Anheuser-Busch, L.L.C. v. Harris County Tax Assessor-Collector

ACCEPTED
01-15-00422-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/27/2015 7:56:00 AM
CHRISTOPHER PRINE
CLERK

No. 01-15-00422-CV
______________________________________________
FILED IN
1st COURT OF APPEALS
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
HOUSTON, TEXAS 7/27/2015 7:56:00 AM
CHRISTOPHER A. PRINE
______________________________________________
Clerk

Anheuser-Busch, L.L.C.
Appellant

v.

Harris County Tax Assessor-Collector
Appellee
___________________________________________

BRIEF OF APPELLANT
___________________________________________

Ray Langenberg
State Bar No. 11911200
rlangenberg@scottdoug.com
Curtis Osterloh
State Bar No. 24002714
costerloh@scottdoug.com
Scott Douglass & McConnico LLP
303 Colorado, Suite 2400
Austin, Texas 78701
(512) 495-6300
(512) 495-6399 Fax

ORAL ARGUMENT REQUESTED

1217914
 IDENTITY OF PARTIES AND COUNSEL
Plaintiff-Appellant
Anheuser-Busch, L.L.C.

Counsel for Appellants
Ray Langenberg
State Bar No. 11911200
rlangenberg@scottdoug.com
Curtis Osterloh
State Bar No. 24002714
costerloh@scottdoug.com
Scott Douglass & McConnico LLP
303 Colorado, Suite 2400
Austin, Texas 78701
(512) 495-6300
(512) 495-6399 Fax

Defendant-Appellee
Harris County Tax Assessor-Collector

Counsel for Defendant-Appellee
Keith Toler
Harris County Attorney’s Office
1019 Congress, 15th Floor
Houston, TX 77002
Telephone: (713) 755-5101 ext.
Fax: (713) 755-8924
keith.toler@cao.hctx.net

Appellant’s Brief – Page 2
1217914
 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL.................................................................. 2

TABLE OF CONTENTS ................................................................................................ 3

INDEX OF AUTHORITIES ........................................................................................... 5

STATEMENT OF THE CASE ....................................................................................... 7

STATEMENT OF JURISDICTION ............................................................................... 7

RECORD AND APPENDIX .......................................................................................... 7

ISSUE ON APPEAL ....................................................................................................... 8

STATEMENT OF FACTS ............................................................................................. 8

SUMMARY OF ARGUMENT .................................................................................... 10

ARGUMENT ................................................................................................................ 12

A. No penalty and interest was due because Anheuser-Busch’s tax
due date was extended by the Tax Assessor’s failure to mail tax
notices to both Anheuser-Busch and its agent, as required by
statute. ..................................................................................................... 12

1. The trial court’s order .................................................................. 12

2. The legislative history proves that “and” means “and.” .............. 12

3. The dual notice requirement was within the legislative
prerogative. .................................................................................. 14

4. The trial court’s actual notice requirement produces
unreasonable results that are inconsistent with the statute. ......... 14

5. The courts should defer to the wisdom of the Legislature. ......... 15

B. Response to Defendant’s Other Contentions .......................................... 18

1. Tax Code § 31.04 is related to Tax Code § 31.01. ...................... 18

2. Tax Code § 31.04 can be harmonized with Tax Code §
31.01(g). ....................................................................................... 18

3. Plaintiff did not waive its right to a refund. ................................. 19

Appellant’s Brief – Page 3
1217914
 4. The voluntary payment rule does not apply. ............................... 20

5. The Tax Assessor was required to send duplicate notices. .......... 21

6. Anheuser-Busch’s claim is not barred by sovereign
immunity. ..................................................................................... 23

7. Anheuser-Busch is not seeking a waiver of penalties and
interest. ......................................................................................... 24

CONCLUSION AND PRAYER .................................................................................. 25

CERTIFICATE OF COMPLIANCE ............................................................................ 27

APPENDIX ................................................................................................................... 27

Appellant’s Brief – Page 4
1217914
 INDEX OF AUTHORITIES

Cases
Aldine ISD v. Ogg, 122 S.W.3d 257 (Tex. App. - Houston [1st Dist.]
2003, no pet.) ...................................................................................... 18, 19
Alex Sheshunoff Mgmt. Serv., L.P. v. Johnson, 209 S.W.3d 644 (Tex.
2006) ..........................................................................................................13
Bd. of Ins. Comm'rs of Tex. v. Guardian Life Ins. Co. of Tex., 180 S.W.2d
906 (Tex. 1944) .........................................................................................14
Brennan v. City of Willow Park, 376 S.W.3d 910 (Tex. App. - Fort Worth
2012, pet. denied) ............................................................................... 23, 24
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) .................................23
Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864
(Tex. 1999) ................................................................................................15
Highland Church of Christ v. Powell, 640 S.W.2d 235 (Tex. 1982) ..................21
Hilco Elec. Co-op., Inc. v. Midlothian Butane Gas Co., Inc., 111 S.W.3d
75 (Tex. 2003) ...........................................................................................17
Mahoney v. Slaughter, No. 01-14-00471-CV (Tex. App. – Houston [1st
Dist., 2015, no pet.) (mem. op.).................................................................25
Syntax, Inc. v. Hall, 899 S.W.2d 189 (Tex. 1995) ...............................................15
Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994)................................23
Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex.
2002) ..........................................................................................................23
University of Texas Health Science Center at Houston v. Gutierrez, 237
S.W.3d 869 (Tex. App. - Houston [1st Dist.] 2007, pet. denied)..............16
Statutes
Tex. Civ. Prac. & Rem. Code § 101.101 .............................................................17
Tex. Gov't Code § 22.220 ......................................................................................7
Tex. Tax Code § 31.01.........................................................................................18
Tex. Tax Code § 31.01(a) ....................................................................................11
Tex. Tax Code § 31.01(g) ....................................................................................18
Tex. Tax Code § 31.02.........................................................................................18

Appellant’s Brief – Page 5
1217914
Tex. Tax Code § 31.04.........................................................................................18
Tex. Tax Code § 31.04(a) ....................................................................... 11, 19, 25
Tex. Tax Code § 31.04(e) ............................................................................. 11, 19
Tex. Tax Code § 33.011.......................................................................................24
Other Authorities
Act of May 20, 2005, 79th R.S., ch. 846, 2005 Tex. Gen. Laws 2888 ...............13

Appellant’s Brief – Page 6
1217914
 STATEMENT OF THE CASE
Nature of the Case: Appellant/Plaintiff is seeking a refund of a protest
payment of penalty and interest on a property tax
assessment by Appellee/Defendant.

