Steve Walsh v. Alief Independent School District, Houston Independent School District, City of Houston, and Harris County

• Court: Court of Appeals of Texas
• Decided: October 26, 2004
• Docket: 14-04-00076-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 26, 2004

Affirmed and Memorandum Opinion filed October 26, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00076-CV

STEVE WALSH, Appellant

V.

ALIEF INDEPENDENT SCHOOL DISTRICT, HOUSTON INDEPENDENT SCHOOL DISTRICT, CITY OF HOUSTON, AND HARRIS COUNTY, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 02‑43720

M E M O R A N D U M   O P I N I O N

In this suit for ad valorem property taxes, appellant, Steve Walsh, contends summary judgment was improperly granted in favor of Alief Independent School District (AAlief@) and Houston Independent School District, City of Houston, and Harris County (the AIntervenors@).^[1]  On October 4, 2004, appellant=s counsel filed a Suggestion of Death advising this court that appellant died during the pendency of this appeal.  Pursuant to the Rules of Appellate Procedure, we proceed to adjudicate the appeal Aas if all parties were alive.@  Tex. R. App. P. 7.1(a).  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Procedural Background

Alief filed suit against Walsh to recover delinquent ad valorem taxes, penalties, interest, and costs, as well as to foreclose tax liens on business personal property that Walsh used in his law practice.^[2]  The Intervenors filed their plea in intervention to assert their own claims for delinquent taxes, penalties, interest, and costs, as well as to foreclose tax liens on the same property.  Alief and the Intervenors filed separate motions for summary judgment, and the Tax Master denied both summary judgment motions.  Alief and the Intervenors appealed the Tax Master=s decision to the district court, and requested a trial de novo.  Before trial, Alief and the Intervenors filed amended motions for summary judgment.  The district court granted summary judgment for Alief for delinquent taxes for the tax years 1999 through 2001 and summary judgment for the Intervenors for delinquent taxes for the tax years 1998 through 2002.^[3]  Walsh filed this appeal from the summary judgment orders.^[4]

II.  Standard Of Review

We review a traditional summary judgment to determine whether the record establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.  Tex. R. Civ. P 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  In deciding whether the summary judgment record established the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor.  Nixon, 690 S.W.2d at 548B49.  Once the movant establishes it is entitled to summary judgment, the non-movant can defeat that showing only by producing evidence that raises a fact issue.  Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.CHouston [1st Dist.] 1991, writ denied). 

III.  Discussion

In his sole issue, Walsh contends that the trial court improperly granted summary judgment in favor of Alief and the Intervenors because there remained an issue of fact as to whether he owned all, or any, of the property upon which the taxes were imposed.  In response, Alief and the Intervenors argue that, for several reasons, Walsh was precluded from asserting the affirmative defense of Anon-ownership@ in the district court.^[5]  Thus, they contend there was no factual issue to defeat their prima facie case for judgment against Walsh for the amount of the delinquent taxes.  See Gen. Elec. Capital Corp. v. Corpus Christi, 850 S.W.2d 596, 600 (Tex. App.CCorpus Christi 1993, writ denied) (holding that delinquent tax rolls showing that taxes were assessed and unpaid, establish a prima facie case for judgment against the taxpayer).  However, we not address these arguments because Walsh has waived his challenge to the summary judgment orders by failing to properly brief his issue.

To properly present an issue on appeal, an appellant must provide clear and concise argument for the contentions made, with appropriate citations to the record and authorities.  Tex. R. App. P. 38.1(h); Thedford v. Union Oil Co. of Ca., 3 S.W.3d 609, 615 (Tex. App.CDallas 1999, pet. denied).  It is not our responsibility to sift the record to find error or evidence in support of an appellant=s argument.  Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex. App.CHouston [14th Dist.] 1999, no pet.); Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc. 889 S.W.2d 666, 671 (Tex. App.CHouston [14th Dist.] 1994, writ denied).

In two sentences in Walsh=s brief, he alleges that he did not own the property, or a major portion of the property, upon which the tax was imposed, and that he should have been allowed to present this issue to a jury.  However, Walsh fails to make any argument or cite to any authority in connection with this issue.  Because Walsh failed to provide specific argument based on proper legal authority, he has waived this issue.  See Tex. R. App. P. 38.1(h); Thedford, 3 S.W.3d at 615.

Accordingly, the orders granting summary judgment in favor of Alief and the Intervenors are affirmed. 

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 26, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

---

^[1]  Harris County intervened on behalf of itself and the following county wide taxing jurisdictions: The Harris County Education Department, The Port of Houston Authority of Harris County, The Harris County Flood Control District, and Houston Community College District.

^[2]    The appraisal of Walsh=s personal property was not based on an item-by-item accounting, but was based on the type of business and the square footage.

^[3]  The summary judgment orders granted relief for Alief and the Intervenor=s for Aall claims,@ which includes penalties and interest, as well as foreclosure of the tax liens on the property.

^[4]  The district court granted both amended motions for summary judgment on October 24, 2004.  Although the district court has not yet signed a final judgment, the parties treat the two summary judgment orders as a final judgment.  Because the two orders dispose of all parties and issues in the case, we will also treat the two orders as a final judgment for purposes of this appeal.  See Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

^[5]  Alief and the Intervenors contend that Walsh could not properly raise his affirmative defense of Anon-ownership@ in the district court because (1) the district court lacked jurisdiction because Walsh failed to exhaust his administrative remedies in protesting his ownership, and (2) although Walsh couches his affirmative defense in terms of Anon-ownership,@ his defense is actually an impermissible challenge to the appraised value of his property.  See Aldine Independent Sch. Dist. v. Baty, 999 S.W.2d 113, 117 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (noting that improper appraised value is not a defense that can be raised in a delinquent tax suit).