Summary
In Amidei, the court held that the property owners' affidavit was conclusory and, thus, incompetent summary judgment evidence.
Summary of this case from Harris Cty. v. RiverwayOpinion
No. 01-08-00833-CV
Opinion issued July 16, 2009.
On Appeal from the 125th District Court, Harris County, Texas, Trial Court Cause No. 2007-76047.
Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
MEMORANDUM OPINION
In this ad valorem property tax case, appellants, Maurice and Sara Amidei, appeal from a summary judgment rendered in favor of appellees, Harris County Appraisal District ("HCAD") and the Harris County Appraisal Review Board ("ARB") (collectively, "the taxing authorities"), on the Amideis' claim that the subject property had been excessively appraised for tax year 2007.
On appeal, the Amideis present ten issues. In their first through eighth issues, the Amideis challenge the taxing authorities' summary judgment evidence on the grounds that the evidence was improperly presented or that each exhibit was inadmissible or incompetent to support summary judgment. In their ninth and tenth issues, the Amideis contend that the trial court erred by "either overruling or failing to grant" the Amideis' traditional and no-evidence motions for summary judgment.
We affirm.
Summary of Facts and Procedural History
The Amideis are the owners of homestead property located in Harris County. For tax year 2007, HCAD determined the market value of the subject property to be $127,028 and the appraised value of the property to be $106,590. HCAD assessed ad valorem taxes on the property based on the appraised value. The Amideis filed an administrative protest of the market valuation and executed an "Appointment of Agent" form at HCAD, authorizing O'Connor Associates to represent them at the protest hearing before the ARB. Richard Nguyen of O'Connor Associates appeared on behalf of the Amideis.
The hearing, as recorded, follows in its entirety:
[HCAD]: Okay. The account number is 114831008 ending in 29. Jamie Stanley, I'm under oath.
Mr. Nguyen: My name is Rich Nguyen. I'm also under oath. To my best knowledge the property was not listed for sale in 2006. It was currently [sic] listed for sale in 2007, my opinion on it being 23,895 — 123,895.
[ARB Member 1]: 123,895?
Mr. Nguyen: Yes, sir.
[ARB Member 1]: Okay. And we're trying to determine the (indiscernible) of the — (indiscernible) value of the home at $123,895. $123,895. [sic]
[ARB Member 2]: Okay. Thank you, Mr. Arnett. As agreed to by the agent, we're going to forego the introduction to the hearing and go to the appraiser for a description of the property.
[HCAD]: And the property is at 9802 Chiselhurst Drive. It's Lot 109, Block 8, built in 1984; 1,831 square feet; three bedrooms; two full baths; in good condition; slab foundation; brick exterior wall. The total market value is $127,028.
[ARB Member 2]: Okay. Does this describe your property, sir?
Mr. Nguyen: Yes, it is.
[ARB Member 2]: All right. Give us your testimony.
Mr. Nguyen: Okay. I just wanted to look at some of these sales in here. On the evidence summary, there's two square footage [sic] that's a little bit larger than my subject, which is Number 1 and Number 3. You average those two out, you arrive at the figure of 122,296. Then you look at the I (indiscernible) ratio, it's indicating that we are definitely overvalued on my subject. So, therefore, 123,895 is what I'm asking from the panel today.
[ARB Member 2]: Okay. Questions, panel members?
[ARB Member 1]: None.
[ARB Member 3]: (Indiscernible.)
[ARB Member 2]: All right, Ms. Stanley?
[HCAD]: I'll concur to the value.
[ARB Member 2]: Questions, panel members?
[ARB Member 1]: No, no questions.
[ARB Member 3]: No (indiscernible).
[ARB Member 2]: I presume you have a rebuttal, sir?
Mr. Nguyen: No rebuttal required.
[ARB Member 2]: Okay. So do you concur with that?
[ARB Member 1]: Concur.
[ARB Member 3]: Concur.
