PALANIAPPAN v. HARRIS COUNTY APPRAISAL DISTRICT (2012)

OPINION

The underlying case sought judicial review of the appraisal review board's denial of appellant Chockalingam S. Palaniappan's protest to the determination of the appraised value of his real property.¹ Appellee Harris County Appraisal District (HCAD) appraised the 2008 value of the property at $960,401. Palaniappan filed his protest with the Appraisal Review Board of Harris County Appraisal District (ARB), and the protest appears to have been denied on August 29, 2008.²

Palaniappan filed suit on October 16, 2008 against both HCAD and the ARB. The petition for review had to be filed within forty-five days after Palaniappan received notice that a final order had been entered from which an appeal might be taken.³ Failure to timely file a petition bars any appeal under Tax Code chapter 42.⁴

The appraisal review board is required to deliver notice of its issuance of orders by certified mail. Tex. Tax Code Ann. § 41.07(d) (West 2008). There is a presumption that notice by mail is delivered when it is deposited in the mail. Dallas Cent. Appraisal Dist. v. Las Colinas Corp., 814 S.W.2d 816, 818 (Tex.App.-Dallas 1991), rev'd on other grounds sub nom. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75 (Tex.1992) (citing what is currently Tex. Tax Code Ann. § 1.07(c) (West Supp.2011)). If the notice was deposited on August 29, 2008, the deadline to file the petition for review based on the presumption of delivery was October 13, 2008, three days before the petition was filed. Absent a timely filed petition, the district court never acquired subject-matter jurisdiction. See KM–Timbercreek, LLC, 312 S.W.3d at 728. A pleader is required to allege facts that affirmatively demonstrate the court's jurisdiction to hear the case. Tex. Ass'n of Bus. v. Tex. Air Control Bd, 852 S.W.2d 440, 446 (Tex.1993). In this case, the appellate record does not establish that Palaniappan timely filed his petition.

An exception to the rule that an appellate court may not reverse for unassigned error exists when a trial court commits fundamental error by, for example, exercising jurisdiction over claims over which it has no subject-matter jurisdiction. See Pirtle v. Gregory, 629 S.W.2d 919, 919–20 (Tex.1982) (“Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.”). In an appeal properly before it, an appellate court must always address fundamental error, even absent an appellate challenge. See McCauley v. Consol. Underwriters, 304 S.W.2d 265, 266 (Tex.1957) (holding that supreme court had power to revise lower-court judgment for unassigned fundamental error and recognizing power of intermediate appellate courts to do same). Although HCAD has not raised the timeliness issue of Palaniappan's petition, we must.

HCAD moved to dismiss for lack of subject-matter jurisdiction based on Palaniappan's noncompliance with provisions of former Tax Code section 42.08.⁵ In a March 31, 2011 order that is not part of the clerk's record, the trial court granted the motion. That order does not purport to be a final judgment, does not dispose of the ARB, and does not contain a “Mother Hubbard” clause. In the appellate brief filed by both HCAD and the ARB, they note that the order is not part of the appellate record. In addition, HCAD has not represented that the ARB (1) was not served and (2) did not appear in the trial court. See KM–Timbercreek, LLC, 312 S.W.3d at 724 n.1. Palaniappan's notice of appeal seeks to appeal “the Court's ORDER signed March 31, 2011,” and does not purport to appeal a final judgment. Accordingly, on February 21, 2012, the Clerk of this Court requested a supplemental clerk's record containing the trial court's final judgment.

On March 14, 2012, we notified the parties that the case was subject to involuntary dismissal, citing both the lack of a timely filed petition and a final judgment. See Tex.R.App. P. 42 .3. Palaniappan responded by filing in the trial court a “partial nonsuit” as to the ARB.⁶ The trial court signed an order on this motion on March 21, 2012, removing the ARB from the case and rendering a final judgment. Palaniappan left the other ground for dismissal—want of subject-matter jurisdiction based on the timeliness of his petition—unaddressed. No supplemental clerk's record has yet been filed containing the trial court's March 31, 2011 order.

On March 29, 2012, we again notified the parties that the case was subject to involuntary dismissal for want of subject-matter jurisdiction based on the lack of a timely filed petition. No response has been filed.

Accordingly, we hold that Palaniappan has not alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. See Tex. Ass'n of Bus., 852 S.W.2d at 446. We therefore vacate the trial court's judgment and dismiss the case for want of subject-matter jurisdiction. See Tex.R.App. P. 42.3.

