Sundial Owner's Association, Inc. v. Nueces County, Nueces County Hospital District, Del Mar Public Junior College District, Port Aransas I.S.D., and City of Corpus Christi

NUMBER 13-21-00069-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SUNDIAL OWNER’S
ASSOCIATION, INC., Appellant,

v.

NUECES COUNTY, NUECES
COUNTY HOSPITAL DISTRICT,
DEL MAR PUBLIC JUNIOR
COLLEGE DISTRICT, PORT
ARANSAS I.S.D., AND CITY OF
CORPUS CHRISTI, Appellees.

On appeal from the 105th District Court
of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Justice Silva

Appellee Sundial Owner’s Association, Inc. (Sundial) appeals the trial court’s
denial of its petition for refund of “erroneously paid” property taxes for tax years 2010–

2014. For those tax years, Sundial paid to appellees Nueces County, Nueces County

Hospital District, Del Mar Public Junior College District (Del Mar), Port Aransas

Independent School District (PAISD), and the City of Corpus Christi approximately

$349,000. By its first issue, Sundial argues the trial court erred by granting appellees’

motion for summary judgment for tax years 2010–2012 based on the statute of limitations.

By its second issue, Sundial argues the trial court made various erroneous factual findings

and legal conclusions, which caused it to improperly deny Sundial’s refund request for

tax years 2013 and 2014. We affirm in part and reverse and remand in part.

I. BACKGROUND

This case involves property taxes assessed against and paid on behalf of

timeshare owners of fifteen condominium units in Mustang Towers Condominiums on

Mustang Island in Nueces County, Texas. The condominium units are each split into fifty-

one weekly timeshares. Over the years, various corporations have been formed to

manage and operate the timeshare units. The corporations include Sundial Interval

Ownership Association, Inc. (1983–1985, 1987–1988), Sundial Timeshare Corporation

(1983–1985, 1987–1999), and the current corporation, Sundial (1990–present).

Membership in Sundial is mandatory for each timeshare owner. Sundial manages the

timeshares by ensuring maintenance and cleaning are performed, replacing furniture and

décor as needed, sending out necessary paperwork for guests and owners, and paying

necessary fees such as insurance, utilities, taxes, and other operating costs.

Previously, Sundial Timeshare Corporation received tax assessment notices and

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paid the property taxes to the Nueces County Tax Assessor/Collector (Assessor).

However, even after Sundial was incorporated, the Assessor continued to list Sundial

Timeshare Corporation as the taxpayer of record. The Assessor continued to send the

tax notices to the address on file, which was now Sundial’s address.

Jennifer Belt, who testified both in deposition and at trial, has served as the office

manager for Sundial since 2009. Belt’s testimony in deposition was consistent with her

testimony at trial and was undisputed. One of her job duties included preparing and filing

the warranty deeds for each timeshare owner. Belt testified that she and her predecessor

would receive the tax notices for the units, figure the share owed by each timeshare

owner, collect the payments from the owners, then pay the taxes on their behalf using

checks from Sundial. Additionally, Sundial would challenge the tax assessment on behalf

of the timeshare owners. According to Belt, she would apportion the tax amount due from

the timeshare owners based on the value of their particular week owned, because weeks

in the summer were worth more than weeks in the winter. However, in 2015, when Belt

went to negotiate the tax assessment, the appraisal district told her they could not speak

to her because she represented “Sundial Owner’s Association,” not “Sundial Timeshare.”

Belt testified that Sundial would collect an annual maintenance fee from the

timeshare owners, which covered insurance and monthly maintenance, and would

forward that fee to Mustang Towers Condominiums. During the relevant years, the

maintenance fee also included the tax amount attributed to each timeshare owner.

However, some of the timeshare owners would not pay their “maintenance fee” which

would lead to repossession of the timeshare unit by Sundial.

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 The following exchange occurred during trial:

[Sundial’s Counsel]: Ms. Belt, do you have an opinion whether or not
you made a mistake paying the taxes for 2013 and
‘14?

