GSL Welcome BP 32, LLC v. Harris County Appraisal District

Opinion issued November 10, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00189-CV

———————————

GSL Welcome BP 32 LLC , Appellant

V.

Harris

County Appraisal District , Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Case No. 2008-62121

MEMORANDUM OPINION

After

receiving an adverse determination of a property-valuation protest, GSL Sub

Thirteen GP, Inc. (“Sub Thirteen”) filed a petition for review against

appellee, the Harris County Appraisal District (“HCAD”), and the Harris County

Appraisal Review Board (“the Board”). [1] HCAD filed a plea to the jurisdiction,

contending that Sub Thirteen lacked standing to pursue judicial review because

it did not own the property on January 1, 2008.

In response, Sub Thirteen moved to substitute appellant, GSL Welcome BP

32, LLC (“GSL Welcome”), the record owner of the property, as a plaintiff

pursuant to Tax Code Section 42.21(e) and Texas Rule of Civil Procedure

28. Tex.

Tax Code Ann. § 42.21(e) (Vernon Supp. 2010); Tex. R. Civ. P. 28. The trial court granted HCAD’s plea to the

jurisdiction and denied the Rule 28 motion.

In three issues on appeal, GSL Welcome contends that the trial court

erred in denying its Rule 28 motion and in granting HCAD’s plea to the

jurisdiction because (1) Sub Thirteen amended its petition to cure a misnomer,

(2) GSL Welcome had standing to pursue the petition for review, and (3) GSL

Welcome satisfied the requirements for Rule 28 substitution.

We

affirm.

Background

The

subject property is located at 2201 North Sam Houston Parkway in Houston. On October 26, 2007, Sub Thirteen sold the

property to GSL Welcome by special warranty deed. HCAD’s records, however, still listed Sub

Thirteen as the owner of the property, and thus it mailed the 2008 Notice of

Appraised Value to Sub Thirteen, instead of GSL Welcome. Sub Thirteen subsequently filed a protest of

the appraised value with the Appraisal Review Board. On August 22, 2008, the Board issued an order

determining protest to Sub Thirteen via O’Connor & Associates, its

designated agent for the valuation-protest process, ordering a reduction in the

appraised value of the property for 2008.

Pursuant

to Tax Code section 42.21(a), Sub Thirteen timely filed a petition for review

of the Board’s order. [2] With its original petition, Sub Thirteen

included (1) responses to Texas Rule of Civil Procedure 194 disclosures, which

stated that the named plaintiff, GSL Sub Thirteen GP, Inc., was the correct

name for the plaintiff and it knew of no potential parties to the lawsuit; and

(2) a proposed finding of fact, which stated that “Plaintiff was the owner of

the property that is the subject matter of this lawsuit on January 1 of each of

the tax years in question.”

Thirteen months later, HCAD filed a

plea to the jurisdiction, contending that because Sub Thirteen did not own the

property on January 1, 2008, it lacked standing to protest the Board’s order

and the district court lacked subject-matter jurisdiction over the case.

In

response, Sub Thirteen moved to permit substitution of appellant as plaintiff

pursuant to Tax Code section 42.21(e) and Texas Rule of Civil Procedure

28. Sub Thirteen and GSL Welcome

contended that they were not distinct parties, but rather that “[t]he Plaintiff

in this case [GSL Welcome] is the same party that originally sued under the

misnomer and under the common name assigned to the property owner by the

Defendant.” Sub Thirteen and GSL Welcome

also contended that Rule 28 permits the substitution of the “true name” of the

plaintiff for the “common name known to the Defendant.” The plaintiffs argued that because HCAD

referred to the property owner as Sub Thirteen throughout its records, Sub

Thirteen is the “common name” of GSL Welcome.

As a result, GSL Welcome, acting under its “common name” of Sub

Thirteen, completed the administrative protest process and timely filed the

petition for review, and therefore has standing to protest the Board’s order.

