IN THE THIREENTH COURT OF APPEALS

Transcription

1 No CV IN THE THIREENTH COURT OF APPEALS NUECES COUNTY, NUECES COUNTY HOSPITAL DISTRICT, CITY OF CORPUS CHRISTI, DEL MAR JUNIOR COLLEGE DISTRICT AND PORT ARANSAS I.S.D., APPELLANTS VS. SUNDIAL OWNERS ASSOCIATION, INC., APPELLEE APPEAL FROM THE 105 TH JUDICIAL DISTICT COURT, NUECES COUNTY No: 2016-DCV-0484-D APPELLEE S BRIEF ACCEPTED CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 4/12/2018 4:12 PM Dorian E. Ramirez CLERK Bradford M. Condit, Attorney for Appellee Sundial Owners Association, Inc. State Bar No Federal I.D. No North Tancahua Corpus Christi, Texas Voice: Fax: bradcondit@sbcglobal.net

2 TABLE OF CONTENTS I. Table of Contents i II. Index of Authorities.. ii III. Statement of the Case.. v. IV. Statement Regarding Oral Argument... v. V. Statement of Issues Presented Response.. v. VI. Statement of Facts 1 VII. Summary of the Argument 6 VIII. Argument and Authorities The Law of Jurisdictional Immunity 8 IX. Issue 1: The Legislature waived immunity for suit for the 2013 refund claim in the new statute effective June X. Issue 2: Appellee s claims for a refund of 2013 and 2014 taxes are not barred because whether owing delinquent taxes or not is not a part of the refund statute, and because no taxes are delinquent anyway..11 XI. Issue 3: a. Whether Appellee paid taxes voluntarily or not is not relevant to a plea to the jurisdiction b. Whether or not Appellee paid taxes voluntarily is not relevant because this common law doctrine law was preempted by the new refund statute and/or case law has applied the refund statute to this circumstance

3 when money has been mistakenly paid to a wrong account.. 13 XII. Issue 4: XIII. Issue 5: Appellee satisfied all conditions precedent to bringing suit for a refund claim in that the refund statute does not require a protest before an Appraisal Review Board or judicial review before filing suit 16 There has never been a judicial review of a decision for a refund claim of 2014 taxes and, in addition, such is not relevant to a plea to the jurisdiction XIV. Requested Relief. 22 XV. Certificate of Service 23 XVI. Certificate of Compliance Appendix 25 A - Texas Property Tax Code before 2013 admendments B - Texas Property Tax Code with new subpargraphs (j) & (k) added ii.

4 INDEX OF AUTHORITIES Case Law Authority Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).. 19 Big Big Rock Investors Ass'n v. Big Rock Petroleum, Inc., 409 S.W.3d 845 (Tex. App.--Fort Worth 2013, pet. denied)..8 Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)..8 Brooks County Cent. Appraisal Dist. v. Tipperary Energy Corp., 847 S.W.2d 592, (Tex. App.-San Antonio 1992, no writ).15 Childress County v. State, 127 Tex. 343, 349, 92 S.W.2d 1011, 1015 (1936) 3 First Bank of Deer Park v. Deer Park Indep. Sch. Dist., 770 S.W.2d 849, 854 (Tex. App.-Texarkana 1989, writ denied)..15 Kaplan v. Tiffany Development Corp., 69 S.W.3d 212 (Tex.App. Corpus Christi 2001, no pet.) 18 Lewisville ISD v. CH Townhomes, Inc., 346 S.W.3d 21, 22 (Tex. App.--Fort Worth 2011, pet. denied) 8 Salvaggio vs. Houston ISD, 709 S.W. 2d 306 (Tex.App. Houston [14 th Dist.] 1986, writ dism d) 14 Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994) 19 Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) 8 Travis Cent. Appraisal Dist. v. Signature Flight Support Corp., 140 S.W.3d 833, 840 (Tex. App. Austin 2004, no pet.)..3 Texas Nat'l Bank of Baytown v. Harris County, 765 S.W.2d 823, 826 (Tex. App.-Houston [14th Dist.] 1988, writ denied)..15 iii.

5 TRQ Captain's Landing, L.P. v. Galveston Central Appraisal Dist., 212 S.W.3d 726 (Tex.App. Houston [1st Dist.] 2006).3 Univ. of Tex. at Arlington v. Williams, No CV, 2013 WL , (Tex. App.--Fort Worth Mar. 28, 2013, pet. filed) (mem. op.).8 STATUTES Tex.Civ.Prac. & Rem. Code sec (a)(8) , 18 Texas Property Tax Code section , 6, 7, 9, 10, 11, 14, 15, 16, 17 Tex. Property Tax Code sec (a) 2 Tex. Property Tax Code sec (e)..17 Tex. Property Tax Code sec (j)..10 Tex. Property Tax Code sec (k)...9, 2 Texas Tax Code Sec Tex. Tax. Code sec c..15 Texas Tax Code sec (c) 3 OTHER AUTHORITES O Connor s Texas Rules Civil Trials 2014, pg Texas Attorney General Opinions, No. JC-0286 (2000)..15 iv.

