Dish Network Corporation and Blockbuster, LLC, a Wholly Owned Subsidiary of Dish Network Corporation v. Collin Central Appraisal District ( 2017 )

Affirmed and Opinion Filed April 27, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00800-CV
DISH NETWORK CORPORATION AND BLOCKBUSTER, LLC, A WHOLLY OWNED
SUBSIDIARY OF DISH NETWORK CORPORATION, Appellants
V.
COLLIN CENTRAL APPRAISAL DISTRICT, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-03370-2012
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Whitehill
Opinion by Justice Bridges
Dish Network Corporation and Blockbuster, LLC, a wholly-owned subsidiary of Dish
Network Corporation (Dish) appeals the trial court’s traditional summary judgment in favor of
Collin Central Appraisal District. In three issues, Dish argues the trial court erred in granting
summary judgment because the evidence presented by the District was contradictory,
conclusory, and non-existent. We affirm the trial court’s judgment.
The summary judgment evidence shows that, in May 2011, Dish acquired Blockbuster.
Dish filed a business personal property rendition of personal property, and the District appraised
Dish’s inventory at $70,076,219. In July 2011, Dish filed a protest for “excessive appraisal,
unequal appraisal and appraisal of intangibles.” Following a hearing in July 2011, the Collin
County appraisal review board denied Dish’s protest. In September 2012, Dish sued the District,
alleging the District did not provide Dish with notice of the $70,076,219 appraisal. Dish further
alleged the appraisal was in excess of fair market value; was based on an appraisal method that
was antiquated, unfair, and erroneous; was unequal compared to a sample of similar properties;
and constituted an unlawful levy and created an illegal lien on the property. Dish alleged it had
presented to the appraisal review board a claim that clerical errors affected Dish’s 2011 tax
liability and had filed a motion to correct the appraisal roll and the value of the property pursuant
to section 25.25(c) of the tax code. Dish claimed the appraisal erroneously included property
that did not exist in the form or at the location described in the appraisal roll and property that
Dish did not own on January 1 of 2011.
In April 2015, the District filed a traditional motion for summary judgment in which it
pointed out that Dish obtained a hearing before the appraisal review board in July 2011 but did
not raise its 25.25(c) claims until March 2012. The District argued Dish’s claims of clerical error
were untimely and improper and constituted an attempt to have a second assessment of Dish’s
inventory for 2011. Further, the District argued that, under section 25.25(c), the appraisal roll
may not be changed if the property was subject to a protest brought by the owner under Chapter
41, a hearing on the protest was conducted in which the property owner offered evidence or
argument, and the appraisal review board made a determination of the protest on the merits. The
District cited section 25.25(c)’s provision that a “clerical error” does not include an error that is
or results from a mistake in judgment or reasoning in the making of the finding or determination.
On June 1, 2015, the trial court granted the District’s traditional motion for summary judgment,
and this appeal followed.
In three issues, Dish argues summary judgment was improper and the summary judgment
evidence was (1) contradictory because it raised the issue of whether the District could have
made a clerical error in assessing Dish’s nontaxable assets; (2) conclusory because the District’s
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proffered testimony merely stated that it made no errors in its calculations; and (3) lacking
because no evidence was presented to show Dish’s protests were untimely or improper. More
specifically, Dish argues its own rendition for 2011 showing $24,079,794 in taxable property
contradicted the District’s assessment, thereby raising an issue of material fact whether the
District could have committed a clerical error; the affidavit of District appraiser Brad Richards
was conclusory because it merely stated the District arrived at the appraised value “through a
process of deliberate determination, reasoning and appraisal” and did not result from a clerical
error; and there were no work papers, schedules, or calculations provided to show how the
District arrived at its appraised value. In making these arguments, Dish reiterates its argument
that the appraisal erroneously included property that did not exist in the form or at the location
described in the appraisal roll and property that Dish did not own on January 1 of 2011.
The standard for reviewing a traditional summary judgment is well known. See Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); McAfee, Inc. v. Agilysys, Inc., 316
S.W.3d 820, 825 (Tex. App.—Dallas 2010, no pet.). The movants have the burden of showing
that no genuine issue of material fact exists and that they are entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue exists
precluding summary judgment, evidence favorable to the nonmovant will be taken as true.
Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009,
no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts
resolved in his favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a
summary judgment de novo to determine whether a party’s right to prevail is established as a
matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet.
denied).
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The property tax code provides that the appraisal review board, on motion of the chief
appraiser or a property owner, may direct changes in the appraisal role for any of the five
preceding years to correct:
(1) clerical errors that affect a property owner’s liability for a tax imposed in that
tax year;
(2) multiple appraisals of a property in that tax year;
(3) the inclusion of property that does not exist in the form or at the location
described in the appraisal roll; or
(4) an error in which property is shown as owned by a person who did not own
the property on January 1 of that tax year.
TEX. TAX CODE ANN. § 25.25(c) (West 2015).
Under the tax code, a “clerical error” means an error:
(A) that is or results from a mistake or failure in writing, copying, transcribing,
entering or retrieving computer data, computing, or calculating; or
(B) that prevents an appraisal roll or a tax roll from accurately reflecting a finding
or determination made by the chief appraiser, the appraisal review board, or the
assessor; however, “clerical error” does not include an error that is or results from
a mistake in judgment or reasoning in the making of the finding or determination.
Id. § 1.04(18) (West 2015).
