Opinion

Opinion issued May 3, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00439-CV

———————————

Storguard Investments, LLC and Maxima Communications Corp. , Appellants

V.

Harris

County Appraisal District , Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Case No. 2008-57204

OPINION ON REHEARING

Appellants,

Storguard Investments, LLC (“Storguard”) and Maxima Communications Corp.

(“Maxima”), filed a motion for rehearing of our July 21, 2011 opinion. We grant rehearing, withdraw our July 21,

2011 opinion and judgment, and issue this opinion and judgment in their

place. The disposition of the case

remains unchanged.

In this ad valorem property tax

case, Maxima sought judicial review of a Harris County Appraisal Review Board

(“the Board”) [1]

order determining Maxima’s protest of the taxes assessed for the 2008 tax

year. The Harris County Appraisal District

(“HCAD”) filed a plea to the jurisdiction, contending that Maxima lacked

standing to pursue judicial review because it did not own the property on

January 1, 2008. In response, Maxima

moved to addStorguard, the record owner of the property, as a plaintiff

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

28. The trial court granted HCAD’s plea

to the jurisdiction. In three issues,

Storguard contends that the trial court erred in granting HCAD’s plea to the

jurisdiction because (1) Maxima amended its petition for review to cure a

misnomer, (2) Storguard had standing to pursue the petition for judicial

review, and (3) Storguard satisfied the requirements for Rule 28

substitution.

We

affirm.

Background

The

subject property is located at 12610 Tanner Road in Houston. On June 5, 2003, Maxima, which has an

ownership interest in Storguard, conveyed its interest in the property to

Storguard by special warranty deed. HCAD’s

records for the property, however, did not reflect this change in ownership and

still listed Maxima as the owner of the property in 2008. As a result, HCAD mailed the 2008 Notice of

Appraised Value to Maxima, instead of to Storguard. Maxima subsequently protested the appraised

value of the property before the Board.

On August 1, 2008, the Board issued an order determining the protest to

Maxima via Deloney& Associates, its designated agent for the protest

process, ordering a reduction in the appraised value of the property.

Pursuant

to Tax Code section 42.21(a), Maxima timely filed a petition for judicial review

of the Board’s order. [2] With its original petition, Maxima included

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

that the named plaintiff, Maxima Communications Corp., was the correct name for

the plaintiff and that it knew of no potential parties to the suit, and (2) a

proposed finding of fact stating 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.”

Nineteen

months later, in April 2010, HCAD filed a plea to the jurisdiction, contending

that the district court lacked subject-matter jurisdiction over the petition

for review because Maxima did not own the property on January 1, 2008, and,

therefore, itlacked standing to protest the Board’s order to the district

court. As supporting evidence, HCAD

attached the June 5, 2003 deed reflecting the conveyance of the property from

Maxima to Storguard.

In

response, Maxima moved to substitute Storguard as plaintiff pursuant to Tax

Code section 42.21(e) and Texas Rule of Civil Procedure 28. Maxima and Storguard argued that the amended

petition adding Storguard as a plaintiff “cures a misnomer and relates back to

the filing date of the original petition.”

The plaintiffs contended that “[t]here is also no dispute based on the

pleadings that the property owner [Storguard] was the actual party that

exhausted administrative remedies and pursued the judicial appeal,

notwithstanding the misnomer” and that Storguard “is the same party that

originally sued under the misnomer and under the common name assigned to the

property owner by the Defendant [HCAD].”

The plaintiffs further argued that Maxima indirectly owned the property

because it had an ownership interest in Storguard.

Maxima

and Storguard also contended that Rule 28, which allows a plaintiff to

substitute its “true name” for the “common name” in which it originally sued,

permitted substitution of Storguard as plaintiff. The plaintiffs argued that Maxima was the

“common name” ofStorguard because HCAD’s records, including the 2008 Notice of

Appraised Value and the Board’s order determining protest, listed Maxima as the

property owner. Maxima and Storguard

argued that Storguard, acting under its “common name” of Maxima, completed the

administrative protest process and timely filed the petition for judicial

review, and, therefore, it had standing to protest the Board’s order.

The

trial court granted HCAD’s plea to the jurisdiction and dismissed Maxima and

Storguard’s suit for want of jurisdiction.

This appeal followed.

