Houston Independent School District, et al., v. Old Farms Owners Association, Inc., et al.,--Appeal from 270th District Court of Harris County

Opinion issued July 26, 2007

 

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-04-00538-CV

 

HOUSTON INDEPENDENT SCHOOL DISTRICT, CITY OF HOUSTON, HARRIS COUNTY, HARRIS COUNTY EDUCATION DEPARTMENT, PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, HARRIS COUNTY FLOOD CONTROL DISTRICT, HARRIS COUNTY HOSPITAL DISTRICT, AND HOUSTON COMMUNITY COLLEGE SYSTEM, Appellants

 

V.

 

OLD FARMS OWNERS ASSOCIATION, INC., WESTHEIMER OLD FARMS I, LTD., SUSAN C. LEE, TRUSTEE OF THE TRUST CREATED UNDER ARTICLE IV OF THE WILL OF KATHERINE P. BARNHART, DECEASED, AND DAVID NGUYEN INDIVIDUALLY AND D/B/A DAVID NGUYEN CONSTRUCTION, Appellees

 

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2002-15418

 

O P I N I O N

 

In this ad valorem tax case, the appellant taxing authorities, which include Harris County and other taxing units, (1) challenge the trial court's decision that the taxing units are not entitled to penalties and interest for delinquent taxes owed for tax year 1997 on 4.3 acres of real property. In this regard, the taxing units raise two issues on appeal.

We reverse and remand.

Background

On January 1, 1997, the Trust Created under Article IV of the Will of Katherine P. Barnhart, Deceased ("the Article IV Trust" or "the trust") owned approximately 4.3 acres of property ("the property") in Houston. At the time, Ronald E. Lee was the trustee. Mr. Lee officed at 1706 Post Oak Boulevard in Houston and had been at that location since 1993. From 1993 until 1996, Mr. Lee received tax statements for the property at that address, and the Article IV Trust paid the taxes on the property for those years.

On July 18, 1997, the trust sold 4.2562 acres of the property to Westheimer Old Farm Ltd. The trust retained ownership of the remaining .0609 acres of the property. (2) Related to the sale and division of the property, the records of the Harris County Appraisal District ("HCAD") contain a "Request for Records Maintenance" form dated September 2, 1997. On the form, HCAD listed Mr. Lee's address as 4550 Post Oak Place, Suite 123, in Houston. Mr. Lee had not officed at that address since approximately 1986, and it was an incorrect address for Mr. Lee in 1997. HCAD provided that address to the Harris County tax collector's office for use in mailing out tax notices on the property. As a result, the 1997 tax bill for the property was mailed by the Harris County tax collector to Mr. Lee at the incorrect 4550 Post Oak Place address. Mr. Lee did not receive the 1997 tax bill, and it was returned to the Harris County tax office as "undeliverable." The trust did not pay the 1997 taxes on the property.

The address error was corrected in HCAD's records in 1999. At that time, HCAD provided the correct address to the Harris County tax collector's office to use in sending out tax notices. Also in 1999, the taxing units filed suit against Mr. Lee, as trustee, to recover the delinquent 1997 taxes for the property. (3) The taxing units later nonsuited that action in 2000.

In 2002, the taxing units again filed suit to recover the 1997 taxes. The suit named the following as defendants: Old Farms Owners Association, Inc., Westheimer Old Farms I, Ltd., Susan C. Lee, Trustee of the Trust Created under Article IV of the Will of Katherine P. Barnhart, Deceased, and David Nguyen, Individually and d/b/a David Nguyen Construction. (4)

The case was initially heard by a tax master. At the hearing before the tax master, the Article IV Trust argued that the penalties and interest associated with the 1997 taxes were canceled based on the 1985 amendment to Tax Code section 33.04. (5) Subsection (b) of that act required taxing units in each year divisible by five to deliver by mail a written notice of delinquency to each person who owes a tax that has been delinquent more than one year. (6) The Article IV Trust asserted that, under this provision, the taxing units were required to send the trust a delinquency notice in 2000. Mr. Lee testified that he had never received a delinquency notice. The Article IV Trust further pointed out that subsection (c) of that act mandated cancellation of penalties and interest if the taxing units did not deliver the subsection (b) delinquency notice. (7) The Article IV Trust contended that, because the taxing units had not delivered a delinquency notice to its trustee in 2000, the taxing units were not entitled to penalties and interest for the 1997 taxes.

