Amanda Leigh Marrs v. San Jacinto County

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-07-382 CV ____________________ AMANDA LEIGH MARRS, Appellant V. SAN JACINTO COUNTY, Appellee On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. D-5786-01 MEMORANDUM OPINION Appellant Amanda Leigh Marrs appeals the trial court's grant of a traditional motion for summary judgment filed by appellee San Jacinto County in a suit to collect delinquent ad valorem taxes against real property owned by Marrs. In a single issue, appellant argues that summary judgment was improper because the description of the property at issue in the suit created a fact issue as to her ownership of the property and deprived her of notice of the appraisal value of the property. Because we conclude that the description of the subject property did not create a fact issue, we affirm. BACKGROUND On September 19, 2001, San Jacinto County filed suit on behalf of itself and the taxing districts (1) for which it collects, seeking to collect delinquent taxes from Katherine Crumley on property described as follows: Being Lot 2, Block 71, Shepherd Townsite, San Jacinto County, Texas described in Document # 00-864 of the Deed Records of San Jacinto County, Texas. Account No. R78189/8040-071-0080. The county eventually recovered a judgment and sold the property at a tax sale, however, the judgment was vacated on February 27, 2006, as a result of Walter Mortgage Servicing Inc.'s ("Walter Mortgage") claiming an interest in the property pursuant to a deed of trust dated December 11, 1998. (2) As set forth in the December 1998 deed, Katherine Crumley as Grantor conveyed an interest in the subject property to Walter Mortgage by Purchase Money Deed of Trust naming Mid-State Trust II and Jim Walter Homes, Inc. as beneficiaries of the property. The Purchase Money Deed of Trust was recorded in Volume 300, Page 299 of the Official Records of San Jacinto County, Texas. The legal description of the property contained in the deed of trust is described in metes and bounds as a portion of Block No. 71 as follows: All that certain tract or parcel of land being a 50X140 ft. tract and being the South half of that certain 100X140 ft. tract described in a correction deed from Willis Building Company to Kathryn H. Crumley dated August 17, 1982 and recorded in Volume 220, Page 765, deed records, San Jacinto County, Texas; Said 100X140 ft. tract being a portion of Block No. 71 (Seventy-one) being a sectional block of the town (now incorporated city) of Shepard in San Jacinto County, Texas, as described and depicted by the old official map and plat of said city (then town) recorded in Vol. D, Page 282, deed records of San Jacinto County, Texas; Said Block No. 71 being situated across First Street and Southerly from Block 66 (Sixty-six) of said Plat of Shepard, such property consisting of two adjoining and continuous lots out of the most Northwesterly portion of said sectional Block No. 71; Said 50X140 ft. tract being more fully described by metes and bounds as follows: BEGINNING at the NW corner of said Block 71 at the intersection of First Street and Mill Ave. and being the NW corner of said 100X140 ft. tract; THENCE Southwesterly with the Easterly ROW of Hill Ave. 50 ft. to the NW most corner and the Point of Beginning for herein described tract; THENCE Southwesterly and parallel to the Southerly ROW of First Street 140 ft. to the Westerly boundary of a 20 ft. alley or utility ROW in the center of said Block 71; THENCE with said 20 ft. alley or utility ROW General Course Southwesterly 50 ft. to stake set for Southeast: corner of said 100X140 ft. tract; THENCE paralleling the Southerly margin of First Street; THENCE paralleling the Southerly margin of First Street and the Northerly line of said Block 71. General Course Northwesterly a distance of 140 feet to a stake for the Southwest corner of the herein described and conveyed property in the West line of Block 71, being on the most Easterly margin of Hill Ave.; THENCE with the Westerly margin or line of said Block 71, it being also the most Easterly margin of Hill Ave. General Course Northeasterly 50 ft. to the Place of Beginning. Marrs acquired the real property at issue from Walter Mortgage on March 9, 2006, by Contract of Sale. The deed issued by Walter Mortgage was not initially recorded. A correction deed was issued and recorded on May 15, 2006. The property description