Texas = Judiciary Online

Affirmed and Memorandum Opinion filed May 22,=20 2008.

In The

Fourteenth=20 Court of Appeals

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NO. 14-07-00106-CV

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HARRIS COUNTY APPRAISAL DISTRICT,=20 Appellant

SHELL OIL CO., = Appellee

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On Appeal from the 215th District=20 Court

Harris County,=20 Texas

Trial Court Cause No.=20 2004-52451

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M E M O R=20 A N D U M O P I N I O N

In this tax dispute, = Harris=20 County Appraisal District (hereinafter, AHCAD@) appeals the summary = judgment=20 granted in favor of Shell Oil Co.^[1] (hereinafter, = AShell@) and the denial of = its own=20 cross-motion for summary judgment on the grounds that the trial = court=20 erred by: (1) failing to dismiss the suit for lack of subject = matter=20 jurisdiction; (2) granting Shell=3Ds summary judgment = motion on=20 the basis that Harris County, an indispensable party, was not = joined in=20 the suit and that Shell waived its foreign-trade zone tax = exemption as a=20 matter of law; and (3) denying HCAD=3Ds summary judgment = motion=20 because Shell failed to prove that it was excused from its = obligation to=20 pay ad valorem taxes as agreed with = Harris=20 County. We affirm.

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On December 15, 1993, = the U.S.=20 Department of Commerce Foreign-Trade Zones Board approved the Port = of=20 Houston Authority=3Ds application, as = grantee of=20 Foreign-Trade Zone 84, to establish a special purpose = foreign-trade subzone for the Shell refinery and = petrochemical=20 complex in Harris County. As part of the application, Shell = agreed,=20 subject to two conditions, to forego its right of exemption under = the=20 foreign-trade zone laws with regard to Harris County ad valorem taxes for goods that are in the = subzone (the A1993 = Agreement@). In = consideration,=20 Harris=20 County = agreed to not=20 oppose the application to create the subzone. After the subzone was established in 1993, HCAD = appraised=20 Shell=3Ds inventory, and = Shell paid ad=20 valorem taxes to Harris = County for some = years.

For tax year 2004, = HCAD sent=20 Shell a notice of appraised value for its inventory with regard to = Harris=20 County ad = valorem taxes. Shell filed a written = protest=20 with the Appraisal Review Board (the AARB@) challenging = HCAD=3Ds denial of a = foreign-trade=20 zone exemption (Athe FTZ = exemption@) from Harris County = ad valorem taxes for inventory located in the = Shell=20 foreign-trade subzone. After a = hearing,=20 the ARB issued its Order Determining Protest in August of 2004, = denying=20 the FTZ exemption on Shell=3Ds inventory. = Thereafter,=20 Shell filed suit to appeal the ARB=3Ds order, claiming = that it is=20 entitled to the FTZ exemption. In the trial court, Shell = moved for=20 summary judgment; HCAD responded and filed a cross-motion for = summary=20 judgment. The trial court granted Shell=3Ds summary judgment = motion,=20 denied HCAD=3Ds motion, and ordered = that=20 Shell is entitled to exemption under section 11.12 of the Property = Tax=20 Code.^[2]

Jurisdiction

In its first issue, = HCAD=20 contends that the trial court erred in not granting its plea to = the=20 jurisdiction. The basis of its plea is that, according to = HCAD, this=20 case involves a contract dispute between Shell and Harris = County. Because = neither=20 HCAD=3Ds nor ARB=3Ds jurisdiction = extends over=20 contract rights disputes, the district court lacked subject matter = jurisdiction to hear Shell=3Ds appeal from = ARB=3Ds order. =

Shell counters that = this case=20 is a tax protest action in which it appealed HCAD=3Ds and then = ARB=3Ds denial of an FTZ = exemption=20 for the 2004 tax year. Shell claims that had it not appealed = the=20 denial of the requested FTZ exemption as provided by the Tax Code, = the=20 2004 tax rolls would have become final, foreclosing = Shell=3Ds claim of the = exemption for=20 that year based on the exclusive remedies provision in the Tax=20 Code.

Whether a court has=20 subject‑matter jurisdiction is a question of law reviewed = de novo.=20 Tex. Dep=3Dt of Parks & = Wildlife v.=20 Miranda, 133=20 S.W.3d 217, 226 (Tex. 2004).

