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

Affirmed and Memorandum Opinion filed June 21, 2009 Affirmed and Memorandum Opinion filed June 21, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00493-CV ____________ BACM 2002 PB2 WESTPARK DR LP, HOUSTON PARKWEST PLACE LTD, AS THE PROPERTY OWNERS AND THE PROPERTY OWNERS, Appellants V. HARRIS COUNTY APPRAISAL DISTRICT AND THE APPRAISAL REVIEW BOARD OF HARRIS COUNTY APPRAISAL DISTRICT, Appellees On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2007-64352 M E M O R A N D U M   O P I N I O N This appeal arises from a lawsuit in which a former property owner sought judicial review of the county appraisal district=s resolution of an ad valorem tax valuation protest. The subsequent purchaser of the property was later added as a plaintiff. The county appraisal district filed a plea to the jurisdiction, contending that the plaintiffs had no standing. The trial court dismissed the suit, granting the appraisal district=s plea to the jurisdiction. We conclude neither the former property owner nor the subsequent property owner had standing, and thus the trial court lacked jurisdiction. We therefore affirm. I. Factual and Procedural Background Appellant BACM 2002 PB2 Westpark Dr. LP (ABACM@) owned property located at 10160 Westpark Drive in Houston. The record reflects that BACM sold the property to appellant Houston Parkwest Place Ltd. (AParkwest Place@) by a special warranty deed dated February 28, 2006. By virtue of the conveyance, Parkwest Place and not BACM owned the property on January 1, 2007. Claiming to be the owner of the property, BACM filed a notice of protest for the 2007 tax year. In the protest, BACM asserted that the ad valorem tax valuation of the property was excessive. Parkwest Place did not pursue a protest as the new owner of the property. Appellees Harris County Appraisal District (AAppraisal District@), through the appraisal-review board of the Harris County Appraisal District (AReview Board@),[1] conducted a hearing on BACM=s protest. The Review Board determined that the initial ad valorem valuation of the property at $1,575,169 should be reduced to $1,455,000 for the 2007 tax year. It is undisputed that the Review Board issued its order to BACM. BACM filed an original petition for judicial review on October 15, 2007, Aby and on behalf of the property owners,@ challenging the Review Board=s determination. BACM continued to assert that it owned the property. BACM twice amended its pleadings. In its first amended pleading, BACM attempted to add Parkwest Place as a plaintiff in the suit for judicial review. In its live petition, amended and dated February 14, 2008, BACM removed itself as a party to the suit, leaving Parkwest Place as the only plaintiff. The Appraisal District and the Review Board filed a plea to the jurisdiction, contending that the trial court lacked subject-matter jurisdiction because BACM did not own the property on January 1, 2007, and therefore had no standing to seek judicial review. The Appraisal District attached a copy of the special warranty deed and BACM=s original petition to its plea. The trial court sustained the Appraisal District=s plea to the jurisdiction and dismissed the suit without prejudice. BACM and Parkwest Place now appeal the trial court=s dismissal of their suit. In a single multi-pronged issue, BACM and Parkwest Place assert that the trial court erred in granting the plea to the jurisdiction. Specifically, they contend that the trial court had jurisdiction and that they had standing by virtue of application of both section 42.21(e)(1) of the Texas Tax Code, which permits a petition for judicial review to be amended, and Texas Rule of Civil Procedure 28, which permits substitution of the true name of the plaintiff. II. Standard of Review 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, 445B46 (Tex. 1993). If a party has no standing, a trial court has no subject-matter jurisdiction to hear the case. Id. at 444B45. 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, regardless of merit, 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=Conner & Assocs., 267 S.W.3d 413, 416 (Tex. App.CHouston [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 554B55. 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) (setting forth standard of review for pleas to the jurisdiction). 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. In a review of a plea to the jurisdiction, we cannot examine the merits of the case. See Houston Indep. Sch. Dist. v. 1615 Corp., 217 S.W.3d 631, 635 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) (op. on reh=g). III. Analysis A. Did appellants have standing to seek judicial review of the appraisal review board=s determination of the ad valorem tax valuation? Because standing is a necessary component of subject-matter jurisdiction, as a preliminary matter, we review BACM=s and Parkwest Place=s standing to bring suit for judicial review. See, e.g., Tex. Worker=s Comp. Comm=n v. Garcia, 893 S.W.2d 504, 517B18 (Tex. 1995); Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 909 (Tex. App.CHouston [1st Dist.] 2000, no pet.) (op. on reh=g). Standing requires a real controversy between parties that will be determined by the judicial declaration sought. