Opinion
No. 01-10-00439-CV
Opinion issued July 21, 2011.
On Appeal from the 333rd District Court, Harris County, Texas, Trial Court Case No. 2008-57204.
Panel consists of Justices KEYES, HIGLEY, and BAKER.
The Honorable Caroline E. Baker, Judge of the 295th District Court of Harris County, Texas, participating by assignment. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).
MEMORANDUM OPINION
In this ad valorem property tax case, Maxima Communications Corp. ("Maxima") sought judicial review of a Harris County Appraisal Review Board ("the Board") order determining Maxima's protest of the taxes assessed for the 2008 tax year. The Harris County Appraisal District ("HCAD") filed a plea to the jurisdiction, contending that Maxima lacked standing to pursue judicial review because it did not own the property on January 1, 2008. In response, Maxima moved to add Storguard Investments, LLC ("Storguard"), the record owner of the property, as a plaintiff pursuant to Tax Code section 42.21(e) and Texas Rule of Civil Procedure 28. The trial court granted HCAD's plea to the jurisdiction. In three issues, Storguard contends that the trial court erred in granting HCAD's plea to the jurisdiction because (1) Maxima amended its petition for review to cure a misnomer, (2) Storguard had standing to pursue the petition for judicial review, and (3) Storguard satisfied the requirements for Rule 28 substitution.
Although Maxima's original petition listed both the Harris County Appraisal District and the Harris County Appraisal Review Board as defendants, the record does not indicate that the Board received service of citation or appeared in the proceeding. An appraisal review board is not a necessary party to a petition for judicial review of the board's order. TEX. TAX CODE ANN. § 42.21(b) (Vernon Supp. 2010). Because the Board is not a necessary party to the appeal and the record does not affirmatively demonstrate that the Board was served or that it appeared, we hold that HCAD is the only appellee properly before the court. See KM-Timbercreek, LLC v. Harris Cnty. Appraisal Dist., 312 S.W.3d 722, 724 n. 1 (Tex. App.-Houston [1st Dist.] 2009, no pet.).
We affirm.
Background
The subject property is located at 12610 Tanner Road in Houston. On June 5, 2003, Maxima, which has an ownership interest in Storguard, conveyed its interest in the property to Storguard by special warranty deed. HCAD's records for the property, however, did not reflect this change in ownership and still listed Maxima as the owner of the property in 2008. As a result, HCAD mailed the 2008 Notice of Appraised Value to Maxima, instead of Storguard. Maxima subsequently protested the appraised value of the property before the Board. On August 1, 2008, the Board issued an order determining the protest to Maxima via Deloney Associates, its designated agent for the protest process, ordering a reduction in the appraised value of the property.
Pursuant to Tax Code section 42.21(a), Maxima timely filed a petition for judicial review of the Board's order. With its original petition, Maxima included (1) responses to Texas Rule of Civil Procedure 194 disclosures, stating that the named plaintiff, Maxima Communications Corp., was the correct name for the plaintiff and that it knew of no potential parties to the suit, and (2) a proposed finding of fact stating that "Plaintiff 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."
In 2009, the Texas Legislature amended section 42.21(a) to extend the time period to file a petition for review from forty-five days to sixty days from receipt of the Board's order. See TEX. TAX CODE ANN. § 42.21(a) (Vernon Supp. 2010); Act of May 29, 2009, 81st Leg., R.S., ch. 905, § 1, 2009 Tex. Gen. Laws 2435, 2435. Although we decide this case under the law in effect at the time of Maxima's petition to the district court in September 2008, we note that Storguard, the record owner of the property, did not attempt to join as a plaintiff until April 2010, well after both of the time periods had expired. See Act of May 29, 2009, § 4, 2009 Tex. Gen. Laws at 2435-36.
Nineteen months later, in April 2010, HCAD filed a plea to the jurisdiction, contending that the district court lacked subject-matter jurisdiction over the petition for review because Maxima did not own the property on January 1, 2008, and, therefore, it lacked standing to protest the Board's order to the district court. As supporting evidence, HCAD attached the June 5, 2003 deed reflecting the conveyance of the property from Maxima to Storguard.
