Opinion
No. 01-07-00321-CV
Opinion issued February 28, 2008.
On Appeal from the 113th District Court, Harris County, Texas, Trial Court Cause No. 2005-66059.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
MEMORANDUM OPINION
Appellants, Koll Bren Fund VI LP (Koll Bren) and Hartman 3100 Weslayan Acquisition, LP (Hartman), appeal dismissal of their suit for judicial review of resolution of an ad valorem tax-valuation protest for the 2005 tax year. The trial court dismissed the suit, without prejudice, in response to a plea to the jurisdiction by appellee, Harris County Appraisal District (HCAD). HCAD argued that the trial lacked subject-matter jurisdiction because the original plaintiff, Koll Bren, lacked standing to seek judicial review, having sold the property before January 1, 2005. Koll Bren and Hartman bring a single, multi-pronged issue contending that the trial court erred by sustaining HCAD's jurisdictional challenge (1) because newly enacted section 42.21(e) of the Tax Code allows a petition for judicial review to be amended, (2) because section 42.21(a) is not jurisdictional, and (3) because Koll Bren filed its suit "as the property owners and the property owners," which necessarily encompassed the true owner, Hartman. We conclude that neither Koll Bren nor Hartman had standing in the trial court and affirm.
Koll Bren's and Hartman's live pleadings and their notice of appeal identify both HCAD and the Appraisal Review Board of HCAD (Board) as party defendants. The record on appeal does not show, however, that the Board ever appeared in the trial court, and HCAD asserts that its Board was never served and did not appear. We note at the outset that an appraisal-review board is no longer a necessary party to a suit for judicial review filed by a property owner under the circumstances presented here. See TEX. TAX CODE ANN. § 42.21(b) (Vernon 2001); cf., Poly-Am., Inc. v. Dallas County Appraisal Dist., 704 S.W.2d 936, 937-38 (Tex.App.-Waco 1986, no writ) (construing former section 42.21(b), which required joinder of appraisal-review board in suit for judicial review). Because the Board was not a necessary party, and because the record does not affirmatively demonstrate that the Board was ever served or appeared, we hold that HCAD is the only appellee properly before this Court. We further hold that the trial court's judgment of dismissal is final despite lack of disposition of appellants' claims against the Board. See generally In re Sheppard 193 S.W.3d 181, 187 (Tex.App.-Houston [1st Dist.] 2006) (orig. proceeding) (holding that judgment that expressly disposed of served defendants, but did not dispose of named, but unserved, defendants, was final for purposes of appeal) (citing Youngstown Sheet Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)).
See TEX. TAX CODE ANN. § 42.01 (Vernon 2001).
TEX. TAX CODE ANN. § 42.21(e) (Vernon 2001).
See TEX. TAX CODE ANN. § 42.21(a) (Vernon 2001).
Appellate courts have jurisdiction to consider appeals of interlocutory orders, provided a statute expressly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998); see TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(8) (Vernon Supp. 2007) (authorizing courts of appeal to review interlocutory order that grants or denies plea to jurisdiction). Our jurisdiction over this appeal, however, derives not from section 51.014(a)(8), but from section 51.012 of the Remedies Code, which governs ordinary, traditional appeals from final judgments, see TEX. CIV. PRAC. REM. CODE ANN. § 51.012 (Vernon 1997), because the trial court rendered a final judgment when it dismissed Koll Bren's and Hartman's suit for judicial review.
Facts and Procedural History
The property at issue is located at 3100 Weslayan Street, Houston, Texas 77027. It is undisputed that Koll Bren sold the property to Hartman by special warranty deed dated August 20, 2004. On January 1, 2005, therefore, Koll Bren was no longer the owner of the property; instead, Hartman was the owner, by virtue of the August 20, 2004 transfer. Koll Bren nonetheless filed a notice of protest as owner of the property for the year 2005. In the protest, Koll Bren claimed that it owned the property in tax year 2005, and that the ad valorem tax valuation of the property for that tax year was excessive. Though authorized to pursue a protest as the new owner of the property, pursuant to section 41.412 of the Property Tax Code, Hartman did not pursue that remedy. See TEX. TAX CODE ANN. § 41.412 (Vernon 2001).