The

trial court denied GSL Welcome’s Rule 28 motion, granted HCAD’s plea to the

jurisdiction, and dismissed GSL Welcome’s suit for want of jurisdiction.

Standard of Review

Standing

is a necessary component of subject-matter jurisdiction and cannot be

waived. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547 , 553–54 (Tex. 2000);

KM-Timbercreek, LLC v. Harris County

Appraisal Dist. , 312 S.W.3d 722, 725 (Tex. App.—Houston [1st Dist.] 2009,

no pet.). If a party lacks standing, the

trial court has no jurisdiction to hear the case. Blue ,

34 S.W.3d at 553–54. If the

jurisdictional defect cannot be cured by amending the pleadings, a party may

file a plea to the jurisdiction, and if the trial court finds the plea

meritorious, it may grant the plea without allowing the plaintiff an

opportunity to amend. See County of Cameron v. Brown , 80

S.W.3d 549, 555 (Tex. 2002). A trial

court decides a plea to the jurisdiction by reviewing the pleadings as well as

any evidence relevant to the jurisdictional inquiry. Blue ,

34 S.W.3d at 555 . We review a trial

court’s ruling on a plea to the jurisdiction de novo, construing the pleadings

liberally in favor of the plaintiff while considering the pleader’s

intent. Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226,

228 (Tex. 2004). When reviewing a plea

to the jurisdiction, we cannot examine the merits of the case. See

Houston Indep. Sch. Dist. v. 1615 Corp. , 217 S.W.3d 631, 635 (Tex.

App.—Houston [14th Dist.] 2006, pet. denied).

Standing to Pursue Judicial Review

Our

Court and the Fourteenth Court of Appeals have repeatedly addressed the

jurisdictional requirements to seek judicial review of an adverse property tax valuation

determination in the district court. [3] Generally, the property owner is the only

entity with standing to appeal an appraisal-review-board order to the district

court. Timbercreek , 312 S.W.3d at 726 ; Tex.

Tax. Code. Ann. §§ 42.01–.031 (Vernon 2008) (providing right of

appeal to property owner, certain lessees, chief appraiser, county, and taxing

unit); Tourneau Houston, Inc. v. Harris

County Appraisal Dist. , 24 S.W.3d 907, 909 (Tex. App.—Houston [1st Dist.]

2000, no pet.) (“As a general rule, only an owner may protest before the

[Appraisal Review Board] and sue in court for relief.”).

Tax

Code section 42.21(a) specifies the procedural requirements for seeking review

of an adverse appraisal-review-board order in the district court:

A party who appeals as

provided by this chapter must file a petition for review with the district

court within 45 days after the party received notice that a final order has

been entered from which an appeal may be had.

Failure to timely file a petition bars any appeal under this chapter.

Act of May 28, 1989, 71st Leg., R.S., ch. 796, § 44,

sec. 42.21(a) 1989 Tex. Gen. Laws 3591 , 3604 (amended 2009) (current version at

Tex. Tax Code Ann.

§ 42.21(a) (Vernon Supp. 2010)).

Section 42.21(a) describes a “party” as one “who appeals as provided by

[Chapter 42].” Tex. Tax Code Ann. § 42.21(a) (Vernon Supp. 2010); Timbercreek , 312 S.W.3d at 727 . Tax Code section 42.01 specifically provides

that “[a] property owner is entitled

to appeal . . . an order of the appraisal review board

determining . . . a protest by the property owner .” Tex. Tax Code Ann. § 42.01(1)(A) (Vernon

2008) (emphasis added). We reasoned that

the Tax Code, therefore, requires property ownership for two distinct

rights: (1) the right to protest the

appraised value of the property before the appraisal review board; and (2) the

right to seek judicial review of the board’s determination in the district

court. Timbercreek , 312 S.W.3d at 727 .

Thus, to be entitled to judicial review, the party must be the record

owner of the property and must protest the initial valuation to the appraisal

review board. Id.

In Timbercreek , we noted that, in addition

to the property owner, the Tax Code also allows properly designated agents of the owner pursuant to

section 1.11 and certain lessees meeting the criteria of section 41.413 to seek

judicial review of an adverse board order.