[Belt]: Yes, —I did not know about it.

The Court: I did[ not] hear your answer, ma’am, it was garbled.

[Belt]: Yes, I paid them, not knowing.

Mustang Towers Condominium’s declaration of condominium was admitted as an

exhibit. Relevant to this case, the declaration provided that

[Sundial], through its Board, shall have the power to fix and determine from
time to time the sum or sums necessary and adequate to provide for the
operation of apartments committed to interval ownership. The procedure for
the determination of such operational fee shall be as set forth in the Bylaws
of the Association. The operational fee shall include, but shall not be limited
to, the following:

....

(6) Personal property, real estate, and any other applicable
taxes . . . .

Further, Sundial’s articles of incorporation were admitted as an exhibit. The articles

provided that:

The purpose or purposes for which the corporation is organized are:

1. To administer and operate the interval ownership apartments in the
Mustang Towers Condominium, a condominium project established
pursuant to a Declaration of Condominium filed of record in the office
of the Nueces County Clerk.

2. To serve as the voting entity on behalf of unit week owners in the
Mustang Towers Council of Co-Owners, Inc., a Texas non-profit
corporation.

Much of the remaining testimony at trial related to ancillary matters not relevant to

whether Sundial erroneously paid the taxes. For example, Sundial elicited testimony as
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to who was responsible for Sundial’s mail being forwarded to its counsel, what software

the Assessor used, and what policies the Assessor had in place as it relates to timeshare

owners.

Prior to trial, appellees1 filed motions for summary judgment, arguing, in relevant

part, that Sundial failed to comply with Texas Tax Code § 31.11(c), which provides that

“an application for a refund must be made within three years after the date of the payment

or the taxpayer waives the right to the refund.” TEX. TAX CODE ANN. § 31.11(c). However,

the governing body of the taxing unit may extend the deadline by up to two years upon a

showing of good cause by the taxpayer. Id. § 31.11(c-1). Sundial paid the taxes for tax

years 2010–2014 on January 21, 2011, January 31, 2012, January 30, 2013, January 31,

2014, and January 30, 2015, respectively, and applied for a refund for all years on

December 9, 2015. Sundial responded, stating that “[b]ecause the tax collector denied

the refund application[, Sundial] never had the duty to seek an extension,” so their

deadline was five years from the dates of payment, not three. Sundial cited provisions of

the Texas Government Code relating to statutory construction, arguing that seeking an

extension was a “futile action[] that [had] no meaningful purpose” and should not be

required to do so. See TEX. GOV’T CODE ANN. § 311.021 (Intention in Enactment of

Statutes); id. § 311.023 (Statute Construction Aids). Sundial also moved for summary

judgment. The trial court granted appellees’ motion for summary judgment for tax years

1 Nueces County, Nueces County Hospital District, and the City of Corpus Christi filed a joint
traditional and no-evidence motion for summary judgment while PAISD filed its own traditional motion for
summary judgment. Both motions argued that Sundial failed to timely apply for a refund for tax years 2010-
2012, thus waiving the right to a refund. Del Mar subsequently filed a motion joining and adopting Nueces
County, Nueces County Hospital District, and the City of Corpus Christi’s motion for summary judgment.

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2010, 2011, and 2012, finding that Sundial did not timely apply for refunds for those years.

It denied the remainder of appellees’ summary judgment motion and the entirety of

Sundial’s motion.

At the end of trial, the trial court denied Sundial’s request for a refund of the 2013

and 2014 tax year payments. The trial court entered a take nothing judgment in favor of

appellees. The trial court also entered findings of fact and conclusions of law pursuant to

Sundial’s request but declined to enter additional findings and conclusions that Sundial

requested. This appeal followed.

