Opinion issued October 28, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-01238-CV
__________
BPAC TEXAS, LP AS THE PROPERTY OWNERS AND
THE PROPERTY OWNERS, Appellants
V.
HARRIS COUNTY APPRAISAL DISTRICT AND
HARRIS COUNTY APPRAISAL REVIEW BOARD, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2002-45969
MEMORANDUM OPINION
In this ad valorem property tax case, appellants, BPAC Texas, LP and the individual owners of a retail center (collectively, BPAC), challenge the trial court’s rendition of summary judgment in favor of appellees, the Harris County Appraisal District (HCAD) and the Harris County Appraisal Review Board (HCARB) (collectively, the taxing authorities), on BPAC’s claims that the subject property was unequally and excessively appraised. In two issues, BPAC contends that the trial court erred in granting summary judgment in favor of the taxing authorities and in denying BPAC’s motion for continuance.
We affirm.
Factual and Procedural Background
BPAC owns a tract of real property located in Harris County, Texas and comprising approximately 590,000 square feet. A retail shopping center occupies approximately 140,000 square feet of the property. For tax year 2002, HCAD appraised the property as having a market value of $13,681,900 and assessed ad valorem taxes on the property based on that value.
BPAC filed a protest of that valuation and designated an agent to act as its representative at an administrative hearing on its protest, which was held before a three-member panel of HCARB. Before the hearing, BPAC’s agent, Kevin Begnaud of Deloitte & Touche, L.L.P., signed and submitted a written statement to HCARB expressing his opinion that the value of the property was $12,075,920. Begnaud attended the hearing, as did Robert Guiberteau, who appeared as a representative of HCAD. At the hearing, the representatives of the parties offered the following sworn testimony to the chairman of the HCARB panel:
Chairman:Let the record reflect that . . . the value we set will be based only on what we hear in this hearing. Mr. Guiberteau, are you ready for a description?
Guiberteau:Yes, sir. [The subject property is] a Randall’s center built in 1993, 142,180 square feet on 590,852 square feet of dirt for a noticed value of [$]13,681,900. However, the district did a recalculation on income and in the informal has offered the [$]12,075,920; and we’ll agree with that number.
Chairman:Okay. Thank you, Mr. Guiberteau. Mr. Begnaud, is that the property and is that value agreeable to you?
Begnaud:Yes, it is.
Chairman:Okay. Then we’ll close testimony and deliberate.
After a brief deliberation, the HCARB panel set the appraised value of the property at $12,075,920 for tax year 2002. HCARB subsequently ordered HCAD to correct the appraisal roll accordingly, and HCARB sent a copy of its order to BPAC. The order informed BPAC that
IF YOU ARE DISSATISFIED WITH THE ARB’S DECISION, YOU MAY FILE SUIT IN DISTRICT COURT. YOU OR YOUR ATTORNEY MUST FILE YOUR PETITION WITH THE DISTRICT COURT WITHIN 45 DAYS OF THE DATE YOU RECEIVE THIS NOTICE.
In September 2002, BPAC filed suit against the taxing authorities alleging that the property had been unequally and excessively appraised. The taxing authorities answered the suit and, approximately one year later, filed a motion for summary judgment “based on the agreement of value between the parties” and the enforceability of such agreement, pursuant to section 1.111 of the Tax Code. In its response to the motion for summary judgment, BPAC denied the existence of any agreement between its agent and HCAD as to the value of the property and moved for a continuance to conduct additional discovery. The trial court granted the taxing authorities’ motion for summary judgment without making an express ruling on BPAC’s motion for continuance.
Standard of Review
Summary judgment is proper only when the evidence shows that there are no issues of material fact and that the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). We may affirm a summary judgment only when the record shows that a movant has disproved at least one element of each of the plaintiff’s claims or has established all of the elements of an affirmative defense as to each claim. Id.; Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the non-movant is taken as true, and the court must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Id.
Analysis
The taxing authorities moved for summary judgment on BPAC’s claims based solely on the argument that, as a matter of law, BPAC, through its designated agent, had reached a final and enforceable agreement with HCAD as to the appraised value of the property and, therefore, the provisions of the Tax Code foreclose BPAC from contesting the appraisal in an appeal to the trial court.
In its first issue, BPAC contends that the trial court erred in granting summary judgment in favor of the taxing authorities because (1) no agreement as to the appraised value of the property existed between BPAC and any representative of HCAD and (2) BPAC has an “absolute” statutory due process right to seek a judicial appeal from any determination of the appraised value of its property made by HCARB.