6 III. STATEMENT OF THE CASE Plaintiff/Appellee Sundial Owner s Association, Inc. filed suit against Appellants seeking a refund of money it erroneously paid on the tax account of Sundial Timeshare Corporation. After nearly two years of litigation Appellants filed a plea to the jurisdiction which was denied. This is an accelerated appeal of that denial. IV. STATEMENT REGARDING ORAL ARGUMENT Appellee agrees that oral argument would be helpful. V. STATEMENT OF ISSUES PRESENTED RESPONSES Issue 1: Issue 2: Issue 3: The Legislature waived immunity for suit for the 2013 refund claim in the new statute effective June 2013 Appellee s claims for a refund of 2013 and 2014 taxes are not barred because whether owing delinquent taxes or not is not a part of the refund statute and because no taxes are delinquent anyway. a. Whether Appellee paid taxes voluntarily or not is not relevant to a plea to the jurisdiction. b. Whether or not Appellee paid taxes voluntarily is not relevant because this common law doctrine law was preempted by the new refund statute and/or case law has applied the refund statute to this circumstance when money has been mistakenly paid to a wrong account. Issue 4: Issue 5: Appellee satisfied all conditions precedent to bringing suit for a refund claim in that the refund statute does not require a protest before an Appraisal Review Board or judicial review before filing suit. There has never been a judicial review of a decision for a refund claim of 2014 taxes and, in addition, such is not relevant to a plea to the jurisdiction. v.

7 VI. Statement of Facts Throughout this brief and Appellants brief it is important to understand and note that Appellee/Appellee is Sundial Owner s Association, Inc. (SOA) IS NOT Sundial Timeshare Corporation. There is no evidence that either corporation had anything to do with each other in any capacity whatsoever in fact the undisputed evidence is just that. (CR ) There is no evidence that either are successors or predecessors in interest to each other. There is no evidence in the record of such facts it is a complete fabrication. In fact, the evidence before the court is that the Texas Secretary of State s records establish that Sundial Timeshare Corporation was created in 1983 and dissolved in 1999, and Appellant was created in (CR 1277 & 1306) Likewise, there is no evidence in the record that supports Appellees false statement that... the record owner is Appellee s predecessor interest. (Appellants brief, fn. 3) It is true that, Appellee has never filed anything in the real property records of the county showing a transfer of ownership from one corporation to the other 1 because there is no evidence that this ever happened. Lastly Appellants falsely state that Appellee has not filed any corporate documents with the Texas Secretary of State showing that the interest in the affected properties formerly held by another corporation is now held by Appellee. In the footnote where these statements are made 2 1 Appellant s Brief fn Appellants Brief fn. 3. 1

8 you will notice a glaring omission that there is no citation to anything in the record that would support such a fabricated statement. Appellant s 3 rd Amended Petition states the following: III. JURISDICTION AND VENUE A. Jurisdiction is conferred by Texas Tax Code section 31.11(k). B. Venue in Nueces County is proper in this county because this action involves real property in this county and all the Appellants are located in Nueces County. V. FACTS On December 9, 2015 Appellee applied to the tax collector of the Defendant taxing units, the Nueces County Tax Assessor-Collector Kevin Kieschnick, for a refund of erroneously paid taxes pursuant to Texas Tax Code section 31.11(a). On January 8, 2016 the Nueces County Tax Assessor-Collector wrongly denied Appellee s refund application. Pursuant to Texas Tax Code section 31.11, Refunds of Overpayments or Erroneous Payments, Sundial Owner s Association, Inc. is entitled to a refund of the payments erroneously paid for the years 2010, 2011, 2012, 2013 and Specifically, for each of these years Sundial Timeshare Corporation was erroneously identified as the fee simple owner of condominium units and was sent Notices of Appraised Values along with the Consolidated Property Tax Statement at Appellee s address. Appellee Sundial Owner s Association, Inc. is not Sundial Timeshare Corporation and Appellee Association erroneously paid the Tax Statements sent to Sundial Timeshare 2

9 Corporation for the years 2010, 2011, 2012, 2013 and The Law of Property Taxation Ownership In order for there to be an assessment of taxes the party sought to be charged for them must be the owner of the property. The person having legal title to property is generally considered to be the owner thereof for purposes of taxation. Childress County v. State, 127 Tex. 343, 349, 92 S.W.2d 1011, 1015 (1936); Travis Cent. Appraisal Dist. v. Signature Flight Support Corp., 140 S.W.3d 833, 840 (Tex. App. Austin 2004, no pet.) (holding that lessees could not be taxed on property for which City of Austin held legal title). TRQ Captain's Landing, L.P. v. Galveston Central Appraisal Dist., 212 S.W.3d 726 (Tex.App. Houston [1st Dist.] 2006) Taxation Procedures Texas Tax Code Sec requires that the county s chief appraiser give written notice to the property owner by April 1 of the proposed appraised value of the property if the value is greater than the prior year. These notices were not provided for 2010, 2011, 2012, 2013 or the notices went to Sundial Timeshare Corporation, not to Appellee Sundial Owners Association, Inc. Failure to give a property owner notice of an owner s tax liability is a nullity as to that property owner. See, Texas Tax Code sec (c). Appellee Sundial Owners Association, Inc. never received any notice of the appraised values of its weeks of ownership interests -- ever. Nor did Appellee Sundial Owners Association, Inc. ever receive the tax statements. (CR ) 3

10 Appellants filed their summary judgment motion 3 and asserted the following defenses as their entitlements to summary judgments for all five years: 1. Collateral Estoppel and Res Judicata (pg. 5, para V.); 2. Appellee did not appeal an Appraisal Review Board protest. (pg. 13, para IV(B).); 3. Because Appellee is alleged to owe taxes it cannot protest a failure to receive notice does not apply. (pg. 14, para VI.); 4. Appellee did not follow the application procedure for the court to order a refund of erroneously paid taxes (pg. 14, para VII.); 5. A refund claim is barred by a three-year statute of limitations (pg. 16, para VIII.); 6. The court lacked jurisdiction to order a refund for years (pg. 16, para IX.) (CR ) Appellee filed its responses (CR ) and the court granted Appellants summary judgments on a statute of limitations defense for the years 2010, 2011 & 2012 and also ruled that Appellee s refund claims for 2013 and 2014 would not be dismissed. (CR 1310) Appellants then filed their Plea to the Jurisdiction on January 19, 2018 and asserted the following grounds: a. No waiver of immunity (CR 1418) b. Property taxes are delinquent (CR 1419) c. That there is no authority for a refund of taxes paid for tax years 2013 and Although [Appellee] claims it paid taxes for those years by mistake, that is insufficient 4 3 June 12, 2017.

