

Affirmed and Memorandum Opinion filed January 13, 2011.
 
In The
 
Fourteenth Court of
Appeals
___________________
 
NO. 14-10-00064-CV
___________________
 
REDDY
PARTNERSHIP/5900 NORTH FREEWAY LP and REDDY PARTNERSHIP ET AL. AS THE PROPERTY
OWNERS, Appellants
 
V.
 
HARRIS COUNTY APPRAISAL DISTRICT,
Appellee

 

 
On
Appeal from the 190th District Court
Harris County,
Texas

Trial Court Cause No. 2008-55388
 

 
 
MEMORANDUM OPINION
            Reddy
Partnership/5900 North Freeway LP and Reddy Partnership et al. as the Property
Owners, jointly referred to as appellants, appeal from the trial court’s order
granting the plea to the jurisdiction filed by Harris County Appraisal District
(“HCAD”).  We affirm.


I. 
Factual and Procedural Background
            The property at
issue is located at 5900 North Freeway, Houston, Texas.  On June 21, 2002, Reddy
Partnership, a Texas general partnership, (the First Partnership) sold the
property to Reddy Partnership/5900 North Freeway, L.P., a Texas limited
partnership (the Second Partnership).  Despite the fact that the First
Partnership no longer owned the property, it filed a notice of protest with
HCAD’s Appraisal Review Board protesting the 2008 tax assessment for the property. 

