Plaza At 610 Commons Inc v. HCAD (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Higley)
(
ad valorem property tax appeal, plea to the jurisdiction, no substitution of different entity as owner under
Rule 28 governing dbas, common names, identity of property owner is the issue, real owner did not bring
protest and suit within the filing deadline)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley   
Before Justices Jennings, Higley and Sharp   
01-08-00690-CV  Plaza At 610 Commons Inc. v. Harris County Appraisal District   
Appeal from 334th District Court of Harris County
Trial Court Judge:
Hon Sharon McCally

MEMORANDUM OPINION

   In this ad valorem property tax case, appellants, Mei Hsu Acquisition Corporation (“Mei Hsu”) and Plaza
at 610 Commons, Inc. (“Plaza”), appeal from the trial court’s dismissal of its suit against appellees, Harris
County Appraisal District and the Harris County Appraisal Review Board (collectively, “HCAD”), for want of
jurisdiction.

   In two issues, appellants contend that the trial court erred by granting HCAD’s plea to the jurisdiction
and dismissing appellants’ suit.

   We affirm.

Summary of Facts and Procedural History

   The subject property is located at 6360 Martin Luther King, Jr., Boulevard in Harris County. For tax year
2006, HCAD determined the market and appraised values of the subject property to be $770,740. HCAD
assessed ad valorem taxes on the subject property based on the appraised value.

   Plaza, who was reflected in HCAD’s records to be the owner of the subject property, filed an
administrative protest of the market valuation. The appraisal review board issued an order affirming the
value. On December 19, 2006, Plaza filed a suit for review in the trial court.

   On January 30, 2008, HCAD filed a plea to the jurisdiction, arguing that Plaza was not the true owner of
the subject property during the relevant period and that it therefore lacked standing to bring a suit for
review. HCAD contended that only a “property owner” may appeal an order of the appraisal review board,
citing Tax Code section 42.01 and caselaw interpreting. HCAD pointed to a warranty deed, showing that
Plaza had sold the subject property to Mei Hsu on September 17, 2003, three years prior to Plaza’s suit for
review.

   On February 1, 2008, Plaza amended its petition to include Mei Hsu as a plaintiff, pursuant to Tax Code
section 42.21(e)(1), [Footnote] and responded to HCAD’s plea to the jurisdiction, contending that it was
permitted to so amend its petition. HCAD replied that Plaza had improperly attempted to amend its petition
outside the 45-day statutory deadline under Tax Code 42.21(a).

   The trial court denied the plea to the jurisdiction. Subsequently, following this court’s opinion in Koll
Bren Fund IV, LP v. Harris County Appraisal District, 01-07-00321-CV, 2008 WL 525799 (Tex. App.—
Houston [1st Dist.] Feb. 28, 2008, pet. denied) (not designated for publication), HCAD requested the trial
court to reconsider the plea to the jurisdiction. HCAD cited Koll Bren Fund to support its contention that “a
trial court does not have jurisdiction over an ad valorem valuation dispute filed by one who is not the
property owner and further, the real owner cannot create jurisdiction by amending the non-owner’s petition
to change the party.”

   Appellants then filed a motion, pursuant to Rule of Civil Procedure 28, to substitute the plaintiff’s “true
name,” Mei Hsu, alleging that Plaza was the “common name” of Mei Hsu. HCAD responded that there was
no evidence that Plaza was ever an assumed name of Mei Hsu and that the undisputed evidence shows
that Plaza sold the subject property to Mei Hsu in 2003. The trial court denied appellants’ Rule 28 motion,
reconsidered and granted HCAD’s plea to the jurisdiction, and dismissed the suit.

Dismissal for Lack of Jurisdiction

A. Standard of Review

   A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction to hear the case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Pineda v. City of Houston, 175 S.W.3d 276,
279 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Subject matter jurisdiction is essential to the authority
of a court to decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 443–44 (Tex. 1993). The plaintiff has the burden to allege facts affirmatively demonstrating that the
trial court has subject matter jurisdiction. Id. at 446; Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836,
839 (Tex. 1967).