11 to trigger a right to a refund. [Appellee] paid those taxes voluntarily. (CR 1420) d. No jurisdiction to review [Appellee s] 2013 and 2014 taxes. (CR 1421) Appellee filed its response 4, and together with the summary judgment evidence filed by Appellants and Appellee the following are the undisputed facts of this case. Jennifer Belt began working for Sundial Owner s Association, Inc. in 2002 as an assistant to the business manager, Ms. Cathy Ticharek, who had worked as the business manager for 18 years. In January 2009 Ticharek died and she was promoted into the business manager s position that she has held ever since. (CR ) For every year that Belt was the assistant to Ticharek she would observe her pay the property taxes and she simply imitated what Ticharek had done after she became the manager. id. It was not until 2015 that she noticed for the first time that the appraisals and tax statements were not billed to Sundial Owner s Association, Inc. but to Sundial Timeshare Corporation. id. She made the payments beginning in 2009 through 2014 based on the appraisals and tax statements sent to Sundial Timeshare Corporation in error. id. On December 9, 2015 Appellant s application a refund for tax years 2010 through 2014, inclusive, was delivered to the Nueces County Tax Assessor/Collector and on January 8, CR

12 the request was denied. (CR ) Suit was filed on February 5, (CR 16). Appellee manages fifteen timeshare units. Each owner of a timeshare week has the right to possess and occupy their ownership week. When a unit week is sold Belt records the Warranty Deed in Appellee s records and files the Warrant Deed with the Nueces County Clerk. (CR ) There being 51 weeks of timeshare owners times 15 units shows us that there are 765 recorded Warranty Deeds that have been filed with the Nueces County Clerk deeds that the Appraisal District refuses to acknowledge. Id. In fact, there is no evidence that any deed recites that Sundial Timeshare Corporation holds any recorded title to any unit. VII. SUMMARY OF THE ARGUMENT The trial court did not err in denying Appellants jurisdictional challenge for the reason that when the legislature enacted Tex. Property Tax Code sec adding section (j) and (k) it clearly waived governmental immunity to be sued. Appellants attempt to graft the provisions of Tex. Property Tax Code Subtitle F, Chapter 41 to this refund suit is mistaken. First of all Chapter 41 deals exclusively with the procedures to challenge (protest) the failure to give notice of the amount of a tax appraisal or tax bill to an 6

13 owner of property. This is not that lawsuit. Secondly, Chapter upon which this lawsuit is based does not require it does not even mention one word about a Plaintiff not owing any back taxes on property it does not own or a Plaintiff never getting an appraisal notice or a tax bill on property it does not own. Additionally, there was no evidence before the trial court that Appellee owes any back taxes. Whether Appellee paid taxes voluntarily or not is not relevant to a plea to the jurisdiction, and whether or not Appellee paid taxes voluntarily is not relevant because this common law doctrine law was preempted by the new refund statute. Appellee satisfied all conditions precedent to bringing suit for a refund in that the refund statute does not require a protest before an Appraisal Review Board or judicial review before filing suit. Appellee accomplished its prerequisites by making application to the tax assessor/collector, receiving a denial of the request and then timely filing suit within 60 days of the denial. The doctrines of collateral estopple or res judicata are not jurisdictional and so therefore are not properly before the court in this interlocutory appeal. Additionally, there is no evidence of any one of the elements of either doctrine 7

14 VIII. ARGUMENT AND AUTHORITES The Law of Jurisdictional Immunity A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Big Rock Investors Ass'n v. Big Rock Petroleum, Inc., 409 S.W.3d 845, 848 (Tex. App.--Fort Worth 2013, pet. filed). Such a plea may raise the issue of governmental immunity, which generally protects political subdivisions of the State from lawsuits for damages. See Lewisville ISD v. CH Townhomes, Inc., 346 S.W.3d 21, 22 (Tex. App.--Fort Worth 2011, pet. denied). Immunity from suit is jurisdictional and bars suit unless the State expressly waives immunity or consents to the suit. Id.; Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). "[A] Plaintiff asserting a claim against a governmental unit must allege facts that affirmatively demonstrate that the legislature has waived immunity for the claims brought." Univ. of Tex. at Arlington v. Williams, No CV, 2013 WL , at *2 (Tex. App.--Fort Worth Mar. 28, 2013, pet. filed) (mem. op.) When deciding a plea to the jurisdiction a court considers a Plaintiff's pleadings, construed in favor of the Plaintiff, and any evidence relevant to the jurisdictional issue without 8

15 considering the merits of the claim beyond the extent necessary to determine jurisdiction. Big Big Rock Investors Ass'n v. Big Rock Petroleum, Inc., 409 S.W.3d 845 (Tex. App.--Fort Worth 2013, pet. denied). IX. ARGUMENT AND AUTHORITES Issue 1: The Legislature waived immunity for suit for the 2013 refund claim in the new statute effective June Appellants claim that the court does not have jurisdiction to: (a) award refunds to Appellee or (b) to order refunds because there is no statute waiving immunity. This is not true because jurisdiction is conferred by Texas Tax Code section (Appendix A) Appellee s 3 rd Amended Petition states that Appellee erroneously paid amounts for taxes, made application to the Tax Assessor/Collector for a refund, he denied the request and Appellee invokes the court s statutorily mandated jurisdictional authority to order a refund. Jurisdiction is plead as follows: III. JURISDICTION AND VENUE Jurisdiction is conferred by Texas Tax Code section 31.11(k). Appellants cite Lewisville ISD v. CH Townhomes, Inc., 346 S.W.3d 21, 26 (Tex.App.-- Fort Worth 2011, pet. denied) supporting their statement that the court lacks jurisdiction to order them to refund erroneous payments. ( We hold that tax code section does not 9

