Metro Hospitality Management , LLC v. Harris County Appraisal District

Opinion issued February 6, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00571-CV
———————————
METRO HOSPITALITY MANAGEMENT, LLC, Appellant
V.
HARRIS COUNTY APPRAISAL DISTRICT, Appellee

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2012-55709

MEMORANDUM OPINION

Appellant, Metro Hospitality Management, LLC, appealed to the trial court

the appraisal of its commercial property. Appellee, Harris County Appraisal

District (“HCAD”), filed a plea to the jurisdiction, which the trial court granted. In

two issues, Metro Hospitality argues (1) the trial court abused its discretion by
denying Metro Hospitality’s motion for continuance and (2) the trial court erred by

failing to hold a hearing on Metro Hospitality’s motion for substantial compliance.

We affirm.

Background

Some time before September 21, 2012, Metro Hospitality received a

notification from Harris County of its appraisal of the value of Metro Hospitality’s

property on Kirby Drive in Houston, Texas. Harris County appraised the property

to be worth $23,754,072. Metro Hospitality filed a notice of protest, and the

review board appraised the property to be worth $19,031,483. Metro Hospitality

filed a notice for de novo review of the decision with the district court on

September 21, 2012.

On November 6, 2012, The Harris County Tax Assessor-Collector issued the

2012 Property Tax Statement to Metro Hospitality based on the $19,031,483

appraisal. The statement assessed $481,348.07 in taxes, due by January 31, 2013.

On March 6, Metro Hospitality paid $294,354.48 in the taxes owed. On March 31,

Metro Hospitality paid $230,314.91 in the taxes owed along with penalties and

interest that had accrued. It is undisputed that, by March 31, Metro Hospitality had

paid all outstanding taxes, penalties, and interest on the property taxes for 2012.

On May 3, HCAD filed a plea to the jurisdiction, arguing that the late

payment of taxes deprived the trial court of jurisdiction to review the review

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board’s appraisal. A hearing was set for May 10 at 10:00 A.M. The day before the

hearing, upon Metro Hospitality’s attorney’s request, HCAD entered into a Rule 11

agreement to pass the hearing and to have the motion set on the trial court’s

submission docket on May 13, 2013 at 8:00 A.M.

On May 10 at 3:57 P.M., Metro Hospitality filed a response to the plea to the

jurisdiction, arguing that it lacked the financial resources to pay the taxes until

March and that, accordingly, any untimeliness was excused for the purpose of

appealing to the district court. In its response, Metro Hospitality claimed “[a]

hearing on the matter will be set at least 45 days from the date of filing.”

On May 13 at 8:40 A.M., Metro Hospitality filed a motion for continuance

on the submission of HCAD’s plea to the jurisdiction. In the motion, Metro

Hospitality argued that “a plea to the jurisdiction is similar to a summary judgment

and should be treated as such.” Accordingly, Metro Hospitality argued that it

should have received 21-day notice of HCAD’s plea to the jurisdiction instead of

the seven days it received. Metro Hospitality referenced its claim in the response

to the plea to the jurisdiction that it was excused from its late payment of taxes,

arguing its attorney did not learn of the defense until May 10. Metro Hospitality

argued that, “[s]ince the information was provided at such a late date to [its

attorney] and adequate notice for a plea to the jurisdiction was not given” based on

its equation of a plea to the jurisdiction to a motion for summary judgment, the

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trial court should continue the submission date of the plea to the jurisdiction “to

effectuate justice on this matter.” In its prayer, Metro Hospitality asked that

submission of the plea to the jurisdiction be “continued for a period of at least 30

days.”

Nine days later, the trial court granted HCAD’s plea to the jurisdiction.

Motion for Continuance

In its first issue, Metro Hospitality argues the trial court abused its discretion

by denying Metro Hospitality’s motion for continuance. HCAD argues that Metro

Hospitality has not preserved this issue for appeal. We agree.

Rule 33.1 of the Texas Rules of Appellate Procedure provides, in pertinent

part,

(a) . . . . As a prerequisite to presenting a complaint for appellate
review, the record must show that:

(1) the complaint was made to the trial court by a timely
request, objection, or motion that:

(A) stated the grounds for the ruling that the
complaining party sought from the trial court with
sufficient specificity to make the trial court aware
of the complaint, unless the specific grounds were
apparent from the context. . .

TEX. R. APP. P. 33.1(a)(1)(A). Likewise, the complaint made on appeal must

comport with the complaint made at trial. See In re L.M.I., 119 S.W.3d 707, 710–

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11 (Tex. 2003) (rejecting argument that was not same argument made at trial as

unpreserved error).