II. TAX YEARS 2010, 2011, AND 2012

A. Standard of Review

We review a trial court’s grant of a motion for summary judgment de novo. Rosetta

Res. Operating, LP v. Martin, 645 S.W.3d 212, 218 (Tex. 2022). “When both parties move

for summary judgment and the trial court grants one motion and denies the other, . . . we

review both sides’ summary judgment evidence and render the judgment the trial court

should have rendered.” Id. (quoting S. Crushed Concrete, LLC v. City of Houston, 398

S.W.3d 676, 678 (Tex. 2013)). When a trial court specifies the grounds on which it grants

summary judgment, we limit our review to those specified grounds. 2 Delaney v. Univ. of

Hous., 835 S.W.2d 56, 58 (Tex. 1992); cf. Rosetta Res. Operating, LP 645 S.W.3d at 226

(“When a trial court’s order granting summary judgment does not specify the grounds on

2 We note that we may consider the remaining grounds for summary judgment as a matter of
judicial efficiency. Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Thomas v. Farris, 175
S.W.3d 896, 898 (Tex. App.—Texarkana 2005, pet. denied) (“An appellate court may affirm the judgment
on any grounds properly raised before the trial court, even when the trial court grants summary judgment
specifically on fewer than all grounds asserted.”). However, we do not have the benefit of briefing on the
remaining issues each party urged for summary judgment as neither party argues the trial court erred by
denying summary judgment on any other ground.
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which its order is based, the appealing party must negate each ground upon which the

judgment could have been based.”).

When reviewing a summary judgment, we take as true all evidence favorable to

the nonmovant, and we indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Provident Life & Acc. Ins. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

The party that moves for traditional summary judgment bears the burden of showing “that

no genuine issue of material fact exists and that it is entitled to judgment as a matter of

law.” Id. at 216; TEX. R. CIV. P. 166a(c).

B. Applicable Law

A taxpayer who makes an erroneous or excessive payment on real property taxes

may apply to the tax collector for a refund. TEX. TAX CODE ANN. § 31.11(a). If the tax

collector determines that the payment was erroneous or excessive, the auditor for the

taxing unit must agree with the collector’s determination before a refund may be issued;

additionally, the governing body for the taxing unit may also be required to agree to the

refund, depending on the amount of the refund and population of the county. Id. If the

taxpayer fails to apply for a refund within three years from the date of payment, the

taxpayer waives the right to the refund; however, the governing body of the taxing unit

may extend the deadline for a single period not to exceed two years upon a showing of

good cause by the taxpayer. Id. § 31.11(c), (c-1).

C. Analysis

As a preliminary matter, we recognize that appellees concede that the trial court

erred by granting summary judgment for tax year 2012 as untimely. See id. § 31.11(c).

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Accordingly, we focus our review on tax years 2010 and 2011. As to those years, Sundial

does not argue that it applied for a refund within three years from the date of payment;

rather, it argues that it has demonstrated “good cause” as a matter of law and that it was

not required to seek a two-year extension from the taxing units. We disagree. The statute

is clear that only the “governing body of taxing unit” may grant an extension—nothing in

the statute mandates or even permits a court to extend the deadline. See id. § 31.11(c-

1).

Sundial insists that “[t]he law does not demand futile and non-objective oriented

obstacles to give effect to the intent of it.” In other words, Sundial urges this Court to

disregard the plain language of the statute and instead hold that when the taxing authority

denies the refund, the application period is automatically extended by two years. We

decline to do so as our role is to interpret and apply the plain meaning of the statute’s

language and give effect to the Legislature’s intent. See Cadena Comercial USA Corp. v.

Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 325–26 (Tex. 2017) (“[W]e take

statutes as we find them and refrain from rewriting the Legislature’s text.”). Here, the

Legislature granted the governing body of the taxing authority—not the courts—

permission to extend the application deadline. See TEX. TAX CODE ANN. § 31.11(c-1).

Further, the Legislature made the extension permissive, not mandatory. See TEX. GOV’T

CODE ANN. § 311.016; see also In re Estate of Washington, 289 S.W.3d 362, 368 (Tex.

App.—Texarkana 2009, pet. denied) (“‘May’ does not mean ‘shall’ or ‘must be.’”).