[ARB Member 2]: The account ending in 0029 — excuse me — the panel listened to the testimony of the agent and it's set for 2007 market value at $123,895. And that ends this hearing.
Following the hearing, the ARB issued an "Order Determining Protest" in conformity with the parties' agreement that the market value of the subject property for tax year 2007 be $123,895. The ARB Order reflects a 2007 appraised value of $106,950 and states that taxes would be assessed on the appraised value.
The Amideis filed a suit for review in the district court, contending that the "taxable value" of the subject property for tax year 2007 was actually $96,900. The taxing authorities moved for summary judgment, pursuant to Texas Rule of Civil Procedure 166a(c), on the basis that section 1.111 of the Tax Code, and cases construing, prohibited any further appeal of the agreed value. To support their motion, the taxing authorities attached a certified copy of the Notice of Appraised Value; a certified copy of the Amideis' Appointment of Agent form; a certified transcription of the audio recording of the ARB hearing; a certified copy of the Amideis' agent's signature and opinion of value; a certified copy of the ARB's Recommendation of Value; and a certified copy of the ARB's Order Determining Protest.
In response to the taxing authorities' motion for summary judgment, the Amideis first objected to and moved to strike all of the taxing authorities' summary judgment evidence and then contended that the taxing authorities' motion was "not supported by any summary judgment evidence." The Amideis attested by affidavit attached to their response that "in their opinion," the "market value" of the subject property, as of January 1, 2007, was $96,900.
The Amideis also moved for traditional and no-evidence summary judgments. The Amideis contended that they were entitled to a traditional summary judgment on the basis of their affidavit, in which they asserted that "in their opinion," the "market value" of the subject property, as of January 1, 2007, was $96,900. The Amideis additionally moved for a no-evidence summary judgment on the ground that the taxing authorities had "no proof that the market value of [the Amideis'] property on January 1, 2007 was $123,895."
The taxing authorities responded that, as a matter of law, once the Amideis, through their agent, Nguyen, struck an agreement with HCAD at the ARB hearing regarding the market value of the subject property, the agreement became final and was not subject to judicial review. In addition, the taxing authorities objected that the Amideis' affidavit did not constitute competent summary judgment evidence.
On September 29, 2009, the trial court granted summary judgment in favor of the taxing authorities and ordered that the Amideis take nothing. No order on the Amideis' motions for summary judgment appears in the record.
Summary Judgment
In their first through eighth issues, the Amideis contend that the trial court erred by granting summary judgment in favor of the taxing authorities. In their ninth and tenth issues, the Amideis contend that the trial court erred by denying, or failing to grant, traditional and no-evidence summary judgment in favor of the Amideis.
A. Standard of Review
We review a trial court's grant of summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
1. Traditional
A summary judgment under Texas Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). A plaintiff moving for summary judgment must prove that it is entitled to summary judgment as a matter of law on each element of his cause of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
The movant must conclusively establish its right to judgment as a matter of law. See Jones, 710 S.W.2d at 60. A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). In deciding whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in its favor. Knott, 128 S.W.3d at 215.
2. No-evidence motion
After an adequate time for discovery, the party without the burden of proof may move for summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an essential element of the non-moving party's claim. TEX. R. CIV. P. 166a(i). A no-evidence motion for summary judgment is essentially a motion for a pre-trial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). Once the motion is filed, the burden shifts to the nonmoving party to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Id. at 582. "We review the evidence presented by the motion and response in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id. "The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." TEX. R. CIV. P. 166a(i). If the non-movant brings forward more than a scintilla of evidence that raises a genuine issue of material fact, then summary judgment is not proper. Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). More than a scintilla exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
3. Cross-motions
When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment proof presented by both sides and determine all questions presented. See Centerpoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430 (Tex.App.-Houston [1st Dist] 2005, pet. denied). We consider summary judgment grounds that the trial court rules on and that the movant preserves for appellate review that are necessary to a final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).