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996); see also Koll Bren Fund VI, LP & Hartman 3100 Weslayan Acquisitions v. Harris County Appraisal Dist., No. 01-07-00321-CV, 2008 WL 525799, at *2 (Tex. App.CHouston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.). The Texas Property Tax Code is comprised of chapters 31 through 43 as contained in the Texas Tax Code. See Tex. Tax Code Ann. '' 31.01B43.04 (Vernon 2008). Chapter 41 sets forth administrative procedures by which an aggrieved property owner may protest tax liability of an ad valorem tax assessment by an appraisal-review board. See id. '' 41.41B.47 (Vernon 2008). Chapter 42 governs judicial review of an appraisal-review board=s resolution of the protest. See id. '' 42.01B.29 (Vernon 2008). 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., 24 S.W.3d at 909. Section 42.21(a) of the Property Tax Code[2] is set forth below: A party who appeals as provided by this chapter must file a petition for review with the district 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 for review bars any appeal under this chapter. Tex. Tax Code Ann. ' 42.21(a) (Vernon 2008). Section 42.01 of the Tax Code specifies that a Aproperty 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 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); see MHCB (USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist., 249 S.W.3d 68, 78 (Tex. App.CHouston [1st Dist.] 2007, pet. denied). Therefore, to qualify as a Aparty who appeals@ by seeking judicial review of an appraisal-review board=s tax determination under section 42.21(a), BACM and Parkwest Place each 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. See Tex. Tax Code Ann. '' 1.111, 42.21(a) (providing guidelines for a Aparty who appeals@), 42.01(1)(A) (providing that a Aproperty owner is entitled to appeal@), 41.413(b) (authorizing a lessee to protest in some cases); MHCB (USA) Leasing & Fin. Corp., 249 S.W.3d at 78 (providing that a party lacks standing to protest an adverse appraisal decision if the party is not an owner, agent, or authorized lessee); see also Koll Bren Fund VI, LP, 2008 WL 525799, at *3. Accordingly, the party who does not meet one of the above criteria would lack standing under the Property Tax Code. See MHCB (USA) Leasing & Fin. Corp., 249 S.W.3d at 78; Tourneau Houston, Inc., 24 S.W.3d at 909;see also Koll Bren Fund, 2008 WL 525799, at *3. If the litigants lack standing, the trial court is deprived of subject-matter jurisdiction to consider a suit for judicial review based on an ad valorem tax protest. MHCB (USA) Leasing & Fin. Corp., 249 S.W.3d at 78; see Tourneau Houston, Inc., 24 S.W.3d at 909. 1. BACM=s Lack of Standing to Seek Judicial Review In its protest to the Review Board and in its pleadings, BACM claimed to own the property. BACM did not claim rights to protest under the Property Tax Code as either a lessee or an agent. Therefore, BACM could only assert standing under section 42.01(1)(A), which provides for the right of a property owner to appeal an appraisal-board=s determination to the district court by petition for review. See Tex. Tax Code Ann. ' 42.01(1)(A); see also Koll Bren Fund, 2008 WL 525799, at *4. However, the record reflects that BACM did not own the property on January 1, 2007, because BACM conveyed the property to Parkwest Place by special warranty deed on February 28, 2006. In its appellate brief, BACM concedes that A[a]ppellants determined that on January 1, 2007, the actual record owner of the property was Houston Parkwest.@ Because BACM did not own the property on January 1, 2007, BACM was not entitled to appeal the Review Board=s determination under section 42.01(1)(A). See Tex. Tax Code Ann. ' 42.01(1)(A) (providing that Aa property owner is entitled to appeal@); Tourneau Houston, Inc., 24 S.W.3d at 909; see also Koll Bren Fund, 2008 WL 525799, at *4. Therefore, BACM lacked standing to pursue judicial review of the Review Board=s determination in the district court as a Aparty who appeals@ under section 42.21(a). See Tex. Tax Code Ann. ' 42.21(a); Tourneau Houston, Inc., 24 S.W.3d at 909; see also Koll Bren Fund, 2008 WL 525799, at *4. 