that the district court erred by not finding
that the county court abused its discretion by not ruling on
or receiving exhibit 1, which was offered over Capital One’s
objection at the April 20, 2021, hearing on the motion for
revivor. The county court took the offer and objection under
advisement, but it did not reference the exhibit one way or
the other in its order reviving the judgment. The district court
concluded the county court properly excluded exhibit 1. Its
order stated, “The affidavit, if considered to be factually
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Cite as 31 Neb. App. 875correct, attempts to attack the merits of the lawsuit rather than
show the Default Judgment is void.”
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse
of discretion. State v. Cerros, 312 Neb. 230, 978 N.W.2d 162(2022). A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of discretion. Id.Exhibit 1 is Tafoya’s affidavit submitted in opposition to the
motion for revivor. Regarding extrinsic evidence in such pro-
ceedings, the Nebraska Supreme Court has stated that “while
a defendant in revival proceedings may not use extrinsic evi-
dence to relitigate the merits of the case, the defendant can
introduce extrinsic evidence to show that the original judgment
was void because the court entered it without jurisdiction.”
Cave v. Reiser, 268 Neb. 539, 545-46, 684 N.W.2d 580, 586
(2004). Tafoya’s affidavit averred that he had been president
of Arcosanti Homes, Inc., a corporation registered with the
Nebraska Secretary of State; that he had a credit card with
Capital One that was used by the corporation until it ceased
doing business in 2008; and that the county court lacked per-
sonal and subject matter jurisdiction in the case.
[7] To the extent the county court’s silence as to the receipt
of exhibit 1 is an implicit exclusion of the evidence, we can-
not say it was an abuse of discretion. As the district court
observed, the statements contained in the affidavit appear
to be an attempt at relitigating the merits of the underlying
case rather than demonstrating the original default judgment
was void because the county court was without jurisdiction.
Regardless, even if it was an abuse of discretion to fail to
admit exhibit 1, any such error did not unfairly prejudice a
substantial right of Tafoya, given our conclusion that the com-
plaint’s caption naming “Scott A Tafoya DBA Arcosant Homes
Inc” as the defendant did not preclude the county court’s
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Cite as 31 Neb. App. 875jurisdiction over the case and Tafoya—“DBA Arcosant Homes
Inc” was simply a misnomer. See AVG Partners I v. Genesis
Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020) (in civil
case, admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced substantial right of complain-
ing party).
Tafoya also argues that the court abused its discretion by
not receiving the other exhibits as well; however, he did not
assign error as to the exclusion of those exhibits, so we will
not address them. See State v. Vanderford, 312 Neb. 580, 980
N.W.2d 397 (2022) (alleged error must be both specifically
assigned and specifically argued in brief of party asserting
error to be considered by appellate court). That said, the same
reasoning provided for the exclusion of exhibit 1 would gener-
ally apply to the other exhibits as well.
CONCLUSION
The county court’s March 16, 2011, default judgment against
Tafoya was not void, and as such, the district court properly
affirmed the county court’s June 11, 2021, order reviving the
2011 judgment against Tafoya.
Affirmed.