B. The Law
Pursuant to Tax Code section 1.111, a property owner may designate a person to act as the agent of the owner for any purpose under that title in connection with the property or the property owner. TEX. TAX CODE ANN. § 1.111(a) (Vernon 2008). The designation of an agent must be made by written authorization signed by the owner, or other person authorized to act on behalf of the owner, and must clearly indicate that the person is authorized to act on behalf of the property owner in property tax matters relating to the property or to the property owner. Id. § 1.111(b). The Tax Code allows a property owner or its agent and the chief appraiser of an appraisal district to make agreements regarding property tax matters. See id. § 1.111(e). Such an agreement is final if, inter alia, it relates to a matter which may be protested to the appraisal review board or on which a protest has been filed but not determined by the board. Id. § 1.111(e)(1). Tax Code section1.111(e) agreements are not subject to a property owner's statutory suit for judicial review under Chapter 42. MHCB (USA) Leasing Fin. Corp. v. Galveston Cent. Appraisal Dist., 249 S.W.3d 68, 82-83 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).
C. Analysis: The Taxing Authorities' Motion for Summary Judgment
1. Admissibility of the Evidence: Incorporation by Reference
In their first issue, the Amideis contend that the taxing authorities failed to incorporate their summary judgment evidence into their motion for summary judgment, and therefore they failed to properly present any competent summary judgment evidence, citing Boeker v. Syptak, 916 S.W.2d 59, 61 (Tex.App.-Houston [1st Dist.] 1996, no writ) (recognizing that movant for summary judgment must expressly and specifically identify supporting evidence which it seeks to have considered by trial court).
Here, the record shows that section two of the taxing authorities' motion for summary judgment expressly and specifically identifies the "Summary Judgment Evidence" and each of the attached exhibits. In addition, the taxing authorities reference each of the exhibits in the discussion section of their motion. We conclude that the taxing authorities' summary judgment evidence was properly before the trial court. See id. at 62 (concluding that evidence in support of motion for summary judgment was properly before trial court when movant attached evidence to motion and expressly identified evidence being relied upon).
Accordingly, we overrule the Amideis' first issue.
2. Designation of Agent
In their third, fourth, and sixth issues, the Amideis contend that the taxing authorities failed to present competent summary judgment evidence that the Amideis designated Richard Nguyen to be their agent at the protest hearing before the ARB. Although the Amideis acknowledge that they appointed O'Connor Associates to act as their agent and they acknowledge that Nguyen is an employee of O'Connor Associates, the Amideis complain that Exhibit B fails to authorize O'Connor Associates to delegate its authority to its employee, Richard Nguyen.
Exhibit B of the taxing authorities' summary judgment evidence is an HCAD form, "Appointment of Agent," pursuant to section 1.111, on which the Amideis granted O'Connor Associates, "General power to represent [the Amideis] in Tax matters." See TEX. TAX CODE ANN. § 1.111(a), (b). The form reflects that the Amideis could have chosen to limit their agent's authority in several ways; however, the Amideis chose to grant their agent full authority. See id. § 1.111(b). As required, Mr. Amidei's signature appears on the form. See id. Exhibit B does not specifically name Nguyen.
The taxing authorities contend that the issue is waived. Although the Amideis raised objections to the taxing authorities' evidence in response to the motion for summary judgment, the record does not reflect that the Amideis raised this issue. See TEX. R. APP. P. 33.1 (a)(1)(A); TEX. R. CIV. P. 166a(f).
Even if we conclude that the issue was not waived, however, it cannot be sustained. O'Connor Associates, as a corporation, can only act through individuals, or "agents of some character." See Mobile Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). The Amideis acknowledge in their brief on appeal that "Nguyen was an employee of O'Connor Associates."
We conclude that Exhibit B was properly before the trial court and that it constitutes competent summary judgment evidence that the Amideis granted O'Connor Associates full authority to represent them in their property tax matters before the ARB, which necessarily included acting through its employee, Nguyen.