16 clearly and unambiguously express a legislative intent to waive governmental immunity from suit ) They would be correct if the legislature did not amend Tex.Tax Code sec by adding sections 31.11(j) & (k) (Ex. B), but it did. Acts 2013, 83 rd Leg. R.S., Ch. 1259, House Bill 585, section 17 added sections (j) and (k) to Tex.Tax Code sec waiving immunity to suit and liability 6. These sections state: (j) If the collector for a taxing unit does not respond to an application for a refund on or before the 90th day after the date the application is filed with the collector, the application is presumed to have been denied. (k) Not later than the 60th day after the date the collector for a taxing unit denies an application for a refund, the taxpayer may file suit against the taxing unit in district court to compel the payment of the refund. If the collector collects taxes for more than one taxing unit, the taxpayer shall join in the suit each taxing unit on behalf of which the collector denied the refund. If the taxpayer prevails in the suit, the taxpayer may be awarded: (1) costs of court; and (2) reasonable attorney's fees in an amount not to exceed the greater of: Ex. A is the version of Tex.Tax Code sec then in effect when Lewisville was decided. This was taken from Petitioner CH Townhomes actual petition for review filed in the Texas Supreme Court. 6 Effective June 4, 2013.

17 (A) $1,500; or (Appendix B) (B) 30 percent of the total amount of the refund determined by the court to be due. X. ARGUMENT AND AUTHORITES Issue 2: Appellee s claims for a refund of 2013 and 2014 taxes are not barred because whether owing delinquent taxes or not is not a part of the refund statute, and because no taxes are delinquent anyway. Appellants Claim of Tax Protest Deficiency Appellants seek to apply the protest procedures of when there is a failure to give to a property owner notice of the amount of tax being assessed under Tex. Property Tax Code Subtitle F, Chapter to this refund suit. First of all, Chapter 41 has nothing to do with the current lawsuit. Chapter 41 deals exclusively with the procedures to challenge (protest) the failure to give notice of the amount of a tax appraisal to an owner. This is a lawsuit for a refund of erroneously paid taxes pursuant to Tex.Tax.Code sec who is not an owner funds that were accidentally paid on the wrong account. This section states: PROTEST OF FAILURE TO GIVE NOTICE. (a) A property owner is entitled to protest before the appraisal review board the failure of the chief appraiser or the appraisal review board to provide or deliver any notice to which the property owner is entitled. 11.

18 [emphasis supplied] (b) If failure to provide or deliver the notice is established, the appraisal review board shall determine a protest made by the property owner on any other grounds of protest authorized by this title relating to the property to which the notice applies. (c) A property owner who protests as provided by this section must comply with the payment requirements of Section or the property owner forfeits the property owner's right to a final determination of the protest. Added by Acts 1985, 69th Leg., ch. 504, Sec. 1, eff. June 12, Amended by: Acts 2007, 80th Leg., R.S., Ch (H.B. 3496), Sec. 4(a), eff. January 1, Acts 2011, 82nd Leg., R.S., Ch. 771 (H.B. 1887), Sec. 8, eff. September 1, Acts 2011, 82nd Leg., R.S., Ch. 793 (H.B. 2220), Sec. 3, eff. June 17, Additionally, there is no evidence that Appellee as a property owner owes any property taxes at all for any year. That evidence is non-existent. Tex.Tax.Code Sec states this: CONDITIONAL PAYMENTS: (a) The collector of a taxing unit shall accept conditional payments of taxes before the delinquency date for property taxes that are subject to a pending challenge or protest. (b) A property owner whose property is subject to a pending protest or challenge may pay the tax due on the amount of value of the property involved in the pending action that is not in dispute or the amount of tax paid on the property in the preceding year, whichever is greater, but not to exceed the amount of tax that would be due on the appraised value that is subject to protest or challenge. The collector of the taxing unit shall 12.

19 [emphasis supplied] provide the property owner with a temporary receipt of taxes paid under this section. (c) If the property is no longer subject to a challenge, protest, or appeal at any time before the delinquency date, the collector shall apply the amount paid by the property owner under this section to the tax imposed on the property and shall refund the remainder, if any, to the property owner. If the property is still subject to an appeal on the last working day before the delinquency date, or at an earlier date if so requested by the property owner, the collector shall apply the amount paid under this section to the payment required by Section 42.08(b) of this code and shall retain the remainder, if any, until the appeal is completed. When the appeal is completed, the collector shall apply any amount retained under this section to the tax ultimately imposed on the property that is not covered by the payment under Section 42.08(b) and shall refund the remainder, if any, to the property owner. The section says nothing about refunds of taxes accidentally paid on the wrong account. There is no evidence that: 1. Appellee is the owner of any of the properties, or that 2. Appellee owes any property taxes. XI. ARGUMENT AND AUTHORITES Issue 3: a. Whether Appellee paid taxes voluntarily or not is not relevant to a plea to the jurisdiction. b. Whether or not Appellee paid taxes voluntarily is not relevant because this common law doctrine law was preempted by the new refund statute and/or case law 13.