See id. ; Tex. Tax Code Ann. § 1.11 (Vernon

Supp. 2010), § 41.413(b) (Vernon 2008).

If the party seeking judicial review does not fall into one of these

three categories, “then they have ‘neither a legal right to enforce, nor any

real controversy at issue, and, therefore, no standing under the [Tax] Code.’” Timbercreek ,

312 S.W.3d at 727 (citing Koll Bren Fund

VI, LP v. Harris County Appraisal Dist. , No. 01-07-00321-CV, 2008 WL 525799 ,

at *3 (Tex. App.—Houston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.)); see also MHCB (USA) Leas. & Fin. Corp.

v. Galveston Cent. Appraisal Dist. , 249 S.W.3d 68, 78 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied).

The Tax Code procedures for

adjudicating a property-tax valuation protest are the exclusive remedies

available to property owners. See Tex.

Tax Code Ann. § 42.09(a) (Vernon 2008); Gregg County Appraisal Dist. v. Laidlaw Waste Sys., Inc. , 907

S.W.2d 12, 16 (Tex. App.—Tyler 1995, writ denied). A property owner’s failure to pursue

administrative review of the initial valuation before the appraisal review

board “deprives the courts of jurisdiction to decide most matters relating to

ad valorem taxes.” Cameron Appraisal Dist. v. Rourk , 194 S.W.3d 501, 502 (Tex.

2006). If no proper party seeks judicial

review of the board’s decision to the district court within the statutory time

period, the trial court does not acquire subject-matter jurisdiction over the

protest, and the appraisal review board’s valuation becomes final when the

statutory time period expires. See Timbercreek , 312 S.W.3d at 728 ; Taufiq ex rel. Patrick O’Connor &

Assocs., Inc. v. Harris County Appraisal Dist. , 6 S.W.3d 652, 654 (Tex.

App.—Houston [14th Dist.] 1999, no pet.) (holding that failure to join

necessary party, such as property owner, within statutory time period is “fatal

to judicial review under section 42.21”).

Here, despite Sub Thirteen’s

assertions in its original petition, answers to Rule 194 disclosures, and

proposed findings of fact, the record indicates that Sub Thirteen transferred

its interest in the subject property to GSL Welcome on October 26, 2007, and

therefore was not the record owner of the property on January 1, 2008, and was

not responsible for paying the assessed taxes.

Sub Thirteen never claimed to be the designated agent or a lessee of GSL

Welcome. Because Sub Thirteen did not

own the property on January 1, 2008, and it was not a designated agent or

lessee of GSL Welcome, the actual record owner of the property, Sub Thirteen

lacked the legal right either to protest the valuation or to seek judicial

review of the Board’s order. See Timbercreek , 312 S.W.3d at 727 . Sub Thirteen, therefore, lacked standing to

appeal the Board’s order under section 42.21(a). Id.

GSL Welcome, as the record owner of

the property, had standing to protest the valuation before the appraisal review

board; however, the record indicates that it did not avail itself of this

right. GSL Welcome did not become

involved in this dispute until January 2010, when Sub Thirteen amended its petition

and moved for substitution of GSL Welcome as plaintiff under section 42.21(e)

and rule 28. Because the Board never

determined a valuation protest brought by GSL Welcome, the actual property

owner, there is no protest proceeding on which it can premise a suit for

judicial review to the district court. See id. at 727–28. GSL Welcome, therefore, also has “[no] legal

right to enforce, nor any real controversy to determine, and lacks standing to

seek judicial review under section 42.21(a).”

Id. at 728 .

A.

Application of Tax Code Section

42.21(e)(1)

GSL Welcome contends that the trial

court erred in granting HCAD’s plea to the jurisdiction because Tax Code section

42.21(e) allows a party to amend a timely filed petition for review to correct

or change the name of a party.

Section 42.21(e) provides that only

petitions that are “timely filed under

Subsection (a) or amended under Subsection (c)” may be subsequently amended

to correct or change the name of a party.

