Herndon Marine Products, Inc. v. San Patricio County Appraisal Review Bd.

• Decision Date: 25 April 1985
• Docket Number: No. 13-84-338-CV,13-84-338-CV
• Citation: 695 S.W.2d 29
• Parties: HERNDON MARINE PRODUCTS, INC., et al., Appellants, v. SAN PATRICIO COUNTY APPRAISAL REVIEW BOARD, et al., Appellee.
• Court: Texas Court of Appeals

Page 29

695 S.W.2d 29

HERNDON MARINE PRODUCTS, INC., et al., Appellants, v. SAN PATRICIO COUNTY APPRAISAL REVIEW BOARD, et al., Appellee.

No. 13-84-338-CV.

Court of Appeals of Texas,

Corpus Christi.

April 25, 1985.

Rehearing Denied May 23, 1985.

Wilson Calhoun, Meredith & Donnell, Corpus Christi, for appellants.

Russell R. Graham, Calame, Linebarger & Graham, Austin, for appellee.

Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a summary judgment. This case arises under the provisions of the Texas Property Tax Code. ¹ Appellants, Herndon Marine Products, Inc., et al (hereinafter referred to collectively as "Taxpayers"), were plaintiffs in the trial court. Appellees, San Patricio Appraisal Review Board, et al (hereinafter referred to collectively as "Tax Assessors"), were defendants.

The suit was filed primarily as a petition for review of tax assessments pursuant to Section 42.21 of the Code. The Taxpayers sought judicial review of the actions of the Tax Assessors in denying an allocation of the value of their properties under Section 21.03 of the Code.

Both parties filed motions for summary judgment. Taxpayers' motion was denied, while the Tax Assessors' motion was granted. Taxpayers' first three points of error complain that the trial court erred in granting Tax Assessors a summary judgment, and their last three points of error complain that the trial court erred in denying Taxpayers' motion for summary judgment. We reverse the summary judgment.

Tax Assessors filed a cross-petition for declaratory judgment against the Attorney General of the State of Texas and the State Property Tax Board. Tax Assessors requested that the trial court declare Sections 21.03 and 21.031 of the Code and State Property Tax Board Rule 237.08.00.008 unconstitutional, based upon Article VIII, Sections 1 and 2 of the Texas Constitution. The trial court's disposition of the case made a ruling on the cross-petition unnecessary; therefore, the Attorney General and the State Property Tax Board are not parties to this appeal.

Taxpayers are owners of shrimping vessels that are subject to taxation in the City of Aransas Pass and in the Aransas Pass Independent School District. The city and the school district were defendants in the trial court, along with the San Patricio County Appraisal District (hereinafter referred to individually as "Appraisal District") and the San Patricio County Appraisal Review Board (hereinafter referred to individually as "Review Board").

Under the statutory scheme set out in the Code, the appraisal district in each county is responsible for appraising the value of the property in the county for ad valorem tax purposes of the state and of each taxing unit in the county. The appraisal review board in each county is responsible for reviewing taxpayer protests regarding the appraisals made by the appraisal districts. If a taxpayer is dissatisfied with a review board's determination of a protest, the Code provides a procedure for obtaining judicial review of the review board's determination in district court by a petition for review.

Tax Assessors' motion for summary judgment was granted based upon Taxpayers' alleged failure to comply with Section 42.06 of the Code. This section reads as follows:

Section 42.06. Notice of appeal

(a) To exercise his right of appeal, a party must file written notice of appeal within 15 days after the date he receives the notice required by Section 41.47 or, in the case of a taxing unit, by Section 41.07 of this code that the order appealed has been issued.

(b) The notice must be filed with the body that issued the order appealed.

(c) If the chief appraiser, a taxing unit, or a county appeals, the body with which the notice of appeal is filed shall deliver a copy of the notice to the property owner whose property is involved in the appeal within 10 days after the date the notice is filed.

(d) On the filing of a notice of appeal, the chief appraiser shall indicate where appropriate those entries of the appraisal records that are subject to the appeal. (Emphasis added.)

The trial court ruled that the failure of the Taxpayers to comply with this provision barred them from pursuing their petition for review.

In their first point of error, Taxpayers argue that they were not required to comply with Section 42.06(a) because the Tax Assessors had not complied with the notice requirements of Section 41.47. Therefore, the trial court erred in granting the Tax Assessors' motion for summary judgment. We agree. Section 41.47 prescribes the procedure to be followed by a review board in issuing a determination of assessment protests. It reads in full as follows:

§ 41.47 Determination of Protest

(a) The appraisal review board hearing a protest shall determine the protest and make its decision by written order.