set forth in the Contract of Sale and attached as "Exhibit A" to the corrective deed is identical to the property description set forth in the Purchase Money Deed of Trust naming Mid-State Trust II and Jim Walter Homes, Inc. as beneficiaries. On May 16, 2006, San Jacinto County filed Plaintiff's Second Amended Petition adding Amanda Leigh Marrs as a party defendant and seeking delinquent taxes in an amount of $6,507.32 for the years 2000 through 2006. On December 12, 2006, San Jacinto County filed its Third Amended Petition seeking $6,835.44 in delinquent taxes. San Jacinto County filed a Motion for Summary Judgment on January 24, 2007, claiming that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law on the ad valorem taxes against the real property at issue. After hearing argument from counsel, the trial court granted San Jacinto County's Motion for Summary Judgment on March 15, 2007. ISSUES AND STANDARD OF REVIEW Appellant contends that the trial court erred in granting summary judgment because a fact issue exists as to whether the description of the property included on the rolls of the taxing authority and in plaintiff's Third Amended Petition sufficiently describes appellant's property. Specifically, Marrs argues that the description fails to describe her property as described by metes and bounds in her deed from Walter Mortgage. Marrs argues that this "discrepancy" is sufficient to raise a fact issue to be decided by a trier of fact. In the alternative, Marrs argues this defective property description deprives her of notice of the appraisal value and voids the appraisal value. Marrs further contends that any failure by her to seek appropriate administrative remedies prior to asserting her defenses in this suit is excused. We review the granting of a traditional motion for summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We must determine whether the movant carried its burden to establish that there existed no genuine issue of material fact and that it was entitled to judgment as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). We assume all evidence favorable to nonmovant is true, and we indulge every reasonable inference in favor of the nonmovant and resolve any doubts in her favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). "Once the movant has established a right to summary judgment, the non-movant must expressly present any reasons seeking to avoid the movant's entitlement, and must support the reasons with summary judgment proof to establish a fact issue." Procter v. RMC Capital Corp., 47 S.W.3d 828, 830 (Tex. App.--Beaumont 2001, no pet.) (citation omitted). "Because the trial court's order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious." Knott, 128 S.W.3d at 216. Because we hold that the property description did not create a fact issue as to Marrs's ownership of the property or notice of the appraisal value of the property, we affirm the judgment of the court below. SAN JACINTO COUNTY'S PRIMA FACIE CASE The Tax Code provides that tax records such as those submitted as evidence by San Jacinto County constitute prima facie evidence of every material fact needed to establish its cause of action for delinquent taxes. See Tex. Tax Code Ann. § 33.47(a) (Vernon 2008). Section 33.47(a) provides as follows: (a) In a suit to collect a delinquent tax, the taxing unit's current tax roll and delinquent tax roll or certified copies of the entries showing the property and the amount of the tax and penalties imposed and interest accrued constitute prima facie evidence that each person charged with a duty relating to the imposition of the tax has complied with all requirements of law and that the amount of tax alleged to be delinquent against the property and the amount of penalties and interest due on that tax as listed are the correct amounts. Id. (emphasis added). When evidence is submitted as set forth in section 33.47(a), "[a] rebuttable presumption arises that the taxes in question are due, delinquent and unpaid." Nat'l Med. Fin. Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 906 (Tex. App.--Dallas 2004, no pet.) (citing Flowers v. Lavaca County Appraisal Dist., 766 S.W.2d 825, 828 (Tex. App.--Corpus Christi 1989, writ denied)). This presumption also establishes that the defendant owned the property on January 1 of the year for which the tax was imposed. Id. (citing GE Capital Corp. v. City of Corpus Christi, 850 S.W.2d 596, 600 (Tex. App.