In contrast, the taxing units contended that the 2001 amendment of section 33.04 applied, not the 1985 amendment. The effective date of the 2001 act was September 1, 2001. (8) Under the 2001 act, a taxing unit's failure to deliver a delinquency notice does not result in cancellation of penalties and interest. (9)

Citing a savings clause in the 2001 act, the Article IV Trust argued that the 1985 version of section 33.04 applies in this case. The savings clause provides, in part, "A delinquent tax that is the subject of a collection suit filed before the effective date [of September 1, 2001] of this Act is governed by Section 33.04, Tax Code, as that section existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose." (10) The trust asserted that, pursuant to the savings provision, the 1985 version of section 33.04 applied because a suit to collect the 1997 taxes had been filed by the taxing units before the 2001 act's effective date of September 1, 2001. Specifically, the trust pointed out that the taxing units had filed suit in 1999 against its trustee to collect the 1997 taxes. The taxing units responded that it had nonsuited the 1999 suit before the effective date of the 2001 act. Thus, the taxing units argued, the 1999 suit could not serve to continue the effectiveness of section 33.04 as it existed before the effective date of the 2001 act.

The Article IV Trust also asserted that penalties and interest may be awarded only on a "delinquent" tax. The trust points out that a tax becomes delinquent only when a tax bill has been delivered to the taxpayer. The trust asserted that it had not received a bill for the 1997 tax year. The trust offered evidence that the 1997 tax bill had been sent to the incorrect 4550 Post Oak Place address and that the tax bill had been returned to the Harris County tax collector's office as "undeliverable." Mr. Lee testified that he never received a tax bill for the 1997 tax year.

By offering into evidence certified tax records showing the amount of base taxes, penalties, and interest for the property, the taxing units asserted that, pursuant to Tax Code section 33.47, they established a prima facie case regarding every material fact necessary to prove their cause of action. (11) This included a rebuttable presumption that the taxing units had properly sent the 1997 tax bill to the trust. The taxing units contended that the trust had not rebutted this presumption. The taxing units pointed out that the evidence showed that the 1997 tax bill was mailed to the most recent address provided to the Harris County tax collector's office by HCAD. The taxing units asserted that, by mailing the tax bill to the most recent address provided by HCAD, they had done all that was legally required.

At the conclusion of the hearing, the tax master recommended that the taxing units recover the 1997 base taxes, but not recover penalties and interest on those taxes. The tax master's report contains findings in support of his recommendation regarding the penalties and interest. The tax master found that the trustee never received notice of the taxes. The tax master also found that penalties and interest on the 1997 taxes were waived because the Article IV Trust, through its trustee, had not received a delinquency notice as required by the 1985 version of Tax Code section 33.04 and as discussed in Aldine Independent School Dist. v. Ogg, 122 S.W.3d 257 (Tex. App.--Houston [1st Dist.] 2003, no pet.).

The taxing units appealed the tax master's recommendation to the referring district court. The parties agreed that base taxes were owed on the property for the 1997 tax year. The issue that was tried to the trial court was whether the taxing units were entitled to recover penalties and interest for the 1997 taxes. The parties supported their respective positions with the same arguments that each had made to the tax master.

The evidence admitted at the tax master hearing was admitted in the trial court. In addition, the taxing units admitted a copy of a delinquent tax notice that had been sent to Mr. Lee at his correct address in 2000. The notice stated the amount of 1997 base taxes, penalties, and interest owed on the property. Mr. Lee testified that he had never received a copy of any delinquency notices, despite the fact that the record shows Harris County had his correct address.

Following a de novo bench trial, the district court signed a judgment "overruling" the taxing units appeal and adopted the tax master's findings as indicated in the master's report. The trial court awarded the taxing units judgment against the Article IV Trust, as owner of the 4.3 acres on January 1, 1997, "for the full amount of the taxes owed for the 1997 tax year in the amount of $51, 208.75." The district court also ordered that the Article IV Trust was entitled to reimbursement from Westheimer Old Farms I for a pro rata share of the 1997 taxes. (12) Consistent with the tax master's findings and recommendation, the district court's judgment did not award the taxing units penalties and interest relating to the 1997 taxes. Other than adopting the findings of the tax master, the district court did not file separate findings of fact and conclusions of law, and none were requested by the parties.

Raising two issues, the taxing units challenge the district court's judgment to the extent that it does not award the taxing units penalties and interest for the 1997 taxes.

Tax Code Section 33.04

In their first issue, the taxing units challenge the trial court's determination that the 1985 version of Tax Code section 33.04 applied to the instant litigation rather than the 2001 version of that statute. Determining which version of section 33.04 applies in this case is a question of law; accordingly, our review is de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

The taxing units contend, as they did in the trial court, that the amendatory language of the 2001 act applies in this case. We agree.

