Braniff CB Ltd v. Harris County Appraisal District--Appeal from 129th District Court of Harris County

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Affirmed and Memorandum Opinion filed November 18, 2010. In The Fourteenth Court of Appeals ___________________ NO. 14-10-00089-CV ___________________ BRANIFF CB LTD., Appellant V. HARRIS COUNTY APPRAISAL DISTRICT, Appellee On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2008-55488 MEMORANDUM OPINION Braniff CB Ltd. appeals from the trial court s order granting Harris County Appraisal District s ( HCAD )1 plea to the jurisdiction. We affirm. Braniff 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 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.). 1 I. Factual and Procedural Background The property at issue is located at 15100 Lee Rd. in Humble. On May 31, 2007, Sam Houston Parkway Business Center sold the property to E. Bruce Bentley, Lance Malmgren, and Christopher Rhodes. On the same day, Bentley, Malmgren, and Rhodes transferred the property to Braniff. Despite the fact that Sam Houston Parkway no longer owned the property, it filed a notice of protest with HCAD s Appraisal Review Board disputing the 2008 tax assessment for the property. On August 1, 2008, an order determining protest was delivered to Sam Houston Parkway s taxing agent. On September 11, 2008, Sam Houston Parkway filed an original petition in the trial court challenging the Review Board s determination. On March 3, 2009, HCAD filed a plea to the jurisdiction asserting that the trial court lacked subject-matter jurisdiction because Sam Houston Parkway 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 Sam Houston Parkway sold the property to Bentley, Malmgren, and Rhodes. HCAD also attached the deposition of the property manager who testified that the owner of the property was Braniff CB Ltd. On November 6, 2009, Sam Houston Parkway amended its petition naming Braniff as a plaintiff in the suit for judicial review of the Review Board s order. Sam Houston Parkway and Braniff 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. The parties further argued that Braniff was an assumed name of Sam Houston Parkway and that Texas Rule of Civil Procedure 28, entitled Suits in Assumed Name, permits it to amend a petition to include Braniff as the true name of the property owner. 2 On January 14, 2010, the trial court granted HCAD s plea to the jurisdiction and dismissed the suit. In three appellate issues, Braniff contends that the trial court erred in granting the plea to the jurisdiction because Sam Houston Parkway and Braniff 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 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. 3 III. Analysis In three issues, Braniff asserts that the trial court erred in granting the plea to the jurisdiction. Specifically, Braniff contends that Sam Houston Parkway timely amended its petition to include Braniff 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 both of these 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 Braniff 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 Ann. § 42.21(a) (Vernon Supp. 2009). 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 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. h.) (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. h.) (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.). 4 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 (Vernon 2008) (authorizing a designated lessee or agent to act for a property owner), 41.413(b) (Vernon 2008) (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), Sam Houston Parkway 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 would lack 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. Sam Houston Parkway did not own the property as of January 1, 2008. Sam Houston Parkway did not claim rights to protest under the Property Tax Code as either a lessee or an agent. Therefore, Sam Houston Parkway lacked standing to pursue judicial review as a party who appeals under section 42.21(a). The record does not reflect that Braniff pursued its right of protest as the actual property owner. According to the record, Braniff was not named as a party until November 9, 2009, when Sam Houston Parkway filed an amended petition. Therefore, the Review Board had not determined a protest by the actual property owner, Braniff, upon which Braniff could premise a right to appeal as the property owner. See Tex. Tax Code Ann. §§ 42.01(1)(A), 42.21(a); Woodway Drive, 311 S.W.3d at 653. B. Application of Section 42.21(e)(1) Braniff contends 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 Ann. § 42.21(e)(1). Braniff further contends the court erred in granting HCAD s plea to the jurisdiction because Sam Houston Parkway merely amended its 5 petition to cure a misnomer. We disagree. 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 Ann. 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). Sam Houston Parkway timely filed a petition for review; however, it did not own the property on January 1, 2008, and thus lacked standing to seek judicial review. See Woodway Drive, 311 S.W.3d at 653. Braniff s argument that subsection 42.21(e)(1) operates to permit Sam Houston Parkway to correct or change the party s name presupposes that Braniff was a proper party entitled to seek judicial review. Id. However, Braniff 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 Braniff s first and second issues. C. Application of Texas Rule of Civil Procedure 28 Lastly, Braniff argues 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 Braniff as Sam Houston Parkway 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. 3 Appellants do not argue that Subsection (c) applies to this case. 6 Tex. R. Civ. P. 28. Braniff contends the name Sam Houston Parkway is the common name for the true name Braniff. In this case, Sam Houston Parkway attempted to substitute its purported true name Braniff 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). Braniff did not make a showing that it was doing business under the common name Sam Houston Parkway, nor was there evidence that the entities used the name Sam Houston Parkway 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 Braniff s third issue. The trial court s judgment is affirmed. PER CURIAM Panel consists of Justices Anderson, Frost, and Brown. 7

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