law-assumed-named and substitution of true name | suits by and against dba (doing business as) or common name
doing business as (dba) assumed name
TRCP 28: SUBSITUTION OF TRUE NAME FOR DBA
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.
HOUSTON CASE LAW ON SUITS IN ASSUMED NAMES AND SUBSTITUTION OF
TRUE NAME UNDER TEX. R. CIV. P. 28
Scott Plaza Associates Ltd v. HCAD (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam)
(HCAD property tax appeal, plaintiff did not own property and did not have standing to bring judicial review suit of
property tax appraisal, substitution under rule 28 not available, order granting plea to the jurisdiction affirmed)
Steward did not own the property as of January 1, 2007. Steward did not claim rights to protest under the Property Tax Code as either a
lessee or an agent. Therefore, Steward lacked standing to pursue judicial review as a “party who appeals” under section 42.21(a).
The record does not reflect that Scott Plaza pursued its right of protest as the actual property owner. According to the record, Scott
Plaza was not named as a party until May 22, 2009 when Steward filed a first amended original petition. Therefore, the Review Board
had not determined a protest by the actual property owner, Scott Plaza, upon which Scott Plaza could premise a right to appeal as the
AFFIRMED: Per Curiam
Before Justices Brock Yates, Anderson and Seymore
14-09-00707-CV Scott Plaza Associates LTD, commonly known as J & Friedman S. Steward v.
Harris County Appraisal District
Appeal from 55th District Court of Harris County (trial judge not identified on appellate docket)
In this case, Steward attempted to substitute its “true name” Scott Plaza 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).
Appellants did not make a showing that Scott Plaza was in fact doing business under the common name Steward,
nor was there evidence that appellants used Steward as a 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’
second issue on appeal.
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
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