We first address Dish’s argument that Richards’ affidavit in support of the District’s
motion for summary judgment was “conclusory.” The record shows Richards’ affidavit did not
merely state the District arrived at the appraised value “through a process of deliberate
determination, reasoning and appraisal” and did not result from a clerical error. The affidavit
further indicated the District disagreed with Dish’s “valuation ‘theory’ as it relates to
intangibles” and the District’s appraisal of Dish’s property. Richards stated he “dispute[s] the
value determination, judgment, and appraisal theory used by [Dish].” Thus, Richards’ affidavit
established that the District’s valuation of Dish’s taxable property resulted from a disagreement
with Dish’s claims that certain property was “intangibles” or nontaxable and a valuation in
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keeping with the District’s “appraisal judgment and techniques on valuing property.” “Clerical
error” does not include an error that is or results from a mistake in judgment or reasoning in the
making of the finding or determination. Id. Under these circumstances, we conclude Richards’
affidavit was not conclusory and established the District’s valuation did not result from a clerical
error. We overrule Dish’s first issue.
In arguing the District’s evidence was contradictory and created a fact issue whether the
District committed a clerical error, Dish only relies upon section 1.04(18) subsection A’s
definition of clerical error and argues the District made a “clerical error” in “calculating” its
renditions as those terms are used in the definition of clerical error. Specifically, Dish argues its
rendition for tax year 2011 included $24,079,794 in taxable property, $10,434 in “intangibles,”
and $46,115,002 in nontaxable “disposed” property, amounting to a total of $70,205,230 in
taxable and nontaxable property. Nevertheless, despite “the Rendition’s clear identification of
what was taxable and nontaxable,” the District set the total taxable value at $70,076,219. Dish
argues this amounted to a “clerical error” in that the District included nontaxable property in its
taxable value calculation. The discrepancy between the rendition’s listing of $24,079,794 in
taxable property and the District’s determination of $70,076,219 in taxable property, Dish
argues, creates a genuine issue of material fact precluding summary judgment.
Dish’s arguments attempt to revise the methodology the District used to calculate the
renditions. See Dallas Central Appraisal Dist. v. S.W. Airlines Co., No. 05-10-00682-CV, 2012
WL 210964, at *3 (Tex. App.—Dallas Jan. 24, 2012, pet. denied) (mem. op.). The record
establishes that the District disagreed with Dish’s “valuation ‘theory’” and applied its own
appraisal theory to its determination of the value of Dish’s taxable property. Applying one
methodology when another is either called for or would produce better results is simply not a
clerical error as that term is contemplated by the tax code. Id. We overrule Dish’s second issue.
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To the extent Dish reiterates its argument that the District erroneously included certain
property in its assessment, we note the property tax code does not explain what is meant by the
phrase “inclusion of property that does not exist in the form or at the location described in the
appraisal roll.” Titanium Metals Corp. v. Dallas Cty. Appraisal Dist., 3 S.W.3d 63, 66 (Tex.
App.—Dallas 1999, no pet.). Nevertheless, this Court has defined the term “form” in the context
of 25.25(c)(3) to mean “its identification as a type of property listed under section 25.02(a), such
as real property, personal property, an improvement to real property, or some other physical
description of the property on the appraisal roll, other than its appraised value or its use.” Id.
(quoting Dallas Central Appraisal Dist. v. G.T.E. Directories Corp., 905 S.W.2d 318, 321 (Tex.
App.—Dallas 1995, writ denied). Thus, the relief available under section 25.25(c)(3) applies
only when no property exists in the form or at the location described in the appraisal roll. Id.
Stated differently, correction of the appraisal roll is only allowed when the appraisal roll
erroneously reflects that a particular form of property exists at a specified location and, in fact,
no such property exists at that location. Id.
Here, the “form” of the property described in the appraisal roll is “business personal
property.” Dish does not dispute that it maintains business personal property at the location
described in the roll. Instead, Dish argues that it does not maintain as much business personal
property at that location as the appraisal roll indicates. This is a complaint about the value of the
property described in the appraisal roll, not a complaint about the existence or nonexistence of
certain “forms” of property at the location described. Because we conclude business personal
property did exist at the location in the appraisal roll, we conclude that amending the roll under
section 25.25(c)(3) was not authorized. Titanium Metals, 3 S.W.3d at 66. Accordingly,
summary judgment was proper in favor of the District on all of Dish’s claims. See Nixon, 690
S.W.2d at 548–49.
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Finally, to the extent Dish argues summary judgment in favor of the District was
improper on the grounds that Dish’s motion for correction of the appraisal roll under section
25.25(c) was untimely, we conclude we need not address this issue. When multiple grounds for
summary judgment are raised and the trial court does not specify the ground or grounds relied
upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds
advanced in the motion are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001). We have already addressed the merits of Dish’s challenges to the trial court’s summary
judgment on Dish’s claims under section 25.25 and concluded summary judgment was proper on
Dish’s claims. Thus, we need not address whether Dish was somehow precluded from raising its
claims under section 25.25. See id. We overrule Dish’s third issue.
We affirm the trial court’s judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
150800F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DISH NETWORK CORPORATION AND On Appeal from the 380th Judicial District
BLOCKBUSTER, LLC, A WHOLLY Court, Collin County, Texas
OWNED SUBSIDIARY OF DISH Trial Court Cause No. 380-03370-2012.
NETWORK CORPORATION, Appellant Opinion delivered by Justice Bridges.
Justices Lang-Miers and Whitehill
No. 05-15-00800-CV V. participating.
COLLIN CENTRAL APPRAISAL
DISTRICT, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee COLLIN CENTRAL APPRAISAL DISTRICT recover its
costs of this appeal from appellant DISH NETWORK CORPORATION AND
BLOCKBUSTER, LLC, A WHOLLY OWNED SUBSIDIARY OF DISH NETWORK
CORPORATION.
Judgment entered April 27, 2017.
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