Trial Court: 55th Judicial District Court of Harris County, Texas;
Judge Jeff Shadwick presiding.

Course of Proceedings: Anheuser-Busch filed a motion for summary judgment
that the trial court denied. CR 15, 52. The Tax
Assessor then filed a motion for summary judgment
that the trial court granted. CR 60, 175. The trial
court’s summary judgment order dismissed
Anheuser’s claims with prejudice and constituted a
final appealable judgment.

STATEMENT OF JURISDICTION
This Court has jurisdiction of this appeal from a final judgment of a
district court pursuant to Texas Government Code § 22.220.

RECORD AND APPENDIX
There is no Reporter’s Record – this is a summary judgment case. The
Original Clerk’s Record (“CR”) includes the documents requested in
Appellant’s First Supplemental Request for Clerk’s Record.

The Second Supplemental Clerk’s Record (“2CR”) contains an imaging
error. The first page of Plaintiff’s Motion for Summary Judgment Exhibit 2 -
Defendant’s Responses to Plaintiff’s Request for Admissions, Interrogatories
and Production – appears at 2CR 8 and the first page is repeated on the
following five pages. But the subsequent pages are omitted. To minimize any
further delay, the document is attached as Appendix 3 in lieu resubmitting the
document to the District Clerk under Rule of Appellate Procedure 34.5(e).
Appellee’s counsel has no objection to this alternative procedure. Appellant will
use the Rule 34.5(e) procedures if requested by the Court.

Appellant’s Brief – Page 7
1217914
 The Appendix to this brief includes the following items:

App. 1 April 15, 2015 Order granting Defendant’s Motion for Summary
Judgment and rendering take-nothing judgment for Defendant. CR
175.

App. 2 Comptroller’s Property Tax Form 50-162 • 08-09/6
App. 3 Plaintiff’s Motion for Summary Judgment Exhibit 2 – Defendant’s
Responses to Plaintiff’s Request for Admissions, Interrogatories
and Production

ISSUE ON APPEAL
The trial court erred in granting the Tax Assessor’s motion for summary
judgment and denying Anheuser-Busch’s motion for summary judgment
because:

1. The tax statute required the Tax Assessor to send tax notices to
both Anheuser-Busch and its agent, and the undisputed failure of the Tax
Assessor to send both tax notices extended Anheuser-Busch’s payment deadline
so that Anheuser-Busch’s tax payment was timely and Anheuser-Busch was
entitled to a refund of penalty and interest paid under protest;

2. Actual notice of the amount of tax is insufficient; and
3. The Tax Assessor’s other contention are insufficient to support its
motion or defeat Anheuser-Busch’s motion.

STATEMENT OF FACTS
Anheuser-Busch owned seven properties in Harris County. 2CR 6

(Summary Judgment Affidavit of Jeffrey J. Comotto). According to the Tax

Assessor’s discovery answers, the Tax Assessor mailed two tax statements to

Anheuser-Busch in November 2012 and the remaining five tax statements to

Anheuser-Busch’s agent, Duff & Phelps, also in November 2012. 2CR 8 and

Appellant’s Brief – Page 8
1217914
Appendix 3 (Defendant’s Responses to Interrogatory 3 and Request for

Admission 3).

There is a factual dispute as to whether the Tax Assessor mailed the tax

statements to Duff & Phelps because Duff & Phelps claims that it never received

the tax statements. 2CR 43 (Affidavit of Gregory Maxim). But if Anheuser-

Busch is correct that the Tax Assessor was required to mail the tax statements

both to Anheuser-Busch and its agent, Duff & Phelps, then the factual dispute is

immaterial. It is undisputed that the Tax Assessor did not mail the tax

statements to both Anheuser-Busch and its authorized agent before

January 10, 2013. The January 10 date for notice is significant because the

regular February 1 date for payment is postponed if the tax bills are mailed after

January 10.

In the absence of a complete set of tax bills, Anheuser-Busch checked the

Harris County Appraisal District Internet site as the best information available to

make payment. CR 105 (Answer to Interrogatory 2). Using this information,

Anheuser-Busch tendered a check for the $9,015,911.93 tax payment in January

2013, but the bank dishonored the check due to security protocols. 2CR 8 and

Appendix 3 (Answer to Request for Admission 1); CR 106 (Answer to

Interrogatory 3).

Appellant’s Brief – Page 9
1217914
 After receiving a delinquent tax bill from the Harris County Tax

Assessor-Collector for its properties in Harris County, Anheuser-Busch tendered

$9,015,911.93 on February 27, 2013, which was the tax amount excluding the

assessed penalty and interest. 2CR 7 (Affidavit of Jeffrey J. Comotto).

Anheuser-Busch also included a $30.00 fee assessed because of the failure of its

first check to clear the company’s bank. Id. The Tax Assessor continued to

accrue interest on the alleged remaining deficiency, so Anheuser-Busch paid

$631,114.08 on December 2, 2013 under protest and under duress in order to

stop additional interest from accruing. Id. Anheuser-Busch then filed this

lawsuit to recover the amount paid under protest. CR 4.

SUMMARY OF ARGUMENT
Anheuser-Busch is seeking a refund of penalty and interest on the alleged

late property tax payment. Anheuser-Busch contends that its February 27, 2013

tax payment was in fact timely because the deadline for payment was postponed

by statute.

The Texas Tax Code postpones the delinquency date for tax bills mailed

after January 10:

Section 31.04. POSTPONEMENT OF DELINQUENCY DATE.

(a) If a tax bill is mailed after January 10, the delinquency date
provided by Section 31.02 of this code [February 1] is postponed to
the first day of the next month that will provide a period of at least
21 days after the date of mailing for payment of taxes before

Appellant’s Brief – Page 10
1217914
 delinquent unless the taxing unit has adopted the discounts
provided by Section 31.05(c) of this code, in which case the
delinquency date is determined by Subsection (d) of this section.

Tex. Tax Code § 31.04(a) (West 2015). Subsection (e) further provides:

(e) If the delinquency date for a tax is postponed under Subsection
(a) or (a-1), that postponed delinquency date is the date on which
penalties and interest begin to be incurred on the tax as provided by
Section 33.01.

Id. § 31.04(e).