Here, it is undisputed that the application for a refund for tax years 2010 and 2011

was made more than three years after the payments were made. Further, it is undisputed

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that the governing bodies of the taxing authorities did not grant an extension to the three-

year deadline. Accordingly, Sundial waived its right to a refund for tax years 2010 and

2011. The trial court did not err by granting appellees’ motions for summary judgment for

those tax years. However, as appellees concede, the trial court did err by granting

summary judgment based on an untimely application for tax year 2012 as Sundial did

apply for a refund before the third anniversary of the payment. See Delaney, 835 S.W.2d

at 58 (limiting our review of summary judgment to the grounds specific in the order). As

such, we overrule Sundial’s first issue as it relates to tax years 2010 and 2011 and sustain

it for tax year 2012.

III. TAX YEARS 2013 AND 2014

By its second issue, Sundial argues the trial court erred by denying its refund

request for tax years 2013 and 2014 because it established a right to refund under the

tax code. See TEX. TAX. CODE ANN. § 31.11. In doing so, Sundial challenges several

findings of fact issued by the trial court.

A. Standard of Review and Applicable Law

In any case tried to the bench, a party may request that the trial court state in

writing its findings of fact and conclusions of law. TEX. R. CIV. P. 296. “The primary

purpose for findings of fact is to assist the losing party in narrowing his issues on appeal

by ascertaining the true basis for the trial court’s decision.” Izen v. Laine, 614 S.W.3d 775,

794 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). After a trial court has issued its

findings of fact and conclusions of law, a party may request additional or amended

findings or conclusions. TEX. R. CIV. P. 298. “No findings or conclusions shall be deemed

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or presumed by any failure of the court to make any additional findings or conclusions.”

Id.

When findings of fact are filed by the trial court they shall form the basis of
the judgment upon all grounds of recovery and of defense embraced
therein. The judgment may not be supported upon appeal by a presumed
finding upon any ground of recovery or defense, no element of which has
been included in the findings of fact; but when one or more elements thereof
have been found by the trial court, omitted unrequested elements, when
supported by evidence, will be supplied by presumption in support of the
judgment.

Id. R. 299.

“[T]he trial court’s findings of fact and conclusions of law must be construed

together and in the greatest possible harmony with [the] judgment.” Bleeker v. Villarreal,

941 S.W.2d 163, 169–70 (Tex. App.—Corpus Christi–Edinburg 1996, writ dism’d by agr.)

(first citing Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex. 1963); and then

citing Cantu v. Butron, 921 S.W.2d 344, 351 (Tex. App.—Corpus Christi–Edinburg 1996,

writ denied)).

When a complete record is filed on appeal, we review findings of fact for legal and

factual sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per

curiam); see also Dittman v. Cerone, No. 13-11-00196-CV, 2013 WL 5970356, at *3–4

(Tex. App.—Corpus Christi–Edinburg Oct. 31, 2013, no pet.). When reviewing a finding

for factual sufficiency, an appellate court may not substitute its own judgment for the

factfinders, but instead should weigh all the evidence presented and determine whether

the finding was so against the great weight and preponderance of the evidence as to be

manifestly unjust. Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019). When a party

challenges the legal sufficiency of the evidence supporting an adverse finding on an issue

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on which it had the burden of proof, as here, that party can prevail only if it demonstrates

that the evidence conclusively established all vital facts in support of the issue. Down

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In a legal sufficiency review, we

assume that the factfinder resolved any disputed facts in favor of its finding and disregard

all evidence that a reasonable factfinder could have disbelieved. In re Commitment of

Stoddard, 619 S.W.3d 665, 674 (Tex. 2020). However, we may not disregard undisputed

facts that do not support the finding. Id. “In a bench trial, the trial court, as the trier of fact,

is the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Townsend v. Vasquez, 569 S.W.3d 796, 808 (Tex. App.—Houston [1st Dist.] 2018, pet.

denied). “The trial court may choose to believe some witnesses over others.” Id.

