law-dba-assumed-name & substitution of parties | TRCP 28 | Tex. R. Civ. P. 28  

ASSUMED NAMES - DBA REGISTRATION

The assumed name statute requires every corporation operating under an assumed name to file an assumed
name certificate with the Secretary of State and with the county clerk where the entity is doing business. Tex.
Bus. & Com. Code Ann.  § 71.103 (Vernon Supp. 2009). Failure to file an assumed name certificate affects a
plaintiff’s capacity to bring suit. See id.  § 71.201(a) (Vernon 2009) (explaining that “the person may not
maintain in a court of this state an action or proceeding arising out of a contract or act in which an assumed
name was used until an original, new, or renewed certificate has been filed as required by this chapter”); see
also § 71.002(9) (defining “person” as including “an individual, partnership, limited partnership, limited liability
company, registered limited liability partnership, company, or corporation”). And, failure to file an assumed
name certificate may result in a plaintiff receiving “expenses incurred, including attorney’s fees, in locating and
effecting service of process on the defendant.” Id. § 71.201(b). It does not, however, affect a defendant’s ability
to defend itself in civil litigation. Id. § 71.201(a) (“A person’s failure to comply with this chapter does not impair
the validity of any contract or act by the person or prevent the person from defending any action or proceeding
in any court of this state . . . .”).

Suit Under a Common Name (assumed name, d/b/a)

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.
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 dba-s, suit in common names) (property tax protest, appeal administrative remedies and
judicial review suit, 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
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.

Does Texas Rule of Civil Procedure 28 permit a substitution of names?

RRB Land Investmenst Ltd v. HCAD (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam)
(
only owner has standing to challenge property tax appraisal, application of Texas Rule of Civil Procedure 28 re
substitution of true name for common name, dba)   
AFFIRMED: Per Curiam   
Before Justices Brock Yates, Seymore and Brown    
14-09-00317-CV  RRB Land Investments Ltd., aka Cypresswood Venture I Ltd and Cypresswood Venture I Ltd,
as the Property Owners v.
Harris County Appraisal District    
Appeal from 269th District Court of Harris County  


BACM and Parkwest Place argue that the trial court had jurisdiction to hear the case because Texas Rule of
Civil Procedure 28, which governs suits against individuals doing business under an assumed name, permits
substitution of a true party's name.  Rule 28 is set forth below:
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 motion by any party or on the court's own motion the true name may
be substituted.
Tex. R. Civ. P. 28.  According to BACM and Parkwest Place, the name “BACM" serves as the common name for
the property owner.  BACM and Parkwest Place assert that, as such, the “true name" of the plaintiff enforcing
substantive rights in this suit is Parkwest Place, which may be substituted in the pleadings under Rule 28.  
BACM and Parkwest Place point to the Appraisal District's continuous designation of BACM as the property
owner in its records as evidence of the common name.
“Before the use of a common name is adequate under Rule 28, 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, 556 (Tex. App.-
Texarkana 2009, pet. denied) (concluding summary judgment was proper because there was no evidence that
the named party is a proper party to the lawsuit); Howell v. Coca-Cola Bottling Co. of Lubbock, Inc., 595 S.W.2d
208, 212 (Tex. App.- Amarillo 1980, writ ref'd n.r.e) (concluding Rule 28 was not applicable because no
evidence indicated that two corporations were doing business under an assumed or common name).  Whether
the entities operated under an assumed name was a fact question for the trial court.  See Sixth RMA Partners, L.
P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).  The trial court rendered judgment for the Appraisal District.  See
id.  When, as in this case, the parties did not request findings of fact or conclusions of law, it is implied that the
trial court made all the fact findings necessary to support its judgment.  Id.  Therefore, the implied findings
include a finding that the entities did not operate under an assumed or common name.  See id. (concluding the
trial court made all fact findings necessary to support a determination that the entities at issue used an
assumed name).  However, implied findings may be challenged for legal sufficiency, in which case, we consider
the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that
would support it.  City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); see Sixth RMA Partners, L.P., 111
S.W.3d at 52.  We must credit favorable evidence if a reasonable factfinder could and disregard contrary
evidence unless a reasonable factfinder could not.  See City of Keller, 168 S.W.3d at 827; see also Sixth RMA
Partners, L.P., 111 S.W.3d at 52.
There is no evidence in the record that Parkwest Place was doing business as BACM or that the entities,
themselves, used the name BACM as an assumed or common name to warrant application of Rule 28.[4]  See
Sixth RMA Partners, L.P., 111 S.W.3d at 52-53 (involving a party who presented “significant amount of
evidence" that it used an assumed name); Seidler, 277 S.W.3d at 553, 555; c.f. CA Partners v. Spears, 274 S.
W.3d 51, 69 (Tex. App.- Houston [14th Dist.] 2008, pet. denied) (concluding that trial testimony supported the
trial court's finding that the individual owner of a sole proprietorship operated under an assumed name so that
Rule 28 permitted substitution of the true party's name).  Although BACM and Parkwest Place point to the
Appraisal Board's own records that reflect BACM as the property owner, if an entity regularly conducts business
under an assumed name, the Texas Business and Commerce Code requires the entity to file a certificate with
the assumed name and information about the business.  See Tex. Bus. & Com. Code Ann. §§ 71.051, 71.052
(Vernon 2009); Seidler, 277 S.W.3d at 555 n.3; see also Tourneau Houston, Inc., 24 S.W.3d at 909 (rejecting
same argument on similar grounds involving an entity's failure to comply with statutory requirements for
operating as an agent for another entity).  The special warranty deed reflects that BACM sold the subject
property to Parkwest Place.  On this record, the evidence is insufficient to support a determination that the
entities operated under an assumed name to warrant application of Rule 28.  See, e.g., Sixth RMA Partners, L.
P., 111 S.W.3d at 52B53 (involving a party who presented “significant amount of evidence" that it used an
assumed name); Seidler, 277 S.W.3d at 553, 555; c.f. CA Partners, 274 S.W.3d at 69 (concluding that evidence
was sufficient to support conclusion that parties operated under an assumed name to warrant substitution of the
true name under Rule 28).  This argument, therefore, lacks merit.
BACM 2002 PBs Westpart Dr LP v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Frost)
(prior owner
did not have standing to bring ad valorem tax protests appeal, judicial review suit, assumed name
theory as basis for substitution of correct party rejected,
no standing - no subject matter jurisdiction).  
AFFIRMED: Opinion by
Justice Frost     
Before Chief Justice Hedges, Justices Brock Yates and Frost   
14-08-00493-CV BACM 2002 PB2 Westpark Dr LP, Houston Parkwest Place Ltd, as the Property Owners and
the Property Owners v.
Harris County Appraisal District and the Appraisal Review Board of Harris County
Appraisal District   Appeal from 11th District Court of Harris County
Trial Court
Judge: Mark Davidson  

SWP Remic Properties II LP  v. HCAD (Tex.App.- Houston [14th Dist.] Jan. 7, 2010) (Sullivan)      
(trial court’s order granting
Harris County Appraisal District’s (“HCAD”) plea to the jurisdiction affirmed; ad
valorem tax protest appeal judicial review suit not brought by owner of property. Rule 28 inapplicable)
AFFIRMED: Opinion by
Justice Sullivan      
Before     
14-08-00425-CV  SWP Remic Properties II LP as the Property Owners and the Property Owners v. Harris
County Appraisal District    Appeal from 55th District Court of Harris County
Trial Court Judge:
Jeff Shadwick   


RULE 28. SUITS IN ASSUMED NAME
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.


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