Betz Louetta 25 Ltd., as the Property Owners and the Property Owners v. the Appraisal Review Board of Harris County Appraisal District

Affirmed and Memorandum Opinion filed January 15, 2009 Affirmed and Memorandum Opinion filed January 15, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-07-00587-CV _______________ BETZ LOUETTA 25 LTD., AS THE PROPERTY OWNERS AND THE PROPERTY OWNERS, Appellant V. THE APPRAISAL REVIEW BOARD OF HARRIS COUNTY APPRAISAL DISTRICT, Appellee On Appeal from the 165th District Court Harris County, Texas Trial Court Cause No. 2006-28057 M E M O R A N D U M  O P I N I O N In this ad valorem tax suit, appellant, Betz Louetta 25 Ltd., As The Property Owners and The Property Owners (ABetz@), presents a single issue challenging a summary judgment in favor of appellee, The Appraisal Review Board of Harris County Appraisal District (Athe Board@). Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. Background The Harris County Appraisal District appraised the value of certain commercial property owned by Betz at $136,626 for tax year 2005. Through an agent, Betz timely filed a protest. The Board conducted a hearing on the protest. Both Betz and the appraisal district appeared and presented evidence. The Board issued an order denying the protest and determining Athe appraisal records should not be changed@ and the Avalue of the property remains . . . $136,626.@ Betz sued the Board, alleging it failed to conduct the hearing on Betz=s protest required by the Texas Tax Code. Betz requested a writ of mandamus ordering the Board to conduct a hearing in compliance with the Tax Code. The Board moved for traditional summary judgment on the ground that it did conduct a hearing as required by the Tax Code. The trial court signed an order, granting the Board=s motion and ruling it was Afully released, discharged, and acquitted of@ all claims asserted by Betz in this suit. Standard of Review A party moving for traditional summary judgment must establish that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215B16 (Tex. 2003). A defendant is entitled to summary judgment if it conclusively negates at least one element of each of the plaintiff=s causes of action or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We accept all evidence favorable to the nonmovant as true. Id. We indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Id. Analysis In its sole issue, Betz contends the trial court erred by granting summary judgment because there was a genuine issue of material fact regarding whether Betz was denied the protest hearing to which it was entitled under the Texas Tax Code. Section 41.45 of the Tax Code outlines the requirements for a hearing on a tax protest. Tex. Tax Code Ann. ' 41.45 (Vernon 2008). Section 41.45(a) provides that the appraisal review board Ashall schedule a hearing on the protest@ when the property owner files a notice of protest within various time constraints prescribed by the Tax Code. Id. ' 41.45(a). Section 41.45(b) states that the property owner is entitled to an opportunity to appear to offer evidence or argument. Id. ' 41.45(b). Section 41.45(f) provides: A property owner who has been denied a hearing to which the property owner is entitled under this chapter may bring suit against the appraisal review board by filing a petition or application in district court to compel the board to provide the hearing. If the property owner is entitled to the hearing, the court shall order the hearing to be held and may award court costs and reasonable attorney fees to the property owner. Id. ' 41.45(f). Pursuant to section 41.45(f), Betz brought this suit to compel the Board to conduct a hearing on Betz=s protest. In its motion for summary judgment, the Board asserted it held a hearing at which Betz had the opportunity to offer evidence or argument as required by sections 41.45(a) and (b). See id. ' 41.45(a), (b). Betz acknowledges the Board held a hearing. However, Betz argues it was effectively denied a hearing because the Board did not comply with several Tax Code provisions governing procedures for a protest hearing.[1] According to Betz, at the hearing, it limited its protest to arguing the property was unequally appraised. Betz asserts the Board failed to enter an order determining the unequal-appraisal protest because its order did not adequately address this aspect of the protest. See Tex. Tax Code Ann. ' 41.47(a) (Vernon 2008) (providing, AThe appraisal review board hearing a protest shall determine the protest and make its decision by written order.@). Betz also argues the Board ignored two applicable Tax Code provisions which are interrelated for purposes of its contention. Section 41.43(b) provides that A[a] protest on the ground of unequal appraisal of property shall be determined in favor of the protesting party unless the appraisal district establishes@ that the property was not unequally appraised through one of three alternative methods. Tex. Tax Code Ann. ' 41.43(b) (Vernon 2008). Section 41.67(d) states, AInformation that was previously requested under Section 41.461 by the protesting party that was not made available to the protesting party at least 14 days before the scheduled or postponed hearing may not be used as evidence in the hearing.@ Tex. Tax Code Ann. ' 41.67(d) (Vernon 2008). Betz contends the only evidence offered by the appraisal district was a ratio study that had not been timely made available to Betz. Betz maintains the Board would have been required to determine the protest in favor of Betz if the Board had properly disregarded this study. Therefore, Betz contends the Board improperly placed the burden of proof on Betz. Betz asserts the Board=s motion for summary judgment was incorrectly based on the premise a property owner has no cause of action under section 41.45(f) as long as some sort of hearing was held. According to Betz, the language of section 41.45(f) allowing a property owner Awho has been denied a hearing to which [it] is entitled@ to Abring suit@ authorizes a cause of action if the hearing was not conducted in compliance with the Tax Code. Since the parties filed their briefs, we have issued two opinions rejecting arguments similar to the contentions raised by Betz. For example, in Appraisal Review Board of Harris County Appraisal District v. Spencer Square LTD, the Board conducted a hearing on the property owner=s protest. 