--Corpus Christi 1993, writ denied)); see also Estates of Elkins v. County of Dallas, 146 S.W.3d 826, 829 (Tex. App.--Dallas 2004, no pet.). After the taxing authority makes its prima facie case by introducing the tax records required by section 33.47(a), the burden then shifts to the taxpayer to show, by introducing competent evidence, that [s]he has paid the full amount of taxes, penalties and interest, or that there is some other defense that applies to h[er] case. Estates of Elkins, 146 S.W.3d at 829 (citing GE Capital Corp. 850 S.W.2d at 600). "In other words, once the 33.47 presumption is established, the [defendant has] the burden 'to go forward with [its] defensive evidence[.]'" Houston Indep. Sch. Dist. v. Old Farms Owners Ass'n, 236 S.W.3d 375, 383 (Tex. App.--Houston [1st Dist.] 2007, pet. filed) (quoting Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 264 (Tex. App.--Houston [1st Dist.] 2003, no pet.)). San Jacinto County attached to its Motion for Summary Judgment a Certification of the Delinquent Tax Records and certified copies of the entries from the delinquent tax roll showing the property and the amount of the tax and penalties imposed and interest accrued. In addition, San Jacinto County attached an Affidavit of Value in which the Deputy Tax Assessor Collector described the property as follows: Being all that certain tract or parcel of land being a 50 X 140 ft. tract and being the South half of that certain 100 X 140 ft. tract described in a correction deed from Willis Building Company to Kathryn H. Crumley dated August 17, 1982 and recorded in Volume 220, Page 765, deed records, San Jacinto County Texas and also described as being Lot 2, Block 71, SHEPHERD TOWNSITE, San Jacinto County, Texas, described in Document #00-864 of the Deed Records of San Jacinto County, Texas. Account No. R78189/8040-071-0080. (3) Further, the Deputy Tax Assessor Collector attested that according to the most recent appraisal roll of the appraisal review board, the appraised value of the property was $27,390. San Jacinto County attached an additional affidavit in which the Deputy Tax Assessor Collector attested that Marrs owns the property at issue, that in the tax years 2000-2006, San Jacinto County and the taxing districts for which it collects assessed ad valorem taxes against the property owned by Marrs, and that all payments and credits received on that account were applied as reflected on the Certified Tax Statement. The certified copies of the entries from the delinquent tax roll identify the property as follows: R78189 8040-071-0080 (74763) Shepherd Townsite, Block 71, Lots 2, Acres .1607 000000078189-000000074763 The evidence attached to San Jacinto County's motion for summary judgment established a prima facie case of every material element needed to establish its cause of action to collect the delinquent taxes. See Tex. Tax. Code Ann. § 33.47(a). At that point, the burden shifted to Marrs to rebut the presumption with competent evidence. See Davis v. City of Austin, 632 S.W.2d 331, 333 (Tex. 1982). We conclude that Marrs failed to meet her burden to preclude judgment for the delinquent taxes. MARRS'S NON-OWNERSHIP DEFENSE The crux of Marrs's response to San Jacinto County's Motion for Summary Judgment is her argument that a fact issue exists as to whether she is the owner of the property described in the tax records and in Plaintiff's Third Amended Petition. Specifically, Marrs contends that she owns "Lot 11" and "Lot 12" and not "Lot 2" and that there is no "Lot 1" or "Lot 2" in existence. (4) Marrs's ownership defense fails for two reasons: 1) Marrs failed to plead the affirmative defense of non-ownership, and 2) even if Marrs had pled the affirmative defense, the evidence submitted fails to raise a fact issue as to Marrs's ownership of the property. San Jacinto County argues that Marrs waived her non-ownership defense by not asserting it at the administrative level. The Texas Supreme Court has held that the defense of non-ownership is waived when a property owner fails to exhaust its administrative remedies. Robstown Indep. Sch. Dist. v. Anderson, 706 S.W.2d 952, 952-53 (Tex. 1986) (citing Tex. Tax Code Ann. § 42.09(a) (Vernon 1982)). (5) Section 42.09(a) of the Tax Code provides: (a) Except as provided by Subsection (b) of this section, procedures prescribed by this title for adjudication of the grounds of protest authorized by