Affirmed and Memorandum Opinion filed July 1,=20
2008.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-01046-CV
____________
RAY A. VERM=20
&=20
JANE VERM, AS THE PROPERTY OWNERS AND THE PROPERTY OWNERS,=20
Appellants
V.
HARRIS=20
COUNTY APPRAISAL DISTRICT AND THE APPRAISAL REVIEW BOARD OF HARRIS =
COUNTY=20
APPRAISAL DISTRICT, =
Appellees
On Appeal from the =
190th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-65952
M E M O R=20
A N D U M O P I N I O N
In this ad=20
valorem property tax case, appellants, Ray A. Verm and Jane Verm, =
the=20
individual owners of the property at issue, challenge the trial=20
court=3Ds=20
rendition of summary judgment in favor of appellee, Harris County=20
Appraisal District (HCAD),=20
on the Verms=3D =
claims=20
that the subject property was unequally appraised. In their =
sole=20
issue, the Verms argue the trial court erred in granting =
HCAD=3Ds motion=20
for summary judgment. We affirm.
The Verms=20
own real property located in Harris County, Texas. After =
HCAD=20
appraised the property at a value of $923,419 for the 2005 tax =
year, the=20
Verms filed a protest. Their designated agent, an employee =
from a=20
tax consulting firm, represented them at the protest hearing held =
before a=20
three-member panel of the Harris County Appraisal Review Board =
(the=20
Board). At the hearing, the Verms=3D =
agent=20
recommended to the panel that the property should be appraised at=20
$890,500. The chief appraiser and representative of HCAD =
concurred=20
that the property should be valued at $890,500, and the Board =
subsequently=20
issued an Order Determining Protest, setting the appraised value =
at=20
$890,500. The order informed the Verms that they had =
forty-five days=20
to appeal the Board=3Ds decision=20
in district court. The Verms filed suit against HCAD in =
district=20
court, alleging that the property had been unequally appraised. =20
HCAD filed a motion for summary judgment claiming that under =
Section=20
1.111(e) of the Tax Code, an agreement as to the =
property=3Ds value=20
between HCAD and the Verms prohibited the Verms=3D =
appeal as=20
a matter of law. The trial court granted HCAD=3Ds motion=20
for summary judgment.
In a=20
traditional motion for summary judgment, the movant bears the =
burden of=20
showing that there is no genuine issue of material fact and that =
judgment=20
should be granted as a matter of law. See Tex. R. Civ. P. =
166a(c); KPMG=20
Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d =
746, 748=20
(Tex. 1999). A defendant is entitled to summary judgment =
upon either=20
conclusively negating at least one of the essential elements of =
each of=20
the plaintiff=3Ds causes=20
of action or by conclusively establishing all the elements of an=20
affirmative defense. Johnson v. Felts, 140 S.W.3d =
702, 706=20
(Tex. App.CHouston=20
[14th Dist.] 2004, pet. denied). In order to conclusively =
negate at=20
least one of the requisite elements, the motion must identify or =
address=20
the cause of action or defense and its elements. Id.=20
Under this traditional standard, this court must take as =
true=20
all evidence favorable to the nonmovant and must make all =
reasonable=20
inferences in the nonmovant=3Ds=20
favor. KPMG Peat Marwick, 988 S.W.2d at =
748.
HCAD moved=20
for summary judgment on the Verms=3D =
claims=20
based solely on the ground that the Verms, through their =
designated agent,=20
had reached a final and enforceable agreement with HCAD =
regarding=20
the value of the property. The Tax Code provides that an =
agreement=20
between a property owner or the owner=3Ds agent=20
and the chief appraiser is final if the agreement relates to a =
matter=20
which may be protested to the appraisal review board or a matter =
on which=20
a protest has been filed but not determined by the board. =
See=20
Tex. Tax Code =
Ann.=20
_ =
1.111(e)(1) (Vernon 2008).