252 S.W.3d 842, 843 (Tex. App.CHouston [14th Dist.] 2008, no pet.). Subsequently, the owner filed suit, alleging the Board failed to comply during the first hearing with procedural guidelines outlined in the Tax Code. Id. The owner sought a writ of mandamus pursuant to section 41.45(f) compelling the Board to conduct a second hearing. Id. at 843B44. The Board filed a plea to the jurisdiction, asserting the trial court lacked jurisdiction under section 41.45(f) to entertain the owner=s suit because the Board did conduct a hearing. See id. The owner contended the trial court had jurisdiction under section 41.45(f) because it merely sought the hearing to which it was entitled. Id. at 844B45. We held that the trial court erred by denying the Board=s plea to the jurisdiction. See id. at 844B46. We stated that section 41.45(f) grants district courts jurisdiction to compel an appraisal review board to conduct a hearing if it denied a hearing after the property owner filed a notice of protest complying with the Tax Code. See id. at 845. We also recognized that a petition for judicial review pursuant to Chapter 42 is the process prescribed in the Tax Code for an owner to appeal an appraisal board=s order and complain of procedural errors committed by the board. See id. (citing Tex. Tax Code Ann. '' 42.01, 42.21, 42.23, 42.28 (Vernon 2008)). The owner did not timely file a petition for judicial review. See id. at 843, 845. We concluded that section 41.45(f) did not provide an additional avenue for attacking the Board=s order and could not be used to circumvent the appeal process prescribed by Chapter 42. See id. at 845. Accordingly, we held that the trial court lacked jurisdiction under section 41.45(f) to order a second board hearing. Id.; see also Appraisal Review Bd. of Harris County Appraisal Dist. v. O=Connor & Associates, 267 S.W.3d 413, 417B18 (Tex. App.CHouston [14th Dist.] 2008, no pet.) (holding as follows: section 41.45(f) did not give district court jurisdiction over taxpayers= claim that appraisal board failed to conduct hearing in accordance with procedures outlined in Tax Code; taxpayer may not circumvent appeal provisions in Chapter 42 by alleging Board failed to adhere to procedural guidelines; and interpreting section 41.45(f) as creating another avenue of appeal would render provisions in Chapter 42 meaningless). We recognize the above-cited cases pertained to jurisdictional pleas rather than motions for summary judgment. In its appellate brief in the present case, the Board contends the trial court lacked jurisdiction over Betz=s complaints, but the Board did not explicitly raise a jurisdictional challenge in its motion for summary judgment. Nonetheless, the Board=s summary-judgment ground implicitly encompassed a jurisdictional aspect; i.e., because section 41.45(f) authorizes a cause of action only when an appraisal board refuses to hold a hearing, a trial court lacks jurisdiction under section 41.45(f) to review a board=s order and the procedures employed during a hearing. Moreover, subject matter jurisdiction may be raised for the first time on appeal. Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443B45 (Tex. 1993). Based on the above-cited authority, we conclude the trial court lacked jurisdiction under section 41.45(f) to entertain Betz=s cause of action because the Board conducted a hearing. The present suit cannot be characterized as a timely petition for review of the Board=s order because this suit was filed approximately ten months after the Board issued its order. See Tex. Tax Code Ann. ' 42.21(a) (stating that petition for judicial review must be filed within forty-five days after property owner receives notice that order has been entered from which appeal is authorized). Betz may not circumvent the appeal process prescribed in Chapter 42 by using section 41.45(f) to challenge the Board=s order and procedures it employed during the hearing. Betz cites Tarrant Appraisal Review Board v. Martinez Brothers Investments, Inc., in which an appraisal review board refused to schedule a hearing on some protests because the property owners failed to comply with a prerequisite adopted by the board relative to obtaining a hearing. 946 S.W.2d 914, 915B16 (Tex. App.CFort Worth 1997, no writ). In the property owner=s subsequent suit seeking to compel a hearing pursuant to section 41.45, the appellate court held that the board improperly relied on the rule at issue. Id. at 917B18. Martinez Brothers is distinguishable from the present case because the Martinez Brothers court evaluated procedures on which the Board relied when refusing to schedule a hearing. See id. at 915B18. In contrast, Betz relies on section 41.45(f) to challenge procedures used by the Board relative to the hearing it actually conducted. Finally, Betz contends it was denied due process because of the purported procedural inadequacies of the hearing. However, a property owner=s right to due process relative to collection of taxes is satisfied if it is given an opportunity to be heard before an assessment board at some stage of the proceedings. Sondock v. Harris County Appraisal Dist., 231 S.W.3d 65, 70 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (citing 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); Dallas County Appraisal Dist. v. Lal, 701 S.W.2d 44, 47 (Tex. App.CDallas 1985, writ ref=d n.r.e.)). Betz was given an opportunity to be heard. We further reject Betz=s contention because it had the opportunity to appeal the Board=s order and remedy any purported inadequacies of the hearing but did not avail itself of this opportunity. In sum, we conclude the trial court did not err by granting summary judgment in favor of the Board on Betz=s cause of action under section 41.45(f). Accordingly, we overrule Betz=s sole issue and affirm the trial court=s judgment. /s/ Charles W. Seymore Justice Panel consists of Justices Yates, Seymore, and Boyce. [1] The Board presented, among other summary-judgment evidence, an audiotape of the hearing, but it is not in the record filed on appeal. Nonetheless, even if we accept as true all Betz=s assertions regarding the hearing, we conclude the trial court properly granted summary judgment.