We review a trial court’s conclusions of law de novo. BMC Software Belg., N.V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002); see also Dittman, 2013 WL 5970356, at *4.

“If the reviewing court determines a conclusion of law is erroneous, but the trial court

rendered the proper judgment, the erroneous conclusion of law does not require reversal.”

BMC Software Belgium, N.V., 83 S.W.3d at 794.

“Our fundamental goal when reading statutes ‘is to ascertain and give effect to the

Legislature’s intent.’” Cadena Comercial USA Corp., 518 S.W.3d at 325 (quoting Tex.

Mut. Ins. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012)). “To do this, we look to and rely

on the plain meaning of a statute’s words as expressing legislative intent unless a different

meaning is supplied, is apparent from the context, or the plain meaning of the words leads

to absurd or nonsensical results.” Id.

All real property in the state of Texas is taxable unless otherwise exempt by law.

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TEX. TAX CODE ANN. § 11.01(a). Real property taxes are owed by the person who owns

the property on January 1 of the tax year. Id. § 32.07(a). As discussed above, a taxpayer

who erroneously pays taxes or overpays taxes may seek a refund for that payment. Id.

§ 31.11(a).

B. Analysis

We begin our analysis by reviewing what is required for a taxpayer to be entitled

to a refund. See id. § 31.11(a). First, the taxpayer must have made a payment; moreover,

that payment must have been made erroneously or in excess. Id. The taxpayer must then

timely apply for a refund from the tax collector of the taxing unit. Id. Here, the dispute is

not that Sundial paid taxes in excess, but that it paid the taxes erroneously. The

Legislature did not define “erroneously” in the context of the statute; thus we use its

ordinary and plain meaning. See Cadena Comercial USA Corp., 518 S.W.3d at 325.

Erroneously means containing or characterized by error. Erroneously, MERRIAM-WEBSTER

ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/erroneously (last

visited Feb. 18, 2023). Error means “an act that through ignorance, deficiency, or accident

departs from or fails to achieve what should be done.” Error, MERRIAM-WEBSTER ONLINE

DICTIONARY, https://www.merriam-webster.com/dictionary/error (last visited Feb. 18,

2023).

The trial court concluded that “[Sundial]’s tax payments for the years in question

were not made ‘erroneously’ within the meaning of [§] 31.11 of the Texas Tax Code.”

Thus, we review the trial court’s findings of fact to determine whether they support this

conclusion of law. See BMC Software Belg., N.V., 83 S.W.3d at 794. Among the trial

12
court’s findings of fact were that “[Sundial] made payments of the taxes for the years in

question voluntarily and not as a result of fraud, duress, or mutual mistake of fact” and

that Sundial acted as agent for the timeshare owners, acted as the alter-ego of the

timeshare owners, and had apparent authority to pay the taxes on behalf of the timeshare

owners.

In this case, it is undisputed that the owners include Sundial and each timeshare

owner. 3 TEX. TAX CODE ANN. § 32.07(a). Although the notice of tax due statement was

mailed to “Sundial Timeshare Corporation,” the tax was assessed against each unit as a

whole. “Sundial Timeshare Corporation” is not an owner of any unit or timeshare and was

dissolved in 1999. Further, Belt testified that Sundial sent an invoice to each timeshare

owner for maintenance fees, which included each timeshare owner’s share of the real

property taxes. Belt would negotiate to lower the appraised property value on behalf of

Sundial and the other timeshare owners and then pay the real property taxes on behalf

of Sundial and each timeshare owner.

Although Belt provided conclusory testimony that she paid the taxes in error, she

did not explain how or why she believed it was an error. See Townsend, 569 S.W.3d at

808 (holding that the trial court may disbelieve the testimony of one witness and believe

another). On appeal, Sundial insists that Belt paid the taxes by “error” because the notice

of tax due was mailed to “Sundial Timeshare Corporation” and because Sundial does not

own the property in fee simple; however, the evidence otherwise supports the finding that

3 In her deposition, Belt testified that Sundial only owned weeks that were repossessed but did not
otherwise own any week outright. At trial, Sundial introduced an exhibit that showed it owning over forty
total weeks spread between twelve condominiums. It is unclear what, if any, ownership Sundial had on
January 1 of each tax year. See TEX. TAX CODE ANN. § 32.07(a).