20 has applied the refund statute to this circumstance when money has been mistakenly paid to a wrong account. The appellate court s jurisdiction in an interlocutory appeal is limited to a review of the denial of a plea to the trial court s jurisdiction. It is not an appeal of the merits of a lawsuit. Tex.Civ.Prac. & Rem. Code sec (a)(8). See also, Kaplan v. Tiffany Development Corp., 69 S.W.3d 212 (Tex.App. Corpus Christi 2001, no pet.) Appellants claim that the 1986 Salvaggio vs. Houston ISD, 709 S.W. 2d 306 (Tex.App. Houston [14 th Dist.] 1986, writ dism d) case controls this case so that if a payer and the tax assessor/collector both make a mistake (one paying mistakenly on the wrong account and the other mistakenly accepting the mistaken payment on the wrong account a classic mutual mistake of facts) it cannot get a refund of those amounts erroneously paid what Appellants call the voluntary payment rule. However, case law holds that when payment is made on the wrong taxpayer account a refund should be ordered. Section of the Tax Code requires a tax collector to refund an overpayment or erroneous payment of taxes in certain cases: "If a taxpayer applies to the tax collector of a taxing unit for a refund of an overpayment or erroneous payment of taxes and the auditor for the unit determines that the payment was erroneous or excessive, the tax collector shall refund the amount of the excessive or erroneous payment from available current tax collections or from funds appropriated by the unit for making refunds." Tex. Tax Code Ann (Vernon Supp. 2000). If the fee exceeds a certain amount, the governing body of the taxing unit must also 14.

21 determine that the payment was erroneous or excessive and approve the refund. See id. Although entitlement to a refund under this section does not depend upon a showing that payment was involuntary, see, Texas Nat'l Bank of Baytown v. Harris County, 765 S.W.2d 823, 826 (Tex. App.-Houston [14th Dist.] 1988, writ denied), courts have narrowly construed section to permit refunds only in cases where the taxpayer has erred in remitting a tax by accidentally paying on the wrong account, mistakenly paying a greater amount than the tax due, overpaying because of a calculation error, or paying a tax that had been paid by another taxpayer. See, e. g., Brooks County Cent. Appraisal Dist. v. Tipperary Energy Corp.,847 S.W.2d 592, (Tex. App.-San Antonio 1992, no writ); First Bank of Deer Park v. Deer Park Indep. Sch. Dist., 770 S.W.2d 849, 854 (Tex. App.-Texarkana 1989, writ denied); Texas Nat'l Bank of Baytown, 765 S.W.2d at 826. Courts have also held that section does not permit refunds on the basis of mistakes of law. First Bank of Deer Park, 770 S.W.2d at 854; Texas Nat'l Bank of Baytown, 765 S.W.2d at 826. Texas Attorney General Opinions, No. JC-0286 (2000) Appellants in footnote 3 assert that The situation is of Appellee s own creation, and the situation can be remedied by Appellee citing Tex.Tax.Code sec c. That section states that if the chief appraiser or a property owner makes a motion with an appraisal review board the appraisal district can change the appraisal roll. Appellee is not a property owner and cannot do so. This section has no applicability at all. For the past three years Appellee has tried to get the appraisal district to correctly name the timeshare weekly owners but its pleas have gone ignored. Appellee for at least three months made the deed records that have been timely and duly filed with the Nueces County Clerk available in counsel s office but Appellants refused to examine them. All the Appellants 15.

22 have to do is go to the website texasfile.com and input the address and unit number of the condo and the deeds show-up. Appellants, the appraiser and the tax collector refuse to do so. That makes them bad public servants, but has nothing to do with the trial court s jurisdiction as conferred by Tex.Tax.Code section XII. ARGUMENT AND AUTHORITES Issue 4: Appellee satisfied all conditions precedent to bringing suit for a refund claim in that the refund statute does not require a protest before an Appraisal Review Board or judicial review before filing suit. Appellee seeks a refund of payments it mistakenly believed it owed but did not. Appellants re-cast Appellee s requested relief asserting that Appellee is protesting the ownership of the property it is not. Appellee is not protesting the ownership of the property; the evidence is that the appraisals and tax bills were not sent to Appellee but to Sundial Timeshare Corporation. As to Appellee it does not matter to whom the bills were sent or who the owners are it was not listed as an owner, no property it owns was appraised and it was not billed as a property owner in fact, not at all. It simply wants a refund of the money it mistakenly paid on another tax payer s account. Appellee cannot protest the appraisal district s determination that it does not own the properties it doesn t. Appellee cannot protest as, or for, Sundial Timeshare Corporation 16.

23 because its existence dissolved in 1999 and thus is not an owner. Appellee cannot protest on behalf of 765 record title owners it is not them. Appellants assert that because there is no evidence that Appellee appealed a decision arising out of a valuation protest before the Nueces County Appraisal Review Board the court the court cannot order a refund of erroneously paid taxes. Defendants cite Tex. Property Tax Code, Subtitle F, Chapter Chapters have nothing to do with the current lawsuit. Chapter 41 deals exclusively with the procedures to challenge tax appraisals. This is a lawsuit for a refund of erroneously paid taxes pursuant to Chapter 31. (Appendix B current version of Tex. Property Tax Code sec ) Subparagraph (e) of provides the administrative procedure to apply for a refund in that doing so established the trial court s jurisdiction. It states: (e) An application for a refund must: (1) include an affirmation by the taxpayer that the information in the application is true and correct; and (2) be signed by the taxpayer. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * (j) If the collector for a taxing unit does not respond to an application for a refund on or before the 90th day after the date the application is filed with the collector, the application is presumed to have been denied. 17.