Tex. Tax Code Ann.

§ 42.21(e)(1) (Vernon Supp. 2010) (emphasis added). To seek judicial review of a board’s order

under Subsection (a), “the plaintiff must be a ‘party who appeals as provided

by [Chapter 42],’ meaning the plaintiff must be the property owner, a properly

designated agent, or a lessee.” Timbercreek , 312 S.W.3d at 729 (citing Tex. Tax Code Ann.

§ 42.21(a)). A party may file a

petition for review within the statutory time period, but that party does not

properly invoke Subsection (a) unless it is the property owner, a properly

designated agent, or a lessee. See id.

Subsection (e) presupposes that both the original plaintiff and the

plaintiff to be substituted have standing to seek judicial review of the

board’s order. See id. ; RRB Land Invs., Ltd. v. Harris County

Appraisal Dist. , No.

01-09-00519-CV, 2010 WL 1729390 , at *3 (Tex. App.—Houston [1st Dist.] Apr. 29,

2010, no pet.) (mem. op.); Koll Bren ,

2008 WL 525799 , at *3–5. If no proper

party appeals the board’s order within the statutory time period, the trial

court does not acquire subject-matter jurisdiction, and the board’s order

becomes final after the time period expires.

Timbercreek , 312 S.W.3d at

729 .

Sub Thirteen timely filed a petition for review; however, Sub

Thirteen did not own the property on January 1, 2008, and therefore lacked

standing to protest before the Board and to pursue judicial review. Furthermore, GSL Welcome lacked standing to

seek judicial review because it did not complete the administrative protest

process before the Board. GSL Welcome

cannot take advantage of section 42.21(e) to change the named plaintiff from

one party who does not have standing to seek judicial review — Sub Thirteen — to another party who does not have

standing — GSL

Welcome. [4] See id. GSL Welcome, by not exhausting its

administrative remedies by protesting the valuation before the Board, failed to

satisfy the jurisdictional prerequisites to seek judicial review and therefore

cannot rely on subsection (e) to become a party to the suit. See id.

B.

Application of Misnomer Law

GSL Welcome further contends that

the trial court erred in granting HCAD’s plea to the jurisdiction because Sub

Thirteen amended its petition to name GSL Welcome as the plaintiff to correct a

misnomer, and therefore the amended petition relates back to the timely filed

original petition.

GSL Welcome cites the Fourteenth

Court of Appeals’ decision in Womack

Machine Supply Company v. Fannin Bank for the proposition that amending a

petition to correct the name of the plaintiff relates back to the filing of the

original petition and tolls limitations, even when two distinct corporate

entities are involved. 499 S.W.2d 917

(Tex. Civ. App.—Houston [14th Dist.] 1973), rev’d

on other grounds , 504 S.W.2d 827 (Tex. 1974). Womack Machine Supply Company, a corporation

registered in Dallas, sued Fannin Bank. Id. at 918–19. During trial, the plaintiff became aware that

the cause of action actually belonged to a related, but distinct, corporation

registered in Houston, Womack Machine Supply Company of Houston, and it sought

a trial amendment to change the name of the plaintiff. Id.

at 919 . The trial court rendered

judgment for Fannin Bank, ruling that limitations barred the Houston corporation’s

cause of action. Id. The Fourteenth Court of Civil

Appeals reversed, holding that the properly named and served defendant could

not assert limitations against an amended petition that corrected the name of

the plaintiff. Id. at 920 (citing Wis. Chair

Co. v. I.G. Ely Co. , 91 S.W.2d 913, 914 (Tex. Civ. App.—Fort Worth 1936, no

writ)).

GSL Welcome also relies on the

Texas Supreme Court’s decision in Ealey

v. Insurance Company of North America for the same proposition. 660 S.W.2d 50 (Tex. 1983). In Ealey ,

a workmen’s compensation case, the Industrial Accident Board granted a

compensation award to Ealey against Pacific Employers Insurance Company, a

wholly owned subsidiary of the Insurance Company of North America (INA). Id.

at 51 . Pacific filed a notice of intention

to appeal, naming itself as the party intending to appeal, but suit was later

filed in the name of INA. Id.