   The existence of subject matter jurisdiction is a question of law. State Dep’t of Highways & Pub. Transp.
v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.
1998). Therefore, we review de novo the trial court’s ruling on a plea to the jurisdiction. Mayhew, 964 S.W.
2d at 928. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only
the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v.
Brown, 80 S.W.3d 549, 555 (Tex. 2002). Further, a court can either afford plaintiffs the opportunity to
amend a pleading if the “issue is one of pleading sufficiency,” or “if the pleadings affirmatively negate the
existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an
opportunity to amend.” Id.

B.      Analysis: Timely Amendment

   In their first issue, appellants contend that the trial court’s jurisdiction was proper because Plaza
properly amended its petition to change the name of the plaintiff to Mei Hsu, pursuant to Tax Code § 42.21
(e). See Tex. Tax Code Ann. § 42.21(e) (Vernon 2008).

   Tax Code section 42.01 provides that “[a] property owner is entitled to appeal . . . an order of the
appraisal board. . . .” Id. § 42.01 (Vernon 2008) (emphasis added). Section 42.21(a) provides that

[a] party who appeals as provided by this chapter must file a petition for review with the trial 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.

Tex. Tax Code Ann. § 42.21(a). Footnote Section 42.21(e) states, in relevant part, that “[a] petition that is
timely filed under Subsection (a) . . . may be subsequently amended to: (1) correct or change the name of
a party . . . .” Id. § 42.21(e).

   In Koll Bren Fund, we construed section 42.21 in a case similar to the instant one. 2008 WL 525799, at
*5. There, although Koll Bren had sold the property at issue to another party prior to tax year 2005, Koll
Bren nevertheless protested the 2005 valuation and the new owner did not file a protest. Id. at *1. Koll
Bren then filed an appeal within the 45-day limit and amended its petition 15 months later to include the
actual owner of the property. Id. HCAD filed a plea to the jurisdiction, asserting that the party appealing
the valuation by the appraisal board was not the property owner. Id. The trial court sustained the plea and
dismissed the suit. Id. On appeal of the trial court’s ruling, this court held that Koll Bren “was not a proper
‘party’ to bring the suit” and that, “[n]o proper party having appealed to the district court within 45 days,
the trial court never acquired subject-matter jurisdiction.” Id. at *5. We affirmed the trial court’s dismissal of
the suit. Id. at *5–6.

   The facts in the present case are strikingly similar to Koll Bren Fund. In the case at bar, although Plaza
sold the subject property to Mei Hsu in 2003, Plaza nevertheless protested the 2006 valuation and Mei
Hsu did not file a protest. Plaza then filed an appeal and amended its petition 14 months later to include
the name of the actual owner, Mei Hsu. [Footnote] HCAD filed a plea to the jurisdiction, asserting that
Plaza was not the property owner, and the trial court dismissed the suit. Here, like Koll Bren Fund, Plaza
was not a proper party to bring the suit below and, no proper party having appealed to the district court
within 45 days, the trial court properly dismissed the suit for review for want of jurisdiction.

   Appellants attempt to distinguish the present case from Koll Bren Fund by arguing that here, unlike Koll
Bren, “Mei Hsu was the owner of the property, [and] was the party that prosecuted the administrative
protest . . . .” The record reflects that Mei Hsu was the owner of the property during the relevant period;
however, Mei Hsu did not pursue the administrative remedies or file the suit for review. See Cameron
Appraisal Dist. v. Rourk, 194 S.W.3d 501, 501 (Tex. 2006); Koll Bren Fund, 2008 WL 525799, at *7
(explaining that
exhaustion of administrative remedies is mandatory to invoke trial court’s jurisdiction). The
record shows that it was Plaza, which was not the property owner during the relevant period, that pursued
the administrative remedies and filed the suit for review in the trial court.

   Appellants also argue that a defect in identifying the actual owner of the property does not preclude
jurisdiction, citing Plaza Equity Partners v. Dallas Central Appraisal District, 765 S.W.2d 520 (Tex. App.—
Dallas 1989, no writ). However, in Plaza Equity Partners, unlike here, the actual owner of the property was
before the court and was the party that had pursued the administrative remedies and had filed suit. Id. at
522.