The Amideis also contend that they executed a verified plea denying that they authorized Nguyen to execute Exhibit D, a matter they raised by objection in the trial court. Exhibit D is an electronic disclosure statement to the ARB, signed by Nguyen, in which he attested that his testimony at the ARB hearing would be true and correct; that he had been offered the opportunity to inspect and obtain copies of the chief appraiser's evidence; that he was authorized to appear at the hearing; that he had not been employed by HCAD within the prior three years; and that the "Owner's opinion of value for this property is: $123,895."
We have already concluded above that Nguyen was authorized to act on behalf of the Amideis. Nguyen's execution of the disclosure statement in order to appear before the ARB was necessarily in conjunction with the general authority that the Amideis granted to represent them in a hearing before the ARB. We conclude that Exhibit D was properly before the trial court.
Accordingly, we overrule the Amideis' third, fourth, and sixth issues.
3. The Agreement
In their fifth issue, the Amideis contend that the trial court erred by granting summary judgment in favor of the taxing authorities because "the statements in [the taxing authorities' summary judgment evidence, Exhibits B through F] are inadmissible conclusions insufficient to prove the Amideis made an agreement at the [ARB] protest hearing that the value of the subject property should be $123,895 for the tax year 2007."
As stated, Exhibit B of the taxing authorities' summary judgment evidence is an HCAD form, "Appointment of Agent," in which the Amideis designated O'Connor Associates to act as their agent and which bears the signature of appellant, Maurice Amidei. Exhibit C is the transcript of the ARB hearing. Exhibit D, as stated, is the electronic disclosure statement to the ARB signed by Nguyen. Exhibit E is an "ARB Panel Recommendation" that the "Initial Market" value of the property was $127,028; that the "Final" market value was $123,895; that the "Initial Appraised" value was $106,590; and that the "Final Appraised" value was $106,590. Exhibit F is the ARB's "Order Determining Protest," in conformity with the parties' agreement that the market value of the subject property for tax year 2007 be $123,895 and that the appraised value be $106,590.
The Tax Code does not prescribe any particular method of informing the ARB of an agreement between an owner or agent and the chief appraiser. Hartman v. Harris County Appraisal Dist., 251 S.W.3d 595, 600 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). An agreement exists under section 1.111 of the Tax Code "[w]hen the evidence shows that the property owner and the appraisal district share the same opinion as to the value of the property." Mann v. Harris County Appraisal Dist., No. 01-07-00436-CV, 2008 WL 1747807, at *3 (Tex.App.-Houston [1st Dist.] Apr. 17, 2008, no pet.); see also Hartman, 251 S.W.3d at 600 (explaining that harmony of opinions creates agreement); Sondock v. Harris County Appraisal Dist., 231 S.W.3d 65, 69 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (reviewing transcript of hearing and concluding that agreement became final as soon as it was reached).
Here, Exhibit C, the transcript of the ARB hearing, demonstrates that the Amideis' agent, Nguyen, entered an agreement with HCAD concerning the value of the subject property. As laid out above, Nguyen testified concerning the factual bases for his request that the subject property be valued at $123,895-including a comparison to comparable properties and noting that the subject property was listed for sale in 2007 for $123,895. HCAD responded, "I'll concur to the value." When, at an ARB hearing, the appellants' agent and the appraiser each announce the same opinion as to the value of the property, an agreement is created. See Hartman, 251 S.W.3d at 600. We conclude that Exhibit C constitutes factual evidence of an agreement between the Amideis' agent, Nguyen, and HCAD.
Accordingly, we overrule the Amideis' fifth issue.
4. The Agreement: Authentication of Transcript of ARB Hearing
In their second issue, the Amideis contend that Exhibit C, the transcript of the ARB hearing, was not authenticated and was therefore "inadmissible as an affidavit or as summary judgment evidence." The taxing authorities contend that the issue is waived because it was not raised in the trial court.