After the statutory time period to file suit passed, Pacific filed an

amended petition naming itself as the appealing insurance carrier. Id. The Texas Supreme Court, following the

rationale of Womack Machine and other

related cases, held that INA’s petition gave fair notice of the appeal to Ealey,

and that it was “clear from the petition and the prior proceeding that Pacific

was the only carrier who could appeal,” and that therefore Pacific’s petition

related back to INA’s timely filed petition.

Id. at 52, 53 .

Neither Womack Machine nor Ealey

compels a similar holding that the amended petition naming GSL Welcome relates

back to the original, timely filed petition naming Sub Thirteen as plaintiff

and that, therefore, GSL Welcome has standing.

Unlike in Womack Machine and Ealey , the issue is not whether limitations

bars judicial review ; the issue

here is whether Sub Thirteen and GSL Welcome had standing to seek judicial

review. The timing of the petition

naming GSL Welcome, filed approximately seventeen months after the Board issued

its order, is not the only jurisdictional defect in this case. Allowing the petition that named GSL Welcome

to relate back to the original, timely filed petition does not change our

conclusion that neither Sub Thirteen nor GSL Welcome has standing to pursue

judicial review of the Board’s order.

Womack

Machine involved a general statute of limitations, and the plaintiffs in that

case did not have to meet specific statutory jurisdictional prerequisites to

invoke the subject-matter jurisdiction of the trial court. See

Womack Machine , 499 S.W.2d at 919–20.

Here, to invoke the jurisdiction of the trial court, the plaintiff not

only had to file its petition within forty-five days of receiving the Board’s

order, but the plaintiff also had to be the property owner and had to have

exhausted its administrative remedies by protesting the valuation before the

Board. See Timbercreek , 312 S.W.3d at 726–28. Sub Thirteen filed suit within forty-five

days, but it was not the property owner, and GSL Welcome did not pursue an

administrative protest before the Board.

Similarly, in Ealey , which

involved a comparable statutory appeal framework, Pacific, the party seeking

relation back of its petition, was the party involved in the hearing process

before the Industrial Accident Board, and therefore it was the proper party to

appeal the adverse board decision. Ealey , 660 S.W.2d at 51 . Here, GSL Welcome never completed the

administrative-protest process, and it therefore lacked standing to seek

judicial review of the Board’s order. Timbercreek , 312 S.W.3d at 727 .

Although GSL Welcome asserts,

throughout its brief, that the property owner was the “actual party that

exhausted administrative remedies and pursued the judicial appeal,” we note

that GSL Sub Thirteen GP, Inc.—the party that completed the administrative-protest

process and initially filed suit — is a Delaware corporation, and GSL Welcome BP 32, LLC — the property owner, substituted plaintiff, and

appellant — is a Texas limited liability

company. Even if related, these are two

separate and distinct entities. Laidlaw Waste Sys. , 907 S.W.2d at 17

(“In Texas, for the purpose of legal proceedings, subsidiary corporations and

parent corporations are separate and distinct ‘persons’ as a matter of

law. The separate entity of corporations

will be observed by the courts even in instances where one may dominate or

control, or may even treat it as a mere department, instrumentality, or agency

of the other.”). Because Sub Thirteen

and GSL Welcome are distinct entities and have separate existences, GSL Welcome,

the record property owner, cannot rely on Sub Thirteen’s actions to fulfill the

jurisdictional prerequisites of completing the administrative-protest process

and timely filing a suit for judicial review in the district court. See id.

(“As a result of the separate existence of Laidlaw Delaware, neither Laidlaw

Texas nor Four-S could rely upon the filing of the appeal by Laidlaw Delaware

to perfect its appeal of the ‘Orders Determining Protest’ for the tax years

1990 and 1991.”). Because the property

owner failed to exhaust its administrative remedies and timely file suit, the

trial court lacked jurisdiction to review the Board’s order. Id. Application of misnomer law to allow the

petition naming GSL Welcome to relate back to the timely filed original petition

does not cure these jurisdictional defects.