Koll Bren filed the protest through "an authorized tax agent" identified as O'Connor Associates.
After conducting a hearing on the protest, the Appraisal Review Board of HCAD (Board) issued an order, dated August 26, 2005, stating the Board's determination that initial ad valorem valuation of the property at $5,961,630 should be reduced to $5,420,000 for the tax year 2005. It is undisputed that the Board issued its order to Koll Bren, and that Hartman did not appear in the protest hearing before the Board.
On October 13, 2005, Koll Bren timely challenged the Board's determination by filing an original petition for judicial review with the trial court. See id. § 42.21(a) (Vernon 2001). Koll Bren continued to assert that it owned the property. Over 15 months later, on December 27, 2006, Koll Bren amended its pleadings to include Hartman as a plaintiff in the suit for judicial review. Shortly thereafter, HCAD filed a plea to the jurisdiction contending that the trial court lacked jurisdiction because Koll Bren did not own the property on January 1, 2005 and therefore had no standing to seek judicial review. HCAD provided the trial court with a copy of the deed by which Koll Bren conveyed the property to Hartman on August 20, 2004. The trial court sustained HCAD's plea to the jurisdiction and dismissed the cause without prejudice.
After the trial court granted HCAD's plea to the jurisdiction, Koll Bren and Hartman filed a motion for rehearing or, alternatively, for new trial, by which they sought to introduce evidence that Hartman attempted to identify itself as the owner of the property after January 1, 2005, and that the Board held the hearing that resulted in the final order in Hartman's name. The trial court sustained HCAD's objections to Koll Bren's and Hartman's evidence and denied their motion. Koll Bren's and Hartman's issues on appeal do not challenge these rulings by the trial court.
Controlling Statutes Standard of Review
A. Suit for Judicial Review
Chapters 31 through 43 of the Tax Code contain the Property Tax Code. See TEX. TAX CODE ANN. §§ 31.01-43.04 (Vernon 2001 Supp. 2007). Subchapter C of Chapter 41 of the Code governs a "taxpayer protest" of an ad valorem tax assessment by an appraisal-review board. See id. §§ 41.41-.47 (Vernon 2001 Supp. 2007). Chapter 42 of the Code then permits judicial review of an appraisal-review board's resolution of the protest. See id. §§ 42.01-.29 (Vernon 2001 Supp. 2007).
When the owner of a property has exercised its right to protest under Chapter 41, section 42.01 of the Property Tax Code establishes a "right of appeal" that entitles the owner to challenge that resolution. Appeal is by petition for review to the district court for the county, and review is by trial de novo. Id. §§ 42.21(a) (petition for review), 42.23(a) (scope of review) (Vernon 2001 Supp. 2007).
B. Plea to Trial Court's Subject-Matter Jurisdiction — Standing
Standing is a component of subject-matter jurisdiction that cannot be waived; therefore, a party's lack of standing deprives a court of authority to decide a pending case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993); Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 909 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Subject-matter jurisdiction is essential to a court's power to decide a case and may be challenged by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2001). A trial court determines a plea to the jurisdiction by construing the pleadings in the plaintiff's favor, but the court may also examine and consider any evidence that pertains to the jurisdictional inquiry. Id. at 555; see also Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex. 2004) (describing trial court procedure for evidentiary hearing regarding jurisdiction). We review a trial court's ruling on a plea to the jurisdiction de novo; therefore, we construe the pleadings in the plaintiff's favor and examine the pleader's intent. See Miranda, 133 S.W.3d at 225.
Standing to Seek Judicial Review
Koll Bren's and Hartman's standing to bring the suit for judicial review underscores their issue on appeal and its sub-issues. We address their standing as a preliminary consideration because it pertains to subject-matter jurisdiction. E.g., Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995); Tourneau Houston, Inc., 24 S.W.3d at 909.
