Opinion
No. 05-04-01605-CV
Opinion Filed June 29, 2005.
On Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-10190-H.
Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Optovision Technologies, Inc. appeals the trial court's granting of appellees' no-evidence motion for summary judgment. We affirm the judgment of the trial court.
BACKGROUND
Citing clerical errors committed by its accountant, Optovision filed a motion with the Dallas County Appraisal Review Board (ARB) requesting correction of the appraised taxable value of its personal property for the years 1999 and 2000. See Tex. Tax Code Ann. § 25.25(c) (Vernon 2001). Upon the ARB's denial of its request, Optovision filed a petition for review with the trial court. Appellees' amended answer denied that Optovision had complied with the tax code's prepayment requirements that would allow it to proceed to a final determination of the appeal. See Tex. Tax Code Ann. § 42.08(b) (Vernon 2001).
In response, Optovision filed an unverified motion to determine substantial compliance with § 42.08. The trial court held a hearing on March 9, 2004. On June 29, 2004, the court signed the order denying Optovision's motion without explanation.
On June 1, 2004, appellees filed a no-evidence motion for summary judgment, asserting that there was no evidence that Optovision had filed an oath of inability to pay taxes or that it had substantially complied with § 42.08(b) or (d). On July 13, 2004, the trial court granted the summary judgment motion. The suit was dismissed by order dated August 6, 2004, which specifically found that there was no evidence that Optovision had filed an oath of inability to pay taxes or had substantially complied with § 42.08(b) or (d).
This appeal ensued. Optovision asserts that trial court erred in granting the no-evidence summary judgment based on either finding.
STANDARD OF REVIEW
A no-evidence summary judgment motion may be urged on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. See Espalin v. Children's Medical Center of Dallas, 27 S.W.3d 675, 682-83 (Tex.App.-Dallas 2000, no pet.). A no-evidence motion for summary judgment places the burden on the nonmovant to present summary judgment evidence raising a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); see also Espalin, 27 S.W.3d at 683. We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. General Mills, 12 S.W.3d at 833. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrill Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citations omitted). In determining whether the nonmovant has met its burden, we consider the evidence in the light most favorable to the nonmovant. General Mills, 12 S.W.3d at 833.
THE LAW
The tax code provides for late correction of appraisal roll errors under certain limited circumstances. Tex. Tax Code Ann. § 25.25 (Vernon 2001). In this case, Optovision sought a correction of the appraisal roll under section 25.25(c), which allows the appraisal review board to change the appraisal roll at any time during a five-year period to correct clerical errors. Tex. Tax Code Ann. § 25.25(c) (Vernon 2001). The taxpayer is entitled to appeal a determination of an appraisal review board by filing a petition for review with the district court. Tex. Tax Code Ann. § 25.25(g); § 42.01(1)(B); § 42.21 (Vernon 2001).
The tax code generally requires prepayment of a property owner's taxes in order to avoid forfeiture of the right to proceed to a final determination of the appeal. Tex. Tax Code Ann. § 42.08(b) (Vernon 2001). The statute provides an exception to prepayment, however, if the property owner is unable to pay. Tex. Tax Code Ann. § 42.08(d) (Vernon 2001). To comply with the inability to pay portion of this section, a property owner is required (1) to file an oath of inability to pay and (2) to have a hearing on the issue of whether the access to courts will be unreasonably restricted by requiring the property owner to pay. Id.
The statute also provides a thirty-day grace period for a property owner who substantially, but not fully, complies with section 42.08. Id. "Substantial compliance" means one has performed the "essential requirements" of a statute. Missouri Pac. R.R. Co. v. Dallas County Appraisal Dist., 732 S.W.2d 717, 721 (Tex.App.-Dallas 1987, no writ). A property owner may avoid the forfeiture provision by substantially complying with either section 42.08(b) or (d) or a combination of the two. J.C. Evans Const. Co., Inc. v. Travis Cent Appraisal Dist., 4 S.W.3d 447, 450 (Tex.App.-Austin 1999, no pet.).