Pursuant to Rule of Civil Procedure 166a(f), "Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." TEX. R. CIV. P. 166a(f). However, a defect in substance cannot be waived by failing to object or obtain a written order, and the absence of proper authentication constitutes a substantive objection. Trimble v. Gulf Paint Battery, Inc., 728 S.W.2d 887, 889 (Tex.App.-Houston [1st Dist.] 1987, no writ). Documents submitted as summary judgment proof must be sworn to or certified. TEX. R. CIV. P. 166a(f); see Medford v. Medford, 68 S.W.3d 242, 246 (Tex.App.-Fort Worth 2002, no pet.); Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex.App.-San Antonio 1997, writ denied).
Here, the record reflects that the transcript of the ARB hearing is certified. Therefore, Exhibit C was properly considered by the trial court.
Accordingly, we overrule the Amideis' second issue.
5. The Agreement: Illegal, Void, Unenforceable, or Violates Public Policy
In their eighth issue, the Amideis contend that the trial court erred by granting summary judgment in favor of the taxing authorities because the Agreement "caused an increase in the Amideis' property value from its 2006 value of $96,900 to a 2007 value of $123,895, a 27.859% increase, which is 17.859% in excess of the 10% limit of the appraisal amount increase in one year set by § 23.23([a])(2)(A) Tex. Tax Code, and resulted in an illegal, void, and unenforceable agreement, against public policy."
Section 23.23(a)(2)(A) of the Tax Code provides, in relevant part, as follows:
§ 23.23 Limitation on Appraised Value of Residence Homestead
(a) . . . regardless of whether the appraisal office has appraised the property and determined the market value of the property for the tax year, an appraisal office may increase the appraised value of a residence homestead for a tax year to an amount not to exceed the lesser of:
(1) the market value of the property for the most recent tax year that the market value was determined by the appraisal office; or
(2) the sum of:
(A) 10 percent of the appraised value of the property for the preceding tax year;
(B) the appraised value of the property for the preceding tax year; and
(C) the market value of all new improvements to the property.
TEX. TAX CODE ANN. § 23.23 (Vernon 2008) (emphasis added).
The record shows, and it is undisputed, that the appraised value of the subject property for the preceding tax year, that of 2006, was $96,900. See id. § 23.23(a)(2)(B). Ten percent of that value is $9,690. See id. § 23.23(a)(2)(A). No new improvements are noted in the record or at issue. See id. § 23.23(a)(2)(C). The sum of $96,900 and $9,690 is $106,590. See id. 23.23(a)(2)(A)-(C). The record reflects that the taxing authorities's appraised value of the property for tax year 2007 was $106,590. Hence, the record reflects that the taxing authorities' valuation comports with Tax Code section 23.23, and no error is shown.
Accordingly, we overrule the Amideis' eighth issue.
6. Admissibility of the Evidence: Tax Code section 42.23
In their seventh issue, the Amideis contend that the trial court erred by granting summary judgment in favor of the taxing authorities because the taxing authorities' summary judgment evidence constitutes records of actions taken by the ARB, which are "incompetent and inadmissible" pursuant to section 42.23(a) and (b) of the Tax Code. TEX. TAX CODE ANN. § 42.23 (Vernon 2008).
The Tax Code allows a property owner to seek judicial review of only limited types of orders. TEX. TAX CODE ANN. § 42.01(1)(A); MHCB (USA) Leasing Fin. Corp., 249 S.W.3d at 82-83. Agreements under section1.111(e) are not subject to a property owner's statutory suit for judicial review under Chapter 42. TEX. TAX CODE ANN. §§ 1.111(e), 41.01(b); MHCB (USA) Leasing Fin. Corp., 249 S.W.3d at 82-83.