With regard to timely mailing, the key statute to be interpreted in this case

is Texas Tax Code § 31.01(a). That statute requires the tax assessor to mail the

tax bill to the owner and to the owner’s agent:

(a) Except as provided by Subsections (f), (i-1), and (k), the
assessor for each taxing unit shall prepare and mail a tax bill to
each person in whose name the property is listed on the tax roll and
to the person's authorized agent.

Id. § 31.01(a) (emphasis added).

The Tax Assessor says that it mailed tax bills for some properties to

Anheuser-Busch and tax bills for other properties to Anheuser-Busch’s

authorized agent, but the Tax Assessor concedes that it did not mail the tax bills

to both Anheuser-Busch and its authorized agent for each property prior to

January 10, 2013. 2CR 8 and Appendix 3 (Response to Request for Admission

3). Accordingly, Anheuser-Busch contends that the delinquency dates were

postponed and Anheuser-Busch did not owe penalty and interest.

Appellant’s Brief – Page 11
1217914
 ARGUMENT

A. No penalty and interest was due because Anheuser-Busch’s tax due
date was extended by the Tax Assessor’s failure to mail tax notices to
both Anheuser-Busch and its agent, as required by statute.

1. The trial court’s order
The trial court’s Order granting the Tax Assessor’s motion for summary

judgment did not state a reason. CR 175. However, the trial court’s order

denying Anheuser-Busch’s earlier motion for summary judgment stated:

The facts appear to be undisputed. The Defendant did not
strictly comply with Section 31.01(a) of the Tax Code, but Plaintiff
had actual notice of the tax, and attempted to pay it prior to the due
date. Sections 312.005 and 312.006 of the Government Code direct
this Court to diligently attempt to ascertain legislative intent, and to
construe statutes to achieve that purpose. The Court ascertains that
the purpose of the Tax Code provisions at issue is to make sure the
taxpayer has notice, not to provide a loophole which allows the
taxpayer to avoid timely payment.

CR 52. The trial court’s decision is wrong for the following reasons:

 The legislative history proves that “and” means “and.”
 The dual notice requirement was within the legislative prerogative.
 The trial court’s actual notice requirement produces unreasonable results
that are inconsistent with the statute.
 The courts should defer to the wisdom of the Legislature.

2. The legislative history proves that “and” means “and.”
“Ordinarily, the truest manifestation of what legislators intended is what

lawmakers enacted, the literal text they voted on.” Alex Sheshunoff Mgmt. Serv.,

Appellant’s Brief – Page 12
1217914
L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006). In 2005, the Texas

Legislature amended Tax Code § 31.01(a) to replace “or” with “and”:

….

http://www.lrl.state.tx.us/scanned/sessionLaws/79-0/SB_898_CH_846.pdf, Act

of May 20, 2005, 79th R.S., ch. 846, 2005 Tex. Gen. Laws 2888. 2CR 45.

Anheuser-Busch requests the Court to take judicial notice of this act.

The word “or” can be exchanged for the word “and” only in extreme

circumstances:

Ordinarily the words “and” and “or,” are in no sense
interchangeable terms, but, on the contrary, are used in the structure
of language for purposes entirely variant, the former being strictly
of a conjunctive, the latter, of a disjunctive, nature. Nevertheless, in
order to effectuate the intention of the parties to an instrument, a
testator, or a legislature, as the case may be, the word “and” is
sometimes construed to mean “or.” This construction, however, is
never resorted to except for strong reasons and the words should
never be so construed unless the context favors the conversion; as
where it must be done in order to effectuate the manifest intention
of the user; and where not to do so would render the meaning
ambiguous, or result in an absurdity; or would be tantamount to a
refusal to correct a mistake.

Appellant’s Brief – Page 13
1217914
Bd. of Ins. Comm'rs of Tex. v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906,

908 (Tex. 1944). Here, there can be no doubt that the Legislature meant “and”

because it amended the statute to use that word. Thus, there is a dual notice

requirement – to the taxpayer and to the taxpayer’s authorized agent.

3. The dual notice requirement was within the legislative
prerogative.
The dual notice requirement does not result in an absurdity. The

consequences of a delinquent payment are severe. In this instance, Anheuser-

Busch suffered an additional liability of $631,114.08 for being a few days late.

Given the severe consequences, it was certainly within the legislative

prerogative to postpone the delinquency date if the taxing authority did not

fulfill its mandatory duty to provide dual notice by mail to both the taxpayer and

its agent.

4. The trial court’s actual notice requirement produces
unreasonable results that are inconsistent with the statute.
By contrast, the trial court’s actual notice requirement in lieu of mailed

notice could produce unreasonable results that are inconsistent with the statute.

Suppose an owner delegates the payment responsibility to its agent. An owner

reading the plain words of the statute would have the right to assume that the

Tax Assessor is obligated mail tax bills to both the owner and the agent. See

Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 866 (Tex.

Appellant’s Brief – Page 14
1217914
1999) (“[O]rdinary citizens should be able to rely on the plain language of a

statute to mean what it says.”).

So, relying upon the plain meaning of the statute, the owner should have

the right to assume that the agent will receive the tax bill and have sufficient

information to pay the bill without further action by the owner. However, under

the trial court’s interpretation, if the taxing authority fails to mail the bill to the

agent but the owner has actual notice, the statutory requirement has been met

and the tax is due without notice to the agent. To avoid potential delinquency,

the owner would be compelled to forward all tax notices to its agent for

payment. This obligation is inconsistent with the Legislature’s intent to allow

an agent to transact business on behalf of an owner.

5. The courts should defer to the wisdom of the Legislature.
The trial court’s order suggests that any requirement greater than actual

notice would provide a “loophole which allows the taxpayer to avoid timely

payment.” However, the Court is not free to substitute its wisdom for that of the

Legislature. See Syntax, Inc. v. Hall, 899 S.W.2d 189, 192 (Tex. 1995) (“If the

language as construed is merely unwise, the wisdom or expediency of law is the

sole prerogative of the legislature.”). The Legislature chose to delay the

delinquency date if the taxing authority did not mail the notices as required by

the statute, and the Court is obligated to follow that choice.

