Opinion

Opinion issued October 28, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01238-CV

__________

BPAC TEXAS, LP AS THE PROPERTY OWNERS AND

THE PROPERTY OWNERS, Appellant s

V.

HARRIS COUNTY APPRAISAL DISTRICT AND

HARRIS COUNTY APPRAISAL REVIEW BOARD , Appellee s

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2002-45969

MEMORANDUM OPINION

In this ad valorem property tax case, appellants, BPAC Texas, LP and the

individual owner s of a retail center (collectively, BPAC) , challenge the trial court’s

rendition of summary judgment in favor of appellees, the Harris County Appraisal

District (HCAD) and the Harris County Appraisal Review Board (HCARB)

(collectively, the taxing authorities), on BPAC’s claims that the subject property was

unequally and excessively appraised. In two issues, BPAC contends that the trial

court erred in granting summary judgment in favor of the taxing authorities and in

denying BPAC’s motion for continuance.

We affirm.

Factual and Procedural Background

BPAC owns a tract of real property located in Harris County, Texas and

comprising approximately 590,000 square feet. A retail shopping center occupies

approximately 140,000 square feet of the property. For tax year 2002, HCAD

appraised the property as having a market value of $13,681,900 and assessed ad

valorem taxes on the property based on that value.

BPAC filed a protest of that valuation and designated an agent to act as its

representative at an administrative hearing on its protest, which was held before a

three-member panel of HCARB. Before the hearing, BPAC’s agent, Kevin Begnaud

of Deloitte & Touche, L.L.P., signed and submitted a written statement to HCARB

expressing his opinion that the value of the property was $12,075,920. Begnaud

attended the hearing, as did Robert Guiberteau , who appeared as a representative of

HCAD. At the hearing, the representatives of the parties offered the following sworn

testimony to the chairman of the HCARB panel:

Chairman:Let the record reflect that . . . the value we set will be based

only on what we hear in this hearing. Mr. Guiberteau, are

you ready for a description?

Guiberteau:Yes, sir. [The subject property is] a Randall’s center built

in 1993, 142,180 square feet on 590,852 square feet of dirt

for a noticed value of [$]13,681,900. However, the district

did a recalculation on income and in the informal has

offered the [$]12,075,920; and we’ll agree with that

number.

Chairman:Okay. Thank you, Mr. Guiberteau. Mr. Begnaud, is that

the property and is that value agreeable to you?

Begnaud:Yes, it is.

Chairman:Okay. Then we’ll close testimony and deliberate.

After a brief deliberation, the HCARB panel set the appraised value of the property

at $12,075,920 for tax year 2002. HCARB subsequently ordered HCAD to correct

the appraisal roll accordingly, and HCARB sent a copy of its order to BPAC. The

order informed BPAC that

IF YOU ARE DISSATISFIED WITH THE ARB’S DECISION, YOU

MAY FILE SUIT IN DISTRICT COURT. YOU OR YOUR

ATTORNEY MUST FILE YOUR PETITION WITH THE DISTRICT

COURT WITHIN 45 DAYS OF THE DATE YOU RECEIVE THIS

NOTICE.

In September 2002, BPAC filed suit against the taxing authorities alleging that

the property had been unequally and excessively appraised. The taxing authorities

answered the suit and, approximately one year later, filed a motion for summary

judgment “based on the agreement of value between the parties” and the

enforceability of such agreement, pursuant to section 1.111 of the Tax Code.

In its

response to the motion for summary judgment, BPAC denied the existence of any

agreement between its agent and HCAD as to the value of the property and moved for

a continuance to conduct additional discovery. The trial court granted the taxing

authorities’ motion for summary judgment without making an express ruling on

BPAC’s motion for continuance.

Standard of Review

Summary judgment is proper only when the evidence shows that there are no

issues of material fact and that the moving party is entitled to judgment as a matter

of law. Tex. R. Civ. P . 166a(c) . We may affirm a summary judgment only when the

record shows that a movant has disproved at least one element of each of the

plaintiff’s claims or has established all of the elements of an affirmative defense as

to each claim. Id .; Am. Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997).

The movant has the burden of showing that there is no genuine issue of material fact

and that it is entitled to judgment as a matter of law. Dow Chem. Co. v. Francis , 46

S.W.3d 237, 242 (Tex. 2001). In deciding whether there is a disputed material fact

issue precluding summary judgment, proof favorable to the non-movant is taken as

true, and the court must indulge every reasonable inference and resolve any doubts

in favor of the non-movant. Id .

Analysis

The taxing authorities moved for summary judgment on BPAC’s claims based

solely on the argument that, as a matter of law, BPAC, through its designated agent,

had reached a final and enforceable agreement with HCAD as to the appraised value

of the property and, therefore, the provisions of the Tax Code foreclose BPAC from

contesting the appraisal in an appeal to the trial court.

In its first issue, BPAC contends that the trial court erred in granting summary

judgment in favor of the taxing authorities because (1) no agreement as to the

appraised value of the property existed between BPAC and any representative of

HCAD and (2) BPAC has an “absolute” statutory due process right to seek a judicial

appeal from any determination of the appraised value of its property made by

HCARB.