DISSENTING OPINION

The trial court held subject-matter jurisdiction over this controversy. To seek review of a final decision of an appraisal review board, a party “must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered.” See Act of May 28, 1989, 71st Leg., R.S., ch. 796, § 44, 1989 Tex. Gen. Laws 3591, 3604 (amended 2009) (Tex. Tax Code Ann. § 42.21(a), since amended); see also Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex.2006). If a party fails to petition the district court within 45 days of receiving notice of the final order, the trial court lacks subject-matter jurisdiction, and the appraisal review board's decision is final. KM–Timbercreek, LLC v. Harris Cnty. Appraisal Dist., 312 S.W.3d 722, 728 (Tex.App.-Houston [1st Dist.] 2009, no pet.). Although no party contested Palaniappan's timely filing of his tax protest in the district court, the majority presumes it was not timely filed and vacated the trial court judgment. Because the law does not support such a presumption, we should address the merits of the appeal and the issues raised by the parties. Because we do not, I respectfully dissent.

The appellate courts generally may not reverse for unassigned error, except for those errors deemed to be fundamental. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Lack of subject-matter jurisdiction is a fundamental error that an appellate court may recognize and address even when a party does not raise a jurisdictional challenge. In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003). However, the record must “affirmatively and conclusively” show lack of jurisdiction. McCauley v. Consol. Underwriters, 304 S.W.2d 265, 266 (Tex.1957) (per curiam); see also In re B.L.D., 113 S.W.3d at 350 (holding that unassigned error may be reviewed “when the record shows on its face that the court lacked jurisdiction”); Haney v. Purcell Co., 796 S.W.2d 782, 787 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (“The record must affirmatively and conclusively disclose such error.”).

Subject-matter jurisdiction is reviewed de novo. Tex. Ass'n of Bus., 852 S.W.2d at 446. The plaintiff has the initial burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the cause. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The court may presume the truth of the plaintiff's good faith allegations to support jurisdiction. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 503 (Tex.2010). When an appellate court questions subject-matter jurisdiction for the first time on appeal, it must construe the petition in favor of the plaintiff, and, if necessary, review the entire record to determine if any evidence supports jurisdiction. See Tex. Ass'n of Bus., 852 S.W.2d at 446.

In DeGuerin v. Washington County Appraisal District, this Court held that general allegations in the petition that the court had jurisdiction and that all conditions precedent had occurred were sufficient to establish that the petition to review an appraisal review board's decision was timely filed and that the court thus had jurisdiction. No. 01–11–00548–CV, 2012 WL 1379633, at *2 (Tex.App.-Houston [1st Dist.] Apr. 19, 2012, no pet. h.) (mem.op.) (citing Tex. Ass'n of Bus., 852 S.W.2d at 446). In that case, the appraisal review board objected to the timeliness of the plaintiff's petition for the first time on appeal when the record was silent about whether the plaintiff timely protested its tax assessments. Id. In rejecting a challenge to the trial court's jurisdiction, our court held that a silent evidentiary record established only that nothing contradicted the plaintiffs assertion in his petition. Id.

No party objected to the timeliness of Palaniappan's petition—either during the district court proceedings or on appeal. Palaniappan's petition states that the trial court had jurisdiction and that all conditions precedent had been met. Taking these uncontroverted allegations as true, Palaniappan has established that the court has subject-matter jurisdiction, at least with respect to the timely filing of his petition. See Frost Nat'l Bank, 315 S.W.3d at 503. Given that no other evidence exists in the record bearing on whether the petition was timely filed, these allegations are sufficient. See DeGuerin, 2012 WL 1379633, at *2. Nothing else in the record disturbs the veracity of this allegation. The record reflects that Palaniappan filed his petition in district court on October 16, 2008, forty-eight days after the letter denying protest was dated, August 29, 2008. Yet, the date of the final order is unimportant; rather, it is the date that Palaniappan actually received notice of the ARB's final order that is decisive in determining whether the petition was timely and the court has subject-matter jurisdiction. See Act of May 28, 1989, 71st Leg., R.S., ch. 796, § 44, 1989 Tex. Gen. Laws 3591, 3604 (amended 2009). The record contains no evidence regarding when the letter was sent or received, or if it was ever sent. As in DeGuerin, the lack of evidence regarding receipt of the letter and timeliness of the petition means only that there is nothing to contradict the good faith allegations of Palaniappan that the court has jurisdiction. See DeGuerin, 2012 WL 1379633, at *2; Miranda, 133 S.W.3d at 226. Because Palaniappan properly alleged jurisdiction in his petition and the record contains no evidence that the petition was untimely, the face of the record does not affirmatively and conclusively show that the trial court lacked jurisdiction on this basis.