Standing demands a real controversy between the parties that will be determined by the judicial declaration sought. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996); Garcia, 893 S.W.2d at 518. Without a breach of a legal right that belongs to the plaintiff, no cause of action can accrue to the plaintiff's benefit. See Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976).
Rights and responsibilities under the Property Tax Code derive from ownership of the subject property. See, e.g., TEX. TAX CODE ANN. § 32.07(a) (Vernon Supp. 2007) (stating that, "[P]roperty taxes are the personal obligation of the person who owns or acquires the property on January 1 of the year for which the tax is imposed. . . .") (emphasis added); TEX. TAX CODE ANN. § 41.41(a)(1) (Vernon 2001) (recognizing right of property owner to determination of the appraised value of property, among other rights); Id. § 41.412(a) (recognizing right of protest in favor of party who acquires ownership of property after January 1 of, and before deadline for filing protest in, given tax year).
The Tax Code envisions and provides for circumstances, not applicable here, in which the owner of the property designates a lessee or other person to act as the agent of the owner in exercising the rights and responsibilities of the owner. See TEX. TAX CODE ANN. § 1.111 (Vernon 2001); see also id. § 41.413(b) (Vernon 2001) (authorizing lessee of real property who is contractually obliged to reimburse property owner for property taxes to protest appraised value of property if owner does not protest).
Sections 42.01 through 42.43 of chapter 42 of the Code govern suits for judicial review, as sought by Koll Bren in this case. See id. §§ 42.01-.43 (Vernon 2001 Supp. 2007). These statutes demonstrate that the right to judicial review derives from ownership of the subject property. Section 42.21(a) of the Code states the procedural requirements that a party who seeks to appeal by the suit for judicial review must meet, as follows:
A party who appeals as provided by this chapter must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered from which an appeal may be had. Failure to timely file a petition for review bars any appeal under this chapter.
Id. § 42.21(a) (Vernon 2001) (emphasis added). Section 42.21(a) does not state who may be an appealing "party," except by description as one "who appeals as provided by this chapter." See id. But "this chapter" is necessarily chapter 42, which governs judicial review. See id. §§ 42.01-.43. And section 42.01, entitled "Right of Appeal by Property Owner," specifies that "a property owner is entitled to appeal . . . an order of the appraisal review board determining . . . a protest by the property owner" as provided by section 41.41 et seq. of the Property Tax Code. Id. § 42.01(1)(A) (emphasis added). The requirement of ownership of the property applies, therefore, to both the right to protest an assessment to a local appraisal board and the right to appeal the board's resolution of the protest to the district court. A property owner must, therefore, protest a determination by the appraisal review board in order to be entitled to appeal by petition for judicial review to the district court. See id.; accord, id. § 42.09 (providing that remedies under Property Tax Code are exclusive).
The right of appeal of a person leasing the property is governed by TEX. TAX CODE ANN. § 42.015.
To qualify as a "party" entitled to seek judicial review of an appraisal-review board determination, Koll Bren and Hartman had to either (1) own the property, (2) be the properly designated agent of the owner, or (3) be the lessee of the property under the circumstances stated in section 41.413. A person or entity who does not meet one of these criteria, but nonetheless seeks judicial review of an appraisal-review board determination, has neither a "legal right" to enforce, see Nobles, 533 S.W.2d at 927, nor any "real controversy" at issue, see Nootsie, Ltd., 925 S.W.2d at 661, and, therefore, no standing under the Code. See Nobles, 533 S.W.2d at 927; Nootsie, Ltd., 925 S.W.2d at 661; Tourneau Houston, Inc., 24 S.W.3d at 909 (addressing question of standing of owner or agent to protest ad valorem taxation and resulting lack of standing to seek judicial review).
