OPINION
Riо Valley, LLC appeals from a final judgment on its claims against the City of El Paso, the El Paso Central Appraisal District (EPCAD), and the Appraisal Review Board of El Paso County, Texas (ARB). We vacate the trial court’s judgment and render judgment dismissing the counterclaim against the City and the third party petition against EPCAD and the ARB. We reverse and remand for trial on the City’s delinquent tax suit.
FACTUAL SUMMARY
Rio Valley purchased real property in El Paso County in 2006. On September 23, 2008, the City of El Paso filed suit against Rio Valley for collection of delinquent ad valorem taxes for 2007 on that property. Rio Vаlley initially filed a general denial, but it filed an amended answer asserting it had not received delinquency notices as required by Section 33.04 of the Texas Tax Code. It also filed a motion for summary judgment against the City on its claims for taxes, penalties, and interest for tax years 2006 and 2007.
1
In late March 2009, the City filed an amended petition seeking to recover delinquent taxes for both 2007 and 2008. In its response to Rio Valley’s motion for summary judgment, the City expressly argued that the trial court lacked jurisdiction of the counterclaim because Rio Valley had not exhausted the exclusive remedies provided by the Texas Tax Code. In that response, the City presented evidence that Rio Valley had not filed any protests as of April 6, 2009.
2
The trial court denied Rio Valley’s motion for summary judgment on June 12, 2009 but it did not dismiss the counterclaim. On October 2, 2009, the ARB conducted a hearing on a protest filed by Rio Valley regarding the appraisal records for tax years 2006 and 2007. A copy of this protest is not included in the record. Consequently, the exact basis of the protest is unknown. The protest covers the 2006 tax year even though the taxеs had been paid and the City had not attempted to collect any penalties and interest related to that tax year. The ARB issued final orders on October 16, 2009 denying Rio Valley’s protest “concerning the appraisal records” for tax years 2006 and 2007, but Rio Valley did not appeal the ARB’s decision on the protest. It instead filed a counterclaim against the City on December 21, 2009 asserting that its right to due process had been violated because it had not received any required notices, and consequently, it had not been provided with an оpportunity to challenge the appraisals. Rio Valley sought to recover from the City the amounts paid for taxes, penalties, and interest. Rio Valley attached to the counterclaim copies of the final orders entered by the ARB on October 16, 2009. The City filed a plea to the jurisdiction with respect to the counterclaim and Rio Valley filed a response, but the record does not reflect whether the trial court conducted a
On June 2, 2010, the trial cоurt granted Rio Valley’s motion for leave to file a third-party petition against EPCAD and the ARB. The petition asserted that EP-CAD mailed all notices related to the property to an incorrect address. Rio Valley also alleged that it had, on April 5, 2010, requested a hearing from the ARB concerning the lack of notice for tax years 2006 through 2008. Attached to the petition are copies of the ARB’s final orders, dated May 12, 2010, ruling that no change would be made to the appraisal records for tax years 2006, 2007, and 2008.
Rio Valley filed a motion for summary judgment with resрect to its third party petition. It also filed a motion seeking to recover attorney’s fees pursuant to the Declaratory Judgment Act and Section 42.29 of the Tax Code. EPCAD and ARB included a plea to the jurisdiction in their response to the motion for summary judgment. The ARB relied on Section 42.21(b) of the Texas Tax Code to argue that the suit against it should be dismissed. EP-CAD and ARB also asserted that Rio Valley had failed to invoke the jurisdiction of the trial court because it had failed to exhaust the administrative remedies provided by the Texas Tax Code.
The trial court entered a final judgment which sustained ARB’s plea to the jurisdiction, impliedly denied EPCAD’s plea to the jurisdiction, and granted Rio Valley’s motion for summary judgment in part. More specifically, the trial court:
1. dismissed Rio Valley’s claim against the ARB for lack of jurisdiction;
2. found that the City’s delinquent tax suit and Rio Valley’s counterclaim against the City were “moot” as a result of the court’s determination that Rio Valley prevailed in its claim against EPCAD;
3. found that Rio Valley did not receive tax notices as required for tax years 2007, 2008, and 2009;
4. found that Rio Valley has paid all taxes, penalties, аnd interest for the subject tax years;
5. found that the penalties and interest are void and the amounts paid should be refunded to Rio Valley;
6. found that Rio Valley is not entitled to a refund of the taxes paid on the property for the subject tax years; and
7. denied Rio Valley’s request for attorney’s fees as to the City or EP-CAD.