The Verms=20
argue the trial court erred in granting summary judgment pursuant =
to=20
section 1.111(e) of the Tax Code because (1) the HCAD chief=20
appraiser=3Ds=20
concurrence at the hearing with the value the Verms=3D =
agent=20
suggested did not amount to an agreement, (2) an agreement =
requires one or=20
both parties to have acted upon the agreement, and here neither =
party=20
acted upon the matter, and (3) in any event the Verms=3D =
protest=20
was determined by the Board, making section 1.111(e) =
inapplicable. =20
We recently addressed similar arguments in Sondock v. Harris =
County=20
Appraisal District, 231 S.W.3d 65 (Tex. App.CHouston=20
[14th Dist.] 2007, no pet.). The Sondock property =
owners had=20
appealed from a summary judgment in favor of HCAD, alleging that =
no=20
agreement with HCAD was reached. Id. at =
68B69. =20
A transcript of the hearing before the Board panel indicated that =
the HCAD=20
representative had concurred with the valuation suggested by the =
property=20
owners=3D =
agent. Id. at 68. Because the Tax Code does not =
define=20
the term Aagreement,@ =
we looked=20
to the ordinary meaning of the term and concluded that an =
agreement is=20
A>the act of=20
agreeing; harmony of opinion; accord.=3D@ =20
Id. at 69 (quoting The American Heritage Dictionary of =
the=20
English Language). We found that HCAD and the property =
owners=20
were in harmony of opinion regarding the appraised value of the =
property=20
and thus they had reached an agreement. Id. We =
also=20
concluded that by deleting the requirement of Board approval, the=20
legislature intended to make it easier for parties to reach =
agreements in=20
the event of a dispute involving taxable property, and therefore=20
validating agreements where there was a meeting of the minds =
furthered=20
that purpose. See id.; see also Tex. Tax Code Ann. =
_ =
1.111(e)(1).
Although=20
the record does not contain a transcript of the hearing, the=20
Verms=3D =
brief to=20
this court states that at the hearing their agent requested an =
appraised=20
value of $890,500 and that the HCAD chief appraiser Aconcurred@ =
with this=20
value. HCAD=20
did not contradict these facts as contained in the =
Verms=3D brief, and thus we =
take them=20
as true. See Tex. R.=20
App. P. 38.1(f) (in a civil case, an appellate court is to =
accept=20
as true facts stated in the appellant=3Ds brief unless =
another party=20
contradicts those facts). As=20
in Sondock, we find that when HCAD Aconcurred@ =
with the=20
Verms=3D =
valuation, the Verms and HCAD reached a final agreement as to the =
value of=20
the subject property. See Sondock, 231 S.W.3d at 69; =
see=20
also Hartman v. Harris County Appraisal Dist., 251 S.W.3d 595, =
601=20
(Tex. App.CHouston=20
[1st Dist.] 2007, pet. denied) (AIt is the=20
fact of agreeingCthe=20
harmony of opinionsCthat=20
creates the agreement.@).
Moreover,=20
the agreement was reached while the Board was still deliberating, =
and=20
therefore it related to a matter in which a protest had been filed =
but not=20
yet determined by the Board. See Tex. Tax Code Ann. =
_ =
1.111(e)(1); Sondock, 231 S.W.3d at 69; BPAC Tex., LP v. =
Harris=20
County Appraisal Dist., No. 01-03-01238-CV, 2004 WL 2422033, =
at *1, 3=20
(Tex. App.CHouston=20
[1st Dist.] Oct. 28, 2004, no pet.) (mem. op) (holding that =
concurrence as=20
to property value between owner=3Ds agent=20
and HCAD representative during hearing constituted a final =
agreement=20
enforceable under section 1.111(e)). Although the Verms =
contend that=20
no agreement can exist because the parties did not act on the=20
agreement or=20
inform the Board panel that an agreement had been reached, =
A[w]e do not read =
section=20
1.111(e) to require such actions.@ =
Sondock,=20
231 S.W.3d=20
at 69; see also Hartman, 251 S.W.3d at 600 (holding that by =
announcing same opinion regarding property=3Ds value to=20
panel, property owner and HCAD were informing panel of their =
agreement and=20
Aacting@ =
upon the=20
matter, and that section 1.111(e) does not require a formal =
announcement=20
such as Awe=20
agree@). =20
The Verms also claim that by issuing an Order Determining Protest, =
the=20
Board never accepted or reviewed any alleged agreement. We =
addressed=20
a similar argument in Sondock and concluded that because =
the=20
agreement was final the moment it was reached, that agreement =
rendered any=20
determination by the Board regarding value, such as the Order =
Determining=20
Protest, irrelevant. Sondock, 231 S.W.3d at =
69.