Appellant’s Brief – Page 15
1217914
 A parallel example of deference to legislative wisdom is this Court’s

decision in University of Texas Health Science Center at Houston v. Gutierrez,

237 S.W.3d 869 (Tex. App. - Houston [1st Dist.] 2007, pet. denied). In that

case, a statute required that expert reports be “served” on each defendant. Id. at

871. The appellees urged that proof of compliance was “unnecessary” because

the appellant “admitted receiving the expert report.” Id. at 872. The opinion

held:

Here, appellees did not send the report at all. If we accept appellees'
argument that actual receipt (from any source) of expert reports
prior to suit's being filed, regardless of the manner in which those
reports were furnished, meets the requirements of section 74.351,
then we must completely disregard legislative intent as evidenced
by the replacement of the word "furnish" with the word "serve."

Id. at 873. In the UT Health Science Center case, as in this case, the Legislature

amended the statute to impose stricter conditions that some might consider

unwise. But this Court followed the statute and dismissed the lawsuit even

though the hospital had received a copy of the expert report that had not been

“served” upon it. Here, some may consider it unwise to permit a taxpayer to

delay payment of a known tax amount because the taxing authority did not mail

the bill as required by the statute. But, like the decision in the UT Health

Science Center case, this Court should follow the unambiguous requirements of

the statute.

Appellant’s Brief – Page 16
1217914
 Finally, if the Legislature had intended actual notice to be sufficient, it

could have easily said so. See Hilco Elec. Co-op., Inc. v. Midlothian Butane

Gas Co., Inc., 111 S.W.3d 75, 81 (Tex. 2003) (“If, as the HILCO companies

contend, the Legislature's objective was to allow electric cooperatives to engage

in "any lawful purpose," the Legislature could have easily said so…”). An

example of an actual notice requirement is in the Texas Tort Claims Act:

Sec. 101.101. NOTICE.
(a) A governmental unit is entitled to receive notice of a claim
against it under this chapter not later than six months after the day
that the incident giving rise to the claim occurred. The notice must
reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
(b) A city's charter and ordinance provisions requiring notice
within a charter period permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by
Subsections (a) and (b) do not apply if the governmental unit has
actual notice that death has occurred, that the claimant has received
some injury, or that the claimant's property has been damaged.
Tex. Civ. Prac. & Rem. Code § 101.101 (West 2011) (emphasis added).

For these reasons, the Court should rule that Anheuser Busch’s payment

was timely because the delinquency date was postponed by the Tax Assessor’s

failure to comply with the unambiguous dual notice requirement of the Tax

Code.

Appellant’s Brief – Page 17
1217914
B. Response to Defendant’s Other Contentions

1. Tax Code § 31.04 is related to Tax Code § 31.01.
Defendant’s Motion at 9 (CR 68) claimed that “Tex. Tax Code Section

31.04(a) has nothing to do with Tex. Tax Code Section 31.01(a).” However,

since both sections deal with tax bills, they are related, and they must be

construed together. See Aldine ISD v. Ogg, 122 S.W.3d 257, 270 (Tex. App. -

Houston [1st Dist.] 2003, no pet.) (“statutes bearing on the same subject matter

should be construed together”). Section 31.01 requires dual tax bills be mailed

by October 1. Section 31.02 then sets a February 1 delinquency date. Section

31.04 then postpones the delinquency date if the tax bills are not mailed by

January 10, as required by section 31.01.

2. Tax Code § 31.04 can be harmonized with Tax Code § 31.01(g).
Defendant’s Motion at 10 (CR 69) further contended that Anheuser-

Busch’s cause of action was defeated by Tax Code § 31.01(g), which provides:

(g) Except as provided by Subsection (f), failure to send or receive
the tax bill required by this section, including a tax bill that has
been requested to be sent by electronic means under Subsection (k),
does not affect the validity of the tax, penalty, or interest, the due
date, the existence of a tax lien, or any procedure instituted to
collect a tax.

Tex. Tax Code § 31.01(g) (West 2008) (emphasis added). “[A]t first glance,

subsection 31.01(g) appears to conflict with subsection 31.04(e).” AISD v. Ogg,

122 S.W.3d at 270. Subsection 31.04(e) provides:

Appellant’s Brief – Page 18
1217914
 (e) If the delinquency date for a tax is postponed under Subsection
(a) or (a-1), that postponed delinquency date is the date on which
penalties and interest begin to be incurred on the tax as provided by
Section 33.01.

Tex. Tax Code § 31.04(e) (West 2008). However, “statutes bearing on the same

subject matter should be construed together, and both given effect, if possible.”

AISD v. Ogg, 122 S.W.3d at 270. Accordingly, this Court held:

We believe that these provisions can both be given effect by
construing section 31.04 to apply in situations in which the taxing
unit has the name and mailing address for the taxpayer, but either
neglects to mail the tax bill or mails it late; however, section 31.04
will not apply in instances in which the taxing unit cannot send the
tax bill because it does not have the taxpayer's name or address.
Id. In this instance, it is undisputed that the Tax Assessor had the correct names

and addresses, but failed to comply with the dual notice requirement.

Accordingly, under section 31.04(a) and (e), the delinquency dates were

postponed.

3. Plaintiff did not waive its right to a refund.
The Defendant’s Motion at 10-11 (CR 69-70) argued that waiver entails

the “actual intent to relinquish the right or intentional conduct inconsistent with

that right” and that Plaintiff’s failed attempt to pay the tax on January 28, 2013

constituted a waiver of its right to timely pay at a later date. However, a prompt

invalid payment attempt cannot reasonably be interpreted as an intention to

relinquish the right to make valid, timely payment at a later date. Suppose after

Appellant’s Brief – Page 19
1217914
the failed attempt on January 28, Anheuser-Busch made payment on January 29.

Under the twisted reasoning of the Response, Anheuser-Busch would have

waived its right to make timely payment at a later date and would owe penalty

and interest even though the standard payment deadline without extension was

January 31.

Perhaps if Anheuser-Busch had tendered tax, penalty, and interest, it

would have exhibited conduct inconsistent with its right to make timely

payment. But Anheuser-Busch only tendered the tax amount, demonstrating

that it was not waiving its right to make timely payment. 2CR 7 (Summary

Judgment Affidavit of Jeffrey J. Comotto). Anheuser-Busch did not pay penalty

and interest until much later, and Anheuser-Busch made that payment under

protest. Id.

4. The voluntary payment rule does not apply.
The Defendant’s Motion at 12 (CR 71) argued that when Anheuser-Busch

made its first attempt at payment in January 2013, it “attempted to make a

voluntary payment to Harris County” even though the check was returned for

insufficient funds. It is hard to understand how an action that was not even a

payment could be a voluntary payment.