24 (k) Not later than the 60th day after the date the collector for a taxing unit denies an application for a refund, the taxpayer may file suit against the taxing unit in district court to compel the payment of the refund. If the collector collects taxes for more than one taxing unit, the taxpayer shall join in the suit each taxing unit on behalf of which the collector denied the refund. The evidence before the trial court is undisputed that (1) an application was made to the tax assessor/collector (2) he denied the application (3) and suit was timely filed. (CR , 1008, 16) XIII. ARGUMENT AND AUTHORITES Issue 5: There has never been a judicial review of a decision for a refund claim of 2014 taxes and, in addition, such is not relevant to a plea to the jurisdiction. The appellate court s jurisdiction in an interlocutory appeal is limited to a review of the denial of a plea to the trial court s jurisdiction. It is not an appeal of the merits of a lawsuit. Tex.Civ.Prac. & Rem. Code sec (a)(8). See also, Kaplan v. Tiffany Development Corp., 69 S.W.3d 212 (Tex.App. Corpus Christi 2001, no pet.) Appellants did not identify this issue as a separate Issue Presented. It is buried in the last two paragraphs before the Conclusion. 7 Although not specifically using the terms collateral estopple or res judicata they claim that a 2014 lawsuit has already adjudicated Appellee s request for a refund of the money paid for the 2014 tax year Note, Appellant s Brief lacks page numbers and is not properly bookmarked.

25 Appellants raised these issues in a summary judgment motion which was denied on these grounds. (CR , , 1252, 1259 & 1310). The elements of collateral estoppel are as follows: a. Same issue fully and fairly litigated; b. Factual issues determined were essential to the first judgment; c. Same parties litigated same factual issues. O Connor s Texas Rules Civil Trials 2014, pg A party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994) Res judicata, or claim preclusion, bars the re-litigation of claims that have been finally adjudicated or arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). For res judicata to apply, the following elements must be present: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) the same parties or those in privity with them, and (3) a second action based on the same claims as were raised or could have been raised in the first action. Amstadt, 919 S.W.2d at

26 The evidence before the court is that none of the current five Appellees was a party to the prior appraisal district suit. (CR ) The current lawsuit defendants are: (CR 16, 144) Port Aransas ISD City of Corpus Christi Del Mar College Nueces County Hospital District Nueces County The prior lawsuit against the Nueces County Appraisal District only was a protest over 2014 valuations of condominium units based on Tex.Property Code, Subtitle F, Chapter and sought to reduce the valuations not one word was said about a refund or that taxes were erroneously paid. The First Amended Petition stated: II. PARTIES AND SERVICE A. Plaintiff is the Sundial Owner's Association, Inc. and owns one-week of the properties identified herein. B. Defendant is the Nueces County Appraisal District who has answered herein. III. JURISDICTION AND VENUE A. Jurisdiction is conferred by Texas Tax Code section & section B. Venue in Nueces County is proper in this county under Texas Tax Code section 42.22(a) & (b) because this action involves real property in this county and the 20.

27 Appraisal District that issued the erroneous order is located in Nueces County. IV. FACTS A. On June 30, 2014 the Nueces County Appraisal Review Board made its final decision on Plaintiff's protests erroneously over-valuing the 2014 market value of the following time-share condominium properties. The erroneous values were based on a fee simple ownership assumption; however, Plaintiff does not own these properties in fee simple. Unit No valuation 2014 valuation 203 $198, $226, " " 403 " " 502 " " 503 " " 602 " " 603 " " 703 " " 902 " " 1002 " " 1003 " " 1402 " " 604 $231, $261, " " 801 " " B. These properties are subject to 51 weeks of interval ownership interests also commonly known as "time-share" interests. Plaintiff is the record and legal title owner of only one week of each of the units. The Defendant illogically determined 21.

28 the valuation of Plaintiff s one week ownership interest as if Plaintiff owned each unit s 51 weeks. Attached hereto is a list of Plaintiff s ownership interests in the units. The first number identifies the unit and the second number identifies the week of the year. C. These properties cannot be sold on an open market basis as if Plaintiff owned each unit in fee simple and so have no or only nominal fair market value. V. RELIEF REQUESTED A. Plaintiff seeks a determination that Defendant's appraised value exceeds the fair market value and is thus excessive. VI. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that on final trial that the court reduce the appraised values, and that Plaintiff be awarded costs and reasonable and necessary attorney's fees, and for such other and further relief that may be awarded at law or in equity. (CR 256) The current lawsuit seeks a refund of erroneously paid taxes for years 2010, 2011, 2012, 2013 & 2014 based on the refund provisions of Tex.Property Code Subtitle E, Chapter 31, not the procedures to challenge valuations as set out in Tex.Property Code. Subtitle F, Chapters which was what the prior suit was. The prior case was not dismissed for want of prosecution nor voluntarily dismissed -- it was dismissed for want of jurisdiction because Appellee was not an owner entitled to challenge 22.

29 the valuations and so the merits of the case were never decided. (CR ) The controlling issues in this lawsuit are that Plaintiff erroneously paid taxes on the account of another which it did not owe for years 2010, 2011, 2012, 2013 & XIV. REQUESTED RELIEF Wherefore, Appellee requests the court affirm the trial court s denial of Appellants plea to the jurisdiction and grant it costs of court. XV. Certificate of Service Respectfully submitted, By: Bradford M. Condit Bradford M. Condit Texas Bar No bradcondit@sbcglobal.net 401 N. Tancahua Corpus Christi, Texas Tel. (361) Fax. (361) Attorney for Appellee, Sundial Owner's Association, Inc. On April 12, 2018, the foregoing document was served by , facsimile or by mail in a properly addressed envelope and with the proper amount of postage on: Mr. James McKibben Attorney for Nueces County, Nueces County Hospital District and Port Aransas I.S.D Tower II, 555 North Carancahua Corpus Christi, Texas Voice: , Fax: jmckibben@mcv-law.com 23.