In response, Maxima moved to substitute Storguard as plaintiff pursuant to Tax Code section 42.21(e) and Texas Rule of Civil Procedure 28. Maxima and Storguard argued that the amended petition adding Storguard as a plaintiff "cures a misnomer and relates back to the filing date of the original petition." The plaintiffs contended that "[t]here is also no dispute based on the pleadings that the property owner [Storguard] was the actual party that exhausted administrative remedies and pursued the judicial appeal, notwithstanding the misnomer" and that Storguard "is the same party that originally sued under the misnomer and under the common name assigned to the property owner by the Defendant [HCAD]." The plaintiffs further argued that Maxima indirectly owned the property because it had an ownership interest in Storguard.
Maxima and Storguard also contended that Rule 28, which allows a plaintiff to substitute its "true name" for the "common name" in which it originally sued, permitted substitution of Storguard as plaintiff. The plaintiffs argued that Maxima was the "common name" of Storguard because HCAD's records, including the 2008 Notice of Appraised Value and the Board's order determining protest, listed Maxima as the property owner. Maxima and Storguard argued that Storguard, acting under its "common name" of Maxima, completed the administrative protest process and timely filed the petition for judicial review, and, therefore, it had standing to protest the Board's order.
The trial court granted HCAD's plea to the jurisdiction and dismissed Maxima and Storguard's suit for want of jurisdiction. This appeal followed.
Standard of Review
Standing is a necessary component of subject-matter jurisdiction and cannot be waived. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); KM-Timbercreek, LLC v. Harris Cnty. Appraisal Dist., 312 S.W.3d 722, 725 (Tex. App.-Houston [1st Dist.] 2009, no pet.). If a party lacks standing, the trial court does not have jurisdiction to hear the case. Blue, 34 S.W.3d at 553-54. If the jurisdictional defect cannot be cured by amending the pleadings, a party may file a plea to the jurisdiction, and if the trial court finds the plea meritorious, it may grant the plea without allowing the plaintiff an opportunity to amend its petition. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). A trial court decides a plea to the jurisdiction by reviewing the pleadings as well as any evidence relating to the jurisdictional inquiry. Blue, 34 S.W.3d at 555. We review a trial court's ruling on a plea to the jurisdiction de novo, construing the pleadings liberally in favor of the plaintiff while considering the pleader's intent. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). When reviewing 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.-Houston [14th Dist.] 2006, pet. denied).
Standing to Pursue Judicial Review
Our Court and the Fourteenth Court of Appeals have repeatedly addressed the jurisdictional requirements for seeking judicial review of an adverse property tax determination by the appraisal review board. Generally, only the property owner has standing to seek judicial review of an appraisal review board order in the district court. Timbercreek, 312 S.W.3d at 726; TEX. TAX CODE ANN. §§ 42.01-.031 (Vernon 2008) (providing right of appeal to property owner, certain lessees, chief appraiser, county, and taxing unit); see also Tourneau Houston, Inc. v. Harris Cnty. Appraisal Dist., 24 S.W.3d 907, 909 (Tex. App.-Houston [1st Dist.] 2000, no pet.) ("As a general rule, only an owner may protest before the [Appraisal Review Board] and sue in court for relief.").
See, e.g., Timbercreek, 312 S.W.3d at 726-28; Woodway Drive LLC v. Harris Cnty. Appraisal Dist., 311 S.W.3d 649, 652-53 (Tex. App.-Houston [14th Dist.] 2010, no pet.); see also GSL Welcome BP 32 LLC v. Harris Cnty. Appraisal Dist., No. 01-10-00189-CV, 2010 WL 4484361, at *2 n. 3 (Tex. App.-Houston [1st Dist.] Nov. 10, 2010, no pet.) (mem. op.) (collecting cases).
Tax Code section 42.21(a) specifies the procedural requirements for seeking judicial review of an adverse board order:
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 bars any appeal under this chapter.