Furthermore, the purpose of the voluntary payment rule is that a “party

should not be allowed to mislead his opponent into believing that the

Appellant’s Brief – Page 20
1217914
controversy is over and then contest the payment and seek recovery.” Highland

Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982). Anheuser-Busch

failed to make a valid payment of only the tax amount in January 2013; it made

a valid payment of only the tax amount only in February 2013; and it made a

payment under protest of the penalty and interest amount in December 2013.

2CR 7 (Summary Judgment Affidavit of Jeffrey J. Comotto). Under these facts,

the Tax Assessor could not have been misled that Anheuser-Busch was

conceding delinquency.

The Texas Supreme Court has also stated that “duress may be implied

from a statute which merely imposes penalty and interest for failure to timely

pay a tax.” Highland Church of Christ v. Powell, 640 S.W.2d at 237.

Anheuser-Busch paid the disputed penalty and interest amount under duress to

stop further penalty and interest from accruing further, and it explicitly

designated the payment as being under protest. 2CR 7. There was no voluntary

payment of penalty and interest.

5. The Tax Assessor was required to send duplicate notices.
The Defendant’s Motion at 12 (CR 71) asserted that the Tax Assessor was

not required to send duplicate notices because the government’s appointment of

agent form stated:

NOTE: These notices can affect your legal rights. The affected
officers are not required to send you duplicate copies.

Appellant’s Brief – Page 21
1217914
However, a governmental agency cannot be excused from the consequences of

its failure to fulfill its statutory duty simply by issuing a statement denying that

it has that statutory duty.

The appointment of agent Form 50-162 signed by Anheuser-Busch

contained no language that constituted a waiver of its right to dual notice.

CR 84.1 The Texas Comptroller, which is responsible for Form 50-162,

apparently recognized the lack of waiver language in the version of the form

signed by Anheuser-Busch. So the Comptroller subsequently replaced the

language quoted by the Tax Assessor with the following language in the current

form (emphasis added):

I hereby direct, as indicated below, the appraisal district, appraisal
review board, and each taxing unit participating in the appraisal
district to deliver the documents checked below to the agent
identified above regarding the property identified. I acknowledge
that such documents will be delivered only to the agent at the
agent’s address indicated above and will not be delivered to me
unless the affected offices choose to send me copies or are
otherwise required by law. I understand that these documents can
affect my legal rights and that the appraisal district, appraisal
review board, and the taxing units are not required to send me
copies if I direct them to deliver the documents to my agent.

2CR 47. Anheuser-Busch requests the court to take judicial notice of the current

Property Tax Form 50-162 • 09-13/10, which can be found on the Tax

1
The copy of Anheuser Busch’s Form 50-162 in the Clerk’s Record is hard to read. Appendix 2
contains a blank copy of the Property Tax Form 50-162 • 08-09/6 that Anheuser Busch signed.

Appellant’s Brief – Page 22
1217914
Assessor’s own Internet site at: http://www.hcad.org/forms/default.asp?form=9.

If Anheuser-Busch had signed the current form, Anheuser-Busch might have

waived its statutory right to dual notice. But Anheuser-Busch signed the prior

version of the form that did not have waiver language.

6. Anheuser-Busch’s claim is not barred by sovereign immunity.
The Defendant’s Motion for Summary Judgment at 13 (CR 72) asserted

sovereign immunity. However, “when a governmental entity is a necessary

party to a statutory cause of action, such as an action under the DJA for

interpretation of a statute, sovereign immunity is expressly waived.” Brennan v.

City of Willow Park, 376 S.W.3d 910, 922 (Tex. App. - Fort Worth 2012, pet.

denied), citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 445-46 (Tex.

1994).

The Defendant’s Motion countered that “[p]rivate parties cannot

circumvent the State’s sovereign immunity from suit by characterizing a suit for

money damages as a declaratory judgment claim.” CR 72. In support of this

argument, the Defendant’s Motion cited City of El Paso v. Heinrich,

284 S.W.3d 366, 371 (Tex. 2009) and Tex. Natural Res. Conservation Comm'n

v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002). CR 72. However, the opinion in

Brennan v. City of Willow Park, after citing both Heinrich and IT-Davy (376

SW.3d at 922), rejected this argument:

Appellant’s Brief – Page 23
1217914
 Finally, both City of Willow Park and City of Aledo claim that the
DJA does not waive their immunity from suit because they claim
Appellants are seeking to "recover damages." Appellants do not
seek "damages"; at most they seek a refund of the assessed back
city taxes paid by some Appellants as a result of the allegedly void
actions of Appellees or attributable to Appellees. Appellants
pleaded that any Appellants "who made any full or partial payments
of the illegal bills sent out by Larry Hammond did so under
duress." Thus, because Appellants pleaded that illegal taxes were
paid under duress, governmental immunity does not bar Appellants'
claim for declaratory relief that also seeks the refund of illegally
collected taxes.

Brennan, 376 S.W.3d at 925. This case is like the Brennan case in that

Anheuser-Busch is seeking a refund of a payment under duress, and as such,

Anheuser-Busch’s claim is not barred by sovereign immunity.

7. Anheuser-Busch is not seeking a waiver of penalties and
interest.
Finally, the Defendant’s Motion at 15 (CR 74) asserts that Anheuser-

Busch is not entitled to a waiver of penalties and interest under Texas Tax Code

§ 33.011. However, Anheuser-Busch is not seeking a waiver of penalty and

interest; Anheuser-Busch contends that penalty and interest were not due. The

Defendant’s argument simply assumes, and does not prove that Anheuser-Busch

owed penalties and interest. If Anheuser-Busch did not owe penalties and

interest because the statutory deadline was extended, there were no penalties and

interest to be waived.

Appellant’s Brief – Page 24
1217914
 CONCLUSION AND PRAYER
The Court should “review the summary judgment evidence presented by

each party, determine all questions presented, and render the judgment that the

trial court should have rendered.” Mahoney v. Slaughter, No. 01-14-00471-CV

(Tex. App. – Houston [1st Dist., 2015, no pet.) (mem. op.). If “a fact issue

precludes summary judgment for either party, [the Court should] remand the

cause for trial.” Id.

In this case, the Court should render declaratory judgment that Texas Tax

Code § 31.04 postponed the February 1, 2013 due date because the Tax

Assessor did not mail the tax bills to both Anheuser-Busch and Anheuser-

Busch’s designated agent before January 10, 2013; that $9,015,911.93 paid on

February 27, 2013 was timely; that no penalty and interest was due on the timely

amounts; and that Anheuser-Busch is entitled to a refund of $631,114.08 in

penalty and interest charges that Anheuser-Busch paid under protest and under

duress.

