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9 Ohio App. 3d 99

458 N.E.2d 451

Duris Enterprises v. Moore

Ohio Court of Appeals

Decided April 5, 1983

Ohio Court of Appeals · decided 1983-04-05

Good law ✅— No negative treatment on recordhow we know

Decided 1983-04-05

How this case has been cited

Cited by 5 later decisions — most recently January 2016

5 state decisions

201983199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Whiteside, P.J.,

¶1 concurring. The partnership name of Duris Enterprises is not a fictitious name within the contemplation of the filing requirements of R.C. 1329.01 or the prohibition of R.C. 1329.10(B). However, my conclusion is based upon the statute itself, not the illusory basis used by the majority.

¶2 With respect to the partners of plaintiff, Duris Enterprises, the name is fictitious, and the fact that all of them have the surname “Duris” does not render the name any less fictitious as to them.

¶3 However, R.C. 1329.01(A)(2) defines a fictitious name as “a name used in business or trade that is fictitious.” On the other hand, R.C. 1329.01(C) provides that “[a]ny 'person who does business under a fictitious name … shall report the use of the fictitious name to the secretary of state. …” (Emphasis added.)

¶4 R.C. 1329.01(A)(3) defines “person” to include “any … partnership ….”

¶5 Here, as to the partnership, there is nothing fictitious about the name. It is the partnership’s actual name. As to the person involved (the partnership), the name is not fictitious. The plaintiff in this case is a partnership, Duris Enterprises. There is no indication that plaintiff has ever used any name but its own in conducting business. R.C. 1329.10(B) has no application here.

¶6 R.C. 1777.02 covers the situation where the name of the partnership does not include the name of the partners, as well as the situation where the partnership transacts business under a fictitious name. Since the partnership name does not show the name of the partners, a filing pursuant to R.C. 1777.02 was required and was made by plaintiff. Doing business in the partnership name, however, is not transacting business in a fictitious name since the partnership, as an entity, is transacting business in its own name.

¶7 For this reason, I concur in the judgment.

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