Rio Valley timely filed notice of appeal.
APPELLATE JURISDICTION
We begin by addressing the Ap-pellees’ argument that this Court lacks jurisdiction of the appeal because the trial court’s judgment is interlocutory and no appeal can be taken from an order which denies a motion for summary judgment. Aрpellate courts generally have jurisdiction over final judgments, and such interlocutory orders as the Legislature deems
In March 2009, Rio Valley moved for summary judgment against the City on the ground that the taxes, penalties, and interest sought to be recovered by the City were void because Rio Valley had not been provided with notice of appraised value, a tax bill, or a delinquency notice for tax years 2006 and 2007. The trial court dеnied this motion on June 12, 2009. Rio Valley later filed a motion for summary judgment against EPCAD and ARB “on all of Rio Valley’s claims” even though it had never asserted any claims for affirmative relief against either of them. The third party petition against EPCAD and the ARB is concerned exclusively with obtaining judicial review of Rio Valley’s protest made pursuant to Section 41.44(c-3) of the Texas Tax Code. Nevertheless, Rio Valley moved for summary judgment as follows:
Rio Valley seeks a Summary Judgment finding that it did not receive any notices or bills for years 2006, 2007 or 2008 and consequently, was denied due process of law and that the evaluations [sic] by Third Party Defendants are invalid as are the resulting taxes, penalties and interest. In addition, Rio Valley should be awarded its attorney’s fees pursuant to § 42.29 of the Tax Code.
Rio Valley did not file a new motion for summary judgment on its counterclaim against the City nor did it move for summary judgment on the City’s delinquent tax suit.
The court’s final judgment went beyond ruling on Rio Valley’s motion for summary judgment against EPCAD and ARB because it disposed of all of the claims and parties before the court as follows: (1) the judgment dismissed the ARB from the suit; (2) the judgment disposed of Rio Vаlley’s claim against EPCAD raised in the third party petition; (3) the judgment denied Rio Valley’s request for attorney’s fees; (4) the judgment, by ruling that the penalties and interest were void, effectively granted the relief sought by Rio Valley’s counterclaim against the City even though Rio Valley had not moved for summary judgment on the counterclaim and even though the judgment recited that the counterclaim was “moot”; (5) the judgment, by determining that the City’s delinquent tax suit was moot, disposed of the City’s claim even though Rio Valley did not move for summary judgment against the City on that claim.
A summary judgment may only be granted uрon grounds expressly asserted in the summary judgment motion. Tex. R.Civ.P. 166a(c). Granting summary judgment on a claim not addressed in the summary judgment motion is, as a general rule, reversible error.
See G & H Towing Co. v. Magee,
SUBJECT MATTER JURISDICTION
Rio Valley raises three issues on appeal: (1) the trial court erred by failing to order that the City refund the taxes paid for tax years 2006, 2007, and 2008; (2) the judgment is erroneous because it refers to tax years 2007, 2008, and 2009 when the tax years at issue are 2006, 2007, and 2008; and (3) the trial court erred by refusing to award attorney’s fees. The City, EPCAD, and ARB respond that the
Dismissal of the ARB
We will first consider the trial court’s dismissal of the ARB. Rio Valley filed a third party petition against EPCAD and the ARB seeking judicial review of the second protest. Section 42.21(b) of the Texas Tax Code expressly provides that: “A petition for review may not be brought against the appraisal review board.” Tex. Tax Code Ann. § 42.21(b) (West Supp. 2013). The ARB filed a plea to the jurisdiction based on Section 42.21(b) and the trial court dismissed Rio Valley’s claim against the ARB for lack of jurisdiction. Rio Valley has not raised any issues on appeal challenging the dismissal of the ARB.
The Tax Code’s Exclusive Administrative Remedies
We turn now to the City’s and EPCAD’s arguments related to the exclusivity of the remedies provided by the Tax Code and Rio Valley’s failure to exhaust those remedies. The Texas Tax Code provides detailed administrative procedures for a property owner to сontest its property taxes.
See
Tex.Tax Code Ann. §§ 41.01-.71 (West 2008 and West Supp.2013);
Cameron Appraisal District v. Rourk,
When a statute requires the exhaustion of administrative remedies before a plaintiff may file suit, the plaintiff bears the burden to show it has met the prerequisite to suit.