In the alternative, if the Court rules that the statute does not require dual

notice, the Court should remand to the trial court to determine the disputed issue

of fact as to whether the Tax Assessor mailed notices to Anheuser-Busch’s

agent.

Appellant’s Brief – Page 25
1217914
 Respectfully submitted,

Scott Douglass & McConnico LLP
303 Colorado Street, Suite 2400
Austin, Texas 78701-2589
(512) 495-6300
(512) 495-6399 Fax

By /s/ Ray Langenberg
Ray Langenberg
State Bar No. 11911200
rlangenberg@scottdoug.com
Curtis J. Osterloh
State Bar No. 24002714
costerloh@scottdoug.com

ATTORNEYS FOR APPELLANT
ANHEUSER-BUSCH, L.L.C.

Appellant’s Brief – Page 26
1217914
 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been served on
all counsel of record, as listed below, through the electronic filing system and
e-mail on July 27, 2015:

Keith Toler
Harris County Attorney’s Office
1019 Congress, 15th Floor
Houston, TX 77002
keith.toler@cao.hctx.net

/s/ Ray Langenberg
Ray Langenberg

CERTIFICATE OF COMPLIANCE
I certify that the foregoing instrument was prepared using Microsoft Word
2010, and that, according to its word-count function, the sections of the
foregoing pleading covered by TRAP 9.4(i)(1) contain 4,069 words.

/s/ Ray Langenberg
Ray Langenberg

APPENDIX
App. 1 April 15, 2015 Order granting Defendant’s Motion for Summary
Judgment and rendering take-nothing judgment for Defendant. CR
175.

App. 2 Comptroller’s Property Tax Form 50-162 • 08-09/6

App. 3 Plaintiff’s Motion for Summary Judgment Exhibit 2 – Defendant’s
Responses to Plaintiff’s Request for Admissions, Interrogatories
and Production

Appellant’s Brief – Page 27
1217914
Appendix 1
 P r o p e r t y Ta x
Appointment of Agent for Property Taxes Form 50-162
________________________________________________
Date received (appraisal district use only)

____________________________________________________________________________________________________________________________________ ________________________________________________
Appraisal district name Appraisal district phone (area code and number)

__________________________________________________________________________________________________________________________________________________________________________________________
Address
INSTRUCTIONS
You can use this form:
• To name a tax agent to represent you on property tax matters;
• To direct that tax notices be mailed to a person you name.
Read the instructions carefully. This form will be in effect until you file another form with the appraisal district that revokes it or until you file a form that
names a different agent.

STEP 1: Owner’s name and address

__________________________________________________________________________________________________________________________________________________________________________________________
Owner’s name

__________________________________________________________________________________________________________________________________________________________________________________________
Present mailing address (number and street)

____________________________________________________________________________________________________________________________________ ________________________________________________
City, town or post office, state, ZIP code Phone (area code and number)

STEP 2: Describe the property
 All property listed for this owner at the above address
 The following property (give account number or legal description)
__________________________________________________________________________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________________________________________________________________________
(continue on attached page if needed)

STEP 3: Specify the agent’s authority for property tax matters (skip to step 6 if you want to change tax notice mailing)
 General power to represent me in property tax matters concerning this property
 Specified powers: the agent has only the powers checked below
 file notices of protest and present protests before the appraisal review board
 receive confidential information
 negotiate and resolve disputed tax matters
 other action (specify) __________________________________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________________________________________________________________________

STEP 4: Name the agent for property tax matters

__________________________________________________________________________________________________________________________________________________________________________________________
Agent’s name

__________________________________________________________________________________________________________________________________________________________________________________________
Present mailing address (number and street)

____________________________________________________________________________________________________________________________________ ________________________________________________
City, town or post office, state, ZIP code Phone (area code and number)

STEP 5: Date the agent’s authority ends

If you do not fill in a date, the agent’s authority will continue indefinitely. You must file a statement revoking
this form or designate a new agent to end the agent’s authority. ________________________________________________
Date

The Property Tax Assistance Division at the Texas Comptroller of Public Accounts provides property tax For more information, visit our Web site:
information and resources for taxpayers, local taxing entities, appraisal districts and appraisal review boards. www.window.state.tx.us/taxinfo/proptax
Appendix 2 50-162 • 08-09/6
 P r o p e r t y Ta x
Form 50-162 A p p o i n t m e n t o f A g e n t f o r P r o p e r t y Ta x

Complete steps 6-9 if you want tax notices mailed to an agent.
SKIP TO STEP 10 IF YOU DON’T WANT TO CHANGE TAX NOTICE MAILING.
STEP 6: Check if you want property tax notices delivered to an agent
 I want my agent to receive all my property tax notices and other communication for this property, including appraisal notices, appraisal review board orders and hearing
notices, tax bills and collection notices.

 I want my agent to receive only the following:
 All communications from the chief appraiser.
 All orders, notices and other communications from the ARB.
 All tax bills and notices from all taxing entities served by the appraisal district.
NOTE: These notices can affect your legal rights. The affected offices are not required by law to send you duplicate copies.

STEP 7: Describe the property for which property tax notices will be delivered
 The following property (give account number or legal description)
__________________________________________________________________________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________________________________________________________________________
(continue on attached page if needed)
 My agent will provide a list
NOTE: the designation of an agent to receive communication only applies to properties you expressly identify and only affects notices generated after the date you file the list
identifying the property with the appraisal district.

STEP 8: Name the person who will get the notices

__________________________________________________________________________________________________________________________________________________________________________________________
Name of person or firm

__________________________________________________________________________________________________________________________________________________________________________________________
Present mailing address (number and street)

____________________________________________________________________________________________________________________________________ ________________________________________________
City, town or post office, state, ZIP code Phone (area code and number)

STEP 9: Date the change of delivery ends

If you do not fill in a date, tax notices will continue to be mailed to your agent indefinitely. You must file a
statement revoking this form or designate a new agent to end the agent’s authority. ________________________________________________
Date

STEP 10: Sign the form

________________________________________________________________________________________________________________________ ________________________________________________
Owner, property manager, or person authorized to act on behalf of the owner. Date the designation took effect

This form must be signed by the property owner; a property manager authorized to designate agents for the owner; or another person authorized to act on behalf of the owner
other than the person being designated as agent on this form. A property manager or other person should attach a copy of the document authorizing the person to designate
agents or act on behalf of the owner.
If you make a false statement on this form, you could be found guilty of a Class A misdemeanor or a state jail felony under Texas Penal Code Section 37.10.