We therefore hold that both Sub Thirteen and GSL Welcome lacked standing

to seek judicial review of the Board’s order, and thus the trial court

correctly granted HCAD’s plea to the jurisdiction.

Rule 28 Substitution

GSL Welcome finally contends that

the trial court erred in denying its Rule 28 motion to substitute it as the

plaintiff, because Rule 28 permits a plaintiff to sue in its assumed or “common

name” and then substitute its “true name” later in the proceeding. According to GSL Welcome, because HCAD’s

records continued to list Sub Thirteen as the owner of the property well into

2008, instead of reflecting the ownership change when Sub Thirteen sold the

property to GSL Welcome in October 2007, “GSL Sub Thirteen GP, Inc.” is the

“common name” of GSL Welcome BP 32, LLC.

Rule 28 provides that:

Any partnership,

unincorporated association, private corporation, or individual doing business

under an assumed name may sue or be sued in its partnership, assumed or common

name for the purpose of enforcing against it a substantive right, but on a

motion by any party or on the court’s own motion the true name may be

substituted.

Tex. R. Civ. P. 28. To take advantage of Rule 28 and sue in a

party’s common name, “there must be a showing that the named entity is in fact doing business under that common

name.” Timbercreek , 312 S.W.3d at 730 (quoting Seidler v. Morgan , 277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009,

pet. denied)). In Seidler , the Texarkana Court of Appeals specified that although

third parties may commonly and informally use the name of the particular

premises to refer to the business, this by itself “does not mean that the name of

the site and the type of business conducted there is ‘doing business as.’” Seidler ,

277 S.W.3d at 553 ; see also Howell v.

Coca-Cola Bottling Co. , 595 S.W.2d 208, 212 (Tex. Civ. App.—Amarillo 1980,

writ ref’d n.r.e.) (“In summary, we hold rule 28 is not applicable to this

case, because nothing in the record indicates the two corporations in question

were doing business under an assumed or common name.”). Whether an entity does business under an

assumed or common name is a question of fact for the trial court. Sixth

RMA Partners, L.P. v. Sibley , 111 S.W.3d 46, 52 (Tex. 2003).

In Timbercreek , we held that the

appropriate inquiry for Rule 28 purposes is not whether HCAD refers to or

addresses an entity by a particular common name, but whether the entity actually

does business under that common name. [5] Timbercreek ,

312 S.W.3d at 730 . Here, GSL Welcome

made no showing that (1) it was doing business under the common name of

Sub Thirteen, (2) it held itself out to the public as Sub Thirteen, or (3) it

requested that HCAD refer to it as Sub Thirteen in its records. See id.

at 731 . HCAD’s appraisal records,

account statements, property tax statements, notice of appraised value, and

order determining protest might be some evidence that HCAD refers to GSL Welcome

as Sub Thirteen, but without more, it is not evidence that GSL Welcome does

business under the common name of Sub Thirteen.

Compare id. at 730 with Sixth RMA Partners , 111 S.W.3d at

52 (concluding that Sixth RMA Partners conducted business under name of RMA

Partners when it presented evidence that it used RMA stationary, sent demand

notices and referrals on RMA letterhead and used RMA’s business address, and

payments on Sixth RMA-owned notes were made to RMA) and Chilkewitz v. Hyson , 22 S.W.3d 825, 829 (Tex. 1999) (concluding

Rule 28 applicable when one-member professional association used stationary and

phone number containing name of member).

HCAD, by its actions alone, cannot determine that GSL Welcome does

business under the common name of Sub Thirteen; only GSL Welcome “can establish

whether it will operate its business under an assumed or common name.” Timbercreek ,

312 S.W.3d at 731 ; see also Tourneau

Houston, Inc. , 24 S.W.3d at 909 (“HCAD cannot designate an agent for

Tourneau, Inc. Only the owner, Tourneau,

Inc. can do that.”).