2. Parkwest Place=s Lack of Standing to Seek Judicial Review The record reflects that Parkwest Place acquired the property on February 28, 2006. However, the record does not reflect that Parkwest Place pursued its right of protest under Chapter 41 as either a new owner or a property owner. See Koll Bren Fund, 2008 WL 525799, at *4. Rather, BACM pursued the right of protest even though it no longer owned the property. See id. On this record, it appears that Parkwest Place did not become involved in the dispute until January 25, 2007, when BACM first amended its petition to include Parkwest Place in the suit. As a result, the Review Board had not determined a protest by the actual property owner, Parkwest Place, upon which Parkwest Place could premise a right to appeal as the property owner. See Tex. Tax Code Ann. '' 42.01(1)(A), 42.21(a); see also Koll Bren Fund, 2008 WL 525799, at *4. The case of Koll Bren Fund VI, LP and Hartman 3100 Weslayan Acquisitions v. Harris County Appraisal District involved similar facts. See 2008 WL 525799, at *1. In their appellate brief, Parkwest Place and BACM attempt to distinguish the Koll Bren Fund case from the case at hand, arguing that Parkwest Place Awas the owner of the property@ and Awas the party that prosecuted the administrative protest.@ A review of the record does not reveal whether Parkwest Place appeared before the Review Board. To the contrary, the record contains the Review Board=s order that was addressed only to BACM and its tax agent. The record also contains the Appraisal District=s AReal Property Account Information,@ in which the owner is listed as BACM. The original petition filed with the district court names BACM as the only plaintiff and property owner. BACM attached to its original petition an AExhibit D@ entitled ARule 194 Disclosures and Expert Designation.@ In this attached disclosure, BACM asserted that the named plaintiff, BACM, was the correct name of the party to the lawsuit and that A[p]laintiffs know of no potential parties to this lawsuit.@ Similarly, another document entitled ATrial Preparation Order or Pre-Trial Order Information,@ filed with the original petition, proposed a finding of fact that A[p]laintiff was the owner of the property that is the subject matter of this lawsuit on January 1 of each of the tax years in question.@ Remedies for adjudication of property-tax protests are exclusive unless otherwise provided. See Tex. Tax Code Ann. ' 42.09 (Vernon 2008). Failure to comply with the procedures set forth in the Property Tax Code deprives a reviewing court of jurisdiction to hear the dispute. See Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006); see also Koll Bren Fund, 2008 WL 525799, at *4; Houston Indep. Sch. Dist. v. 1615 Corp., 217 S.W.3d 631, 637 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) (deferring to Cameron=s holding with reservations). Parkwest Place did not pursue its right to protest the valuation under Chapter 41, and the Review Board did not determine any protest by Parkwest Place as the property owner.[3] See Tex. Tax Code Ann. ' 41.01(a); see also Koll Bren Fund, 2008 WL 525799, at *4. Accordingly, Parkwest Place had no real controversy to be determined by the judicial declaration sought. See Nootsie Ltd., 925 S.W.2d at 662; see also Koll Bren Fund, 2008 WL 525799, at *4. Therefore, Parkwest Place lacked standing under the Property Tax Code as a Aparty who appeals@ under section 42.21(a). See Nootsie Ltd., 925 S.W.2d at 661B62; Tourneau Houston, Inc., 24 S.W.3d at 909; see also Koll Bren Fund, 2008 WL 525799, at *4. Because BACM and Parkwest Place each lacked standing, the trial court lacked subject-matter jurisdiction to hear the suit. See Tourneau Houston, Inc., 24 S.W.3d at 909; see also Koll Bren Fund, 2008 WL 525799, at *4. We, therefore, reject BACM=s and Parkwest Place=s argument that they had standing. B. Does section 42.21(e)(1) of the Property Tax Code operate to permit appellants to correct or change the name of a party in the pleadings? BACM and Parkwest Place contend that the trial court had jurisdiction of this dispute because section 42.21(e)(1) allows amendment of a timely filed petition Ato correct or change the name of a party.@ Under subsection 42.21(a), a property owner must file a petition for review of an appraisal-review board=s determination Awithin 45 days after the party [has] received notice that a final order has been entered from which an appeal may be had.@ Tex. Tax Code Ann. ' 42.21(a) (Vernon 2008). If a party does not appeal to the district court within forty-five days, then an appraisal-review determination becomes final. Cameron Appraisal Dist., 194 S.W.3d at 502; see Tex. Tax Code Ann. ' 42.21(a). Under subsection 42.21(e)(1), a petition that is timely filed in accordance with subsection 42.21(a) Amay be subsequently amended . . . to correct or change the name of a party.