For more information, visit our Web site: www.window.state.tx.us/taxinfo/proptax
50-162 • 08-09/6 • Page 2
 NO. 2013-72388

ANHEUSER-BUSCH, L.L.C. IN THE DISTRICT COURT OF

V. HARRIS COUNTY, TEXAS

HARRIS COUNTY TAX ASSESSOR-
COLLECTOR 55th JUDICIAL DISTRICT

DEFENDANT HARRIS COUNTY TAX ASSESSOR-COLLECTOR'S RESPONSES TO
PLAINTIFF'S REQUEST FOR ADMISSIONS, INTERROGATORIES AND
PRODUCTION

To: Plaintiff, ANHEUSER-BUSCH, L.L.C., by and through its attorney of record, Curtis J.
th
Osterloh, SCOTT, DOUGLASS & McCONNICO, L.L.P., One American Center, 15
Floor, 600 Congress Avenue, Austin, Texas 78701.

COMES NOW, Defendant Harris County Tax-Assessor Collector and pursuant to the

Texas Rules of Civil Procedure, serves its Responses to Plaintiffs First Request for Admissions,

Interrogatories and Request for Production heretofore propounded upon it in the above-entitled

and numbered cause.

Respectfully Submitted,
VINCE RYAN
HA IS CO TY ATTORNEY

STEVE SMITH
Assistant County Attorney
State Bar No. 18684400
1019 Congress, 15th Floor
Houston, Texas 77002
Telephone: (713) 274-5145
Facsimile: (713) 755-8924
ATTORNEY-IN-CHARGE FOR
DEFENDANT HARRIS COUNTY
TAX ASSESSOR-COLLECTOR

CERTIFICATE OF SERVICE

I hereby certify that on iP_~ ,~ , 2014 a true and correct copy of the above and
foregoing document was mailed by certified mail, return receipt requested and/or sent by
facsimile to all attorneys of record.

Steve Smith

Exhibit 2 Appendix 3
 DEFENDANT HARRIS COUNTY TAX ASSESSOR-COLLECTOR'S RESPONSE TO
PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS, INTERROGARORIES AND
REQUEST FOR PRODUCTION

Request for Admission No. 1:
On January 28, 2013, the Harris County Tax Assessor-Collector received a property tax payment
from Anheuser-Busch, L.L.C. in the amount of $9,015,911.93.

Response: Admit that the Harris County Tax Assessor-Collector received a check from
Anheuser-Busch, L.L.C. in the amount of $9,015,911.93 on January 28, 2013 but deny that it
received payment because the check was dishonored by the bank.

Interrogatory No. 1:
If the previous Request for Admission was not admitted without qualification, please explain the
reason that it was not admitted without qualification.

Response: The check the Harris County Tax Assessor-Collector received was not "payment"
for the taxes Anheuser-Busch, L.L.C. owed because the check was dishonored by the bank and
did not pay for the taxes owed.

Request for Admission No. 2:
If the payment described in the previous Request for Admission had been honored by the bank,
the property tax liability of Anheuser-Busch, L.L.C. to the Harris County Tax Assessor-Collector
would have been timely paid.

Response: Admit that if the check described in the previous Request for Admission had been
honored by the bank, the property tax liability of Anheuser-Busch, L.L.C. to the Harris County
Tax Assessor-Collector would have been timely paid.

Interrogatory No. 2:
If the previous Request for Admission was not admitted without qualification, please explain the
reason that it was not admitted without qualification.

Response: The Harris County Tax Assessor-Collector did not receive payment from Anheuser-
Busch, L.L.C., only a check that was dishonored.

Request for Production No. 3:
Produce all 2012 tax bills (as that term is used in Texas Property Tax Code § 31.04) sent to
Anheuser- Busch, L.L.C. or its agent.

Response: Harris County does not have copies of the original tax bills. The tax bills attached
are regenerated copies of the bills sent to Anheuser-Busch, L.L.C. or its agent.
Interrogatory No. 3:
State the dates and addresses to which the Harris County Tax Assessor-Collector mailed 2012
tax bills (as that term is used in Texas Property Tax Code § 31.04) for the following accounts:

Account No. 2-2028682,
Account No. 2-2144716,
Account No. 121-756-001-0001,
Account No. 121-756-002-0001,
Account No. 121-756-002-0002,
Account No. 121-756-003-0001, and
Account No. 2-0049253.

Response:

Statements for account Numbers 2-2028682 and 2-2144716 were mailed during the period of
Nov. 19-21, 2012 to Anheuser Busch, Inc., Corp. Tax Dept., Saint Louis, Mo. 63118-1849.

Statements for accounts numbers 121-756-001-0001, 121-756-002-0001, 121-756-002-0002,
121-756-003-0001, and 2-0049253 were mailed during the time period of Nov. 27-29 to Duff &
Phelps, LLC, P.O. Box 2629, Addison, Texas 75001-2629.

After the accounts were delinquent, statements for account numbers 2-2028682, 2-2144716, 121-
756-001-0001, 121-756-002-0001, 121-756-002-0002, 121-756-003-0001, and 2-0049253 were
mailed during the time period of Feb. 8-10, 2013 to Anheuser Busch, Inc., c/o Corp. Tax Dept.,
P.O. Box 1860, Saint Louis, Mo. 63118-0860 and Anheuser Busch, 775 Gellhorn Dr., Houston,
Texas 77029.

Request for Production No. 4:
Produce all Documents indicating that the tax bills were mailed to the addresses on the dates
stated in answer to the previous interrogatory.

Response: See the document attached to this response.

Request for Production No. 5:
Produce all Documents indicating that the tax bills were not or may not have been mailed to the
addresses on the dates stated in answer to the previous interrogatory.

Response: No items have been identified-after a diligent search-that are responsive to this
request.

Interrogatory No. 4:
Identify any persons with personal knowledge that the tax bills were mailed to the addresses on
the dates stated in answer to the previous interrogatory.

Response: Donna Edwards
Pam Buckelew
Office of the Harris County Tax Assessor-Collector
1001 Preston, 1st Floor
Houston, Texas 77002

Interrogatory No. 5:
Identify the person with the most knowledge about the procedures used by the Harris County
Tax Assessor-Collector to mail the 2012 tax bills to Anheuser- Busch, L.L.C. and its agent.