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 Cnty.Appraisal

Dist. , 312 S.W.3d 722, 725 (Tex. App.—Houston [1st Dist.] 2009, no

pet.). If a party lacks standing, the

trial court does not have 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 its petition. See Cnty. 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 relating 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

A. Law

in Effect before September 1, 2011

Our Court and the Fourteenth Court

of Appeals have repeatedly addressed the jurisdictional requirements for

seeking judicial review of an adverse property tax determination by the

appraisal review board. [3] Generally, only the property owner has

standing to seek judicial review of an appraisal review board order in the

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

Tax Code Ann. §§ 42.01–.031 (Vernon 2008& Supp. 2011)

(providing right of appeal to property owner, certain lessees, chief appraiser,

county, and taxing unit); see also

Tourneau Houston, Inc. v. Harris Cnty. 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

judicial review of an adverse board order:

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. 2011)).

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. 2011); Timbercreek , 312 S.W.3d at 727 . Section 42.01 specifically states, “[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 Supp. 2011) (emphasis added). In Timbercreek ,

we reasoned that the Tax Code 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 an adverse board determination in the district

court. 312 S.W.3d at 727 . Thus, to be entitled to judicial review of a

board order, the party must be the record owner of the property and must

protest the initial valuation to the appraisal review board. Id.

In

addition to the record owner of the property, the Tax Code also allows properly

designated agents of the owner and certain lessees to seek judicial review of

an adverse board order. See id. ; see also Tex. Tax Code Ann.

§ 1.11 (Vernon Supp. 2011) (requirements for agents), § 41.413(b)

(Vernon 2008) (requirements for lessees).

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

categories, “then [it has] ‘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 Cnty. 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) Leasing& Fin. Corp.

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

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

Finally,

section 42.21(e)(1) provides, “A petition that is 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).

The

Tax Code provides the exclusive remedies available to property owners for

adjudicating a property-tax valuation protest.

See Tex. Tax Code Ann. § 42.09(a) (Vernon 2008); Gregg Cnty.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 within the statutory time period, the district court does

not acquire subject-matter jurisdiction over the petition for review, and the

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 Cnty. 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,

Maxima asserted in its original petition, in answers to Rule 194 disclosures, andin

proposed findings of fact, that it owned the subject property on January 1,

2008. The record indicates, however,

that Maxima conveyed its interest to Storguard on June 5, 2003, and, therefore,

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

responsible for paying the assessed taxes.

Maxima never claimed to be a designated agent or lessee of Storguard. Under the law in effect before September 1,

2011, because Maxima did not own the property on January 1, 2008, and it was

not a designated agent or lessee of Storguard, the record owner of the

property, Maxima lacked the legal right either to protest the valuation to the

Board or to seek judicial review of the subsequent Board order. See

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

Maxima, therefore, lacked standing to seek judicial review of the

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

Storguard,

as the record legal owner of the property, had standing to protest the

valuation of the property before the appraisal review board; however, the

record indicates that it did not participate in the administrative protest

process. Instead, Storguard did not

become involved in this dispute until April 2010, when Maxima amended its

petition for review and moved for substitution of Storguard as plaintiff under

Tax Code section 42.21(e) and Rule 28. Under

the prior law, because the Board never determined a valuation protest brought

by Storguard, the actual property owner, there is no protest determination on

which it can premise a suit for judicial review to the district court. See id. at

727–28. Storguard, 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 .

B. Standing under New Tax Code Section 42.016

In

2011, the Texas Legislature amended the Tax Code to address procedural issues

concerning property tax protests before appraisal review boards and petitions

for review of board orders to the district courts. The Legislature added section 42.016, entitled

“Intervention in Appeal by Certain Persons,” which provides:

A person is entitled to

intervene in an appeal brought under [Chapter 42] and the person has standing

and the court has jurisdiction in the appeal if the property that is the

subject of the appeal was also the subject of a protest hearing and the person:

(1) owned the property at any time during the

tax year at issue;

(2) leased the property at any time during the

tax year at issue and the person filed the protest that resulted in the

issuance of the order under appeal; or

(3) is shown on the appraisal roll as the owner

of the property or as a lessee authorized to file a protest and the person

filed the protest that resulted in the issuance of the order under appeal.

Tex. Tax Code Ann.

§ 42.016 (Vernon Supp. 2011).Storguard contends that its petition for

review “clearly falls within the provisions of Section 42.016 granting it

standing and conferring full jurisdiction upon the district court.”