Tax Code=20 Provisions

The Property Tax Code = (the=20 ATax Code@) creates appraisal = districts=20 and requires each district to appraise property for ad valorem tax purposes of each taxing unit = within the=20 district. Tex. Tax Code = Ann. ' 6.01 (Vernon 2008);=20 Atascosa = County v. Atascosa County Appraisal = Dist.,=20 990 S.W.2d 255, 257 (Tex. 1999). To discharge = this=20 duty, appraisal districts must establish appraisal offices and = retain=20 chief appraisers. Atascosa County, 990 S.W.2d at = 257;=20 see Tex. Tax Code Ann. ' 6.05 (Vernon = 2008). The=20 Tax Code also establishes an appraisal review board for each = district,=20 which is charged with determining property owners=3D protests and = ensuring that=20 property is properly appraised. See Tex. Tax Code Ann. '' 6.41, 41.01 (Vernon = 2008);=20 Atascosa=20 County, = 990=20 S.W.2d at 257.

A property owner may = protest=20 the denial of an exemption and any other action that adversely = affects the=20 property owner by filing a timely written notice of protest with=20 ARB. Tex. Tax Code Ann. '' 41.41, 41.44 (Vernon = 2008). ARB then schedules a hearing and issues a written = order=20 determining the property owner=3Ds challenge. = See=20 id. = '' 41.45, 41.46, 41.47 = (Vernon=20 2008); Atascosa County, 990 S.W.2d at=20 259. =20 A property owner is entitled to appeal an ARB order denying the = requested=20 exemption within forty-five days of notice of final order. =20 See Tex. Tax Code Ann. '' 41.41, 42.01, = 42.21(Vernon=20 2008). Review is by trial de novo, and the district = court=20 shall try all issues of fact and law raised by the pleadings in = the manner=20 applicable to civil suits generally. Id. = ' 42.23 = (Vernon=20 2008).

Procedures prescribed = by the=20 Property Tax Code for adjudication of the grounds of protest = authorized by=20 the Tax Code are exclusive. Id. = ' 42.09(a) = (Vernon=20 2008); St.=20 Joseph Orthodox Christian Church v. = Spring=20 Branch Indep. Sch.=20 Dist., 110 S.W.3d 477, 479 = (Tex. = App.CHouston [14th=20 Dist.] 2003, no pet.). A property owner = may not=20 raise any of those grounds as a defense to a suit to enforce = collection of=20 delinquent taxes, or as a basis of a claim for relief in a suit by = the=20 property owner to prevent the tax collection process or to obtain = a refund=20 on taxes paid. Tex. Tax = Code=20 Ann. ' 42.09(a); St. = Joseph=20 Orthodox Christian Church, 110 S.W.3d at 479. The denial = of=20 exemption from property tax constitutes one such ground of = protest. =20 St. Joseph Orthodox Christian Church, 110 S.W.3d at 479; = see=20 Tex.=20 Tax Code Ann. = ' 41.41(a)(4). Thus, because the Tax Code = prescribes=20 procedures by which a taxpayer asserts a protest, appeals the=20 determination of a protest, and receives any resulting correction = and=20 refund, a taxpayer=3Ds claim of = entitlement to an=20 exemption may not be raised as a later defense. See = St. = Joseph=20 Orthodox Christian Church, 110 S.W.3d at=20 479.

Nature of=20 the Dispute

In this case, Shell = followed=20 the specifically prescribed Tax Code procedures =20 to protest HCAD=3Ds appraisal. It = claimed=20 entitlement to an FTZ exemption from Harris County ad valorem taxes pursuant to section 11.12 of = the Tax=20 Code. However, HCAD claims that this case is not properly = brought=20 under the Tax Code. Rather, HCAD asserts, this case is not a = true=20 tax protest action but instead involves a contract dispute between = Harris=20 County and=20 Shell. Therefore, it claims, HCAD, ARB, and the district = court=20 lacked subject matter jurisdiction under the Tax Code to = adjudicate this=20 contract dispute. We disagree.