DISCUSSION
Optovision contends that the trial court erred in granting summary judgment. In two issues, Optovision claims that there was evidence (1) that it filed an oath of inability to pay and (2) that it substantially complied with section 42.08. We disagree.
Oath of inability to pay
In responding to appellees' allegation that there is no evidence that an oath of inability to pay was filed with the trial court, Optovision requested that the trial court take judicial notice of the exhibit attached to Optovision's motion to determine substantial compliance, but not the motion itself. Optovision represented to the trial court that this exhibit is the affidavit of the president of Optovision, Peter Zuccarelli, who testified under oath to Optovision's inability to pay the property taxes in question. According to Optovision's response, this "affidavit" shows that it was signed by Zuccarelli and was sworn to before a notary public of the State of Texas, who also signed and sealed the document. Optovision asserted that this constitutes its oath of inability to pay.
In reviewing the record, however, we find that this exhibit is actually a photocopy of an affidavit purportedly used as a part of the administrative hearing before the ARB. As such, the photocopy does not bear an original signature of a notary, an original stamp or impression of a notary seal, or an original signature of Zuccarelli. Neither is there any authentication of the exhibit as a true and correct copy of Zuccarelli's affidavit.
An oath generally consists of a pledge that one will act truthfully or, as in this case, that certain statements are true. See Martin v. State, 896 S.W.2d 336, 339 (Tex.App.-Amarillo 1995, no pet.). Although the tax code does not specify the form or contents of the oath of inability to pay, it has to be reduced to writing in order to be filed with the trial court. Tex. Tax Code Ann. § 42.08(d) (Vernon 2001). An affidavit is an oath reduced to writing, constituting prima facie evidence that an oath was taken. See id., citing Marsden v. Troy, 189 S.W. 960, 964 (Tex.Civ.App.-San Antonio 1916, no writ) and Order of the Aztecs v. Noble, 174 S.W. 623, 624 (Tex.Civ.App.-Austin 1915, no writ). A document must meet several requirements to be considered an affidavit: it must signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified by the officer under his seal of office. See Tex. Gov't Code Ann. § 312.011(1) (Vernon 1998). If these formalities are not met, the use of the instrument as proof of the oath is vitiated. Martin, 896 S.W.2d at 339.
Optovision's unauthenticated photocopy does not meet the requirements of an affidavit. Standing alone, the photocopy cannot be used as proof that Zuccarelli swore under oath that Optovision was unable to pay the taxes at the time they were assessed . Thus, despite Optovision's assertions, the document filed as an exhibit to the motion to determine substantial compliance does not constitute an oath of inability to pay.
We overrule Optovision's first issue.
Substantial compliance
In responding to appellees' allegation that there is no evidence of substantial compliance with § 42.08(b) or (d), Optovision asserted that, although the trial court had denied its motion to determine substantial compliance, the ruling had not specified any resulting action as a result of the denial. Optovision further claimed that it had urged appellees to seek clarification of the court's order and that appellees had instead filed the motion for summary judgment. Without further argument or evidence, Optovision then asserted that there is evidence of its substantial compliance with § 42.08(d).
Optovision was not required to present or arrange all of its evidence in response to appellees' motion. See Saenz v. Southern Un. Gas Co., 999 S.W.2d 490, 493-94 (Tex.App.-El Paso 1999, pet. denied). However, it did need to point out evidence that raised a fact issue. Id. In its reply to the no-evidence motion for summary judgment, Optovision did nothing more than present an unsubstantiated claim with respect to substantial compliance with § 42.08(d). And Optovision did not even address substantial compliance with § 42.08(b) in its reply.
We conclude that Optovision failed to carry its burden of proof with respect to substantial compliance. We overrule Optovision's second issue.
CONCLUSION
Having overruled both of Optovision's issues on appeal, we affirm the judgment of the trial court.