30 Ms. Lilia Castro Attorney for City of Corpus Christi P.O. Box 9277, Corpus Christi, Texas Voice: , Fax: Mr. Augustin Rivera, Jr. Attorney for Del Mar College District 101 Baldwin Blvd., Corpus Christi, Texas Voice: , Fax: Bradford M. Condit Bradford M. Condit XVI. Certificate of Compliance Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 5,505 words (excluding the caption, table of contents & table of authorities). This is a computer-generated document created in WordPerfect, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document. Bradford M. Condit Bradford M. Condit 24.

31 Appendix 25.

32 Refunds of Overpayments or Erroneous Payments, TX TAX Vernon's Texas Statutes and Codes Annotated Tax Code (Refs &Annos) Title 1. Property Tax Code Subtitle E. Collections and Delinquency (Refs & Annos) Chapter 31. Collections (Refs & An nos) V.T.C.A., Tax Code Refunds of Overpayments or Erroneous Payments Effective: January 1, 2010 Currentness (a) If a taxpayer applies to the tax collector of a taxing unit for a refund of an overpayment or erroneous payment of taxes, the collector for the unit determines that the payment was erroneous or excessive, and the auditor for the unit agrees with the collector's determination, the collector shall refund the amount of the excessive or erroneous payment from available current tax collections or from funds appropriated by the unit for making refunds. However, the collector may not make the refund unless: (1) in the case of a collector who collects taxes for one taxing unit, the governing body of the taxing unit also determines that the payment was erroneous or excessive and approves the refund if the amount of the refund exceeds: (A) $5,000 for a refund to be paid by a county with a population of two million or more; or (B) $500 for a refund to be paid by any other taxing unit; or (2) in the case of a collector who collects taxes for more than one taxing unit, the governing body of the taxing unit that employs the collector also determines that the payment was erroneous or excessive and approves the refund if the amount of the refund exceeds: (A) $5,000 for a refund to be paid by a county with a population of two million or more; or Ex. A 1503

33 Refunds of Overpayments or Erroneous Payments, TX TAX (B) $2,500 for a refund to be paid by any other taxing unit. (b) A taxing unit that determines a taxpayer is delinquent in ad valorem tax payments on property other than the property for which liability for a refund arises may apply the amount of an overpayment or erroneous payment to the payment of the delinquent taxes if the taxpayer was the sole owner of the property: (1) for which the refund is sought on January 1 of the tax year in which those taxes were assessed; and (2) on which the taxes are delinquent on January 1 of the tax year for which those taxes were assessed. ( c) Except as provided by Subsection ( c-1 ), 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. A taxpayer may apply for a refund by filing: ( 1) an application on a form prescribed by the comptroller by rule; or (2) a written request that includes information sufficient to enable the collector and the auditor for the taxing unit and, if applicable, the governing body of the taxing unit to determine whether the taxpayer is entitled to the refund. ( c-1) The governing body of the taxing unit may extend the deadline provided by Subsection ( c) for a single period not to exceed two years on a showing of good cause by the taxpayer. ( d) The collector for a taxing unit shall provide a copy of the refund application form without charge on request of a taxpayer or a taxpayer's representative. ( e) An application for a refund must: ( 1) include an affirmation by the taxpayer that the information in the application is true and correct; and (2) be signed by the taxpayer. (f) This subsection applies only to a refund that is required to be approved by the governing body of a taxing unit. The presiding officer of the governing body of the taxing unit is not required to sign the application for the refund or any document accompanying the application to indicate the governing body's approval or disapproval of the refund. The collector for the taxing unit shall indicate on the application whether TabC 1504

34 Refunds of Overpayments or Erroneous Payments, TX TAX <' -<'~- ----, '-.. ~--- the governing body approved or disapproved the refund and the date of the approval or disapproval. (g) If a taxpayer submits a payment of taxes that exceeds by $5 or more the amount of taxes owed for a tax year to a taxing unit, the collector for the taxing unit, without charge, shall mail to the taxpayer or the taxpayer's representative a written notice of the amount of the overpayment accompanied by a refund application form. (h) This section does not apply to an overpayment caused by a change of exemption status or correction of a tax roll. Such an overpayment is covered by Section or 42.43, as applicable. (i) Notwithstanding the other provisions of this section, in the case of an overpayment or erroneous payment of taxes submitted by a taxpayer to a collector who collects taxes for one or more taxing units one of which is a county with a population of two million or more: ( 1) a taxpayer is not required to apply to the collector for the refund to be entitled to receive the refund if the amount of the refund is at least $5 but does not exceed $5,000; and (2) the collector is not required to comply with Subsection (g) unless the amount of the payment exceeds by more than $5,000 the amount of taxes owed for a tax year to a taxing unit for which the collector collects taxes. Credits Added by Acts 1981, 67th Leg., 1st C.S., p. 167, ch. 13, 126, eff. Jan. 1, Amended by Acts 1993, 73rd Leg., ch. 198, 1, eff Sept. 1, 1993; Acts 1999, 76th Leg., ch. 565, 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 915, 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 673, 1, eff. Jan. 1, 2002; Acts 2001, 77th Leg., ch. 843, 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1430, 8, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 756, 1, eff. Sept. l, 2003; Acts 2007, 80th Leg., ch. 464, 1, eff. June 16, 2007; Acts 2009, 81st Leg., ch. 69, 1, eff. Jan. L 2010; Acts 2009, 81st Leg., ch. 494, 1, cff. Jan. 1, Notes of Decisions ( 16) Current through the end of the 2011 Regular Session and First Called Session of the 82nd Legislature End ol' l)1wume11t 2(J i l Thorn:-on Reuters. Nt chlirn w Prigin:11 Govcn1rncnt \\/ orks. 1505