Metro Hospitality recognized in its live pleading that its authority to appeal

the appeal board’s appraisal of its property value derives from Chapter 42 of the

Texas Tax Code. See TEX. TAX CODE ANN. § 42.01(a)(1)(A) (Vernon Supp. 2013)

(providing right to appeal order of appraisal review board determining protest of

appraisal by property owner). An appeal to the trial court, however, does not affect

the property owner’s obligation to pay the taxes owed by the deadline. TEX. TAX

CODE ANN. § 42.08(b) (Vernon Supp. 2013).1 Instead, failure to pay by the

delinquency date “forfeits the right to proceed to a final determination of the

appeal.” Id.

Under certain circumstances, however, a property owner may be excused

from payment of the taxes. TEX. TAX CODE ANN. § 45.08(d) (Vernon Supp. 2013).

The determination of whether the property owner can be excused is made by the

trial court after a hearing on the matter. Id. There are certain conditions precedent

to the right to the hearing, however. Specifically, “[u]pon motion of a party and

after the movant’s compliance with Subsection (e), the court shall hold a hearing to

1
After the trial court granted the plea to the jurisdiction, some changes to section
42.08 became effective. See Act of May 22, 2013, 83rd Leg., R.S., ch. 1259, § 24,
2013 Tex. Sess. Law Serv. 3183, 3192 (West) (codified at TEX. TAX CODE ANN.
§ 42.08) (effective June 14, 2013). Because the changed portions of section 42.08
are not relevant to this appeal, we cite to the current statute.
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review and determine compliance with this section . . . .” Id. Subsection (e)

requires the movant to provides 45 days’ notice of the hearing to determine

compliance with the section by “certified mail, return receipt requested, to the

collector for each taxing unit that imposes taxes on the property.” Id. § 42.08(e).

Metro Hospitality argues that its response to HCAD’s plea to the jurisdiction

constitutes a motion to determine substantial compliance with section 42.08 and

we agree. On appeal, Metro Hospitality argues that the trial court abused its

discretion by denying their motion for continuance because it needed to provide 45

days’ notice of a hearing on the motion for substantial compliance. This is not the

argument it raised in its motion for continuance, however.

In the motion for continuance, Metro Hospitality argued it should have

received 21 days’ notice of HCAD’s plea to the jurisdiction because it reasoned

that a plea to the jurisdiction should be treated like a motion for summary

judgment. 2 In the motion, the focus is on whether HCAD should have been

required to provide more notice to Metro Hospitality, not on whether Metro

Hospitality should have been allowed more time to set a hearing and provide notice

to the tax assessors. In addition, the amount of time Metro Hospitality was seeking

was 21 days, not 45. Even in its prayer, Metro Hospitality sought only 30 days’

notice. Accordingly, there is no reasonable basis to claim that compliance with

2
In a motion for summary judgment the movant must file the motion 21 days before
the date of the hearing. TEX. R. CIV. P. 166a(c).
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subsection 42.08(e) was presented to the trial court as a ground for seeking a

continuance. See TEX. R. APP. P. 33.1(a)(1)(A) (requiring complaining party to

present claim to trial court with sufficient specificity to make trial court aware of

complaint). Because Metro Hospitality’s argument on appeal regarding why it

should have received a continuance does not comport with the argument presented

to the trial court, Metro Hospitality’s complaint on appeal has not been preserved.

See In re L.M.I., 119 S.W.3d at 710–11.

Metro Hospitality argues in its reply brief that this issue is preserved because

its “motion for continuance makes specific reference to” the motion to determine

substantial compliance with section 42.08, contained in Metro Hospitality’s

response to the plea to the jurisdiction. While this is correct, the reference to the

motion for substantial compliance in the motion for continuance is only to point

out that Metro Hospitality’s attorney learned of the defense at a late date—after the

attorney had obtained an agreement to have the plea to the jurisdiction set on the

court’s submission docket. Moreover, while the motion for substantial compliance

explicitly recognized that Metro Hospitality would need 45 days’ notice prior to

setting a hearing, the motion for continuance argued that it should have received 21

days’ notice and never requested more than a 30-day continuance for the

submission of the plea to the jurisdiction. The argument in the motion for

continuance was that HCAD had not provided sufficient notice for its plea to the

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jurisdiction, not that Metro Hospitality needed more time to provide notice to

HCAD. In this context, reference to the motion for substantial compliance would

not be sufficient to identify the 45-day hearing notice requirement as a ground for

the continuance.

We overrule Metro Hospitality’s first issue.