this title are exclusive, and a property owner may not raise any of those grounds: (1) in defense to a suit to enforce collection of delinquent taxes; or (2) as a basis of a claim for relief in a suit by the property owner to arrest or prevent the tax collection process or to obtain a refund of taxes paid. Tex. Tax Code Ann. § 42.09(a) (Vernon 2008). Section 42.09(b) of the Tax Code permits non-ownership to be raised as an affirmative defense if the suit is to enforce personal liability for the tax, even when the taxpayer failed to protest ownership under the administrative procedure. Id. § 42.09(b); see also Barnett v. County of Dallas, 175 S.W.3d 919, 922 (Tex. App.--Dallas 2005, no pet.). Section 42.09(b)(1) provides: (b) A person against whom a suit to collect a delinquent property tax is filed may plead as an affirmative defense: (1) if the suit is to enforce personal liability for the tax, that the defendant did not own the property on which the tax was imposed on January 1 of the year for which the tax was imposed[.] Tex. Tax Code Ann. § 42.09(b)(1) (emphasis added). San Jacinto County argues that section 42.09(b)(1) does not apply in the present case because the suit is "in rem" citing to its motion for summary judgment and the judgment entered by the trial court. Although San Jacinto County's Third Amended Petition prays for both foreclosure of the tax liens and a personal judgment against the defendants who own the property, its Motion for Summary Judgment, as well as the trial court's judgment granting its motion, are "in rem only" and speak only to foreclosure of the tax lien. The judgment signed by the trial court is "in rem only" and denies recovery on any and all other theories pled and against all other parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Therefore, we need not determine whether the non-ownership affirmative defense as set forth in section 42.09(b)(1) of the Tax Code applies because Marrs did not plead the affirmative defense in accordance with Rule 94 of the Texas Rules of Civil Procedure. Non-ownership is an affirmative defense that must be pled or it is waived. See Tex. Tax. Code Ann. § 42.09(b); Tex. R. Civ. P. 94; see also Land Title Co. of Dallas, Inc. v. F.M. Stigler Inc., 609 S.W.2d 754, 756 (Tex. 1980) (holding that affirmative defense must be pled or it is waived). In addition, even if Marrs had pled the affirmative defense, the evidence submitted in support of her non-ownership defense fails to raise a fact issue as to her ownership of the property. As set forth above, San Jacinto County established a prima facie case by attaching certified copies of the delinquent tax roll entries showing the property and the amount of the tax and penalties imposed and interest accrued. In the Affidavit of Value, the Deputy Tax Assessor Collector specifically described the property. Finally, the Deputy Tax Assessor Collector verified that according to records of the taxing unit, Marrs is the owner of the property as described. In response to San Jacinto County's motion for summary judgment, Marrs submitted a copy of her Contract of Sale from Walter Mortgage, an Arbitration Agreement, a copy of the corrective deed, and a San Jacinto County 2005 CAD (6) record, which appears to have been printed from the internet. The legal description of the property as set forth in the first paragraph of Marrs's deed is virtually identical to the legal description in the affidavit submitted by the Deputy Tax Assessor Collector. Marrs's deed described the property in pertinent part as follows: All that certain tract or parcel of land being a 50 X 140 ft. tract and being the South half of that certain 100 X 140 ft. tract described in a correction deed from Willis Building Company to Kathryn H. Crumley dated August 17, 1982 and recorded in Volume 220, Page 765, deed records, San Jacinto County, Texas. The Deputy Tax Assessor Collector attested to the following description of the property: Being all that certain tract or parcel of land being a 50 X 140 ft. tract and being the South half of that certain 100 X 140 ft. tract described in a correction deed from Willis Building Company to Kathryn H. Crumley dated August 17, 1982 and recorded in Volume 220, Page 765, deed records, San Jacinto County Texas and also described as being Lot 2, Block 71, SHEPHERD TOWNSITE, San Jacinto County, Texas, described in Document #00-864 of the Deed Records of San Jacinto