            On September 11,
2008, the First Partnership filed an original petition in the trial court
challenging the Review Board’s determination of its protest. [1]  On December 16,
2009, HCAD filed a plea to the jurisdiction arguing that the trial court lacked
subject matter jurisdiction because the First Partnership was not the owner of
the property as of January 1, 2008, and only the property owner had standing to
appeal from the Review Board’s order.  HCAD attached to its plea a copy of the
warranty deed in which the First Partnership sold the property to the Second
Partnership.  
            The First
Partnership then amended its petition naming the Second Partnership as a
plaintiff in the suit, and appellants also filed a motion to substitute the
Second Partnership for the First Partnership.  Appellants also responded to
HCAD’s plea to the jurisdiction, arguing that the procedural defects had been
corrected by applying section 42.21(e)(1) of the Texas Tax Code to correct or
change the name of the plaintiffs.  Appellants further argued that the Second
Partnership was an assumed name of the First Partnership and that Texas Rule of
Civil Procedure 28 permits it to amend a petition to include the Second
Partnership as the true name of the property owner.  
            On December 18,
2009, the trial court granted HCAD’s plea to the jurisdiction and dismissed the
suit.  In three issues, appellants contend that the trial court erred in
granting the plea to the jurisdiction because they had standing to file the
suit pursuant to section 42.21 of the Tax Code and because Rule 28 permits
substitution of the true name of the plaintiff.
II.
Standard of Review
We review a trial court’s ruling on a plea to the
jurisdiction de novo.  See Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004).  In our review, we construe the pleadings
liberally in favor of the pleader and look to the pleader’s intent to determine
whether the facts alleged affirmatively demonstrate the trial court’s
jurisdiction to hear the cause.  See id.  
Standing is a component of subject-matter
jurisdiction that cannot be waived.  Tex. Ass’n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 445–46 (Tex. 1993).  If a party does not have
standing, a trial court has no subject-matter jurisdiction to hear the case.  Id.
at 444–45.  A trial court’s jurisdiction to hear the subject matter of a
dispute may be challenged by filing a plea to the jurisdiction.  See Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  
A defendant may prevail on a plea to the jurisdiction
by demonstrating that, even if all of the plaintiff’s pleaded allegations are
true, an incurable jurisdictional defect remains on the face of the pleadings
that deprives the trial court of subject-matter jurisdiction.  Harris County
Appraisal Dist. v. O’Connor & Assocs., 267 S.W.3d 413, 416 (Tex.
App.—Houston [14th Dist.] 2008, no pet.).  In determining a plea to the
jurisdiction, a trial court may consider the pleadings and any evidence
pertinent to the jurisdictional inquiry.  Bland, 34 S.W.3d at 554–55.
III.
Analysis
            Appellants contend
that they have standing because they timely amended the petition to include the
Second Partnership as a party pursuant to section 42.21(e)(1) of the Texas Tax Code
and Texas Rule of Civil Procedure 28.
A.        Standing
This court recently addressed the same arguments in Woodway
Drive LLC v. Harris County Appraisal District, 311 S.W.3d 649 (Tex.
App.—Houston [14th Dist.] June 21, 2010, no pet.), and we reach the same
outcome here in holding that appellants lacked standing.[2]
As a general rule, only a property owner may protest
tax liability before an appraisal-review board and seek judicial review in
court.  Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24
S.W.3d 907, 909 (Tex. App.—Houston [1st Dist.] 2000, no pet.)  Section 42.21(a)
of the Property Tax Code requires a party who appeals as provided by Chapter 42
of the Property Tax Code to timely file a petition for review with the district
court.  Failure to timely file a petition bars any appeal under the chapter. 
Tex. Tax Code § 42.21(a).  Section 42.01 of the Tax Code specifies that a property
owner is entitled to appeal an order of the appraisal review board determining
a protest by the property owner as provided by sections 41.41 et seq. of
the Property Tax Code.  Id. § 42.01(1)(A).  Alternatively, a property
owner may designate a lessee or an agent to act on the property owner’s behalf
for any purpose under the Property Tax Code, including filing a tax protest.  Id.
§§ 1.111 (authorizing a designated lessee or agent to act for a property
owner), 41.413(b) (authorizing a lessee to protest for the property owner in
certain circumstances).
Therefore, to qualify as a “party who appeals” by
seeking judicial review of an appraisal-review board’s tax determination under
section 42.21(a), the First Partnership had to be an owner of the property, a
designated agent of the owner, or the authorized lessee of the property under
the circumstances stated in section 41.413.  A party who does not meet one of
the above criteria lacks standing under the Property Tax Code.  Woodway
Drive, 311 S.W.3d at 653.  If the litigant lacks standing, the trial court
is deprived of subject-matter jurisdiction to consider a suit for judicial
review based on an ad valorem tax protest.  Id.
Here, the First Partnership did not own the property
as of January 1, 2008.  The First Partnership did not claim rights to protest
under the Property Tax Code as either a lessee or an agent.  Therefore, the
First Partnership lacked standing to pursue judicial review as a “party who
appeals” under section 42.21(a).  The record does not reflect that the Second
Partnership pursued its right of protest as the actual property owner. 
According to the record, the Second Partnership was not named as a party until the
First Amended Petition was filed December 11, 2009.  Therefore, the Review
Board had not determined a protest by the actual property owner, the Second
Partnership, upon which the Second Partnership could premise a right to appeal
as the property owner.  See Tex. Tax Code §§ 42.01(1)(A), 42.21(a); Woodway
Drive, 311 S.W.3d at 653. 
B.        Application of Section 42.21(e)(1)
Appellants contend that the trial court had
jurisdiction because section 42.21(e)(1) permits amendment of a timely filed
petition “to correct or change the name of a party.”  See Tex. Tax Code §
42.21(e)(1).  Appellants further contend that the court erred in granting
HCAD’s plea to the jurisdiction because they merely amended the petition to
cure a misnomer.  We disagree, for the same reasons announced in Woodway
Drive, 311 S.W.3d at 653.
Section 42.21(e) specifies that only petitions that
are “timely filed under Subsection (a) or amended under Subsection (c)” may
later be amended to correct or change a party’s name.[3]  See Tex.
Tax Code  42.21(e)(1).  To seek judicial review
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.  Id. § 42.21(a).  
The First Partnership timely filed a petition for
review; it did not own the property on January 1, 2008, however, and thus
lacked standing to seek judicial review.  See Woodway Drive, 311 S.W.3d
at 653.  Appellants’ argument that subsection 42.21(e)(1) operates to permit  to
correct or change the party’s name presupposes that the Second Partnership was
a proper party entitled to seek judicial review.  Id.  However, the
Second Partnership did not pursue its right of protest as the property owner. 
When no proper party timely appealed to the district court, the trial court did
not acquire subject-matter jurisdiction, and the Review Board’s determination
became final.  See id.  Accordingly, we overrule appellants’ first
and second issues.
C.        Application of Texas Rule of Civil
Procedure 28        
Lastly, appellants argue that the trial court had
jurisdiction to hear the case because Texas Rule of Civil Procedure 28, which
governs suits by or against entities doing business under an assumed name,
permits substitution of the Second Partnership as the First Partnership’s “true
name.”  Rule 28 states:
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
for or 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.  Appellants
contend that the Second Partnership’s name is the “common name” for the First
Partnership’s “true name”.  
In this case, the First Partnership attempted to
substitute its “true name,” the Second Partnership’s name, by filing an amended
original petition and arguing Rule 28 permitted the substitution.  For a party
to take advantage of Rule 28 and sue in its common name, there must be a
showing that the named entity is in fact doing business under that common
name.  Seidler v. Morgan, 277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009,
pet. denied).  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. a/k/a RMA
Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).   
The Second Partnership did not make a showing that it
was in fact doing business under the common name of the First Partnership, nor was
there evidence that the entities used the First Partnership’s name as an
assumed or common name to warrant application of Rule 28.  Compare Sixth
RMA Partners, 111 S.W.3d at 52 (concluding evidence supported assumed-name
finding when Sixth RMA presented evidence that RMA Partners, L.P. was used as
trade name for various RMA partnerships, RMA letterhead was used, and payments
on notes were made to RMA) and Chilkewitz v. Hyson, 22 S.W.3d
825, 829 (Tex. 1999) (stating some evidence supported application of Rule 28
when stationery and phone-number listing used by one-person professional
association contained name of individual).  Accordingly, we overrule appellants’
third issue.
Having overruled appellants’ issues, we affirm the
trial court’s judgment.  
 
                                                                        PER
CURIAM
 
 
Panel consists of Justices
Anderson, Frost and Brown. 
 




[1] Appellant’s pleadings and
notice of appeal identify both HCAD and the Harris County Appraisal Review
Board as defendants.  Because the record does not indicate that the Appraisal
Review Board was served or appeared in the suit and it was not a necessary
party, we consider HCAD to be the only appellee properly before this court.  See
Woodway Drive LLC v. Harris County Appraisal Dist., 311 S.W.3d 649, 651, n.
1 (Tex. App.—Houston [14th Dist.] 2010, no pet.).


[2] See also 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.); Scott
Plaza Assoc., 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.); SWP Remic Prop. 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.); 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.); 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.); 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.). 


[3] Appellants do not argue
that Subsection (c) applies to this case.