The savings provision accompanying the 2001 amendatory language provides as follows:

Section 33.04, Tax Code, as amended by this Act, does not apply to taxes subject to a delinquent tax suit pending before the effective date of this Act [i.e., September 1, 2001]. Section 33.04, Tax Code, as amended by this Act, applies to all other taxes that became delinquent before the effective date of this Act or that become delinquent on or after that date. Penalties and interest on a delinquent tax are not canceled under Section 33.04, Tax Code, for failure to deliver any notice under that section as it existed immediately before the effective date of this Act. A delinquent tax that is the subject of a collection suit filed before the effective date of this Act is governed by Section 33.04, Tax Code, as that section existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

Act of May 17, 2001, 77th Leg., R.S., ch. 1430, 40, 2001 Tex. Gen. Laws 5109, 5122.

The instant litigation was filed in 2002; thus, under the savings provision, the 2001 amendatory language governs in this case. We disagree with the position taken by the Article IV Trust that, because the taxing units had filed suit in 1999 against the trust, the earlier version of section 33.04 applies, regardless of the fact that the action was nonsuited in 2000. When a party nonsuits an action, the parties are placed back in the same positions as before the filing of the suit. Hagberg v. City of Pasadena, No. 01-05-00466-CV, 2007 WL 494201, *5 (Tex. App.--Houston [1st Dist.] Feb. 15, 2007, no pet.); see Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962); Parker v. JPMorgan Chase Bank, 95 S.W.3d 428, 432 (Tex. App.--Houston [1st Dist.] 2002, no pet.); Ashpole v. Millard, 778 S.W.2d 169, 171 (Tex. App.--Houston [1st Dist.] 1989, orig. proceeding). In other words, we treat the 1999 suit as if it had never been filed. See Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex. App.--Dallas 2005, no pet.). For this reason, we conclude that the 2001 amendatory language governs in this case. (13) The trial court incorrectly determined that the 1985 amendment of 33.04 applied. (14) Pursuant to the 2001 act, any failure by the taxing units to properly deliver the delinquency notice in 2000 does not mandate cancellation of penalties and interest for the 1997 taxes. See Act of May 17, 2001, 77th Leg., R.S., ch. 1430, 40, 2001 Tex. Gen. Laws 5109, 5122 ("Penalties and interest on a delinquent tax are not canceled under Section 33.04, Tax Code, for failure to deliver any notice under that section as it existed immediately before the effective date [of September 1, 2001] of this Act.").

We sustain the taxing units' first issue.

1997 Tax Bill

In the tax master proceeding and in the trial court, the Article IV Trust asserted that the 1997 tax never became delinquent because the 1997 tax bill was neither sent to nor received at Mr. Lee's current address. Thus, the taxing units were not entitled to penalties and interest. In their second issue, the taxing units contend that the Article IV Trust did not present legally or factually sufficient evidence to rebut the presumption that the taxing units met their statutory burden with regard to delivery of the 1997 tax bill.

Tax bills must be mailed by October 1 of the year for which taxes are assessed, or as soon thereafter as practicable. Tex. Tax Code Ann. 31.01(a) (Vernon Supp. 2006). Taxes are due on receipt of the tax bill and are delinquent if not paid by February 1 of the year following the year imposed. Tex. Tax Code Ann. 31.02(a) (Vernon Supp. 2006). In Ogg, we explained that, if a taxing unit has an address for a taxpayer on its tax roll, but nonetheless fails to meet the statutory requirements with regard to the sending of the tax bill to the taxpayer, the tax never becomes "delinquent," and penalties and interest cannot be collected. See 122 S.W.3d at 270-71. As discussed in Ogg, a taxing unit is required only to mail the tax bills to the address found in its most recent records. Id. at 271 (citing Tex. Tax Code Ann. 1.07(b)).

Tax Code subsection 33.47(a) addresses evidentiary concerns in delinquent tax cases and provides as follows:

(a) In a suit to collect a delinquent tax, the taxing unit's current tax roll and delinquent tax roll or certified copies of the entries showing the property and the amount of the tax and penalties imposed and interest accrued constitute prima facie evidence that each person charged with a duty relating to the imposition of the tax has complied with all requirements of law and that the amount of tax alleged to be delinquent

against the property and the amount of penalties and interest due on that tax as listed are the correct amounts.