County, Texas. Account No. R78189/8040-071-0080. The only other evidence submitted by Marrs in support of her contention that she does not own the property at issue is the 2005 San Jacinto County CAD record. (7) The property on the CAD record is identified as Shepherd Townsite, Lot 11, Block 71. The owner is listed as Katherine Crumley. The property is carried on the San Jacinto County Appraisal Roll with an account number of R78191 and a Geo ID (8) number of 8040-071-0110. The property at issue in this lawsuit (Lot 2, Block 71) is listed on the San Jacinto County Appraisal Roll with an account number of 78189 and a Geo ID number of 8040-071-00080. The CAD record submitted by Marrs neither supports her contention that she owns Lot 11 nor her contention that she does not own Lot 2. On this record, we cannot conclude that Marrs's summary judgment evidence raised a fact issue as to her ownership of the property at issue in this case. MARRS'S LACK OF NOTICE DEFENSE In the alternative to Marrs's non-ownership defense, Marrs contends that the defective property description deprived her of notice of the appraised property value such that the appraisal value relied upon by San Jacinto County is void. We disagree. The only evidence submitted by Marrs in support of her contention that she did not receive proper notice is the evidence she submitted in support of her contention that the description of the property was defective. Marrs failed to raise a fact issue as to her ownership of the property; therefore, we hold the property description was sufficient to put Marrs on notice of the appraisal value of the subject property. Section 25.03 of the Tax Code provides that "[p]roperty shall be described in the appraisal records with sufficient certainty to identify it." Tex. Tax Code Ann. § 25.03(a) (Vernon 2008); see also Matagorda County Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 335 (Tex. 2005); Slaughter v. City of Dallas, 101 Tex. 315, 107 S.W. 48, 49 (1908) (Concluding that no more particularity of description of property is required in tax assessment than in a conveyance or a partition decree). The description must be sufficient to identify the property with reasonable certainty, either by itself or by reference to another existing writing. Jamison v. City of Pearland, 489 S.W.2d 636, 641 (Tex. App.--Houston [1st Dist.] 1972, writ ref'd n.r.e.). Marrs cites no authority for her contention that the tax records must set forth a legal property description in terms of metes and bounds, and we conclude that such is not the standard under Texas law. The property description as attested to by the Deputy Tax Assessor Collector and referenced on the certified delinquent tax roll records is sufficient to identify the subject property with reasonable certainty. Section 33.43 of the Tax Code sets forth the requirements for a petition initiating suit to collect a delinquent property tax. It does not set forth a standard for the description of the property and requires only that the petition allege that "tax in a stated amount was legally imposed on each separately described property for each year specified and on each person named if known who owned the property on January 1 of the year for which the tax was imposed[.]" Tex. Tax Code Ann. § 33.43(a)(2) (Vernon 2008). Thus, the only requirement imposed by the pleading statute as to the description of the property is that the property be described. See id. Thus, we find that Marrs has failed to sustain her burden to produce any credible evidence to raise an issue of material fact that she failed to receive notice of the appraised value of the subject property so as to preclude summary judgment in favor of the taxing entities. Finally, Marrs's contention that San Jacinto County acted outside of its statutory authority in describing the property is equally without merit. If a state agency acts without authority and contrary to express statutes, the aggrieved party may appeal directly to the courts. MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 625 (Tex. App.