(b) If on determining a protest the board finds that the appraisal records are incorrect in some respect raised by the protest, the board by its order shall correct the appraisal records by changing the appraised value placed on the protesting property owner's property or by making the other changes in the appraisal records that are necessary to conform the records to the requirements of law.

(c) The board shall determine all protests before it before approval of the appraisal records as provided by Subchapter A of this chapter.

(d) The board shall deliver by certified mail a notice of issuance of the order and a copy of the order to the property owner and the chief appraiser. (Emphasis added.)

Subsection (d) plainly requires a review board to send the taxpayer a notice of the issuance of the order and a copy of the order. By the terms of section 42.06(a), the legislature made the obligation of the taxpayer dependent upon the review board's compliance with section 41.47. It is the taxpayer's receipt of the notice required by this section that triggers the running of the fifteen-day period in which the taxpayer must file a notice of appeal with the body which issued the order. Absent such notice, the Taxpayer does not know when his time for appeal begins to run.

In the instant case, the Taxpayers contend that there was no evidence that the Review Board complied with section 41.47(d) by providing a copy of the order of determination of the protests to Taxpayers or their agents. Because of Tax Assessor's failure to prove compliance with the notice requirements of section 41.47(d), Taxpayers argue their duty to comply with section 42.06(a) (15 days within which to appeal) had not arisen, and it was error on the part of the trial court to grant a summary judgment against them.

It has generally been held that notice is a question of fact to be determined by the trier of fact, and it only becomes a question of law when there is no room for ordinary minds to differ as to the proper conclusions to be drawn from the evidence. Crystal City Independent School District v. Crawford, 612 S.W.2d 73, 75 (Tex.Civ.App.--San Antonio 1981, writ ref'd n.r.e.) (a pre-Code assessment case); see Exxon Corp. v. Raetzer, 533 S.W.2d 842, 846 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.). In the instant case, the issue of whether or not the Taxpayers received sufficient notice under Section 41.47(d) was an issue of material fact.

The Tax Assessors initially submitted three affidavits as summary judgment evidence of the Review Board's compliance with Section 41.47(d). The affidavits state, in pertinent part:

1) "... My name is Jo Ann Tumlinson ... I am employed as the secretary to ... John W. Hunt, Jr., Chairman of the San Patricio County Appraisal Review Review Board. At the request of Mr. Hunt, on or about July 26, 1983, I delivered by certified mail, return receipt requested notices of determination of the Appraisal Review Board concerning all of the Plaintiffs in this suit ... I have received no written notices of appeal from any Plaintiff in this suit as of the date of this affidavit." (Emphasis added.)

2) "... My name is John W. Hunt, Jr ... I am Chairman of the San Patricio County Appraisal Review Board ... At my request the secretary of the Board, Mrs. Jo Ann Tumlinson sent notices of the orders determining their protests by certified mail, return receipt requested on or about July 26, 1983. As of the date of this affidavit no written notice of appeal has been received by my Board from any of the Plaintiffs in this suit." (Emphasis added.)

3) "... My name is Bennie Stewart ... I am employed by the San Patricio County Appraisal District as Chief Appraiser. After the San Patricio County Appraisal Review Board ruled on the protest submitted by the Plaintiffs in this case a notice of the Board's determination was sent by certified mail, return receipt requested to each plaintiff.... As of the date of this affidavit no written notice of appeal has been filed with this office by any Plaintiff in this suit." (Emphasis added.)

In their response to Taxpayers' motion for summary judgment, the Tax Assessors submitted another affidavit by Bennie Stewart which states, in relevant part: "[c]onsequently, pursuant to Section 41.47(d) of the Property Tax Code, all notices of the Appraisal Review Board's decision were sent directly to the Plaintiff property owners by certified mail...." (Emphasis added.)

To be entitled to a summary judgment, the movant must conclusively prove all the essential elements of his claim or defense. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Nautilus Training Center No. 2 v. Seafirst Leasing Corp., 647 S.W.2d 344, 347 (Tex.App.--Corpus Christi 1982, no writ). Thus, a summary judgment should not be granted unless the summary proof establishes that no genuine issues of fact exist and that the movant is entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Barrow v. Jack's Catfish Inn, 641 S.W.2d 624, 625 (Tex.App.--Corpus Christi 1982,...