As discussed in = detail above,=20 the Tax Code provides but one opportunity to protest the denial of = an=20 exemption and prescribes specific procedures the property owner = must=20 follow to that effect. See St. Joseph Orthodox Christian = Church,=20 110 S.W.3d at 479. Thus, filing a = common=20 law contract action against Harris County to review the 1993 = Agreement=20 and determine the obligations under that agreement would have = neither=20 brought relief to Shell nor settled the present dispute. = Harris = County has no authority to = grant=20 Shell the requested FTZ exemption, even if it agreed that Shell is = entitled to the exemption based on the 1993 Agreement. More=20 importantly, Shell would have been precluded from claiming the FTZ = exemption had it not timely followed the exclusive procedures set = out in=20 the Tax Code. See Tex. Tax=20 Code Ann = ' 42.09(a); St. = Joseph=20 Orthodox Christian Church, 110 S.W.3d at 479.

Therefore, we = conclude that=20 HCAD miscast this case as a contract dispute improperly brought = under the=20 Tax Code. Because Shell properly pursued this tax protest = action=20 under the prescribed procedures of the Tax Code, HCAD, ARB, and = the=20 district court had jurisdiction to review Shell=3Ds protest challenging = HCAD=3Ds denial of the FTZ=20 exemption.^[3] Accordingly, we = overrule=20 HCAD=3Ds first = issue.

Joinder

In its second issue, = asserting=20 error in the trial court=3Ds denial of its = summary=20 judgment, HCAD assails the refusal of the trial court to join = Harris = County as a party in light = of the=20 latter=3Ds alleged status as = an=20 indispensable party in this contract dispute. HCAD claims = that=20 Harris County remains a necessary party and = must be=20 joined because the existence and the validity of Shell=3Ds FTZ exemption can = be=20 determined only by adjudicating the terms and conditions of=20 Shell=3Ds 1993 Agreement with = Harris=20 County. =20 Further, HCAD asserts that Rule 39 mandates the joinder of Harris County. That rule = requires the=20 presence of all persons who have an interest in the litigation to = the end=20 that any relief awarded will effectively and completely adjudicate = the=20 dispute. See Tex. R. Civ.=20 P. 39.

Having determined = that the=20 present case involves a tax protest action, we look to the Tax = Code for=20 guidance in addressing HCAD=3Ds joinder issue. Section 42.031(b) = provides that a=20 taxing unit may not intervene in, or in any other manner be made a = party=20 to, an appeal of an order of the ARB determining a taxpayer = protest if the=20 appeal was brought by the property owner. Tex. = Tax Code=20 Ann. ' 42.031(b) (Vernon = 2008). =20 The Tax Code thus forecloses the joinder of a=20 taxing unit if a property owner appeals ARB=3Ds order determining = the=20 property owner=3Ds protest. = See=20 id.

In this case, Shell = appealed=20 ARB=3Ds order determining = its protest=20 action and denying the requested FTZ exemption. Harris = County could not have been = joined as=20 a party in the appeal to the district court under section = 42.031(b). =20 Accordingly, the trial court did not err in refusing to join = Harris = County as a party in this=20 case. We overrule HCAD=3Ds issue in that=20 respect.

Summary=20 Judgment

In its second issue, = HCAD=20 further argues that the trial court erred by granting = Shell=3Ds summary judgment = motion=20 because Shell waived the FTZ exemption as a matter of law. = In its=20 third issue, HCAD asserts that the trial court erred by denying = its=20 summary judgment motion because Shell failed to meet its burden of = proving=20 excuse from its obligation under the 1993 Agreement with Harris=20 County.

Standard=20 of Review

We review summary = judgments=20 de novo. Valence=20 Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.=20 2005). When, as here, both parties move for summary = judgment=20 and the trial court grants one motion and denies=20 the other, the appellate court considers the summary judgment = evidence=20 presented by both sides and determines all questions = presented. =20 Id. If the = reviewing court=20 finds that the trial court erred, the appellate court renders the = judgment=20 the trial court should have rendered. Id. On cross-motions for summary = judgment,=20 each party bears the burden of establishing that it is entitled to = judgment as a matter of law. City = of=20 Garland v. Dallas Morning News,=20 22 S.W.3d 351, 356 (Tex. = 2000). In a=20 traditional motion for summary judgment, if the movant=3Ds motion and summary = judgment=20 evidence facially establish its right to judgment as a matter of = law, the=20 burden shifts to the nonmovant to = raise a=20 genuine, material fact issue sufficient to defeat summary = judgment. =20 M.D. Anderson Hosp. & Tumor Inst. v. = Willrich, 28 S.W.3d 22, 23 (Tex. = 2000).=20