--Austin 2005, pet. denied). In such a case, the purposes underlying the exhaustion rule are not applicable because the agency's final action will be a nullity. Id. Marrs cites no statutes that San Jacinto County allegedly violated in describing the subject property. To the contrary, the taxing unit has the authority and obligation to describe the property in the appraisal records. See Tex. Tax Code Ann. § 25.03(a). Additionally, Marrs failed to submit any competent summary judgment evidence which supports her contention that San Jacinto County changed the description of the subject property from "Lot 11" to "Lot 2." We conclude that San Jacinto County described the subject property in compliance with the Tax Code. We conclude the trial court did not err in granting summary judgment in favor of appellee. We overrule appellant's issue and affirm the trial court's summary judgment. AFFIRMED. __________________________________ CHARLES KREGER Justice Submitted on January 11, 2008 Opinion Delivered August 14, 2008 Before McKeithen, C.J., Kreger and Horton, JJ. 1. San Jacinto Emergency Service District, Shepherd Independent School District, and the City of Shepherd. 2. San Jacinto County's Motion to Vacate attached recorded instruments detailing the legal description of the property as well as some transfer history of the subject property. In December 1998, Katherine Crumley as Grantor conveyed an interest in the subject property to Walter Mortgage by Purchase Money Deed of Trust naming Mid-State Trust II and Jim Walter Homes, Inc. as beneficiaries of the property. The Purchase Money Deed of Trust was recorded in Volume 300, Page 299 of the Official Records of San Jacinto County, Texas. On January 11, 2000, the property appears to have been conveyed by warranty deed from Grantor Ruby Thomas back to Katherine Crumley. The deed described the property including improvements as follows: BEING LOTS ONE (1) AND TWO (2) IN SECTIONAL BLOCK SEVENTY-ONE (71), LYING DIRECTLY SOUTH OF BLOCK SIXTY-FIVE (65), IN THE TOWN OF SHEPHERD, SAN JACINTO COUNTY, TEXAS, AS SHOWN ON PLAT RECORDED IN VOLUME D, PAGE 282, OF THE DEED RECORDS OF SAN JACINTO COUNTY, TEXAS, SAID LOT BEING FIFTY FEET BY ONE HUNDRED FORTY FEET (50' X 140'), AND LYING IN THE NORTHWEST CORNER OF SAID SECTION BLOCK. On the record, the January 11, 2000, deed is the first reference to the description of the property as Lots 1 and 2. The January 11, 2000, warranty deed was recorded in Document #00-864 of the deed records of San Jacinto, County, Texas. As San Jacinto County recognized in its Motion to Vacate, the December 11, 1998, deed and the January 11, 2000, deed appear to describe the same property as recorded in Volume D, Page 282, of the deed records of San Jacinto County, Texas, the subject property being 50 X 140 feet and lying in the Northwest corner (or the most Northwesterly portion) of Block 71. In February 2000, the property was conveyed by Katherine Crumley to Gregory C. Randle, Sr. in a General Warranty Deed with a Vendor's Lien in favor of Third Party (Mortgage Edge Corporation) recorded in Document #00-865. The subject of Lot Two (2) was omitted in error from the General Warranty Deed to Gregory C. Randle, Sr. and added through an "Affidavit" in June 2003, filed by Southwestern Title Company in Instrument # 03-4708, Official Records of San Jacinto County, Texas. The vendor's lien was released by Mortgage Edge Corporation in consideration for payment of the debt on October 30, 2003. 3. The legal description of the property set forth in Plaintiff's Third Amended Petition is identical to the legal description set forth by the Deputy Tax Assessor Collector in the Affidavit of Value. 4. To the extent Marrs is arguing that the property description is a clerical error, we note that section 25.25 of the Tax Code grants a five-year window to correct a clerical error or certain other limited errors. Tex. Tax Code Ann. § 25.25(c) (Vernon 2008). Specifically, section 25.25(c) provides: (c) The appraisal review board, on motion of the chief appraiser or of a property owner, may direct by written order changes in the appraisal 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; or (3) the inclusion of property that does not exist in the form or at the location described in the appraisal roll. Id. § 25.25(c) (1)-(3). Marrs made no such motion. 5. Section 42.09(a) of the Texas Tax Code as cited in Robstown was amended by Act of April 23, 1987, 70th Leg., R.S., ch. 53, § 1, 1987 Tex. Gen. Laws 130; however subsection (a) did not change substantively. 6. Central Appraisal District. 7. Notably, the record is not verified or submitted with an affidavit or any testimony that establishes where it came from and how it is admissible as competent summary judgment evidence. 8. Geographic identifier.