Pruitt v. International Association of Fire Fighters,
A property owner is entitled to protest before the appraisal review board several actions, including the determination of the appraised value of the owner’s property, as well as any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner. TexTax Code Ann. § 41.41(a)(1), (9). A property owner is also entitled to protest the failure of the chief appraiser or the appraisal review board to provide or delivеr any notice to which the property owner is entitled. Tex. Tax Code Ann. § 41.411(a)(West Supp. 2012). If the property owner establishes that notice was not provided or delivered, the appraisal review board must determine a protest made by the property owner on any other grounds of protest authorized by Title 1 of the Tax Code relating to the property to which the notice applies. Tex. Tax Code Ann. § 41.411(b). Further, the delinquency date for purposes of Section 42.08(b) is postponed to the 125th day after the date that one or more taxing units first delivered written notice of the taxes due on the property as determined by the appraisal review board at a hearing under Section 41.44(c-3). Tex.Tax Code Ann. § 41.411(c).
A property owner is entitled to appeal an order of the appraisal review board determining a protest by the property owner. TexTax Code Ann. § 42.01(a)(1)(A). Review is by trial de novo. TexTax Code Ann. § 42.23(a)(West Supp.2012). A property owner is not required to file a notice of appeal. TexTax Code Ann. § 42.06(a). To obtain judicial review of its protest, Rio Valley was required to file a petition in the district court within sixty days after it received notice that a final order had been entered. See TexTax Code Ann. § 42.21(a). Failure to timely file a petition bars any appeal. Id. The procedures prescribed by the Tax Code for adjudication of the grounds of protest are exclusive. TexTax Code Ann. § 42.09(a). Further, Section 42.09 expressly provides that a property owner may not raise any of the grounds of protest in defense to a suit to enforce collection of delinquent taxes or as a basis for a claim for relief in a suit by the property owner to arrest or prevent the tax collection process or to obtain a refund of taxes paid. TexTax Code Ann. § 42.09(a).
Rio Valley contends that it did not have any administrative remedies for the 2006
The Counterclaim against the City
Rio Valley filed two separate protests. It filed the first protest sometime after April 6, 2009 and prior to October 2, 2009. 4 There is evidence attached to the City’s response to Rio Valley’s motion for summary judgment showing that, as of April 6, 2009, Rio Valley had not filed any protests. According to the allegations in Rio Valley’s counterclaim against the City, the first protest concerned Rio Valley’s assertion that EPCAD failed to send “notices of appraisal” for tax years 2006 and 2007 to Rio Valley’s correct address. The ARB conducted a hearing on this protest on October 2, 2009 and issued final orders on October 16, 2009. The ARB determined that “[t]he taxpayer’s notice of protest was filed in time” and the appraisal records were correct and would not be changed.
An appeal from the orders which decided the first protest was due to be filed within sixty days after Rio Valley received notice of the final orders entered on October 16, 2009. A petition seeking review of these orders was required to be brought against EPCAD. See Tex.Tax.Code Ann. § 42.21(b). Rio Valley did not file a petition in the district court against EPCAD. See Tex.Tax Code Ann. § 42.21(b)(requir-ing petition to be filed against the appraisal distinct). It instead filed, on December 21, 2009, a counterclaim against the City in the delinquent tax suit seeking a declaratory judgment that it had been denied due process of law. It also requested that the trial court determine that the taxes, penalties, and interest were void and order the City to refund all taxes paid.
An appeal taken pursuant to Chapter 42 of the Tax Code is Rio Valley’s exclusive remedy and it is рrohibited from raising any of the grounds of protest in defense to a suit to enforce collection of delinquent taxes or as a basis for a claim for relief in
Even if Rio Valley’s counterclaim could be construed as an appeal under Section 42.21, the trial court lacked jurisdiction because it was not filed timely. In the counterclaim, Rio Valley alleged that it received notice of the final orders on October 20, 2009. If that statement is accepted as true, Rio Valley filed its counterclaim on the 62nd day after receiving notice of the final orders. Failure to timely file a petition bars an appeal.
See
TexTax Code Ann. § 42.21(a). Accordingly, we conclude that the trial court lacked jurisdiction of Rio Valley’s counterclaim and the court should have dismissed it.