The majority opinion assumes that the notice was mailed on August 29, 2008, the date of the letter, and further presumes that Palaniappan received notice of the decision more than forty-five days before he filed suit. These assumptions cannot be reconciled with the requirement that lack of jurisdiction be “affirmatively and conclusively” found on the face of the record when it is not challenged by a party on appeal. See McCauley, 304 S.W.2d at 266; In re B.L.D., 113 S.W.3d at 350.

The majority's reliance on Dallas Central Appraisal District v. Las Colinas Corporation is misplaced, because the presumption of delivery created by section 1.07(c) of the Tax Code that the court of appeals relied on in that case applies when some evidence exists that the notice was properly mailed. Compare Dallas Cent.App. Dist. v. Las Colinas Corp, 814 S.W.2d 816, 818 (Tex.App.-Dallas 1991), rev'd on other grounds sub nom. Dallas Cent.App. Dist. v. Seven Inv. Co., 835 S.W.2d 75 (Tex.1992), with Harris Cnty. Appraisal Dist. v. Dincans, 882 S.W.2d 75, 77 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (holding that the appraisal district's statement that notice had been mailed was insufficient to establish the presumption), and WHM Props., Inc. v. Dallas Cnty., 119 S.W.3d 325, 330–31 (Tex.App.-Waco 2003, no pet.). In contrast, because this issue was never contested in the trial court, no proof exists in the record that the letter was ever mailed so as to render the suit untimely.

Furthermore, although the opinion was reversed on other grounds, the reasoning in Las Colinas Corporation is similarly flawed. Section 1.07(c) provides that notice “is presumed delivered when it is deposited in the mail. This presumption is rebuttable when evidence of failure to receive notice is provided.” Tex. Tax Code Ann. § 1.07(c) (West 2008). This provision creates a presumption of the fact of delivery upon a showing that the appraisal district properly mailed the notice. It applies in disputes about whether—not when—notice was received. See, e.g., Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 266–67 (Tex.App.-Houston [1st Dist.] 2003, no pet.). It creates no presumption as to the date of receipt. The presumption of section 1.07(c) is inapposite for purposes of determining the date of receipt of notice for section 42.21(a).

Conclusion

The parties raise challenges to the judgment and to our jurisdiction to hear this case, but the timely filing of the petition was not one of them. Absent affirmative proof, we should not decide on our own that timeliness was lacking. Because we should proceed to review the issues that the parties have briefed on their merits, I respectfully dissent from the dismissal of the appeal.

FOOTNOTES

1.  See Act of June 1, 1997, 75th Leg., R.S., ch. 1039, § 37, 1997 Tex. Gen. Laws 3897, 3915 (Tex. Tax Code § 42.01, since amended).

2.  A copy of the order determining protest is attached to the petition, but is not properly a part of the appellate record. See Atchison v. Weingarten Realty Mgmt. Co., 916 S.W.2d 74, 76–77 (Tex.App.-Houston [1st Dist.] 1996, no writ) (holding that attaching document to another document properly part of what currently is called clerk's record does not make first document part of appellate record).

3.  See Act of May 28, 1989, 71st Leg., R.S., ch. 796, § 44, 1989 Tex. Gen. Laws 3591, 3604 (Tex. Tax Code § 42.21(a), since amended); see also KM–Timbercreek, LLC v. Harris Cnty. Appraisal Dist., 312 S.W.3d 722, 726 n.2 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (applying prior law).

4.  Act of May 28, 1989, 71st Leg., R.S., ch. 796, § 44, 1989 Tex. Gen. Laws 3591, 3604 (Tex. Tax Code § 42.21(a), since amended).

5.  See Act of May 28, 1989, 71st Leg., R.S., ch. 796, § 43, 1989 Tex. Gen. Laws 3591, 3604, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 579, § 12, 1995 Tex. Gen. Laws 3374, 3377, amended by Act of May 14, 1997, 75th Leg., R.S., ch. 203, § 1, 1997 Tex. Gen. Laws 1070, 1070, amended by Act of May 25, 2007, 80th Leg., R.S., ch. 1033, § 2, 2007 Tex. Gen. Laws 3576, 3577 (Tex. Tax Code § 42.08, since amended).

6.  This was a dismissal, rather than a nonsuit. See C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 304–07 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

JIM SHARP, Justice.

Justice BLAND dissenting.