Storguard

appears to qualify as a person entitled to intervene in a petition for review

pursuant to section 42.016. The property

at issue was “the subject of a protest hearing,” and Storguard owned the

property during the 2008 tax year. See id. § 42.016(1). This section effectively allows a party such

as Storguard, who seeks intervention in a judicial review proceeding, to rely

upon another person’s completion of the administrative protest process instead

of requiring that the party seeking intervention personally exhaust its

administrative remedies. Compare id. (granting standing to party

seeking intervention when party owned subject property during relevant tax year

and property was “the subject of a protest hearing,” without requiring party to

have filed protest hearing and to have completed administrative protest process

itself), with Timbercreek , 312 S.W.3d

at 727 (holding that under prior version of Tax Code, to be entitled to

judicial review, party must be record property owner and must have protested initial value to appraisal review

board). Although Storguard may have standing to intervene under section 42.016, however,

this section does not bestow standing upon Maxima ,

the party that administratively protested the initial appraised value and filed

the petition for review. Maxima, unlike

Storguard, is not seeking to intervene

in the judicial review proceeding—it initially filed the petition. See Tex. Tax Code Ann. § 42.016

(entitled “Intervention in Appeal by Certain Persons”).

The

Texas Legislature also amended Tax Code section 41.44—“Notice of Protest”—to

add subsection (e), which provides:

Notwithstanding any other

provision of this section, a notice of protest may not be found to be untimely

or insufficient based on a finding of incorrect ownership if the notice:

(1) identifies as the property owner a person

who is, for the tax year at issue:

(A) an owner of the property at any time during

the tax year;

(B) the person shown on the appraisal records

as the owner of the property, if that person filed the protest;

(C) a lessee authorized to file a protest; or

(D) an affiliate of or entity related to a

person described by this subdivision; or

(2) uses a misnomer of a person described by

Subdivision (1).

See id.

§ 41.44(e) (Vernon Supp. 2011).

This statute allows a person in Maxima’s position—a previous owner of

the property who is still listed as the record owner in the appraisal

records—to administratively protest the property’s initial appraised value,

which then provides the basis for a person in Storguard’s position to take

advantage of this protest process and intervene in the judicial review

proceeding at a later date. Contra

Timbercreek , 312 S.W.3d at 727 (holding that property ownership on January

1 of relevant tax year is required to protest initial appraised value before

appraisal review board). The Legislature

provided, however, that the amendment to this section applies “only to a

protest that is pending on the effective date of this Act [September 1, 2011]

or is filed on or after the effective date of this Act.” Act of May 25, 2011, 82d Leg., R.S., ch. 771,

§ 20(c), 2011 Tex. Sess. Law Serv. 1794 , 1801 (West).

Here,

Maxima’s administrative protest proceeding before the Board concluded on August

1, 2008, when the Board issued its final order; thus, it cannot take advantage

of this new amendment to claim standing to administratively protest the initial

value because it had no protest pending before the Board on September 1, 2011. Therefore, although Storguard may have standing to intervene in the judicial review

proceeding under new section 42.016, no statute gives Maxima standing either to protest the initial value before the

Board or to seek judicial review of the Board’s final decision. A proper party must have completed the

administrative review process before Storguard can rely on the completion of

that process, and there must be a properly pending suit in the district court

before Storguard can seek to intervene.

No proper party completed the administrative review process before the

Board, and no such suit in the district court exists in this case. Because no party with standing sought

judicial review of the Board’s order within the applicable statutory time

frame, we conclude, even when considering the newly enacted provisions and

amendments to the Tax Code, that, under the facts of this case, the district

court never acquired subject-matter jurisdiction over Storguard’s or Maxima’s

claims due to their failure to show that Maxima had standing as a proper party

to advance those claims. See Timbercreek , 312 S.W.3d at 728 ; Taufiq , 6 S.W.3d at 654 .

C. Application of Tax Code Section

42.21(e)(1)

Storguard contends that the trial

court erroneously granted 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 for review 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)

(emphasis added). To seek judicial

review of an adverse board order under subsection (a) of section 42.21, “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 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 order. See id. ; RRB Land Invs., Ltd. v. Harris Cnty. 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 seeks judicial review of the board order within the statutory time

period, the district 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 .