@ Tex. Tax Code Ann. ' 42.21(e)(1). Although BACM sought judicial review of the Review Board=s determination within the 45-day time limit as specified in subsection 42.21(a), as discussed above, BACM lacked standing and therefore was not a proper party to bring suit under the Property Tax Code. See Tex. Tax Code Ann. '' 42.21(a), 42.01(1)(A); Tourneau Houston, Inc., 24 S.W.3d at 909; see also Koll Bren Fund, 2008 WL 525799, at *4. When, as in this case, no proper party appealed to the district court within 45 days, the trial court did not acquire subject-matter jurisdiction, and the Review Board=s determination became final upon the expiration of the 45 days. See Cameron Appraisal Dist., 194 S.W.3d at 502; Taufiq ex rel. Patrick O=Connor & Assocs, Inc. v. Harris County Appraisal Dist., 6 S.W.3d 652, 654 (Tex. App.CHouston [14th Dist.] 1999, no pet.); see also Koll Bren Fund, 2008 WL 525799, at *5. BACM and Parkwest Place contend that subsection 42.21(e)(1) operates to allow them to correct or change a party=s name in a timely filed petition. However, this argument presupposes that Parkwest Place is a proper party entitled to seek judicial review. See Koll Bren Fund, 2008 WL 525799, at *5. As discussed above, because Parkwest Place did not exercise its right of protest as a property owner, Parkwest Place was not a proper party to seek judicial review of the Review Board=s determination. See Tex. Tax Code Ann. ' 42.01(a); Tourneau Houston, Inc., 24 S.W.3d at 909; see also Koll Bren Fund, 2008 WL 525799, at *4. BACM and Parkwest Place also argue that because the suit was Abrought by and on behalf of the property owners,@ the suit initiated by BACM encompassed Parkwest Place as a property-owner plaintiff. This contention also presupposes that Parkwest Place was a proper party to seek judicial review under Chapter 42. See Tex. Tax Code Ann. ' 42.01(a); Koll Bren Fund, 2008 WL 525799, at *6. Parkwest Place had no standing as a matter of law because it failed to protest the valuation, and judicial review of the Review Board=s determination was premised upon the Board=s determination of a protest by the actual property owner. See Tex. Tax Code Ann. ' 42.01(a); Tourneau Houston, Inc., 24 S.W.3d at 909; see also Koll Bren Fund, 2008 WL 525799, at *4. Therefore, this argument lacks merit. C. Does Texas Rule of Civil Procedure 28 permit a substitution of names? 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 ABACM@ serves as the common name for the property owner. BACM and Parkwest Place assert that, as such, the Atrue 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. ABefore 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.CTexarkana 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.CAmarillo 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 52B53 (involving a party who presented Asignificant 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.CHouston [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 Asignificant 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. IV. Conclusion BACM and Parkwest Place lacked standing to bring suit, and therefore the trial court lacked subject-matter jurisdiction to hear the dispute. Because neither appellant was a proper party entitled to judicial review as contemplated by the Property Tax Code, section 42.21(e)(1) of the Property Tax Code and Texas Rule of Civil Procedure 28 do not apply to change the name of the property-owner plaintiff in the pleadings. Therefore, the trial court did not err in granting the Appraisal District=s plea to the jurisdiction. BACM and Parkwest Place=s sole issue is overruled, and the trial court=s judgment is affirmed. /s/ Kem Thompson Frost Justice Panel consists of Chief Justice Hedges, and Justices Yates and Frost. [1] BACM=s and Parkwest Place=s live pleadings and notice of appeal identify both the Appraisal District and the Review Board as defendants/appellees. The record in this case does not reflect that the Review Board was ever served or appeared in the trial court. An appraisal-review board is not a necessary party to a suit for judicial review filed by a property owner under the circumstances of this case. See Tex. Tax Code Ann. ' 42.21(b) (Vernon 2008); see Koll Bren Fund VI, LP & Hartman 3100 Weslayan Acquisitions v. Harris County Appraisal Dist., No. 01-07-00321-CV, 2008 WL 525799, at *1 n.1 (Tex. App.CHouston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.); cf. Poly-Am., Inc. v. Dallas County Appraisal Dist., 704 S.W.2d 936, 937B38 (Tex. App.CWaco 1986, no writ). Because the Review Board is not a necessary party and because the record does not reflect that the Review Board appeared in the trial court below, we conclude that the Appraisal District is the only appellee properly before this court. See Koll Bren Fund VI, LP, 2008 WL 525799, at *1 n.1. [2] Unless otherwise specified, all references to a Asection@ are to the Texas Property Tax Code. [3] Likewise, as with BACM, Parkwest Place did not assert any right to protest as a lessee or an agent. [4] BACM and Parkwest Place point to the case of Chilkewitz v. Hoyson, 22 S.W.3d 825 (Tex. 1999), for support. That case is factually distinguishable from the case at hand because there is no evidence in the record that BACM and Parkwest Place operated under the common name of BACM. See id. at 829 (involving evidence that a doctor and his professional association shared letterhead and appeared in the same phonebook listing).