Tex. Tax Code Ann. 33.47(a) (Vernon 2001). Once the taxing unit introduces these records, it establishes a prima facie case as to every material fact necessary to establish its cause of action. Davis v. City of Austin, 632 S.W.2d 331, 333 (Tex. 1982); Ogg, 122 S.W.3d at 264. When the taxing unit establishes a prima facie case in a tax delinquency suit, a rebuttable presumption arises that the taxing entity has taken all actions necessary to obtain legal authority to levy the tax, including proper delivery of all required tax notices. Ogg, 122 S.W.3d at 264.

Here, the taxing units introduced certified copies of tax statements from the Harris County tax collector's office showing the delinquent taxes, penalties, and interest owing for the property. Accordingly, the taxing units were entitled to a presumption that they satisfied the statutory requirements entitling them to collect the penalties and interest for the 1997 tax. See Tex. Tax Code Ann. 33.47(a); Ogg, 122 S.W.3d at 264. This would include the presumption that the 1997 tax bill was sent to the Article IV Trust as statutorily required. See Ogg, 122 S.W.3d at 264.

After the taxing units made their prima facie case by introducing the official tax records, the burden then shifted to the Article IV Trust to show, by introducing competent evidence, that the taxing units had not satisfied the statutory requirements. See id. The presumption created by section 33.47 disappears if and when the taxpayer meets its burden of producing competent evidence to justify a finding against the presumed fact. Id. In other words, once the 33.47 presumption is established, the trust had the burden "to go forward with [its] defensive evidence" regarding whether the taxing units properly transmitted the tax bill. See id. We determine whether the trust offered legally and factually sufficient evidence to rebut this presumption.

In an appeal from a bench trial, findings of fact have the same weight as a jury's verdict on special issues. Lee v. Lee, 981 S.W.2d 903, 905 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). We review the legal and factual sufficiency of the evidence supporting a trial court's findings of fact by the same standards that we apply to reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). Thus, if the complaining party challenges the legal sufficiency of the evidence underlying an adverse finding on which the party did not have the burden of proof, then the party must demonstrate on appeal that there is no evidence to support the finding. Gennedy, 125 S.W.3d at 691. In such a review, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor, and disregard all evidence and inferences to the contrary. Id. at 692. We do not disregard contrary evidence if there is no favorable evidence, or if contrary evidence renders supporting evidence incompetent or conclusively establishes the opposite. City of Keller v. Wilson, 168 S.W.3d 802, 810-11 (Tex. 2005). If more than a scintilla of evidence supports the finding, the no-evidence challenge fails. Gennedy, 125 S.W.3d at 692.

In our review of factual sufficiency of the evidence, we must consider and weigh all of the evidence. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We will set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

Here, the evidence relied on by the trust showed that the taxing units did not mail the 1997 tax bill to Mr. Lee at his current address. The evidence also showed that Mr. Lee did not receive a copy of the 1997 tax bill and that the bill was returned to the tax collector as "undeliverable." Although this may suggest that the taxing units did not mail the tax bills to Mr. Lee's most current address, such evidence does not show that the taxing units did not mail the tax bills to the most recent address for Mr. Lee that the Harris County tax collector had listed in its records, as statutorily required. See Tex. Tax Code Ann. 1.07(b) (Vernon Supp. 2006); Ogg, 122 S.W.3d at 271. To the contrary, the evidence shows that the taxing units mailed the tax bill to the most recent address contained in the Harris County tax rolls, which address had been provided by HCAD to the tax collector's office. We conclude that legally insufficient evidence was presented to rebut the presumption that the taxing units properly sent the 1997 tax bill. Accordingly, no evidence supports a conclusion that the taxing units should be denied penalties and interest because the 1997 tax was never "delinquent." (15)

We sustain the taxing units second issue. (16)

Conclusion

We conclude that the two bases argued by the Article IV Trust and relied on by the trial court to deny the taxing units' claim for penalties and interest are unfounded. We hold that the trial court erred by denying the taxing units' request for penalties and interest on the 1997 taxes. Accordingly, we reverse the portion of the trial court's judgment denying the taxing units' request for penalties and interest and remand the case for the limited purpose of determining the amount of interest and penalties to be awarded the taxing units. See Tex. R. App. P. 43.3.

 

Laura Carter Higley

Justice

 

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

 

Justice Keyes, dissenting.

1. The other taxing units are Houston Independent School District, the City of Houston, Harris County Education Department, Port of Houston Authority of Harris County, Harris County Flood Control District, Harris County Hospital District, and Houston Community College System. It appears that the Harris County Tax Collector-Assessor collects taxes for the taxing units in this case.

