Wol+Med Southwest Dallas Limited Partnership v. Dallas Central Appraisal District ( 2013 )

AFFIRM; Opinion Filed February 27, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00011-CV
WOL+MED SOUTHWEST DALLAS LIMITED PARTNERSHIP, Appellant
V.
DALLAS CENTRAL APPRAISAL DISTRICT, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-05574
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion by Justice Francis
In this property tax suit, Wol+Med Southwest Dallas Limited Partnership appeals the trial
court’s take-nothing summary judgment in favor of Dallas Central Appraisal District. In a single
issue, appellant asserts summary judgment was improper because a fact issue exists on whether
the appraised value of the property was unequal and excessive. We affirm.
Appellant owns property on Marvin D. Love Freeway in the City of Dallas. Appellee
appraised the property at $1,299,880, and appellant filed a protest with the Appraisal Review
Board. The ARB dismissed the protest, and appellant filed this suit alleging the appraisal value
is both unequal and excessive. See TEX. TAX CODE ANN. §§ 42.01(1)(A) (right of appeal by
property owner); 42.25 (remedy for excessive appraisal); and 42.26 (remedy for unequal
appraisal).
Appellee filed a motion for summary judgment asserting that, after adequate time for
discovery and in the absence of compliance with Texas Rule of Civil Procedure 194.2(f)(4)
regarding requests for disclosure, no evidence showed the appraised value of the property was
excessive or unequal for the tax year in question. Appellant filed a response quoting portions of
appellant’s response to the request for disclosure, including information from expert Randall D.
Smith. Attached to the response was Smith’s affidavit. In his affidavit, Smith asserted he had
personal knowledge of the facts alleged in the response and swore that the “following statements
in support of [the response]” are true and correct: (1) he is the property manager and tax
representative for appellant, (2) he sent responses to appellee’s request for disclosure, (3) all
taxes have been paid in the amount due, and (4) the facts recited in the response are “based upon
my own personal research, review, and recollection.” No exhibits were attached to the affidavit.
The trial court granted the motion and ordered a take-nothing judgment in appellee’s favor.
A no-evidence motion for summary judgment is proper if, after adequate time for
discovery, the movant shows that the nonmovant has produced no evidence of one or more
essential elements of the claims for which the nonmovant would bear the burden of proof at trial.
TEX. R. CIV. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). To defeat such a
motion, the nonmovant must produce summary judgment evidence raising a genuine issue of
material fact. TEX. R. CIV. P. 166a(i); Hamilton, 249 S.W.3d at 426. A genuine issue of material
fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence
of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99
(Tex. 2004).
Proper summary judgment evidence consists of affidavits, admissions, stipulations of the
parties, authenticated or certified public records, deposition transcripts, and interrogatory
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answers. Bakali v. Bakali, 830 S.W.2d 251, 256 (Tex. App.—Dallas 1992, no writ.). Generally,
pleadings are not competent evidence, even if sworn or verified. Laidlaw Waste Sys. (Dallas),
Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). A response to a motion for summary
judgment is a pleading and may not itself be considered summary judgment evidence. Liggett v.
Blocher, 849 S.W.2d 846, 852 (Tex. App.—Houston [1st Dist.] 1993, no writ). Further, a party
may not support its response to a motion for summary judgment with a document in the form of
an affidavit in which the party attempts to verify the truth and correctness of all “allegations and
facts” in the response. Olsen v. Comm’n for Lawyer Discipline, 347 S.W.3d 876, 886 (Tex.
App.—Dallas 2011, pet. denied). Such a document amounts to nothing more than a verified
responsive pleading, which is not competent summary judgment evidence. Id.
On appeal, appellant claims a fact issue exists on whether the appraised value of the
property was excessive and unequal and directs us to the following statement quoted in the body
of its response to the motion for summary judgment: “Smith will testify that the appraisal values
of the properties at issue in this case do not reflect the true, correct, and accurate ‘market
value[s];’ furthermore, Smith will testify that the individual characteristics of the subject
properties at issue in this case indicate market values closer to those stated by Smith.” 1
As noted above, a response is not summary judgment evidence. Further, to the extent
appellant suggests Smith’s affidavit verified the information contained in the response, Smith did
not specifically swear the statements made in the response were true and correct. And even if he
had, such a document is nothing more than a verified pleading. Finally, even if we were to
conclude appellant’s evidence was proper and competent proof, nothing in the statement raises a
fact issue on whether the appraised value was unequal or excessive. Although the statement
1
Although the statement references “properties,” appellant’s petition alleges only one property.
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asserts Smith would testify the value is not true, correct and accurate, it does not say anything
about what Smith believes the market value is and whether the appraised value is excessive or
unequal. Moreover, Smith’s affidavit did not contain any opinion regarding the value of the
property and whether the appraised value is excessive or unequal. Because we conclude
appellant has not raised a fact issue, the trial court did not err in granting summary judgment in
appellee’s favor. We overrule the sole issue.
We affirm the trial court’s judgment.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
120011F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WOL+MED SOUTHWEST DALLAS On Appeal from the 116th Judicial District
LIMITED PARTNERSHIP, Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-10-05574.
No. 05-12-00011-CV V. Opinion delivered by Justice Francis;
Justices Moseley and Lang participating.
DALLAS 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 DALLAS CENTRAL APPRAISAL DISTRICT recover
its costs of this appeal from appellant WOL+MED SOUTHWEST DALLAS LIMITED
PARTNERSHIP.
Judgment entered February 27, 2013.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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