Act of May 28, 1989, 71st Leg., R.S., ch. 796, § 44, sec. 42.21(a), 1989 Tex. Gen. Laws 3591, 3604 (amended 2009) (current version at TEX. TAX CODE ANN. § 42.21(a) (Vernon Supp. 2010)). Section 42.21(a) describes a "party" as one "who appeals as provided by [Chapter 42]." TEX. TAX CODE ANN. § 42.21(a) (Vernon Supp. 2010); Timbercreek, 312 S.W.3d at 727. Section 42.01 specifically states, "[a] property owner is entitled to appeal . . . an order of the appraisal review board determining . . . a protest by the property owner." TEX. TAX CODE ANN. § 42.01(1)(A) (Vernon 2008) (emphasis added). In Timbercreek, we reasoned that the Tax Code requires property ownership for two distinct rights: (1) the right to protest the appraised value of the property before the appraisal review board; and (2) the right to seek judicial review of an adverse board determination in the district court. 312 S.W.3d at 727. Thus, to be entitled to judicial review of a board order, the party must be the record owner of the property and must protest the initial valuation to the appraisal review board. Id.
In addition to the record owner of the property, the Tax Code also allows properly designated agents of the owner and certain lessees to seek judicial review of an adverse board order. See id.; see also TEX. TAX CODE ANN. § 1.11 (Vernon Supp. 2010) (requirements for agents), § 41.413(b) (Vernon 2008) (requirements for lessees). If a party seeking judicial review does not fall into one of these categories, "then [it has] 'neither a legal right to enforce, nor any real controversy at issue, and, therefore, no standing under the [Tax] Code.'" Timbercreek, 312 S.W.3d at 727 (citing Koll Bren Fund VI, LP v. Harris Cnty. Appraisal Dist., No. 01-07-00321-CV, 2008 WL 525799, at *3 (Tex. App.-Houston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.)); see also MHCB (USA) Leasing Fin. Corp. v. Galveston Cent. Appraisal Dist., 249 S.W.3d 68, 78 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).
The Tax Code provides the exclusive remedies available to property owners for adjudicating a property-tax valuation protest. See TEX. TAX CODE ANN. § 42.09(a) (Vernon 2008); Gregg Cnty. Appraisal Dist. v. Laidlaw Waste Sys., Inc., 907 S.W.2d 12, 16 (Tex. App.-Tyler 1995, writ denied). A property owner's failure to pursue administrative review of the initial valuation before the appraisal review board "deprives the courts of jurisdiction to decide most matters relating to ad valorem taxes." Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006). If no proper party seeks judicial review of the board's decision within the statutory time period, the district court does not acquire subject-matter jurisdiction over the petition for review, and the board's valuation becomes final when the statutory time period expires. See Timbercreek, 312 S.W.3d at 728; Taufiq ex rel. Patrick O'Connor Assocs., Inc. v. Harris Cnty. Appraisal Dist., 6 S.W.3d 652, 654 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (holding that failure to join necessary party, such as property owner, within statutory time period is "fatal to judicial review under section 42.21").
Here, Maxima asserted in its original petition, answers to Rule 194 disclosures, and proposed findings of fact that it owned the subject property on January 1, 2008. The record indicates, however, that Maxima conveyed its interest to Storguard on June 5, 2003, and, therefore, it was not the record owner of the property on January 1, 2008, and was not responsible for paying the assessed taxes. Maxima never claimed to be a designated agent or lessee of Storguard. Because Maxima did not own the property on January 1, 2008, and it was not a designated agent or lessee of Storguard, the record owner of the property, Maxima lacked the legal right either to protest the valuation to the Board or to seek judicial review of the subsequent Board order. See Timbercreek, 312 S.W.3d at 727. Maxima, therefore, lacked standing to seek judicial review of the Board's order under section 42.21(a). Id.
Storguard, as the record legal owner of the property, had standing to protest the valuation of the property before the appraisal review board; however, the record indicates that it did not participate in the administrative protest process. Instead, Storguard did not become involved in this dispute until April 2010, when Maxima amended its petition for review and moved for substitution of Storguard as plaintiff under Tax Code section 42.21(e) and Rule 28. Because the Board never determined a valuation protest brought by Storguard, the actual property owner, there is no protest determination on which it can premise a suit for judicial review to the district court. See id. at 727-28. Storguard, therefore, also has "'[no] legal right to enforce, nor any real controversy to determine,' and lacks standing to seek judicial review under section 42.21(a)." Id. at 728.
