ray-a-verm-jane-verm-as-the-property-owners-and-the-property-owners-v ( 2008 )

Affirmed and Memorandum Opinion filed July 1, 2008

Affirmed and Memorandum Opinion filed July 1, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-01046-CV

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RAY A. VERM & JANE VERM, AS THE PROPERTY OWNERS AND THE PROPERTY OWNERS, Appellants

V.

HARRIS COUNTY APPRAISAL DISTRICT AND THE APPRAISAL REVIEW BOARD OF HARRIS COUNTY APPRAISAL DISTRICT, Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2005-65952

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, Ray A. Verm and Jane Verm, the individual owners of the property at issue, challenge the trial court=s rendition of summary judgment in favor of appellee, Harris County Appraisal District (HCAD),^[1] on the Verms= claims that the subject property was unequally appraised.  In their sole issue, the Verms argue the trial court erred in granting HCAD=s motion for summary judgment.  We affirm.

The Verms own real property located in Harris County, Texas.  After HCAD appraised the property at a value of $923,419 for the 2005 tax year, the Verms filed a protest.  Their designated agent, an employee from a tax consulting firm, represented them at the protest hearing held before a three-member panel of the Harris County Appraisal Review Board (the Board).  At the hearing, the Verms= agent recommended to the panel that the property should be appraised at $890,500.  The chief appraiser and representative of HCAD concurred that the property should be valued at $890,500, and the Board subsequently issued an Order Determining Protest, setting the appraised value at $890,500.  The order informed the Verms that they had forty-five days to appeal the Board=s decision in district court.  The Verms filed suit against HCAD in district court, alleging that the property had been unequally appraised.^[2] HCAD filed a motion for summary judgment claiming that under Section 1.111(e) of the Tax Code, an agreement as to the property=s value between HCAD and the Verms prohibited the Verms= appeal as a matter of law.  The trial court granted HCAD=s motion for summary judgment. 

In a traditional motion for summary judgment, the movant bears the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law.  See 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 upon either conclusively negating at least one of the essential elements of each of the plaintiff=s causes of action or by conclusively establishing all the elements of an affirmative defense.  Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.CHouston [14th Dist.] 2004, pet. denied).  In order to conclusively negate at least one of the requisite elements, the motion must identify or address the cause of action or defense and its elements.  Id.  Under this traditional standard, this court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant=s favor.  KPMG Peat Marwick, 988 S.W.2d at 748.

HCAD moved for summary judgment on the Verms= claims based solely on the ground that the Verms, through their designated agent, had reached a final and enforceable  agreement with HCAD regarding the value of the property.  The Tax Code provides that an agreement between a property owner or the owner=s agent and the chief appraiser is final if the agreement relates to a matter which may be protested to the appraisal review board or a matter on which a protest has been filed but not determined by the board.  See Tex. Tax Code Ann. _ 1.111(e)(1) (Vernon 2008).

The Verms argue the trial court erred in granting summary judgment pursuant to section 1.111(e) of the Tax Code because (1) the HCAD chief appraiser=s concurrence at the hearing with the value the Verms= agent suggested did not amount to an agreement, (2) an agreement requires one or both parties to have acted upon the agreement, and here neither party acted upon the matter, and (3) in any event the Verms= protest was determined by the Board, making section 1.111(e) inapplicable.  We recently addressed similar arguments in Sondock v. Harris County Appraisal District, 231 S.W.3d 65 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  The Sondock property owners had appealed from a summary judgment in favor of HCAD, alleging that no agreement with HCAD was reached.  Id. at 68B69.  A transcript of the hearing before the Board panel indicated that the HCAD representative had concurred with the valuation suggested by the property owners= agent.  Id. at 68.  Because the Tax Code does not define the term Aagreement,@ we looked to the ordinary meaning of the term and concluded that an agreement is A>the act of agreeing; harmony of opinion; accord.=@  Id. at 69 (quoting The American Heritage Dictionary of the English Language).  We found that HCAD and the property owners were in harmony of opinion regarding the appraised value of the property and thus they had reached an agreement.  Id. We also concluded that by deleting the requirement of Board approval, the legislature intended to make it easier for parties to reach agreements in the event of a dispute involving taxable property, and therefore validating agreements where there was a meeting of the minds furthered that purpose.  See id.; see also Tex. Tax Code Ann. _ 1.111(e)(1).