A. Koll Bren's Standing to Seek Judicial Review
Despite claiming ownership of the property in its protest to the Board's valuation, Koll Bren conceded in the trial court that it did not own the property on January 1, 2005, having transferred it to Hartman the previous August 20 by special warranty deed. Having never claimed rights under the Property Tax Code as either lessee or agent, the only possible basis on which Koll Bren could assert standing under the Code is section 42.01(1)(A), which governs the right of a property owner to appeal to the district court by petition for review. TEX. TAX CODE ANN. § 42.01(1)(A). But Koll Bren did not own the property on January 1, 2005 and thus had no legal right to appeal under section 42.01(1)(A) and, therefore, no standing to seek judicial review in the district court. See id.; Nobles, 533 S.W.2d at 927; Nootsie, Ltd., 925 S.W.2d at 661; Tourneau Houston, Inc., 24 S.W.3d at 909. Koll Bren's lack of standing as owner thus precludes Koll Bren's "party" status under section 42.21(a). See TEX. TAX CODE ANN. § 42.21(a).
B. Hartman's Standing to Seek Judicial Review
Having acquired the property on August 20, 2004, Hartman acquired standing, as "new owner," to protest the valuation by the appraisal-review board, as provided by chapter 41. See id. § 41.412(a). But Hartman did not pursue its chapter 41 right of protest; instead, Koll Bren pursued that remedy, despite lack of ownership. Thus, the Board did not ever determine "a protest" by the actual "property owner," specifically, Hartman, on which Hartman could premise any "right of appeal" as "property owner." See id. § 42.01(a).
The provisions of the Property Tax Code further provide that its remedies for adjudication of property-tax protests are "exclusive," except as provided by that statute. Id. § 42.09. Accordingly, failure to comply with those procedures deprives the reviewing court of jurisdiction. See Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006); Matagorda County Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 331 (Tex. 2005); Reed v. Prince, 194 S.W.3d 107-08 (Tex.App.-Texarkana 2006, pet. denied); see also Houston Indep. Sch. Dist. v. 1615 Corp., 217 S.W.3d 631, 637 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (deferring to Cameron's holding, with reservations).
Because Hartman did not pursue its chapter 41 right to protest the valuation before the Board, the Board never determined "a protest" by Hartman as "the property owner." See TEX. TAX CODE ANN. § 42.01(a). Accordingly, Hartman had neither a "legal right" to enforce, see Nobles, 533 S.W.2d at 927, nor any "real controversy" for the trial court to determine, see Nootsie, Ltd., 925 S.W.2d at 661, and, therefore, like Koll Bren, no standing under the Code. See Nobles, 533 S.W.2d at 927; Nootsie, Ltd., 925 S.W.2d at 661; Tourneau Houston, Inc., 24 S.W.3d at 909.
Like Koll Bren, Hartman has never asserted rights as lessee or agent.
Having concluded that neither Koll Bren nor Hartman had standing to challenge the Board's determination of Koll Bren's protest by seeking judicial review in the trial court, we turn to Koll-Bren's and Hartman's sub-issues.
Timeliness of Amendment
In their first issue, Koll Bren and Hartman contend that the trial court erred by granting HCAD's plea to the jurisdiction because section 42.21(e) authorized Koll Bren to amend its petition to "correct or change the name of a party." In their third issue, they argue that Koll Bren's petition for judicial review encompasses Hartman because Koll Bren sought review "as the property owners and the property owners."
Section 42.21(a) requires a property owner must file its petition for review of an appraisal-review board determination "within 45 days after the party has received notice that a final order has been entered from which an appeal may be had." TEX. TAX CODE ANN. § 42.21(a). Subsection (e)(1) of this statute further provides that a "timely filed petition" may "subsequently be amended" to "correct or change the name of a party." Id. § 42.21(e)(1). Koll Bren and Hartman contend that because Koll Bren timely filed its petition for review, subsection (e) authorized Koll Ben to amend the petition to include the actual owner, Hartman. We disagree.