A. Application of Tax Code Section 42.21(e)(1)
Storguard contends that the trial court erroneously granted HCAD's plea to the jurisdiction because Tax Code section 42.21(e) allows a party to amend a timely filed petition for review to correct or change the name of a party.
Section 42.21(e) provides that only petitions for review that are "timely filed under Subsection (a) or amended under Subsection (c)" may be subsequently amended to correct or change the name of a party. TEX. TAX CODE ANN. § 42.21(e)(1) (Vernon Supp. 2010) (emphasis added). To seek judicial review of an adverse board order under subsection (a) of section 42.21, "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." Timbercreek, 312 S.W.3d at 729 (citing TEX. TAX CODE ANN. § 42.21(a)). A party may file a petition for review within the statutory time period, but that party does not properly invoke subsection (a) unless it is the property owner, a designated agent, or a lessee. See id. Subsection (e) presupposes that both the original plaintiff and the plaintiff to be substituted have standing to seek judicial review of the board order. See id.; RRB Land Invs., Ltd. v. Harris Cnty. Appraisal Dist., No. 01-09-00519-CV, 2010 WL 1729390, at *3 (Tex. App.-Houston [1st Dist.] Apr. 29, 2010, no pet.) (mem. op.); Koll Bren, 2008 WL 525799, at *3-5. If no proper party seeks judicial review of the board order within the statutory time period, the district court does not acquire subject-matter jurisdiction, and the board's order becomes final after the time period expires. Timbercreek, 312 S.W.3d at 729.
Maxima timely filed a petition for review; however, Maxima did not own the property on January 1, 2008, and, therefore, it lacked standing to administratively protest the valuation before the Board and to pursue judicial review of the Board's subsequent order. Storguard lacked standing to seek judicial review because it did not complete the administrative protest process before the Board. Storguard cannot use section 42.21(e) to change the named plaintiff from one party who does not have standing to seek judicial review — Maxima — to another party who does not have standing — Storguard. See id.; see also GSL Welcome BP 32 LLC v. Harris Cnty. Appraisal Dist., No. 01-10-00189-CV, 2010 WL 4484361, at *4 (Tex. App.-Houston [1st Dist.] Nov. 10, 2010, no pet.) (mem. op.). Because Storguard did not exhaust its administrative remedies by protesting the initial valuation before the Board, it failed to satisfy the jurisdictional prerequisites to seek judicial review and, therefore, it cannot rely on subsection (e) to become a plaintiff. See Timbercreek, 312 S.W.3d at 729.
We hold only that amendment under section 42.21(e) is impermissible when both the original plaintiff and the substituted plaintiff lack standing to seek judicial review. We express no opinion on whether this section permits amendment after the statutory time period expires when one or both plaintiffs have standing.
B. Application of Misnomer Law
Storguard also contends that the trial court erroneously granted HCAD's plea to the jurisdiction because Maxima amended its petition to name Storguard as the plaintiff to correct a misnomer, and, therefore, the amended petition relates back to the timely filed original petition. Storguard cites the Fourteenth Court of Appeals' decision in Womack Machine Supply Co. v. Fannin Bank, 499 S.W.2d 917 (Tex. Civ. App.-Houston [14th Dist.] 1973), rev'd on other grounds, 504 S.W.2d 827 (Tex. 1974), and the Texas Supreme Court's decision in Ealey v. Insurance Co. of North America, 660 S.W.2d 50 (Tex. 1983), for the proposition that amending a petition to correct the name of the plaintiff relates back to the filing of the original petition and tolls limitations, even when two distinct corporate entities are involved. We previously considered this argument in GSL Welcome and concluded that neither Womack Machine nor Ealey "compels a similar holding that the amended petition naming GSL Welcome relates back to the original, timely filed petition naming Sub Thirteen as plaintiff and that, therefore, GSL Welcome has standing." See 2010 WL 4484361, at *5.