We

hold that GSL Welcome presented no evidence that it does business under the

common name of Sub Thirteen. [6] Thus, under these facts, Rule 28 is not

applicable and does not permit the substitution of the “true name” of GSL

Welcome for the “common name” of Sub Thirteen.

We hold that the trial court correctly denied GSL Welcome’s Rule 28

motion.

Conclusion

We

hold that neither Sub Thirteen nor GSL Welcome fulfilled the jurisdictional

prerequisites to seeking judicial review of the Board’s order determining

protest and thus both entities lacked standing to appeal the order to the

district court. The trial court,

therefore, correctly granted HCAD’s plea to the jurisdiction. We further hold that GSL Welcome failed to

present evidence that it did business under the “common name” of Sub Thirteen,

and thus the trial court correctly denied appellant’s Rule 28 motion. We therefore affirm the judgment of the trial

court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Bland.

[1]

Although Sub Thirteen’s original

petition listed both Harris County Appraisal District and Harris County

Appraisal Review Board as defendants, the record does not indicate that the

Board received service of citation or appeared in the proceeding. An appraisal review board is not a necessary

party to a petition for judicial review of the board’s order. Tex.

Tax Code Ann. § 42.21(b) (Vernon Supp. 2010). Because the Board is not a necessary party to

the appeal and the record does not affirmatively demonstrate that the Board was

served or that it appeared, we hold that HCAD is the only appellee properly

before the court. See KM-Timbercreek, LLC v. Harris County Appraisal Dist. , 312

S.W.3d 722 , 724 n.1 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

[2]

In 2009, the Texas Legislature

amended section 42.21(a) to extend the time period to file a petition for

review from forty-five days to sixty days from receipt of the Board’s

order. See Tex. Tax Code Ann.

§ 42.21(a) (Vernon Supp. 2010); Act of May 29, 2009, 81st Leg., R.S., ch.

905, § 1, 2009 Tex. Gen. Laws 2435 , 2435.

Although we decide this case under the law in effect at the time of Sub

Thirteen’s appeal to the district court in October 2008, we note that appellant,

the true property owner, did not attempt to join as a plaintiff until January

2010, well after both of the time periods had expired. See

§ 4, 2009 Tex. Gen. Laws at 2435–36.

[3]

Over the past two years, our

court has issued seven opinions addressing this issue, and the Fourteenth Court

has issued eight opinions. See Harris

County Appraisal Dist. v. KMI Yorktown LP , No. 01-09-00661-CV, 2010

WL 1729401 (Tex. App.—Houston [1st Dist.] Apr. 29, 2010, no pet.) (mem. op.); Harris

County Appraisal Dist. v. Shen , No. 01-09-00652-CV, 2010 WL 1729397 (Tex.

App.—Houston [1st Dist.] Apr. 29, 2010, no pet.) (mem. op.); Milbank 521 Sam

Houston I, LLC v. Harris County Appraisal Dist. , No. 01-09-00541-CV, 2010

WL 1729396 (Tex. App.—Houston [1st Dist.] Apr. 29, 2010, no pet.) (mem. op.); RRB

Land Invs., Ltd. v. Harris County Appraisal Dist. , No. 01-09-00519-CV, 2010

WL 1729390 (Tex. App.—Houston [1st Dist.] Apr. 29, 2010, no pet.) (mem. op.); Woodway

Drive LLC v. Harris County Appraisal Dist. , 311 S.W.3d 649 (Tex.

App.—Houston [14th Dist.] 2010, no pet.); Scott Plaza Assocs. Ltd. v. Harris

County Appraisal Dist. , No. 14-09-00707-CV, 2010 WL 724189 (Tex.