See El Paso Central Appraisal District v. Evangelical Lutheran Good Samaritan Society, Inc.,
The Third Party Petition against EPCAD and the ARB
On April 5, 2010, Rio Valley filed a notice of protest pursuant to Section 41.44(c-3) related to tax years 2006, 2007, and 2008. This protest is separate and distinct from the first. Whereas the first protest concerned whether EPCAD delivered appraisal notices, a protest under Section 41.44(c-3) is for the sole purpose of determining “whether one or more taxing units timely delivered a tax bill.” Tex.Tax Code Ann. § 41.44(c-3). Rio Valley did not state in the notice the date it claims to have first received written notice of the taxes in question, yet the ARB determined that the “notice оf protest was filed in time.” The ARB also determined that the appraisal records were correct for tax years 2006, 2007, and 2008 and would not be changed. The ARB’s final orders on the second protest were issued on May 12, 2010. Thus, Rio Valley was required to file its petition in the district court within sixty days after it received notice of the May 12, 2010 order. Rio Valley did not file a petition in the district court but instead filed a third party petition in this suit against the ARB and EPCAD on June 2, 2010. Unlike its counterclaim against the City, Rio Valley sought in its third party petition a de novo review of the ARB’s decision on its protest pursuant to Section 42.21 of the Tax Code.
EPCAD contends that Rio Valley did not file the second protest within the time limits established by the Tax Code, and therefore, it failed to exhaust its administrative remedies. The ARB’s determination that Rio Valley filed the protest in time is not determinative of the jurisdictional issue nor is it binding on this Court because we are required to review de novo whether the trial court had subject matter jurisdiction.
See Miranda,
EPCAD asserted in the plea to the jurisdiction that Rio Valley’s second protest came too late because it filed the protest more than 125 days after it first had written notice of the taxes in question. Rio Valley did not state in the notice of protest the date it claims to have first received written notice of the taxes in question. Rio Valley judicially admitted in pleadings filed in this case that it first received notice of the delinquent taxes for the 2006 and 2007 tax years when it was served with citation in the delinquent tax suit on or about October 20, 2008.
See Ehler v. LVDVD, L.C.,
Statutory construction is a legal question that we review
de novo
in order to ascertain and give effect to the Legislature’s intent.
F.F.P. Operating Partners, L.P. v. Duenez,
Under Section 41.44(c-3), the 125-day deadline runs from the date that the property owner, in the protest filed, “claims to have first received written notice of the taxes in question”. If the Legislature had intended for the deadline to begin on the date the taxpayer received a tax bill, rather than when it first received written notice of the taxes in question, it easily could have so provided. Undеr the plain language of Section 41.44(c — 3), the 125-day deadline for filing the protest begins to run on the date that the property owner claims in its notice of protest that it first received notice of the taxes in question. Rio Valley did not state in its protest the date on which it received this written notice but it has judicially admitted in this case that it received written notice of the taxes for the 2006 and 2007 tax years on October 20, 2008 when it was served with citation in the delinquent tax suit. Its notice of protest filed more than seventeen months later, on April 5, 2010, was untimely-
Rio Valley’s сlaims against EPCAD and the ARB also concern the 2008 tax year. Those taxes became delinquent on February 1, 2009 while the City’s delinquent tax suit was pending. The City filed an amended petition on March 27, 2009 to include the 2008 taxes. Rio Valley did not present any evidence regarding when it obtained written notice of the 2008 taxes, but it certainly had notice of these taxes when the City filed its amended petition seeking to recover these delinquent taxes. Any protest related to those taxes would have been due on July 30, 2009 (125 days from March 27, 2009), yet Rio Valley did not file its protest until April 5, 2010, morе than eight months after the due date.
Consequently, we conclude that the ARB lacked jurisdiction to consider the protest and no appeal could be taken under Chapter 42 of the Tax Code. Because Rio Valley failed to exhaust its administrative remedies, the trial court did not have jurisdiction of Rio Valley’s third party petition against EPCAD and the ARB and it should have dismissed that petition. We therefore vacate the trial court’s judgment and render judgment dismissing Rio Valley’s counterclaim against the City and dismissing its third party petition against EPCAD and the ARB. The cause is remandеd to the trial court for trial on the City’s delinquent tax suit.
Notes
. The El Paso County Water Improvement District No. 1 filed a petition in intervention on October 16, 2008 to recover delinquent taxes owed it. Rio Valley’s motion for summary judgment pertained to the claims of both the City and the Water Improvement District, but the Water District filed a notice of non-suit after Rio Valley paid the taxes owed to it.
. Andy Winton signed the discovery responses on April 3, 2009 and Rio Valley faxed the discovery responses to the City on April 6, 2009.
. The City’s plea to the jurisdiction is not included in the clerk’s record.
. The record does not contain a copy of the first protest filed by Rio Valley.
. Under Section 41.411(a), a property owner is entitled to protest before the appraisal re