Here, there is no dispute that BPAC designated an agent to act on its behalf in its dealings with HCAD and in the proceedings before HCARB. With respect to agreements between property owners and taxing authorities, the Tax Code provides, in relevant part, as follows:
An agreement between a property owner or the owner’s agent and the chief appraiser is final if the agreement relates to a matter:
(1)which may be protested to the appraisal review board or on which a protest has been filed but not determined by the board . . . .
Tex. Tax Code Ann. § 1.111(e) (Vernon 2001).
Our objective in construing a statute is to determine and give effect to the intent of the lawmaking body. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). In so doing, we look first to the plain and common meaning of the statute’s words. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). We should not adopt a construction that would render a law or provision absurd or meaningless. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987); Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 860 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
The summary judgment evidence contradicts BPAC’s assertion that no agreement existed between it and HCAD as to the appraised value of the property. The sworn testimony presented at the protest hearing plainly establishes the existence of an agreement concerning the appraised value of the property, as attested to by representatives of both BPAC and HCAD. Moreover, the summary judgment evidence also establishes that, at the time that the agreement between BPAC and HCAD concerning the appraised value of the property was announced, BPAC’s protest of the initial appraised value of the property had not been determined by the board; thus, pursuant to the provisions of section 1.111(e), the agreement was final, regardless of whether it was later approved or adopted by HCARB. See Tex. Tax Code Ann. § 1.111(e).
BPAC argues, in the alternative, that construing section 1.111(e) as prohibiting it from pursuing a lawsuit deprives it of its statutory due process right to appeal an order of an appraisal review board. As noted by BPAC, the Tax Code permits a property owner to appeal “an order of the appraisal review board determining a protest by the property owner” to a district court. Tex. Tax Code Ann. § 42.01 (Vernon 2001); see id. § 42.21 (Vernon 2001).
It is well-established that the collection of taxes constitutes deprivation of property; therefore, a taxing authority must afford a property owner due process of law. McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus. Regulation of Florida, 496 U.S. 18, 36-37, 110 S. Ct. 2238, 2250-51 (1990); ABT Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146, 155 (Tex. App.—Houston [1st Dist.] 2004, no pet.); see U. S. Const. amend. XIV; Tex. Const. art. I, § 19. However, “[d]ue process simply affords a right to be heard before final assessment; it does not detail the review mechanism.” ABT, 137 S.W.3d at 155 (quoting Dallas County Appraisal Dist. v. Lal, 701 S.W.2d 44, 47 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)). Texas courts have held that, in cases involving taxation, due process is satisfied if a taxpayer is given an opportunity to be heard before an assessment board at some stage of the proceedings. ABT, 137 S.W.3d at 155; Denton Cent. Appraisal Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 266 (Tex. App.—Fort Worth 2003, pet. denied); Lal, 701 S.W.2d at 47.
Here, BPAC filed a protest and was given an opportunity to present and argue the grounds of its protest at a hearing before a panel of HCARB. Instead of pursuing its protest, BPAC choose to reach an agreement with HCAD as to the appraised value of its property, and its agent attested to the existence of the agreement on the record. HCARB’s subsequent order, despite its language, did not “determine” the outcome of BPAC’s protest because, as indicated by the plain language of section 1.111(e), the agreement between BPAC and HCAD was final at the time that it was made and did not require HCARB’s approval. Therefore, we conclude that the summary judgment record established, as a matter of law, that BPAC was not deprived of its statutory due process rights to appeal “an order of the appraisal review board determining a protest by the property owner.”
Accordingly, we hold that the trial court did not err in granting summary judgment in favor of the taxing authorities. We overrule BPAC’s first issue.
Motion for Continuance
In its second issue, BPAC argues that the trial court erred in denying, by implication, its motion for continuance. We review a trial court’s decision to deny a motion for continuance for abuse of discretion. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002).
On appeal, BPAC argues that, at the time that the taxing authorities filed their motion for summary judgment, a continuance was necessary to permit BPAC to conduct discovery on “the allegation that prior to the board hearing [BPAC’s] agent suggested that an agreement as to the proper value be entered into; however, [HCAD’s] representative refused.” However, in its motion for continuance and in its briefing to this Court, BPAC did not explain why it could not have obtained discovery on this issue through its own diligence during the preceding year of litigation, or why it could not have obtained such discovery from its own designated agent who attended the tax protest proceedings and engaged in settlement discussions with the taxing authorities. See Tex. R. Civ. P. 166a(g); 252.
Accordingly, we hold that the trial court did not abuse its discretion in denying BPAC’s motion for continuance. We overrule BPAC’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Bland.