App.—Houston [14th Dist.] Mar. 4, 2010, no pet.) (mem. op.); Woodway Drive

LLC v. Harris County Appraisal Dist. , No. 14-09-00524-CV, 2010 WL 724174

(Tex. App.—Houston [14th Dist.] Mar. 4, 2010, no pet.) (mem. op.); RRB Land

Invs., Ltd. v. Harris County Appraisal Dist. , No. 14-09-00317-CV (Tex.

App.—Houston [14th Dist.] Feb. 4, 2010, no pet.) (mem. op.); SWP Remic

Props. II LP v. Harris County Appraisal Dist. , No. 14-08-00425-CV, 2010 WL

26524 (Tex. App.—Houston [14th Dist.] Jan. 7, 2010, no pet.) (mem. op.); DL

Louetta Village Square LP v. Harris County Appraisal Dist. , No.

14-08-00549-CV, 2009 WL 4913259 (Tex. App.—Houston [14th Dist.] Dec. 22, 2009,

no pet.) (mem. op.); Skylane West Ltd. v. Harris County Appraisal Dist. ,

No. 14-08-00507-CV, 2009 WL 4913256 (Tex. App.—Houston [14th Dist.] Dec. 22,

2009, no pet.) (mem. op.); Timbercreek , 312 S.W.3d at 726–28; Mei Hsu

Acquisition Corp. v. Harris County Appraisal Dist. , No. 01-08-00690-CV,

2009 WL 3152152 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem.

op.); BACM 2002 PB2 Westpark Dr. LP v. Harris County Appraisal Dist. ,

No. 14-08-00493-CV, 2009 WL 2145922 (Tex. App.—Houston [14th Dist.] June 21,

2009, no pet.) (mem. op.); Koll Bren Fund VI, LP v. Harris County Appraisal

Dist. , No. 01-07-00321-CV, 2008 WL 525799 (Tex. App.—Houston [1st Dist.]

Feb. 28, 2008, pet. denied) (mem. op.).

[4]

We hold only that amendment

under section 42.21(e) is impermissible when both the original plaintiff and

the amended plaintiff lack standing to seek judicial review. We express no opinion on whether this section

permits amendment after the statutory time period when one or both plaintiffs

have standing.

[5]

Contrary to GSL Welcome’s

assertion, we have never held that Rule 28 applies only to situations in which

the party has filed a formal assumed name certificate, but not to situations

involving informal common names. A

plaintiff can sue in its “common name,” and substitute its true name later in

the proceeding pursuant to Rule 28; however, the plain language of Rule 28

provides that, to take advantage of substitution, the plaintiff must establish

that it is “doing business under” the common name. Tex.

R. Civ. P. 28; see also Howell v. Coca-Cola Bottling Co. , 595 S.W.2d 208,

212 (Tex. Civ. App.—Amarillo 1980, writ ref’d n.r.e.) (noting that, in previous

El Paso Court of Civil Appeals case involving two companies “actually doing

business under a common name,” the El Paso Court “correctly applied” Rule 28

and limited its application to “instances of doing business under” an assumed

or common name (citing Cohen v. C.H.

Leavell & Co. , 520 S.W.2d 793, 796 (Tex. Civ. App.—El Paso 1975, no

writ))).

[6]

GSL Welcome cites two cases from

the Fourteenth Court of Appeals to support its contention that Rule 28 applies

to this case. In CA Partners v. Spears , 274 S.W.3d 51, 69 (Tex. App.—Houston [14th

Dist.] 2008, pet. denied), our sister court noted that Rule 28 provides that

“an individual doing business under an

assumed name may be sued in his assumed name,” and then held that CA

Partners, a sole proprietorship, presented evidence that its owner used CA

Partners as an assumed name while in the business of collecting debts. This decision emphasized that, to take

advantage of Rule 28, there must be a showing of “doing business under” the

assumed name, which did not occur in this case.

Id. The Fourteenth Court’s decision in Clearview Properties v. Property Texas SC

One Corp. did not address Rule 28 at all, but instead held that a second

service of citation is not necessary after discovery of a misnomer. 287 S.W.3d 132, 142 (Tex. App.—Houston [14th

Dist.] 2009, pet. denied).