Koll Bren and Hartman emphasize that section 42.21(e) imposes no strict time limits, in contrast to the 45-day limit of section 42.21(a). Yet, the Supreme Court of Texas recently affirmed that appraisal-review determinations become final if not appealed to the district court within 45 days. Cameron Appraisal Dist., 194 S.W.3d at 502 (citing TEX. TAX CODE ANN. § 42.21(a)). Koll Bren sought judicial review within the 45-day time limit of 42.21(a) in this case, but Koll Bren had no standing and was thus not a proper "party" to bring the suit for judicial review under Property Code sections 42.01(1)(A) and 42.21(a). No proper party having appealed to the district court within 45 days, the trial court never acquired subject-matter jurisdiction, and the Board's valuation became final when those 45 days expired. See Cameron Appraisal Dist., 194 S.W.3d at 502; Taufiq ex rel. Patrick O'Connor and Assocs., Inc. v. Harris County Appraisal Dist., 6 S.W.3d 652, 654 (Tex.App.-Houston [14th Dist.] 1999, no pet.); see also M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704, 711 (Tex. 2001) (holding, in context of class action, that lack of standing of individual plaintiff when suit was filed deprived court of subject-matter jurisdiction of individual's claims and claims of class members).
The contention that section 42.21(e) authorized Koll Bren to amend its petition to add the true owner, Hartman, is further flawed because the contention assumes that Hartman was a proper party. As noted above, though a proper party, as new owner, to protest the valuation determined by the appraisal-review board, see TEX. TAX CODE ANN. § 41.412, Hartman did not exercise that right. Having not exercised its right as owner, Hartman was not a proper party to seek the chapter 42 remedy of petitioning the district court for judicial review. See id. §§ 42.01(a), 42.21(1)(A), 42.09.
Koll Bren's and Hartman's contention, in their third issue, that Koll-Bren's filing the petition "as the property owners and the property owners" likewise assumes that Hartman was a proper party to seek judicial review, which it was not.
We overrule the first and third sub-issues.
Jurisdictional Challenge
In their second issue, Koll Bren and Hartman contend that the trial court erred by dismissing their petition for review because section 42.21 of the Tax Code is not jurisdictional. The thrust of these arguments is to bring Hartman within the jurisdiction of the district court, despite not attempting to join Hartman until over a year after the 45-day deadline of section 42.21(a) of the Property Code. See Cameron Appraisal Dist., 194 S.W.3d at 502 ("Administrative decisions are final if not appealed to the district court within 45 days."). In addition, Koll Bren and Hartman seek to circumvent the requirement that Hartman must have first filed a protest in order to challenge the results of the protest in the district court. See TEX. TAX CODE ANN. §§ 42.01(a), 42.21(1)(A), 42.09.
Reading the third issue broadly and in accordance with the supporting arguments, we construe the challenge as encompassing the entirety of chapter 42 of the Property Tax Code, which governs judicial review.
In support of their jurisdictional challenge, Koll Bren and Hartman also contend that the trial court strayed from the pleadings in determining jurisdiction by considering evidence of ownership of the property. We reject this contention, given that the ownership facts in this case are undisputed. Moreover, Bland Indep. School Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) confirms that trial courts may properly consider evidence pertinent to jurisdictional inquiry.
In challenging these statutory requirements, Koll Bren and Hartman rely on Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000), in which the supreme court stated that "all claims are presumed to fall within the jurisdiction of the district court unless the Legislature or Congress has provided that they must be heard elsewhere." Kazi overruled Mingus v. Wadley, 285 S.W. 1084 (Tex. 1926), which recognized the "general rule," that statutory provisions are "mandatory and exclusive, and must be complied with in all respects" when a "cause of action and remedy for its enforcement are not derived from the common law but from the statute." Kazi, 12 S.W.3d at 75.