Maxima timely filed a petition for

review; however, Maxima did not own the property on January 1, 2008, and,

therefore, it lacked standing to administratively protest the valuation before

the Board and to pursue judicial review of the Board’s subsequent order. Section 42.21(e) requires both parties involved in the

substitution to have standing to seek judicial review of the appraisal review

board’s order. See id. Because Maxima does

not have standing, even under the new amendments to the Tax Code, Storguard

cannot use section 42.21(e) to substitute as a plaintiff. See id. ;

see also Kilpatrick v. Kilpatrick ,

205 S.W.3d 690 , 703–05 (Tex. App.—Fort Worth 2006, pet. denied) (“Because [the

plaintiff] lacked standing at the time the action was filed, the suit must be

dismissed even if he later acquired an interest sufficient to support

standing. We would point out that even

when the Trustee attempted to intervene in this suit, such action would not

convey standing upon [the plaintiff]. . . . And as we

previously stated, the intervention by one with standing does not retroactively

cure a jurisdictional standing defect.”).

D. Application of Misnomer Law

Storguard also contends that the

trial court erroneously granted HCAD’s plea to the jurisdiction because Maxima

amended its petition to name Storguard as the plaintiff to correct a misnomer,

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

petition. Storguard cites the Fourteenth

Court of Appeals’ decision in Womack

Machine Supply Co. v. Fannin Bank , 499 S.W.2d 917 (Tex. Civ. App.—Houston

[14th Dist.] 1973), rev’d on other

grounds , 504 S.W.2d 827 (Tex. 1974), and the Texas Supreme Court’s decision

in Ealey v. Insurance Co. of North

America , 660 S.W.2d 50 (Tex. 1983), 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. We previously

considered this argument in GSL Welcome

and concluded that 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.” See 2010 WL 4484361 , at *5.

In GSL Welcome , we noted that the issue in both Womack Machine and Ealey was

whether the applicable statute of limitations bars an amended pleading

substituting a plaintiff. See id. at

*5–6 (citing Womack Machine , 499

S.W.2d at 920 and Ealey , 660 S.W.2d

at 51–53). We also observed that the

timing of the amended petition naming GSL Welcome as the plaintiff was not the

only jurisdictional defect in the case. See id. at *5.To invoke the jurisdiction

of the trial court, the plaintiff has to meet three requirements: (1) it has to file its petition within the

statutorily prescribed time period, (2) it has to be the record property owner,

and (3) it has to have exhausted its administrative remedies by protesting the

initial valuation before the appraisal review board. See id.

at *6 (distinguishing Womack Machine ,

which did not require specific statutory prerequisites to invoke trial court’s

jurisdiction, and Ealey , in which

party seeking relation back was involved in administrative hearing process and,

thus, was proper party to seek judicial review).Here, Maxima timely filed a

petition for review, but it was not the record owner of the property, and

therefore it was not the proper party either to protest the appraised value or

to seek judicial review of the Board’s valuation determination, and Storguard

did not itself complete the administrative protest process.

As in GSL Welcome , Storguard asserts that it, as the property owner, was

the “actual party that exhausted administrative remedies and pursued the

judicial appeal.” 2010 WL 4484361 , at *6. We note that Maxima Communications

Corporation — the party that completed the

administrative protest process, initiated the suit for judicial review, and

maintained an ownership interest in Storguard — and Storguard Investments, LLC — the property owner and substituted plaintiff — are separate and distinct legal entities. See

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.”); see also Tex. Bus. Orgs. Code

Ann. § 101.106(b) (Vernon Supp. 2011) (“A member of a limited

liability company . . . does not have an interest in any

specific property of the company.”).Because Maxima and Storguard are distinct

entities and have separate corporate existences, Storguard, the record property

owner, cannot rely on Maxima’s conduct to satisfy the jurisdictional

prerequisites of completing the administrative protest process before the Board

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

Welcome , 2010 WL 4484361 , at *6; Laidlaw

Waste Sys. , 907 S.W.2d at 17 (“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.”).

Newly-enacted section 42.016 allows

a party seeking judicial review of an appraisal review board order to intervene

in the judicial review proceeding without itself completing the administrative

protest process, as long as someone with

standing pursues an administrative protest.

See Tex. Tax Code Ann. § 42.016 (“A person is entitled to

intervene in an appeal . . . if the property that is the

subject of the appeal was also the subject of a protest

hearing . . . .”).