Analysis

In the trial court, = Shell moved=20 for summary judgment claiming that its inventory was exempt from = Harris=20 County ad valorem taxes pursuant to = section=20 11.12 of the Tax Code because the inventory qualified for an FTZ = exemption=20 under 19 U.S.C.A. ' 81o(e).^[4] HCAD = responded to=20 Shell=3Ds motion and = cross-moved for=20 summary judgment. According to HCAD, the evidence shows as a = matter=20 of law that Shell expressly waived its right to the FTZ exemption = in the=20 1993 Agreement, in which it agreed to forego its right of = exemption. =20 HCAD further argued that once the right was waived, Shell could = not=20 reclaim it without Harris County=3Ds consent. = Shell replied=20 that it was entitled to summary judgment because (1) the waiver = was=20 expressly conditioned upon preliminary actions by Harris County, = (2) HCAD=20 failed to prove that Harris County met either of the two express=20 conditions, and (3) Shell=3Ds evidence = conclusively showed=20 that Harris County failed to comply with either = condition.

On appeal, HCAD = argues that the=20 trial court improperly granted Shell=3Ds summary judgment = motion=20 because, by producing the 1993 Agreement and by producing evidence = that=20 Shell honored the waiver from 1993 until 2004, it proved that = Shell waived=20 its FTZ exemption as a matter of law. HCAD also claims that = the=20 summary judgment record establishes Shell=3Ds recognition of the = waiver in=20 previous tax years. According to HCAD, because such evidence = was=20 sufficient to show Shell=3Ds satisfaction that = the=20 conditions of the waiver had been met in prior years, the burden = shifted=20 to Shell to prove that the conditions were not currently met by = Harris=20 County. Lastly, HCAD contends that Shell failed to prove = excuse from=20 its obligation under the 1993 Agreement when it failed to show = that=20 Harris=20 County did = not meet=20 the conditions of the waiver. HCAD alleges that, because the = conditions are conditions subsequent excusing Shell=3Ds obligations under = the 1993=20 Agreement, it was Shell=3Ds burden to establish = HCAD=3Ds failure to fulfill = those=20 conditions.

In response, Shell = points to=20 what it characterizes as uncontroverted evidence=20 that (1) Shell met the requirements for an FTZ exemption, and (2) = it did=20 not waive the exemption for the 2004 tax year. Shell alleges = that it=20 submitted conclusive evidence of Harris County=3Ds failure to meet = either of the=20 required conditions, while HCAD submitted evidence of = Shell=3Ds honoring the waiver = from only=20 1993 until 2004.

As stated, because = both HCAD=20 and Shell moved for summary judgment, we consider all the summary = judgment=20 evidence presented and determine all the questions = presented. =20 Dorsett, 164 S.W.3d at = 661. The=20 dispute in this case focuses on whether Shell is entitled to an = FTZ=20 exemption or whether it has waived its right to exemption under = the 1993=20 Agreement. Waiver is an intentional relinquishment of a = known right=20 or intentional conduct inconsistent with that right. Jernigan v. Langley, 111=20 S.W.3d 153, 156 (Tex. 2003). =

The waiver at issue = is=20 conditioned upon Harris County=3Ds meeting two = conditions.^[5] The 1993 Agreement=20 provides:

Shell Oil Company agrees that upon = activation of=20 its foreign-trade subzone status at = its Deer=20 Park Manufacturing Complex, to for[e]go its right of exemption = under the=20 Foreign-Trade Zone laws with regard to Harris County ad valorem taxes for goods which are in the = subzone for a bona fide Customs = reason.

As condition of the above, Harris County = agrees=20 to:

(1) Require consistent treatment for = Shell with=20 regard to similar industries. If a company in a similar = industry is=20 allowed exemption from Harris County ad valorem taxes then Shell will be allowed a = similar=20 right of exemption.