35 Sec REFUNDS OF OVERPAYMENTS OR ERRONEOUS PAYMENTS. (a) If a taxpayer applies to the tax collector of a taxing unit for a refund of an overpayment or erroneous payment of taxes, the collector for the unit determines that the payment was erroneous or excessive, and the auditor for the unit agrees with the collector's determination, the collector shall refund the amount of the excessive or erroneous payment from available current tax collections or from funds appropriated by the unit for making refunds. However, the collector may not make the refund unless: ( 1) in the case of a collector who collects taxes for one taxing unit, the governing body of the taxing unit also determines that the payment was erroneous or excessive and approves the refund if the amount of the refund exceeds: (A) $5,000 for a refund to be paid by a county with a population of two million or more; or (B) $500 for a refund to be paid by any other taxing unit; or (2) in the case of a collector who collects taxes for more than one taxing unit, the governing body of the taxing unit that employs the collector also determines that the payment was erroneous or excessive and approves the refund if the amount of the refund exceeds: (A) $5,000 for a refund to be paid by a county with a population of two million or more; or (B) $2,500 for a refund to be paid by any other taxing unit. (b) A taxing unit that determines a taxpayer is delinquent in ad valorem tax payments on property other than the property for which liability for a refund arises or for a tax year other than the tax year for which liability for a refund arises may apply the amount of an overpayment or erroneous payment to the payment of the delinquent taxes if the taxpayer was the sole owner of the property: (1) for which the refund is sought on January 1 of the tax year in which the taxes that were overpaid or erroneously paid were assessed; and (2) on which the taxes are delinquent on January 1 of the tax year for which the delinquent taxes were assessed. ( c) Except as provided by Subsection ( c-1 ), 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. A taxpayer may apply for a refund by filing: Ex. B 1506

36 {l) an application on a form prescribed by the comptroller by rule; or (2) a written request that includes information sufficient to enable the collector and the auditor for the taxing unit and, if applicable, the governing body of the taxing unit to determine whether the taxpayer is entitled to the refund. ( c-1) The governing body of the taxing unit may extend the deadline provided by Subsection ( c) for a single period not to exceed two years on a showing of good cause by the taxpayer. ( d) The collector for a taxing unit shall provide a copy of the refund application form without charge on request of a taxpayer or a taxpayer's representative. ( e) An application for a refund must: (1) include an affirmation by the taxpayer that the information in the application is true and correct; and (2) be signed by the taxpayer. (f) This subsection applies only to a refund that is required to be approved by the governing body of a taxing unit. The presiding officer of the governing body of the taxing unit is not required to sign the application for the refund or any document accompanying the application to indicate the governing body's approval or disapproval of the refund. The collector for the taxing unit shall indicate on the application whether the governing body approved or disapproved the refund and the date of the approval or disapproval. (g) If a taxpayer submits a payment of taxes that exceeds by $5 or more the amount of taxes owed for a tax year to a taxing unit, the collector for the taxing unit, without charge, shall mail to the taxpayer or the taxpayer's representative a written notice of the amount of the overpayment accompanied by a refund application form. (h) This section does not apply to an overpayment caused by a change of exemption status or correction of a tax roll. Such an overpayment is covered by Section or 42.43, as applicable. (i) Notwithstanding the other provisions of this section, in the case of an overpayment or erroneous payment of taxes submitted by a taxpayer to a collector who collects taxes for one or more taxing units one of which is a county with a population of two million or more: (1) a taxpayer is not required to apply to the collector for the refund to be entitled to receive the refund if the amount of the refund is at least $5 but does not exceed $5,000; and 1507

37 (2) the collector is not required to comply with Subsection (g) unless the amount of the payment exceeds by more than $5,000 the amount of taxes owed for a tax year to a taxing unit for which the collector collects taxes. G) If the collector for a taxing unit does not respond to an application for a refund on or before the 90th day after the date the application is filed with the collector, the application is presumed to have been denied. (k) Not later than the 60th day after the date the collector for a taxing unit denies an application for a refund, the taxpayer may file suit against the taxing unit in district court to compel the payment of the refund. If the collector collects taxes for more than one taxing unit, the taxpayer shall join in the suit each taxing unit on behalf of which the collector denied the refund. If the taxpayer prevails in the suit, the taxpayer may be awarded: ( 1) costs of court; and (2) reasonable attorney's fees in an amount not to exceed the greater of: (A) $1,500; or (B) 30 percent of the total amount of the refund determined by the court to be due. Added by Acts 1981, 67th Leg., 1st C.S., p. 167, ch. 13, Sec. 126, eff. Jan. 1, Amended by Acts 1993, 73rd Leg., ch. 198, Sec. 1, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 565, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 915, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 673, Sec. 1, eff. Jan. 1, 2002; Acts 2001, 77th Leg., ch. 843, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1430, Sec. 8, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 756, Sec. 1, eff. Sept. 1, Amended by: Acts 2007, 80th Leg., R.S., Ch. 464 (H.B ), Sec. 1, ef June 16, Acts 2009, 81st Leg., R.S., Ch. 69 (H.B. 1205), Sec. 1, eff. January 1, I> Acts 2009, 81st Leg., R.S., Ch. 494 (S.B. 798), Sec. 1, eff. January 1, ~,.,,, )( Acts 2013, 83rd Leg., R.S., Ch. 643 (H.B. 709), Sec. 3, eff. January 1, f 1,., c_ Acts 2013, 83rd Leg., R.S., Ch (H.B.,585), Sec. 17, eff. June 14, ~ 1508