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the payments were made voluntarily, and that Sundial had the apparent authority to do

so. See Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007) (holding that apparent authority

arises “either from a principal knowingly permitting an agent to hold [himself] out as having

authority or by a principal’s actions which lack such ordinary care as to clothe an agent

with the indicia of authority, thus leading a reasonably prudent person to believe that the

agent has the authority [he] purports to exercise”) (quoting Baptist Mem’l Hosp. Sys. v.

Sampson, 969 S.W.2d 945, 948 (Tex.1998)); see also Ortiz, 917 S.W.2d at 772;

Townsend, 569 S.W.3d at 808 (holding that the trial court is the sole judge of the

witnesses’ credibility and weight to be given to their testimony). For example, Sundial’s

articles of incorporation provided that it was formed for the purpose of administering and

operating the interval ownership for the units in Mustang Towers and references the

declaration of condominium filed with Nueces County. The declaration of condominium

specifically permits Sundial to collect fees from the owners and directs that the fees “shall

include” real property taxes. Sundial argues this merely gave it permission to collect the

taxes; however, Sundial does not contest that it in fact collected the real property taxes

from the other timeshare owners and paid the taxes on behalf of itself and the other

owners. Additionally, if a timeshare owner failed to pay their share of the property taxes,

Sundial would foreclose on and repossess the weekly ownership.

Sundial argues that it could not have acted as the agent for the other timeshare

owners because the proper written authorization was not completed. See TEX. TAX CODE

ANN. § 1.111(b) (requiring written authorization before a party may act as an agent of

another for any purpose under Title 1 (Property Tax) of the Texas Tax Code). However,

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§ 1.111(b) does not explicitly prohibit one timeshare owner or the corporate manager from

collecting and paying taxes on behalf of the other timeshare owners. Indeed,

[a]ny person who receives or collects an ad valorem tax or any money
represented to be a tax from another person holds the amount so collected
in trust for the benefit of the taxing unit and is liable to the taxing unit for the
full amount collected plus any accrued penalties and interest on the amount
collected.

Id. § 32.07(d). By collecting the property tax payments from the other timeshare owners,

Sundial subjected itself to potential liability if the tax payments were not made. See id.

§ 32.07(e).

Having reviewed the evidence presented at trial, we conclude that the evidence

was legally and factually sufficient to support the trial court’s findings that Sundial

(1) voluntarily paid the property taxes and not as a result of fraud, duress, or mutual

mistake; (2) acted with apparent authority to pay the taxes on behalf of the owners;

(3) acted as the alter ego of the remaining timeshare owners; and (4) acted as an agent

for the other timeshare owners. See Ortiz, 917 S.W.2d at 772. Further, these findings

conform to the trial court’s conclusion that Sundial did not erroneously pay the taxes for

2013 and 2014 tax years. See TEX. TAX. CODE ANN. § 31.11; Bleeker, 941 S.W.2d at 169–

70; see also Error, MERRIAM-WEBSTER- ONLINE DICTIONARY, https://www.merriam-

webster.com/dictionary/error (last visited February 18, 2023). Because Sundial did not

conclusively establish that the taxes were erroneously or excessively paid, the trial court

did not err in rendering a take nothing judgment as to tax years 2013 and 2014, and we

need not review the remaining findings of fact that Sundial challenges. See Bleeker, 941

S.W.2d at 169–70. Sundial’s second issue is overruled.

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 IV. CONCLUSION

We affirm the trial court’s judgment as to tax years 2010, 2011, 2013, and 2014,

and reverse and remand as to tax year 2012.

CLARISSA SILVA
Justice

Delivered and filed on the
9th day of March, 2023.

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