Timothy C. & Leeann Loposer v. Harris County Appraisal District and the Appraisal Review Board of Harris County Appraisal District

Affirmed and Memorandum Opinion filed July 21, 2009

Affirmed and Memorandum Opinion filed July 21, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00956-CV

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TIMOTHY C. & LEEANN LOPOSER, AS THE PROPERTY OWNERS AND THE PROPERTY OWNERS, Appellants

V.

HARRIS COUNTY APPRAISAL DISTRICT AND THE APPRAISAL REVIEW BOARD OF HARRIS COUNTY APPRAISAL DISTRICT,^[1] Appellees

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2006-67833

M E M O R A N D U M   O P I N I O N

In this ad valorem property tax case, appellants Timothy C. Loposer and Leeann Loposer (Athe Loposers@) challenge the trial court=s grant of summary judgment in favor of appellee Harris County Appraisal District (AHCAD@) on the Loposers= claims that their real property was unequally and excessively appraised.  In two issues, the Loposers contend the trial court erred (1) in failing to find that the Board=s order rejected HCAD=s assertion that an agreement was made between the parties, and (2) in granting HCAD=s summary judgment motion.  We affirm.

HCAD appraised the Loposers= real property at a value of $1,207,083 for tax year 2006.  The Loposers filed a timely notice of protest of HCAD=s valuation.  See Tex. Tax Code Ann. ' 41.41 (Vernon 2008).  Their designated agent, Sam Sherkawy, represented them at the hearing on their protest before a three‑member panel of the Board.  At the hearing, Sherkawy executed a sworn disclosure statement giving his opinion of the value of the Loposers= property at $1,207,083Cthe same value as HCAD=s appraisal.  When Brenda Budd (HCAD=s representative) testified to the property=s 2006 market value, the following exchange took place:

BUDD: . . . [The property has a] 2006 notice market value of $1,207,083.              

SHERKAWY: Could ________ [phrase inaudible]?

BUDD: In your presentation?

SHERKAWY: Oh, I do concur with this.

CHAIRMAN: ________[phrase inaudible] record.  And, uh, District?

BUDD: Based on the subject selling June of >05 for $1,321,000 [sounds like] this recommendation is to sustain the value of $1,207,083.

The Board=s chairman concluded the evidentiary portion of the hearing and stated that Athe agent has requested the ______ [word inaudible] be sustained.  The District agrees with that and the value will remain unchangedC$1,207,083.@  The Board issued an order determining protest the same day, setting the property=s market value at $1,207,083 and notifying the Loposers that they had the right to appeal to the trial court.

The Loposers filed suit in the trial court, claiming their property was unequally and excessively appraised.  HCAD filed a summary judgment motion, asserting that section 1.111(e) of the Tax Code bars the Loposers= suit because there was an agreement between the parties as to the property=s value.  See Tex. Tax Code Ann. ' 1.111(e) (Vernon 2008).  The trial court granted HCAD=s summary judgment motion.  This appeal followed.

In a traditional motion for summary judgment, the movant bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  A defendant is entitled to summary judgment only upon (1) conclusive negation of at least one element of each of the plaintiff=s causes of action, or (2) conclusive establishment of each element of an affirmative defense to each claim.  KPMG Peat Marwick, 988 S.W.2d at 748; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  In deciding whether there is a disputed material fact issue precluding summary judgment, summary judgment evidence favorable to the nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any doubts are resolved in the nonmovant=s favor.  KPMG Peat Marwick, 988 S.W.2d at 748; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).  We review de novo the trial court=s decision to grant summary judgment.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

The Loposers argue the trial court erred in granting HCAD=s summary judgment motion because a fact issue exists as to whether the parties reached an agreement under section 1.111(e) of the Tax Code.  Specifically, the Loposers:

(1) disagree with the definition of Aagreement@ espoused by this court in Sondock v. Harris County Appraisal Dist., 231 S.W.3d 65, 69 (Tex. App.CHouston [14th Dist.] 2007, no pet.) and claim that the lack of agreement here is evidenced by the parties=s failure to announce or act under the alleged agreement,

(2) contend that the trial court erred by failing to find that the Board=s order determining protest rejected any agreement between the Loposers and HCAD, and

(3) argue that the trial court=s order granting summary judgment in HCAD=s favor, and the interpretation of section 1.111(e) as precluding appeal under these circumstances, denied them due process.