Hearing on Motion for Substantial Compliance

In its second issue, Metro Hospitality argues the trial court erred by failing

to hold a hearing on Metro Hospitality’s motion for substantial compliance. Metro

Hospitality argues section 42.08 mandated a hearing once Metro Hospitality filed

its motion for substantial compliance.

A. Standard of Review

Matters of statutory construction are questions of law, which this Court

reviews de novo. See McCollum v. Tex. Dep’t of Licensing & Regulation, 321

S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). When

construing a statute, our primary objective is to ascertain and give effect to the

Legislature’s intent. TEX. GOV’T CODE ANN. § 312.005 (Vernon 2013); see Harris

Cnty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105 S.W.3d 88, 97 (Tex.

App—Houston [1st Dist.] 2003, pet. denied). To discern that intent, we must

consider the plain language of the statute and may consider the legislative history

and the consequences from alternative construction. See TEX. GOV’T CODE ANN.

8
§ 311.023 (Vernon 2005); see also Tex. Gas Transmission, 105 S.W.3d at 97. We

further consider statutes as a whole rather than their isolated provisions. TGS-

NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). Finally, we

presume that the Legislature chooses a statute’s language with care, including each

word chosen for a purpose, while purposefully omitting words not chosen. Id.

B. Analysis

Metro Hospitality argues that section 42.08 mandates a hearing after a party

has filed a motion to determine substantial compliance with the section. Filing a

motion is not the only prerequisite, however. Subsection (d) provides, in pertinent

part, “On the motion of a party and after the movant’s compliance with Subsection

(e), the court shall hold a hearing to review and determine compliance with this

section . . . .” TEX. TAX CODE ANN. § 42.08(d). Subsection (e) requires the

movant to provide 45 days’ notice of the hearing to determine substantial

compliance. Id. § 42.08(e).

By the plain language of the statute, then, compliance with subsection (e) is

a condition precedent to the requirement for the trial court to hold a hearing to

determine substantial compliance. Id. § 42.08(d). It is established that Metro

Hospitality did not provide 45 days’ notice of any hearing to determine substantial

compliance. Because the conditions precedent for the hearing were not met, Metro

Hospitality has not established its right to the hearing.

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 Metro Hospitality correctly points out that subsection (e) and the reference

to it in subsection (d) were added to the statute in September 1, 2009. See Act of

May 26, 2009, 81st Leg., R.S., ch. 530, § 1, 2009 Tex. Gen. Laws 1229, 1229.

Metro Hospitality argues that the legislative history from 2009 and before establish

that the Legislature did not intend to make the 45-day notice requirement a

condition precedent. Even if we agreed with this argument, however, “[w]hen a

statute’s language is clear and unambiguous it is inappropriate to resort to the rules

of construction or extrinsic aids to construe the language.” Molinet v. Kimbrell,

356 S.W.3d 407, 414 (Tex. 2011) (internal quotations omitted). The Supreme

Court of Texas has explained,

Construing clear and unambiguous statutes according to the language
actually enacted and published as law—instead of according to
statements that did not pass through the law-making processes, were
not enacted, and are not published as law—ensures that ordinary
citizens are able to rely on the language of a statute to mean what it
says.

Id. We find no ambiguity in the plain language of the pertinent portions of

subsection 42.08(d). Accordingly, we may not rely on the legislative history to

create a meaning contrary to the plain language of the statute.

Metro Hospitality also relies on the first sentence of subsection (d) to argue

that the statute requires a hearing without a 45-day condition precedent. The first

sentence of subsection (d) provides,

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 After filing an oath of inability to pay the taxes at issue, a party may
be excused from the requirement of prepayment of tax as a
prerequisite to appeal if the court, after notice and hearing, finds that
such prepayment would constitute an unreasonable restraint on the
party’s right of access to the courts.

TEX. TAX CODE ANN. § 42.08(d). We agree that this sentence establishes a

movant’s right to a hearing to determine substantial compliance with the tax

payment requirements. But it does not stand alone. See TGS-NOPEC

Geophysical, 340 S.W.3d at 439 (holding courts consider statutes as whole rather

than their isolated provisions). As we have held, the second sentence establishes

the conditions precedent the movant must satisfy before the right to the hearing is

established. Nothing in the first sentence nullifies or qualifies these conditions

precedent. Metro Hospitality did not provide 45 days’ notice of a hearing on its

motion for substantial compliance. Accordingly, it has not satisfied all conditions

precedent entitling it to a hearing. See TEX. TAX CODE ANN. § 42.08(d).

We overrule Metro Hospitality’s second issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley
Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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