The Verms=20
further argue that interpreting section 1.111(e) as precluding =
judicial=20
appeal in this case unconstitutionally denies them their due =
process=20
rights. The collection of taxes constitutes deprivation of =
property;=20
therefore a taxing authority must afford a property owner due =
process of=20
law. See McKesson Corp. v. Div. of Alcoholic Beverages =
&=20
Tobacco, 496 U.S. 18, 36 (1990); Sondock, 231 S.W.3d at =
70. Texas courts have found due process satisfied in cases =
involving=20
taxation where the taxpayer is given an opportunity to be heard =
before an=20
assessment board at some stage of the proceedings. =
See=20
Sondock, 231 S.W.3d at 70; ABT Galveston Ltd.=20
P=3Dship v.=20
Galveston Cent. Appraisal Dist., 137=20
S.W.3d 146, 155 (Tex. App.CHouston=20
[1st Dist.] 2004, no pet.); Denton Cent. Appraisal Dist. v. CIT =
Leasing=20
Corp., 115 S.W.3d 261, 266 (Tex. App.CFort Worth=20
2003, pet. denied).
We=20
addressed this argument in Sondock and stated, AWe cannot=20
imagine how the [property owners] were deprived of due process =
when they=20
were given the opportunity to present their arguments to a legal =
panel and=20
they reached an agreement fully satisfying their stated=20
contentions.@ =20
Sondock, 231 S.W.3d at 70. The Verms presented their =
protest=20
to the panel, were provided a hearing before the panel on the =
matter, and=20
raised no further complaints after the HCAD representative =
concurred with=20
their proposed property valuation. Accordingly, we find the =
Verms=20
were afforded due process. See id.; see also =
Hartman,=20
251 S.W.3d at 601 (holding property owners who had opportunity to =
be heard=20
before appraisal review board were provided due process); BPAC =
Tex.,=20
LP, 2004 WL 2422033, at *3 (holding that when property owner =
chose to=20
reach agreement with HCAD, it was not deprived of its statutory =
due=20
process right to appeal appraisal board=3Ds order=20
because agreement, not order, determined outcome). We =
overrule the=20
Verms=3D =
issue and=20
hold the trial court did not err in granting summary judgment in=20
HCAD=3Ds=20
favor.
We affirm=20
the trial court=3Ds=20
judgment.
/s/ =20
Leslie B.=20
Yates
Justice
Judgment=20
rendered and Memorandum Opinion filed July 1, 2008.
Panel=20
consists of Justices Yates, Guzman, and Brown.
Although the Harris County =
Appraisal Review=20
Board is listed in the style of this case, service was not =
perfected on=20
the Board and therefore it was not party to the lawsuit or this=20
appeal. In addition, while only HCAD moved for summary =
judgment, the=20
judgment in this case is final for purposes of appeal. =
See=20
Sondock v. Harris County Appraisal Dist., 231 S.W.3d 65, 67 =
n.1 (Tex.=20
App.CHouston [14th Dist.] 2007, no pet.) =
(stating that=20
even though service was not perfected as to Harris County =
Appraisal Review=20
Board, judgment was still final as to the Board).
The Verms=3D original petition also alleged that the =
property=20
had been excessively appraised, but they later nonsuited this=20
=
claim. |