Here, there is no dispute that BPAC designated an agent to act on its behalf in

its dealings with HCAD and in the proceedings before HCARB. With respect to

agreements between property owners and taxing authorities, the Tax Code provides,

in relevant part, as follows:

An agreement between a property owner or the owner’s agent and the

chief appraiser is final if the agreement relates to a matter:

(1)which may be protested to the appraisal review board or on which

a protest has been filed but not determined by the board . . . .

Tex. Tax Code Ann . § 1.111(e) (Vernon 2001).

Our objective in construing a statute is to determine and give effect to the

intent of the lawmaking body. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc. ,

966 S.W.2d 482, 484 (Tex. 1998). In so doing, we look first to the plain and common

meaning of the statute’s words. Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996

S.W.2d 864, 865 (Tex. 1999). We should not adopt a construction that would render

a law or provision absurd or meaningless. See Chevron Corp. v. Redmon , 745 S.W.2d

314, 316 (Tex. 1987); Mueller v. Beamalloy, Inc. , 994 S.W.2d 855, 860 (Tex.

App.—Houston [1st Dist.] 1999, no pet.).

The summary judgment evidence contradicts BPAC’s assertion that no

agreement existed between it and HCAD as to the appraised value of the property.

The sworn testimony presented at the protest hearing plainly establishes the existence

of an agreement concerning the appraised value of the property, as attested to by

representatives of both BPAC and HCAD. Moreover, the summary judgment

evidence also establishes that, at the time that the agreement between BPAC and

HCAD concerning the appraised value of the property was announced, BPAC’s

protest of the initial appraised value of the property had not been determined by the

board; thus, pursuant to the provisions of section 1.111(e), the agreement was final,

regardless of whether it was later approved or adopted by HCARB. See Tex. Tax

Code Ann . § 1.111(e) .

BPAC argues, in the alternative, that construing section 1.111(e) as prohibiting

it from pursuing a lawsuit deprives it of its statutory due process right to appeal an

order of an appraisal review board. As noted by BPAC, the Tax Code permits a

property owner to appeal “an order of the appraisal review board determining a

protest by the property owner” to a district court. Tex. Tax Code Ann . § 42.01

(Vernon 2001); see id. § 42.21 (Vernon 2001).

It is well-established that the collection of taxes constitutes deprivation of

property; therefore, a taxing authority must afford a property owner due process of

law. McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus.

Regulation of Florida , 496 U.S. 18, 36-37 , 110 S. Ct. 2238, 2250-51 (1990); ABT

Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist. , 137 S.W.3d 146, 155 (Tex.

App.—Houston [1st Dist.] 2004, no pet.); see U. S. Const . amend. XIV ; Tex. Const .

art. I, § 19 . However, “[d]ue process simply affords a right to be heard before final

assessment; it does not detail the review mechanism.” ABT , 137 S.W.3d at 155

(quoting Dallas County Appraisal Dist. v. Lal , 701 S.W.2d 44, 47 (Tex. App.—Dallas

1985, writ ref’d n.r.e.)). Texas courts have held that, in cases involving taxation, due

process is satisfied if a taxpayer is given an opportunity to be heard before an

assessment board at some stage of the proceedings. ABT , 137 S.W.3d at 155 ; Denton

Cent. Appraisal Dist. v. CIT Leasing Corp. , 115 S.W.3d 261, 266 (Tex. App.—Fort

Worth 2003, pet. denied); Lal , 701 S.W.2d at 47 .

Here, BPAC filed a protest and was given an opportunity to present and argue

the grounds of its protest at a hearing before a panel of HCARB. Instead of pursuing

its protest, BPAC choose to reach an agreement with HCAD as to the appraised value

of its property, and its agent attested to the existence of the agreement on the record.

HCARB’s subsequent order, despite its language, did not “determine” the outcome

of BPAC’s protest because, as indicated by the plain language of section 1.111(e), the

agreement between BPAC and HCAD was final at the time that it was made and did

not require HCARB’s approval. Therefore, we conclude that the summary judgment

record established, as a matter of law, that BPAC was not deprived of its statutory due

process rights to appeal “an order of the appraisal review board determining a protest

by the property owner.”

Accordingly, we hold that the trial court did not err in granting summary

judgment in favor of the taxing authorities. We overrule BPAC’s first issue.

Motion for Continuance

In its second issue, BPAC argues that the trial court erred in denying, by

implication, its motion for continuance.

We review a trial court’s decision to deny

a motion for continuance for abuse of discretion. Carpenter v. Cimarron

Hydrocarbons Corp. , 98 S.W.3d 682, 685 (Tex. 2002).

On appeal, BPAC argues that, at the time that the taxing authorities filed their

motion for summary judgment, a continuance was necessary to permit BPAC to

conduct discovery on “the allegation that prior to the board hearing [BPAC’s] agent

suggested that an agreement as to the proper value be entered into; however,

[HCAD’s] representative refused.” However, in its motion for continuance and in its

briefing to this Court, BPAC did not explain why it could not have obtained

discovery on this issue through its own diligence during the preceding year of

litigation, or why it could not have obtained such discovery from its own designated

agent who attended the tax protest proceedings and engaged in settlement discussions

with the taxing authorities. See Tex. R. Civ. P . 166a(g); 252.

Accordingly, we hold that the trial court did not abuse its discretion in denying

BPAC’s motion for continuance. We overrule BPAC’s second issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.