Response: An objection is made to this interrogatory as assuming facts not in evidence,
ambiguous, and calling for speculation.

Request for Production No. 6:
Produce all Documents related to an evaluation, study or audit of the mailing of tax bills by the
Harris County Tax Assessor-Collector or its designated agent.

Response: No items have been identified-after a diligent search-that are responsive to this
request.

Request for Production No. 7:
Produce all Documents indicating tax bills were not mailed or not mailed in a timely manner by
the Harris County Tax Assessor-Collector or its designated agent.

Response: No items have been identified-after a diligent search-that are responsive to this
request.

Request for Admission No. 1:
Harris County Tax Assessor-Collector or its designated agent has failed to timely mail tax bills
to Harris County real estate owners.

Response: Deny

Interrogatory No. 6:
If the previous Request for Admission was not admitted without qualification, please explain the
reason that it was not admitted without qualification.

Response: The admission was denied because it is not a true statement.

Interrogatory No. 7:
Identify all late payments penalties waived by the Harris County Tax Assessor-Collector from
the years 2011 through 2013.

Response: An objection is made to this interrogatory as asking a question that is not relevant, is
overly broad and burdensome, and harassing.

Request for Production No. 8:
Produce all Documents related to a contract with a third party to mail tax notices on behalf of the
Harris County Tax Assessor-Collector.

Response: See the documents attached to this Response to Request for Production.

Request for Admission No. 2:
Anheuser-Busch L.L.C. properly appointed Duff & Phelps, LLC as its agent to receive 2012 tax
notices for all property within Harris County.

Response: An objection is made to the request for admission because it asks the party to admit
a proposition of law, calls for speculation, and is ambiguous.

Interrogatory No. 8:
If the previous Request for Admission was not admitted without qualification, please explain the
reason that it was not admitted without qualification.

Response: See the objections made to the admission.

Request for Production No. 9:
Produce all Anheuser- Busch, L.L.C. appointments of agent for tax notices for 2012 property tax
bills.

Response: See the documents attached to this Response to Request for Production.

Request for Admission No. 3:
If a taxpayer appoints an agent, the usual procedure of the Harris County Tax Assessor-Collector
is to address the tax notice to the agent.

Response: Admit that if a taxpayer appoints an agent which is shown on the rolls of the Harris
County Appraisal District rolls, the usual procedure of the Harris County Tax Assessor-Collector
is to address the envelope containing the tax notice (the tax statement) to the agent, but deny that
the tax notice (the tax statement) itself is addressed to the agent.

Interrogatory No. 9:
If the previous Request for Admission was not admitted without qualification, please explain the
reason that it was not admitted without qualification

Response: Non-applicable.

Request for Admission No. 3:
The Harris County Tax Assessor-Collector did not address and mail the tax notices for the
following accounts to both Anheuser Busch LLC and Duff & Phelps
Account No. 2-2028682,
Account No. 2-2144716
Account No. 121-756-001-0001,
Account No. 121-756-002-0001,
Account No. 121-756-002-0002,
Account No. 121-756-003-0001, and
Account No. 2-0049253.

Response: Admit that tax notices (tax statements) for Account No. 2-2028682 and Account No.
2-2144716 were addressed and mailed to Anheuser Busch LLC but not Duff & Phelps, and admit
that tax notices (tax statements) for Account No. 121-756-001-0001, Account No. 121-756-002-
0001, Account No. 121-756-002-0002, Account No. 121-756-003-0001, and 2-0049253 were
addressed and mailed to Duff & Phelps but not Anheuser Busch LLC.

Admit that tax notices (tax statements) for account numbers 2-2028682, 2-2144716, 121-756-
001-0001, 121-756-002-0001, 121-756-002-0002, 121-756-003-0001, and 2-0049253 that were
mailed in February 2013, were mailed only to Anheuser Busch LLC, and not Duff & Phelps.

Interrogatory No. 10:
If the previous Request for Admission was not admitted without qualification, please explain the
reason that it was not admitted without qualification

Response: Not applicable.

Request for Production No. 10:
Produce all Documents describing the procedures used by the Harris County Tax Assessor-
Collector to properly address and mail tax notices

Response: The Texas Tax Code Annotated. Objection is made to producing this document
because it is equally available to Plaintiff as it is to Defendant and is a public document.
Interrogatory No. 11:
Identify your trial witnesses, as required by Rule 192.3(d), and briefly state their connection with
the case.

Response: All persons listed as having knowledge of relevant facts and all expert witnesses
shown in both parties Responses to Request for Disclosure, and who are incorporated by
reference into this answer.

Request for Production No. 11:
Produce the documents required by Request for Disclosures f(3) and f(4).

Response: An objection is made to this request as these documents, if available, have already
been provided in the Defendant's Response to Request for Disclosure and this request duplicates
that response, and further objection is made that this Request for Production is an impermissible
Request for Production pursuant to Tex. R. Civ. P. 195.1.

Request for Production No. 12:
Produce the documents required by Request for Disclosure (1).

Response: This request is impermissible because no documents are required to be produced
under Request for Disclosure (1) and the Defendant is not required to create a new document in
response to a request for production.

Request for Production No. 13:
Produce all Documents relied on in answering Plaintiff's First Request for Admissions,
Interrogatories and Request for production and not produced in response to any of the previous
requests for production of documents.

Response: An objection is made to this request as being overly broad, harassing, not relevant
overly burdensome, and requests documents not required to be produced under the Rules of Civil
Procedure. Further objection is made that the request violates the attorney work product rule.
THE STATE OF TEXAS

COUNTY OF HARRIS

BEFORE ME, the undersigned Notary Public, on this day personally appeared Elizabeth Doss,
who being by me duly sworn on his oath deposed and said that,

"I have read the above and foregoing Defendant's Answers to Plaintiffs
First Set of Interrogatories and the statements contained therein are within my
personal knowledge and are true and correct, except for answers numbers 3 and
11, which are based on information obtained from o2 -r • -rsons.

Eliza OSS

SUBSCRIBED AND SWORN TO BEFORE ME ON this 2 S day of

2014, to certify which I affix my hand and seal of office.

.6FY4:1, MELISSA L. JEFFERS
1**1 Notary Public, State of Texas
Si, 44 My Commission Expires Notary '=nd for
March 05, 2016