Here, to support their motion for summary judgment, the taxing authorities' burden was to establish that a section 1.111 agreement was reached, not that the factual basis of the valuation of the subject property was supported. As established above, the taxing authorities' summary judgment evidence shows that the Amideis, through their authorized agent, entered into an appraisal agreement with HCAD, under Tax Code section 1.111(e). Hence, the agreement is not subject to a statutory suit for judicial review under Chapter 42, and the trial court did not err by granting summary judgment in favor of the taxing authorities.
Accordingly, we overrule the Amideis' seventh issue.
D. Analysis: The Amideis' Traditional Motion for Summary Judgment
In their ninth issue, the Amideis contend that the trial court erred by "either overruling or failing to grant" their traditional motion for summary judgment. The Amideis' motion for summary judgment states as follows, in its entirety:
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Plaintiffs' Motion embraces their entire cause of action against defendants. Based on the attached summary judgment evidence, the Plaintiffs' Original Petition, there is no genuine issue of material fact regarding each and every element of the Plaintiffs' cause of action, and plaintiffs are entitled to a judgment as a matter of law.
III. [sic]
The affidavit of plaintiffs[] hereto attached in opposition to defendants' Motion for Summary Judgment is here adopted and referred to for all purposes herein as if copied at length herein, proves the market value of their property, the subject of this suit on January 1, 2007 was $96,900.
The Amideis attached as their sole evidence in support of their summary judgment their own affidavit, the body of which states in its entirety:
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared MAURICE AMIDEI and SARA A. AMIDEI who after first being duly sworn on their oaths stated:
They [sic] are qualified and authorized to make this affidavit. They [sic] have personal knowledge of the facts stated herein which are true and correct.
That their [sic] property at [address], the subject of this suit, had in their [sic] opinion the market value of $96,900 on January 1, 2007.
In its response to the motion for summary judgment, the taxing authorities contended that opinion testimony is not acceptable or sufficient or competent as summary judgment evidence. We agree.
Here, as the plaintiffs moving for summary judgment, the Amideis were required to prove that they were entitled to summary judgment as a matter of law on each element of their cause of action. MMP, Ltd., 710 S.W.2d at 60. Statements of opinion and conclusions made in an affidavit are not competent summary judgment proof and should be disregarded in determining the sufficiency of proof to support the summary judgment. Harley Davidson Motor Co., Inc. v. Young, 720 S.W.2d 211, 213 (Tex.App.-Houston [14th Dist.] 1986, no writ); see Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no pet.) ("A conclusory statement is one that does not provide the underlying facts to support the conclusion.").
In their affidavit, the Amideis attested only that the subject property "had in their opinion the market value of $96,900 on January 1, 2007." (Emphasis added.) This statement, unsupported by any facts, is insufficient to support summary judgment. Because their affidavit was their sole source of evidence to support their motion for summary judgment and we have concluded that it does not constitute competent summary judgment evidence, the Amideis are without proof to support their motion. Hence, the trial court did not err by denying the Amideis' motion .
Accordingly, we overrule the Amideis' ninth issue.
E. Analysis: The Amideis' No-evidence Motion for Summary Judgment
In their tenth issue, the Amideis contend that the trial court erred by "either overruling or failing to grant" their no-evidence motion for summary judgment. The Amideis' no-evidence motion states as follows, in its entirety:
There is no evidence of one or more of the essential elements of defendants claim or defense upon which they would have as the burden of proof on trial, to-wit: defendants have no proof that the market value of plaintiffs' property on January 1, 2007 was $123,895 as claimed by defendants.
In their response to the Amideis' motion for summary judgment, the taxing authorities pointed to their evidence that an agreement was reached in Exhibit C, the transcript of the hearing. We concluded above that Exhibit C constitutes evidence of an agreement as to the market value of the property. When, as here, the non-movant brings forth more than a scintilla of evidence that raises a genuine issue of material fact, then summary judgment is not proper. See Flameout Design Fabrication, Inc., 994 S.W.2d at 834.
Accordingly, we overrule the Amideis' tenth issue.
Conclusion
We affirm the judgment of the trial court.