As we have already noted, however, Maxima lacked standing both to protest

the appraised value to the Board and to seek judicial review of the Board’s

final decision. See Timbercreek , 312 S.W.3d at 727 .

Further, the Legislature’s amendment to Tax Code section 41.44, which

would allow a person in Maxima’s position to properly protest a property’s

initial value before an appraisal review board, does not apply to Maxima. See

Act of May 25, 2011, 82d Leg., R.S., ch. 771, § 20(c), 2011 Tex. Sess. Law

Serv. at 1801 (noting that amendment to section 41.44 applies only to administrative

protests pending on effective date of Act, September 1, 2011, or protests filed

on or after effective date). Thus, no

proper administrative protest occurred in this case, and, therefore, there is

no protest on which Storguard can rely to give it standing pursuant to section

42.016.Allowing relation back of the amended petition in this case does not

cure the jurisdictional defect. See GSL

Welcome , 2010 WL 4484361 , at *5–6.

We hold that because Maxima lacked

standing to administratively protest the initial appraised value before the

Board and to seek judicial review of the Board order, the trial court correctly

granted HCAD’s plea to the jurisdiction.

We overrule Storguard’s first and

second issues.

Rule 28 Substitution

In

its third issue, Storguard contends that the trial court should have allowed

Storguard to substitute as a plaintiff pursuant to Rule 28, because Rule 28 allows

a plaintiff to sue in its assumed or “common name” and then substitute its

“true name” later in the proceeding.

Storguard argues that because HCAD’s records continued to list Maxima as

the owner of the property, instead of reflecting the change in ownership when

Maxima sold the property to Storguard in June 2003, “Maxima Communications

Corp.” is the “common name” of Storguard Investments, LLC.

Rule

28 provides:

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, “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 concluded that although third parties may commonly and

informally use the name of the particular premises to refer to the business

located at that premises, this by itself “does not mean that the name of the

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

Rule 28 inquiry 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. [4] 312

S.W.3d at 730 . Here, Storguard made no

showing that (1) it was doing business under the common name of Maxima, (2) it

held itself out to the public as Maxima, or (3) it requested that HCAD refer to

it as Maxima 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 Storguard as Maxima, but,

without more, it is not evidence that Storguard does business under the common

name of Maxima. 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 Storguard does business under the common name of Maxima; only

Storguard “can establish whether it will operate its business under an assumed

or common name.” See 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 Storguard presented no evidence that it does business under the

common name of Maxima. [5] Thus, under these facts, Rule 28 is not applicable

and does not permit the substitution of the “true name” of Storguard for the

“common name” of Maxima. We hold that Storguard

was not entitled to substitution pursuant to Rule 28.

We

overrule Storguard’s third issue.

Conclusion

We

affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Baker. [6]

[1] Although Maxima’s original petition

listed both the Harris County Appraisal District and the 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. 2011). 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 Cnty. 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. 2011); 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

Maxima’s petition to the district court in September 2008, we note that

Storguard, the record owner of the property, did not attempt to join as a

plaintiff until April 2010, well after both of the time periods had

expired. See Act of May 29, 2009, § 4, 2009 Tex. Gen. Laws at 2435–36.

[3] See,

e.g. , Timbercreek , 312 S.W.3d at

726–28; Woodway Drive LLC v. Harris Cnty.

Appraisal Dist. , 311 S.W.3d 649 , 652–53 (Tex. App.—Houston [14th Dist.]

2010, no pet.); see also GSL Welcome BP

32 LLC v. Harris Cnty. Appraisal Dist. , No. 01-10-00189-CV, 2010 WL

4484361 , at *2 n.3 (Tex. App.—Houston [1st Dist.]Nov. 10, 2010, no pet.) (mem.

op.) (collecting cases).

[4] Contrary to Storguard’s assertion, we

have never held that Rule 28 applies only to situations in which the party has

filed a formal assumed name certificate.

A plaintiff can sue in its informal “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 this substitution

mechanism, 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’dn.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)).

[5] Storguard 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 (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 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. 274 S.W.3d at 69 (emphasis added). This decision emphasized that, to take

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

assumed name. See id. The Fourteenth

Court’s decision in Clearview Properties,

L.P. 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).

[6] The Honorable Caroline E. Baker,

Judge of the 295th District Court of Harris County, Texas, participating by

assignment. See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).