(2) Review this agreement every three = years in=20 good faith to consider its terms in light of existing=20 circumstances.

The waiver is = effective only if=20 Harris=20 County = satisfied both=20 conditions.

In order to obtain = summary=20 judgment on an affirmative defense, a defendant must conclusively = prove=20 all essential elements of that defense. = Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 = (Tex. 1999); Black v. = Victoria Lloyds=20 Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). To defeat a=20 plaintiff=3Ds summary judgment = motion, a=20 defendant must only provide summary judgment evidence that raises = a fact=20 issue on each element of an affirmative defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 = (Tex.=20 1984); Brown v. Aztec Rig Equip., Inc., 921 S.W.2d 835, 845 = (Tex.=20 App.CHouston [14th=20 Dist.] 1996, writ denied).

HCAD contends that = the summary=20 judgment evidence offered to prove the status of the two = conditions is=20 conclusory, irrelevant, and does not = support the=20 trial court=3Ds ruling.^[6] With respect to the first = condition, Shell presented Stone Exhibit H (AExhibit H@), offered in = conjunction with=20 the deposition testimony of HCAD employee Charles Stone,^[7] and two affidavits from = Shell=20 employees Karen Shook and Glenn Jue.=20

Exhibit H contains a = two page=20 list of companies that received FTZ exemptions for the 2004 tax=20 year. This information is confirmed by Stone=3Ds deposition in which = he=20 testified that Exhibit H Ais a list of companies = that have=20 received the FTZ exemption.@ Thus, this = evidence=20 shows that the companies listed in Exhibit H have been granted an = FTZ=20 exemption from HCAD C the same exemption = Shell=20 requested. Additionally, as noted above, HCAD=3Ds brief acknowledges = that some=20 of the companies listed in Exhibit H are Areadily recognizable as = petroleum=20 companies@ and Aall [the companies = listed]=20 received the same type of exemption as Shell.@

HCAD contends that = this=20 evidence did not prove Harris County=3Ds failure to meet the = first=20 condition. In particular, HCAD alleges that, although = Exhibit H is a=20 list of company names, Asome readily recognizable = as=20 petroleum companies,@ that shows = Aall [the companies = listed]=20 received the same type of exemption as Shell,@ the list does not = show whether=20 any of these companies were treated more favorably by = Harris County=20 than Shell was treated. HCAD also dismisses Shook and Jue=3Ds affidavits as conclusory and irrelevant because they = suggest only=20 that the companies listed in Exhibit H are similar to Shell but do = not=20 address when, whether, or under what terms the companies were = treated=20 more favorably than Shell.

We disagree with=20 HCAD=3Ds contention that = Shook and=20 Jue=3Ds affidavits were = conclusory and irrelevant. In her = affidavit,=20 Shook testified that based on her employment as Feed Stock and = Integration=20 manager at Shell Oil Company, she has become familiar with the = nature of=20 operations conducted by companies in industries similar to Shell = Oil=20 Company=3Ds industry. She = identified four companies as being similar industries as Shell Oil = Company=20 in the year 2004, two of which were listed among the companies = found on=20 Exhibit H. Similarly, Jue = testified in his=20 affidavit that, based on his employment as Refinery Interface = Manager for=20 Shell Chemical LP, he has become familiar with the nature of = operations=20 conducted by companies in industries similar to Shell Chemical=20 LP=3Ds industry. He = named six=20 companies as being similar industries to Shell Chemical = LP=3Ds industry, five of = which were=20 listed on Exhibit H as companies having received the FTZ exemption = for tax=20 year 2004. These affidavits are not conclusory because the affiants testified = that their=20 statements were based on personal knowledge obtained by virtue of = their=20 employment.^[8]

Additionally, the = affidavits=20 and Exhibit H are not irrelevant simply because they do not = address=20 whether Harris County treated the listed = companies=20 more favorably than Shell. Under the first condition, = A[i]f=20 a company in a similar industry is allowed exemption from Harris = County ad=20 valorem taxes then Shell will be = allowed a=20 similar right of exemption.@ An exemption = from ad=20 valorem taxes is by its very nature a = favorable=20 treatment. According to the waiver, when Harris County grants an FTZ exemption to a = company in a=20 similar industry as Shell, Harris County is required to = allow Shell an=20 FTZ exemption. Therefore, the evidence shows that all the = companies=20 listed in Exhibit H received an FTZ exemption for tax year 2004 = and that=20 several of these companies were in a similar industry as = Shell. =20 Shell established that Harris County did not meet the = first=20 condition of the waiver as a matter of law.