   Here, because the owner of the subject property, Mei Hsu, did not pursue her administrative remedies
or appeal the appraisal board’s order within 45 days, as required under Tax Code section 42.21, we
conclude that the trial court properly dismissed the suit for review for want of jurisdiction. See Tex. Tax
Code Ann. § 42.21(a) (stating that failure to timely file petition bars any appeal under this chapter); Koll
Bren Fund, 2008 WL 525799, at *7 (explaining that
tax payer’s failure to pursue administrative remedies is
jurisdictional).

   Accordingly, we overrule appellants’ first issue.

C.      Analysis: Suit Under a Common Name

   In their second issue, appellants contend that Rule of Civil Procedure 28 permitted the substitution of
Mei Hsu as plaintiff in Plaza’s original, timely filed petition. See Tex. R. Civ. P. 28.

   
Rule 28 provides as follows:

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.

Id. Appellants cite Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999) and Sixth RMA Partners L.P. v. Sibley,
111 S.W.3d 46 (Tex. 2003), in support of their proposition.

   In Chilkewitz, the court permitted, under Rule 28, a suit against an association named “Morton Hyson, M.
D., P.A.” to go forward, although the defendant had been originally named as “Morton Hyson, M.D.” 22 S.
W.3d at 827. The court concluded that “Morton Hyson, M.D.” was an assumed or common name of
“Morton Hyson, M.D., P.A.” because, inter alia, the association used letterhead in the name of the
individual doctor, and the phone number for the association and the individual doctor were the same in the
local phone book. Id. at 829.

   In Sibley, the court permitted a suit by “Sixth RMA Partners, L.P.” to go forward under Rule 28 when the
assumed name was “RMA Partners, L.P.” 111 S.W.3d at 53. The court permitted the suit because the
“additional designation of ‘Sixth’ in documents relating to this matter was added for RMA’s internal
purposes” only. Id. at 50.

   Here, unlike Chilkewitz and Sibley, appellants do not direct us to anything in the record that supports
that Plaza was an assumed name of Mei Hsu. See e.g., Virrey v. Foodmaker, Inc, No. 05-95-00231-CV,
1995 WL 731038, *3 (Tex. App.—Dallas Dec. 8, 1995, no writ) (not designated for publication) (holding
that Rule 28 did not apply to a suit against “Jack in the Box, Inc. in its corporate name” when actual
defendant was Foodmaker, a different corporation, for which Jack in the Box, Inc. was not an assumed
name).

    Moreover,
before Rule 28 can be used to allow suits based on “common names,” 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). Appellants have made no such showing.

   To the contrary, the record reflects that Plaza is the grantor of the property at issue to Mei Hsu, which
occurred in September of 2003. This evidences an exchange between two distinct corporate entities, not
one entity in a partnership, assumed, or common name.

   Here, Plaza, the plaintiff who originally filed suit is a corporation which, according to the evidence, is
wholly distinct from the true corporate owner of the property. See Howell v. Coca-Cola Bottling Co. of
Lubbock, Inc., 595 S.W.2d 208, 212 (Tex. Civ. App.—Amarillo 1980, writ ref’d n.r.e.) (considering, in case
in which plaintiff sued Coca-Cola Bottling Company and attempted to use Rule 28 to substitute “true
defendant,” Coca-Cola Bottling Company of Lubbock, Inc, that “[t]he case before us is not and never has
been a suit against a business entity in its partnership, assumed or common name.”) Because the record
does not support that Mei Hsu is the true name of Plaza or that Plaza is the common name of Mei Hsu, we
conclude that substitution under Rule 28 is not supported. Hence, we hold that the trial court properly
denied appellants’ motion to substitute and dismissed their case.

   Accordingly, we overrule appellants’ second issue.

Conclusion

   We affirm the judgment of the trial court.

                                                      
Laura Carter Higley

                                                      Justice

Panel consists of Justices Jennings, Higley, and Sharp.