law-substitution-of-party | TRCP 28 substitution of true name for common or assumed name | dba assumed name |
misnomer | misidentification of defendant, party | mistake as to parties | wrong capacity |
HOUSTON CASE LAW ON SUBSTITUTION OF PARTY (OR CORRECT NAME)
Woodway Drive LLC v. HCAD (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam)
(owner must file property tax protext judicial review suit; dismissal for want of jurisdiction affirmed;
no substitution of new owner under Rule 28)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00524-CV Woodway Drive LLC aka First Reliance Metering LP v.
Harris County Appraisal District Appeal from 189th District Court of Harris County
Trial Court Judge: William R. Burke JR.
In this case, First Reliance attempted to substitute its “true name” Woodway 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 Woodway was in fact doing business under the common name First
Reliance, nor was there evidence that appellants used First Reliance 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.
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 property owner.
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)
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