Summary
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.
Summary of this case from Storguard Investments, LLC v. Harris County Appraisal DistrictOpinion
No. 01-10-00189-CV
Opinion issued November 10, 2010.
On Appeal from the 61st District Court, Harris County, Texas, Trial Court Case No. 2008-62121.
Panel consists of Justices KEYES, HIGLEY, and BLAND.
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"). 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.
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] 2009, no pet.).
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. 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."
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.
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] 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] 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. 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] 2000, no pet.) ("As a general rule, only an owner may protest before the [Appraisal Review Board] and sue in court for relief.").
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] 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] 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] 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] Apr. 29, 2010, no pet.) (mem. op.); Woodway Drive LLC v. Harris County Appraisal Dist., 311 S.W.3d 649 (Tex. App.-Houston [14th] 2010, no pet.); Scott Plaza Assocs. Ltd. v. Harris County Appraisal Dist., No. 14-09-00707-CV, 2010 WL 724189 (Tex. App.-Houston [14th] 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] 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] 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] 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] 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] 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] 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.).
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] 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] 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] 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. 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
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.
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. 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.").
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))).
We hold that GSL Welcome presented no evidence that it does business under the common name of Sub Thirteen. 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.
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] 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] 2009, pet. denied).
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.