In GSL Welcome, we noted that the issue in both Womack Machine and Ealey was whether the applicable statute of limitations bars an amended pleading substituting a plaintiff. See id. at *5-6 (citing Womack Machine, 499 S.W.2d at 920 and Ealey, 660 S.W.2d at 51-53). We also observed that the timing of the amended petition naming GSL Welcome as the plaintiff was not the only jurisdictional defect in the case. See id. at *5. To invoke the jurisdiction of the trial court, the plaintiff has to meet three requirements: (1) it has to file its petition within the statutorily prescribed time period, (2) it has to be the record property owner, and (3) it has to have exhausted its administrative remedies by protesting the initial valuation before the appraisal review board. See id. at *6 (distinguishing Womack Machine, which did not require specific statutory prerequisites to invoke trial court's jurisdiction, and Ealey, in which party seeking relation back was involved in administrative hearing process and, thus, was proper party to seek judicial review). Maxima timely filed a petition for review, but it was not the record owner of the property, and Storguard did not complete the administrative protest process. Thus, neither party had standing to seek judicial review of the Board's order. See Timbercreek, 312 S.W.3d at 727; see also GSL Welcome, 2010 WL 4484361, at *6 (holding Womack Machine and Ealey inapplicable).
As in GSL Welcome, Storguard asserts that it, as the property owner, was the "actual party that exhausted administrative remedies and pursued the judicial appeal." 2010 WL 4484361, at *6. We note that Maxima Communications Corporation — the party that completed the administrative protest process, initiated the suit for judicial review, and maintained an ownership interest in Storguard — and Storguard Investments, LLC — the property owner and substituted plaintiff — are separate and distinct legal entities. See Laidlaw Waste Sys., 907 S.W.2d at 17 ("In Texas, for the purpose of legal proceedings, subsidiary corporations and parent corporations are separate and distinct 'persons' as a matter of law. The separate entity of corporations will be observed by the courts even in instances where one may dominate or control, or may even treat it as a mere department, instrumentality, or agency of the other."); see also TEX. BUS. ORGS. CODE ANN. § 101.106(b) (Vernon Supp. 2010) ("A member of a limited liability company . . . does not have an interest in any specific property of the company."). Because Maxima and Storguard are distinct entities and have separate corporate existences, Storguard, the record property owner, cannot rely on Maxima's conduct to satisfy the jurisdictional prerequisites of completing the administrative protest process before the Board and timely filing a suit for review in the district court. See GSL Welcome, 2010 WL 4484361, at *6; Laidlaw Waste Sys., 907 S.W.2d at 17 ("As a result of the separate existence of Laidlaw Delaware, neither Laidlaw Texas nor Four-S could rely upon the filing of the appeal by Laidlaw Delaware to perfect its appeal of the 'Orders Determining Protest' for the tax years 1990 and 1991."). Because the property owner, Storguard, failed to exhaust its administrative remedies and timely file suit, the district court lacked jurisdiction to review the Board order. See GSL Welcome, 2010 WL 4484361, at *6; Laidlaw Waste Sys., 907 S.W.2d at 17. Allowing relation back of the amended petition does not cure these jurisdictional defects. See GSL Welcome, 2010 WL 4484361, at *5-6.
We hold that both Maxima and Storguard lacked standing to seek judicial review of the Board order, and, thus, the trial court correctly granted HCAD's plea to the jurisdiction.
We overrule Storguard's first and second issues.
Rule 28 Substitution
In its third issue, Storguard contends that the trial court should have allowed Storguard to substitute as a plaintiff pursuant to Rule 28, because Rule 28 allows a plaintiff to sue in its assumed or "common name" and then substitute its "true name" later in the proceeding. Storguard argues that because HCAD's records continued to list Maxima as the owner of the property, instead of reflecting the change in ownership when Maxima sold the property to Storguard in June 2003, "Maxima Communications Corp." is the "common name" of Storguard Investments, LLC.