As the Loposers admit, both this court and the First Court of Appeals have previously addressed and overruled Asimilar, if not the same@ issues.  See Sondock, 231 S.W.3d at 69B70; Hartman v. Harris County Appr. Dist., 251 S.W.3d 595, 600B01 (Tex. App.CHouston [1st Dist.] 2007, pet. denied); BPAC Tex., LP v. Harris County Appr. Dist., and the Harris County Appr. Rev. Bd., No. 01‑03‑01238‑CV, 2004 WL 2422033, at *3 (Tex. App.CHouston [1st Dist.] Oct. 24, 2004, no pet.) (mem. op., not designated for publication).  For instance, we have previously stated that an agreement exists for purposes of section 1.111(e) of the Tax Code where, as here, there is a Aharmony of opinion@ between the property owners and HCAD regarding the value of the property at issue, and we see no reason to deviate from that precedent here.  See Sondock, 231 S.W.3d at 69; see also Hartman, 251 S.W.3d at 600 (holding that an agreement existed where the agent and the appraiser each announced the same opinion as to the value of the property).  Likewise, we see no material difference between the Loposers= argument that the evidence here showed a lack of agreement and the argument in Sondock that the parties=s failure to act upon or announce an agreement demonstrated a lack of agreementCan argument that we rejected in Sondock, as we do here.  See 231 S.W.3d at 69 (stating that section 1.111(e) of the Tax Code does not require such actions). We also disagree with the Loposers= argument that the trial court erred by failing to find that the Board=s order rejected the agreement because we made clear in Sondock that where, as here, an agreement relates to a matter in which a protest has been filed but not determined by the Board, the agreement becomes final at the moment it is reached, rendering the Board=s subsequent property valuation in an order determining protest irrelevant.  See id. (citing Tex. Tax Code Ann. ' 1.111(e)); BPAC Tex., LP, 2004 WL 2422033, at *3.  Finally, we disagree with the Loposers= argument that their due process rights were violated, as we rejected an essentially identical argument under materially indistinguishable circumstances in Sondock.  See 231 S.W.3d at 69B70; see also Hartman, 251 S.W.3d at 601; BPAC Tex., LP, 2004 WL 2422033, at *3.

Appellants assert Sondock and Hartman were wrongly decided because they are in direct conflict with the Texas Supreme Court=s decision in Matagorda County Appraisal District v. Coastal Liquids Partners, L.P., 165 S.W.3d 329 (Tex. 2005).  We disagree.  In Matagorda County Appraisal District, the issue was whether a prior protest by a property owner precluded a subsequent protest by a lessee under section 41.413(b) of the Tax Code, which allows only one protest on the same property.  Id. at 331; see Tex. Tax Code Ann. ' 41.413(b) (Vernon 2008)  In that case, the lessee of two hydrocarbon storage caverns was contractually obligated to reimburse the caverns= owner for ad valorem taxes on those caverns.  Matagorda County Appr. Dist., 165 S.W.3d at 331.  The owner (who owned twelve caverns in addition to the lessee=s) filed a protest to the appraisal district=s valuation of the caverns, but limited that protest and the subsequent settlement to that portion of the caverns for which the owner had to pay taxes.  Id. at 331B32.  Despite that fact, the appraisal district claimed that the owner=s protest included the lessee=s caverns, precluding subsequent protest by the lessee.  Id. at 331.  The Supreme Court recognized the board=s authority to (1) decide whether there was more than one protest relating to the same property, and (2) take note of what property was included in the owner=s settlement.  Id. The Court then stated that the board=s order assessing the value of the lessee=s two caverns in the second protest impliedly rejected the appraisal district=s claim that the first protest, brought by the owner and limited to the other twelve caverns, included the lessee=s caverns and precluded the lessee=s protest.  Id. at 331B32.  Thus, Matagorda County Appraisal District does not stand for the proposition that an appraisal board=s order rejects a claimed agreement by the appraisal district in the context presented here.  See id.  Accordingly, the Loposers= reliance on Matagorda County Appraisal District is misplaced.  We overrule both of the Loposers= issues.

Having overruled both of the Loposers= issues, we affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

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^[1]  Although the Loposers named the Appraisal Review Board of Harris County Appraisal District (Athe Board@) as a defendant in their petition , they failed to perfect service on the Board.  Even though only HCAD moved for summary judgment, the judgment in this case is nevertheless final for purposes of appeal.  See Sondock v. Harris County Appr. Dist., 231 S.W.3d 65, 67 n.1 (Tex. App.CHouston [14th Dist.] 2007, no pet.).