Consequently, the = waiver was=20 not effective regardless of whether Shell proved that Harris = County met the second=20 condition. Accordingly, we overrule HCAD=3Ds second and third = issues,=20 concluding that the trial court properly granted Shell=3Ds summary judgment = motion and=20 denied HCAD=3Ds cross-motion for = summary=20 judgment. We affirm the judgment of the trial = court.

/s/ =20 Adele Hedges

Chief Justice

Judgment rendered and = Memorandum Opinion filed May 22, 2008.

Panel consists of = Chief Justice=20 Hedges and Justice Anderson and Senior Justice Murphy.*

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* Senior Justice Paul = C. Murphy=20 sitting by assignment.

^[1] =20 Upon the parties=3D joint motion to consolidate cause = number=20 2004-52451, entitled Shell Oil Co. v. Harris County Appraisal=20 District, cause number 2004-53205, entitled Shell Chemical=20 Corporation v. Harris County Appraisal District, and cause = number=20 2004-53206, entitled Shell Oil Company v. Harris County = Appraisal=20 District, the trial court issued its Order Consolidating = Actions and=20 ordered the actions consolidated into one action under cause = number=20 2004-52451, entitled Shell Oil Co. v. Harris County Appraisal=20 District.

^[2] =20 Section 11.12 provides that property exempt from ad valorem taxation by federal law is exempt = from=20 taxation. Tex. Tax Code Ann. ' 11.12 (Vernon 2008). In turn, = federal law=20 provides that tangible personal property located in a = foreign-trade zone,=20 which includes a subzone, is exempt = from State=20 and local ad valorem taxation. = See=20 19 U.S.C.A. '' 81c(e)(4), = 81o(e) (West=20 1999). There seems to be no dispute that Shell=3Ds inventory is the type of tangible = property=20 described in section 81o(e).

^[3] =20 The holdings in Jim Wells County and In re ExxonMobil as well as the other more = general=20 authorities cited by HCAD do not support HCAD=3Ds assertion that the present case = involves a=20 contract dispute over which the Tax Code fails to confer = subject-matter=20 jurisdiction on HCAD, ARB and the district court. = See Jim Wells County v. El Paso Prod. Oil & Gas = Co., 189=20 S.W.3d 861, 870-71(Tex. App.CHouston [1st=20 Dist.] 2006, pet. denied) (holding that taxing unit cannot avoid = the=20 procedures and remedies in the Tax Code by characterizing a = statutory tax=20 case as a common law fraud case and dismissing taxing = unit=3Ds fraud claim for lack of subject-matter = jurisdiction); In re ExxonMobil, 153=20 S.W.3d 605, 613 (Tex. App.CAmarillo 2004,=20 orig. proceeding) (holding that taxing unit cannot reclassify a = tax claim=20 as a common law fraud claim to avoid the provisions under the Tax = Code=20 governing the determination of such a claim). =20

^[4] =20 See supra note 2.

^[5] =20 On appeal, there is no dispute that the conditional waiver binds = Shell Oil=20 Co. as well as Shell Chemical Corp. Also, there seems to be = no=20 dispute that, but for the conditional waiver, Shell would be = entitled to=20 an FTZ exemption.

^[6] =20 HCAD did not offer any evidence regarding the two=20 conditions.

^[7] =20 Charles Stone is the director of the business and industrial = valuation=20 division. He is responsible for overseeing the discovery, = the=20 listing, and the valuation of all industrial real and business = personal=20 properties in Harris County.

^[8] =20 Rule 166a(f) requires that Asupporting and opposing affidavits shall be made = on personal=20 knowledge, shall set forth such facts as would be admissible in = evidence,=20 and shall show affirmatively that the affiant is competent to = testify to=20 the matters stated therein.@ Tex.R. = Civ. P. 166a(f); = Ryland Group, Inc. v. Hood, = 924 S.W.2d=20 120, 122 (Tex. 1996).=20 =