2. In 2001, the trust conveyed the .0609 acres to Old Farms Owners Association, Inc.

3. Although the majority of the property had been sold to Westheimer Old Farm Ltd. in July 1997, the trust was the record property owner for the entire 4.3 acres on January 1, 1997.

4. At the time, Mr. Lee was no longer the trustee of the Article IV trust. The new trustee was Susan C. Lee. It appears that David Nguyen, individually and d/b/a David Nguyen Construction was named as a defendant because he had a lien on the property. Although identified as appellees, Westheimer Old Farms I, Ltd. and David Nguyen individually and d/b/a David Nguyen Construction have not filed briefs in this appeal. Appellees Old Farms Owners Association, Inc. and Susan C. Lee, Trustee of the Trust Created under Articles IV of the Will of Katherine P. Barnhart, Deceased have filed a joint responsive brief to appellants' brief.

5. See Act of May 26, 1985, 69th Leg., R.S., ch. 761, 1, sec. 33.04, 1985 Tex. Gen. Laws 2600, 2601.

6. See Act of May 26, 1985, 69th Leg., R.S., ch. 761, 1, sec. 33.04(b), 1985 Tex. Gen. Laws 2600, 2601.

7. See Act of May 26, 1985, 69th Leg., R.S., ch. 761, 1, sec. 33.04(c), 1985 Tex. Gen. Laws 2600, 2601.

8. Act of May 17, 2001, 77th Leg., R.S., ch. 1430, 40, 2001 Tex. Gen. Laws 5109, 5122-23.

9. See Tex. Tax. Code Ann. 33.04 (Vernon 2001); see also Act of May 17, 2001, 77th Leg., R.S., ch. 1430, 40, 2001 Tex. Gen. Laws 5109, 5122 ("Penalties and interest on a delinquent tax are not canceled under Section 33.04, Tax Code, for failure to deliver any notice under that section as it existed immediately before the effective date [of September 1, 2001] of this Act.").

10. Act of May 17, 2001, 77th Leg., R.S., ch. 1430, 40, 2001 Tex. Gen. Laws 5109, 5122.

11. Tex. Tax Code Ann. 33.47(a) (Vernon 2001).

12. The 1997 purchase agreement between Westheimer Old Farms I and the trust provided that the 1997 taxes be pro rated.

13. Although not raised by the parties, the question arises whether the 1999 amendment to 33.04 governs. Pursuant to former 33.04(b), the five-year delinquency notice here was required to be given in 2000, i.e., the first year after 1997 divisible by five. The 1999 amendment became effective January 1, 2000, Act of May 30, 1999, 76th Leg., R.S., ch. 1481, 43(c), 1999 Tex. Gen. Laws 5097, 5114, and applied to 33.04(b) notices given in and after 2000. Act of May 30, 1999, 76th Leg., R.S., ch. 1481, 45, 1999 Tex. Gen. Laws 5097, 5114. The 1999 amendment deleted the language requiring cancellation and made failure to deliver the subsection (b) notice an affirmative defense. Act of May 30, 1999, 76th Leg., R.S., ch. 1481, 16, sec. 33.04(d) 1999 Tex. Gen. Laws 5097, 5101. The 1999 amendatory language added that penalties and interest were reinstated "if subsequent to the collector's failure to deliver the notice required by Subsection (b), the collector delivers the notice in any subsequent year divisible by five." Act of May 30, 1999, 76th Leg., R.S., ch. 1481, 16, sec. 33.04(e) 1999 Tex. Gen. Laws 5097, 5101.

14. We also note that the specific holding of Aldine Independent School Distrtict v. Ogg is inapposite to the determination of whether penalties and interest were properly cancelled for failure to deliver a section 33.04(b) notice in this case. 122 S.W.3d 257 (Tex. App.--Houston [1st Dist.] 2003, no pet.). In Ogg, the 1985 version of section 33.04 applied. Id. at 263. As discussed, that version does not govern the delinquency notice at issue in this case.

15. Although it has been amended numerous times since its enactment in 1985, Tax Code section 33.011 has always provided a process for a taxpayer to request a waiver of penalties and interest if the act or omission of an officer, employee, or agent of the appraisal district or taxing unit caused or resulted in the taxpayer's failure to pay the tax before delinquency. See Tex. Tax Code Ann. 33.011 (Vernon 2001). Here, it is undisputed that the trust did not request a waiver of penalties or interest pursuant to section 33.011.

16. Because we hold the evidence was legally insufficient, we need not address whether the evidence was factually insufficient.