Rule 28 provides:
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 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. To take advantage of Rule 28, "there must be a showing that the named entity is in fact doing business under that common name." Timbercreek, 312 S.W.3d at 730 (quoting Seidler v. Morgan, 277 S.W.3d 549, 553 (Tex. App.-Texarkana 2009, pet. denied)). In Seidler, the Texarkana Court of Appeals concluded that although third parties may commonly and informally use the name of the particular premises to refer to the business located at that premises, this by itself "does not mean that the name of the site and the type of business conducted there is 'doing business as.'" 277 S.W.3d at 553; see also Howell v. Coca-Cola Bottling Co., 595 S.W.2d 208, 212 (Tex. Civ. App.-Amarillo 1980, writ ref'd n.r.e.) ("In summary, we hold rule 28 is not applicable to this case, because nothing in the record indicates the two corporations in question were doing business under an assumed or common name."). 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. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).
In Timbercreek, we held that the appropriate Rule 28 inquiry is not whether HCAD refers to or addresses an entity by a particular common name, but whether the entity actually does business under that common name. 312 S.W.3d at 730. Here, Storguard made no showing that (1) it was doing business under the common name of Maxima, (2) it held itself out to the public as Maxima, or (3) it requested that HCAD refer to it as Maxima in its records. See id. at 731. HCAD's appraisal records, account statements, property tax statements, notice of appraised value, and order determining protest might be some evidence that HCAD refers to Storguard as Maxima, but, without more, it is not evidence that Storguard does business under the common name of Maxima. Compare id. at 730 with Sixth RMA Partners, 111 S.W.3d at 52 (concluding that Sixth RMA Partners conducted business under name of RMA Partners when it presented evidence that it used RMA stationary, sent demand notices and referrals on RMA letterhead and used RMA's business address, and payments on Sixth RMA-owned notes were made to RMA) and Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex. 1999) (concluding Rule 28 applicable when one-member professional association used stationary and phone number containing name of member). HCAD, by its actions alone, cannot determine that Storguard does business under the common name of Maxima; only Storguard "can establish whether it will operate its business under an assumed or common name." See Timbercreek, 312 S.W.3d at 731; see also Tourneau Houston, Inc., 24 S.W.3d at 909 ("HCAD cannot designate an agent for Tourneau, Inc. Only the owner, Tourneau, Inc., can do that.").
Contrary to Storguard's assertion, we have never held that Rule 28 applies only to situations in which the party has filed a formal assumed name certificate. A plaintiff can sue in its informal "common name" and substitute its true name later in the proceeding pursuant to Rule 28; however, the plain language of Rule 28 provides that, to take advantage of this substitution mechanism, the plaintiff must establish that it is "doing business under" the common name. TEX. R. CIV. P. 28; see also Howell v. Coca-Cola Bottling Co., 595 S.W.2d 208, 212 (Tex. Civ. App.-Amarillo 1980, writ ref'd n.r.e.) (noting that, in previous El Paso Court of Civil Appeals case involving two companies "actually doing business under a common name," the El Paso court "correctly applied" Rule 28 and limited its application to "instances of doing business under" an assumed or common name) (citing Cohen v. C.H. Leavell Co., 520 S.W.2d 793, 796 (Tex. Civ. App.-El Paso 1975, no writ)).
We hold that Storguard presented no evidence that it does business under the common name of Maxima. Thus, under these facts, Rule 28 is not applicable and does not permit the substitution of the "true name" of Storguard for the "common name" of Maxima. We hold that Storguard was not entitled to substitution pursuant to Rule 28.
Storguard cites two cases from the Fourteenth Court of Appeals to support its contention that Rule 28 applies to this case. In CA Partners v. Spears, 274 S.W.3d 51 (Tex. App.-Houston [14th Dist.] 2008, pet. denied), our sister court noted that Rule 28 provides that "an individual doing business under an assumed name may be sued in his assumed name" and held that CA Partners, a sole proprietorship, presented evidence that its owner used CA Partners as an assumed name while in the business of collecting debts. 274 S.W.3d at 69 (emphasis added). This decision emphasized that, to take advantage of Rule 28, there must be a showing of "doing business under" the assumed name. See id. The Fourteenth Court's decision in Clearview Properties, L.P. v. Property Texas SC One Corp. did not address Rule 28 at all, but instead held that a second service of citation is not necessary after discovery of a misnomer. 287 S.W.3d 132, 142 (Tex. App.-Houston [14th Dist.] 2009, pet. denied).
We overrule Storguard's third issue.
Conclusion
We affirm the judgment of the trial court.