Before Kazi, the supreme court upheld, as mandatory and jurisdictional, the statutory prerequisites for a petition for judicial review of a resolution of a valuation protest to the district court. See Appraisal Review Bd. v. Int'l Church of Foursquare Gospel, 719 S.W.2d 160, 160 (Tex. 1986). Koll Bren and Hartman emphasize, however, that Church of Foursquare Gospel relied, in turn, on the reasoning of Mingus, which Kazi overruled. See Church of Foursquare Gospel, 719 S.W.2d at 160 (citing Bullock v. Amoco Prod. Co., 608 S.W.2d 899, 901 (Tex. 1980). Koll Bren and Hartman also rely on a footnote in Matagorda County Appraisal Dist., in which the supreme court stated, "[W]e have yet to address whether [the] holding [in Church of Foursquare Gospel] survives" the holding in Kazi that compliance with statutory requirements for asserting wrongful death claims was "case determinative," but not a jurisdictional question. Matagorda County Appraisal Dist., 194 S.W.3d at 331 n. 5.
As the supreme court noted, the question whether both owner and lessee can pursue chapter 41 protest was not a jurisdictional issue in Matagorda County Appraisal Dist. v. Coastal Liquids Partners, Inc., 194 S.W.3d 501, 331 (Tex. 2005).
The supreme court decided Matagorda County Appraisal District in 2005 and decided Cameron Appraisal District in 2006, five and six years after Kazi, respectively. Both cases affirm that the exhaustion of remedies provisions of section 42.09 of the Property Tax Code are mandatory and jurisdictional. See Cameron Appraisal Dist., 194 S.W.3d at 501-02 (holding that, "Because exhaustion of administrative remedies was mandatory, we reverse.") (quoting Matagorda County Appraisal Dist. 165 S.W.3d at 331); Matagorda County Appraisal Dist., 165 S.W.3d at 331 (recognizing as "true [that] a taxpayer's failure to pursue an appraisal review board proceeding deprives the courts of jurisdiction to decide most matters relating to ad valorem taxes.") (dicta).
Koll Bren and Hartman acknowledge these statements, but contend that they do not apply. More specifically, they argue that section 42.09 of the Property Code does not apply — and that section 42.01 is not jurisdictional in this case — because "there is no question in this case that the administrative review process was exhausted" by Koll Bren. Despite having invoked the administrative process by filing a protest before the Board, it is undisputed, and Koll Bren concedes, that it did not own the property, though it claimed ownership, both before the board and the district court. Because Koll Bren did not own the property, it had no standing to seek judicial review, which deprived the trial court of jurisdiction. We decline to invoke Kazi policy concerns in order to premise the standing of Hartman on an entity that lacks standing as a matter of law. Koll Bren and Hartman have failed to demonstrate that section 42.21(a) is not jurisdictional.
More importantly, as explained above, Hartman also has no standing as matter of law because it did not file a protest with the Board and thus failed to exhaust the administrative procedures required to invoke the trial court's jurisdiction to address the petition for review. See TEX. TAX CODE ANN. § 42.09. As the supreme court reiterated just recently, in Cameron Appraisal District, "[W]e have repeatedly held that a taxpayer's failure to pursue an appraisal[-]review board proceeding deprives the courts of jurisdiction to review most matters relating to ad valorem taxes." 194 S.W.3d at 502 (citing TEX. TAX CODE ANN. § 42.09; Matagorda County Appraisal Dist., 165 S.W.3d at 331, among other cases).
Given the supreme court's having unequivocally enforced section 42.09 as mandatory and jurisdictional, and Hartman's failure to exhaust its remedies by filing a protest to the board, though authorized to do so by section 41.412, we hold that Hartman's failure to pursue its remedies also barred the trial court's subject-matter jurisdiction to review determination of the protest filed by Koll Bren in this case, and, therefore, that Koll Bren's and Hartman's reliance on Kazi is further misplaced. See TEX. TAX CODE ANN. § 42.09; Cameron Appraisal Dist., 194 S.W.3d at 501; Matagorda County Appraisal Dist., 165 S.W.3d at 331; see also Reed, 194 S.W.2d at 107-08 (applying exhaustion-of-remedies principles); Houston Indep. Sch. Dist., 217 S.W.3d at 637 (deferring to Cameron precedent).
We overrule the second issue.
Conclusion
We affirm the judgment of the trial court.