Although the record does not contain a transcript of the hearing, the Verms= brief to this court states that at the hearing their agent requested an appraised value of $890,500 and that the HCAD chief appraiser Aconcurred@ with this value. HCAD did not contradict these facts as contained in the Verms= brief, and thus we take them as true.  See Tex. R. App. P. 38.1(f) (in a civil case, an appellate court is to accept as true facts stated in the appellant=s brief unless another party contradicts those facts).  As in Sondock, we find that when HCAD Aconcurred@ with the Verms= valuation, the Verms and HCAD reached a final agreement as to the value of the subject property.  See Sondock, 231 S.W.3d at 69; see also Hartman v. Harris County Appraisal Dist., 251 S.W.3d 595, 601 (Tex. App.CHouston [1st Dist.] 2007, pet. denied) (AIt is the fact of agreeingCthe harmony of opinionsCthat creates the agreement.@).

Moreover, the agreement was reached while the Board was still deliberating, and therefore it related to a matter in which a protest had been filed but not 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 County Appraisal Dist., No. 01-03-01238-CV, 2004 WL 2422033, at *1, 3 (Tex. App.CHouston [1st Dist.] Oct. 28, 2004, no pet.) (mem. op) (holding that concurrence as to property value between owner=s agent and HCAD representative during hearing constituted a final agreement enforceable under section 1.111(e)). Although the Verms contend that no agreement can exist because the parties did not act on the agreement or inform the Board panel that an agreement had been reached, A[w]e do not read section 1.111(e) to require such actions.@  Sondock, 231 S.W.3d at 69; see also Hartman, 251 S.W.3d at 600 (holding that by announcing same opinion regarding property=s value to panel, property owner and HCAD were informing panel of their agreement and Aacting@ upon the matter, and that section 1.111(e) does not require a formal announcement such as Awe agree@).  The Verms also claim that by issuing an Order Determining Protest, the Board never accepted or reviewed any alleged agreement.  We addressed a similar argument in Sondock and concluded that because the agreement was final the moment it was reached, that agreement rendered any determination by the Board regarding value, such as the Order Determining Protest, irrelevant.  Sondock, 231 S.W.3d at 69.

The Verms further argue that interpreting section 1.111(e) as precluding judicial appeal in this case unconstitutionally denies them their due process rights.  The collection of taxes constitutes deprivation of property; therefore a taxing authority must afford a property owner due process of law.  See McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 36 (1990); Sondock, 231 S.W.3d at 70.  Texas courts have found due process satisfied in cases involving taxation where the taxpayer is given an opportunity to be heard before an assessment board at some stage of the proceedings.  See Sondock, 231 S.W.3d at 70; ABT Galveston Ltd. P=ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146, 155 (Tex. App.CHouston [1st Dist.] 2004, no pet.); Denton Cent. Appraisal Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 266 (Tex. App.CFort Worth 2003, pet. denied). 

We addressed this argument in Sondock and stated, AWe cannot imagine how the [property owners] were deprived of due process when they were given the opportunity to present their arguments to a legal panel and they reached an agreement fully satisfying their stated contentions.@  Sondock, 231 S.W.3d at 70.  The Verms presented their protest to the panel, were provided a hearing before the panel on the matter, and raised no further complaints after the HCAD representative concurred with their proposed property valuation.  Accordingly, we find the Verms were afforded due process.  See id.; see also Hartman, 251 S.W.3d at 601 (holding property owners who had opportunity to be heard before appraisal review board were provided due process); BPAC Tex., LP, 2004 WL 2422033, at *3 (holding that when property owner chose to reach agreement with HCAD, it was not deprived of its statutory due process right to appeal appraisal board=s order because agreement, not order, determined outcome).  We overrule the Verms= issue and hold the trial court did not err in granting summary judgment in HCAD=s favor.

We affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed July 1, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

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^[1]  Although the Harris County Appraisal Review Board is listed in the style of this case, service was not perfected on the Board and therefore it was not party to the lawsuit or this appeal.  In addition, while only HCAD moved for summary judgment, the judgment in this case is final for purposes of appeal.  See Sondock v. Harris County Appraisal Dist., 231 S.W.3d 65, 67 n.1 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (stating that even though service was not perfected as to Harris County Appraisal Review Board, judgment was still final as to the Board).

^[2]  The Verms= original petition also alleged that the property had been excessively appraised, but they later nonsuited this claim.