Affirmed and Opinion Filed April 27, 2017 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-00800-CV DISH NETWORK CORPORATION AND BL OCKBUSTER, LLC, A WHOLLY OWNED SUBSIDIARY OF DISH NETWORK CORPORATION, Appellants V. COLLIN CENTRAL APPRAISA L DISTRICT, Appellee On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-03370-2012



### MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Whitehill Opinion by Justice Bridges Dish Network Corporation and Blockbuster, LL C, a wholly-owned subsidiary of Dish Network Corporation (Dish) appe als the trial court’s traditiona l summary judgment in favor of Collin Central Appraisal District. In three issues, Dish argues the trial court erred in granting summary judgment because the evidence pres ented by the District was contradictory, conclusory, and non-existent. We af firm the trial court’s judgment. The summary judgment evidence shows that, in May 2011, Dish acquired Blockbuster. Dish filed a business personal pr operty rendition of pe rsonal property, and the District appraised Dish’s inventory at $70,076,219. In July 2011, Dish filed a prot est for “excessive appraisal, unequal appraisal and appraisal of intangibles.” Following a he aring in July 2011, the Collin County appraisal review board denied Dish’s protes t. In September 2012, Dish sued the District,–2– alleging the District did not pr ovide Dish with notice of the $70,076,219 appraisal. Dish further alleged the appraisal was in exces s of fair market value; was ba sed on an appraisal method that was antiquated, unfair, and erroneous; was unequal compared to a sample of similar properties; and constituted an unlawful levy and created an illegal lien on the property. Dish alleged it had presented to the appraisal review board a claim that clerical errors affected Dish’s 2011 tax liability and had filed a motion to correct the appr aisal roll and the value of the property pursuant to section 25.25(c) of the tax code. Dish cl aimed the appraisal erro neously included property that did not exist in the form or at the location described in the appraisal roll and property that Dish did not own on January 1 of 2011. In April 2015, the District filed a traditi onal motion for summary judgment in which it pointed out that Dish obtained a hearing before the appraisal review board in July 2011 but did not raise its 25.25(c) claims until March 2012. The Dist rict argued Dish’s claims of clerical error were untimely and improper and constituted an attempt to have a second assessment of Dish’s inventory for 2011. Further, the District argued that, under section 25.25(c), the appraisal roll may not be changed if the property was subject to a protest brought by the owner under Chapter 41, a hearing on the protest was conducted in which the property owner offered evidence or argument, and the appraisal review board made a determination of the prot est on the merits. The District cited section 25.25( c)’s provision that a “clerical error” does not include an error that is or results from a mistake in judgment or reasoning in the making of the fi nding or determination. On June 1, 2015, the trial court granted the Distri ct’s traditional motion for summary judgment, and this appeal followed. In three issues, Dish argues summary judgme nt was improper and the summary judgment evidence was (1) contradictory because it raised the issue of whether the District could have made a clerical error in assessing Dish’s nontaxab le assets; (2) conclusory because the District’s–3– proffered testimony merely stated that it made no errors in its calculations; and (3) lacking because no evidence was presented to show Dish’s protests were untimely or improper. More specifically, Dish argues its own renditi on for 2011 showing $24,079,794 in taxable property contradicted the District’s assessment, thereby raising an issue of material fact whether the District could have committed a clerical error; th e affidavit of District appraiser Brad Richards was conclusory because it merely stated the Di strict arrived at the appraised value “through a process of deliberate determination, reasoning and appraisal” and did not result from a clerical error; and there were no work papers, schedul es, or calculations prov ided to show how the District arrived at its appraised value. In making these arguments, Dish reiterates its argument that the appraisal erroneously incl uded property that did not exist in the form or at the location described in the appraisal roll and property that Dish did not own on January 1 of 2011. The standard for reviewing a traditional summary judgment is well known. See Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548–49 (Tex. 1985); McAfee, Inc. v. Agilysys, Inc. , 316 S.W.3d 820, 825 (Tex. App.—Dallas 2010, no pet.). The movants have the burden of showing that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. T EX
. R. C IV
. P. 166a(c). In deciding whether a disputed mate rial fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true.
Nixon , 690 S.W.2d at 549; In re Estate of Berry , 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. City of Keller v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am. , 12 S.W.3d 172, 175 (Te x. App.—Dallas 2000, pet. denied).–4– The property tax code provides that the appraisal review board, on motion of the chief appraiser or a property owner, may direct change s in the appraisal role for any of the five preceding years to correct: (1) clerical errors that affect a property owner’s liability for a tax imposed in that tax year; (2) multiple appraisals of a property in that tax year; (3) the inclusion of propert y that does not exist in the form or at the location described in the appraisal roll; or (4) an error in which property is show n as owned by a person who did not own the property on January 1 of that tax year. T EX
. T AX C ODE A NN . § 25.25(c) (West 2015). Under the tax code, a “cleri cal error” means an error: (A) that is or results from a mistake or failure in writing, copying, transcribing, entering or retrieving computer da ta, computing, or calculating; or (B) that prevents an appraisal roll or a tax roll from accurately reflecting a finding or determination made by the chief apprai ser, the appraisal re view board, or the assessor; however, “clerical error” does not include an error that is or results from a mistake in judgment or reasoning in the making of the finding or determination. Id. § 1.04(18) (West 2015). We first address Dish’s argument that Rich ards’ affidavit in support of the District’s motion for summary judgment was “conclusory.” The record shows Richards’ affidavit did not merely state the District arrived at the a ppraised value “through a process of deliberate determination, reasoning and appraisal” and did not result from a clerical error. The affidavit further indicated the District disagreed with Dish’s “valuation ‘theor y’ as it relates to intangibles” and the District’s appraisal of Dish’s property. Richards st ated he “dispute[s] the value determination, judgment, and appraisal theory used by [Dish].” T hus, Richards’ affidavit established that the District’s va luation of Dish’s taxable property resulted from a disagreement with Dish’s claims that certain property was “intangibles” or nontaxa ble and a valuation in–5– keeping with the District’s “appraisal judgment and techniques on valuing property.” “Clerical error” does not include an error th at is or results from a mistake in judgment or reasoning in the making of the finding or determination. Id. Under these circumstances, we conclude Richards’ affidavit was not conclusory and established the Dist rict’s valuation did not result from a clerical error. We overrule Dish’s first issue. In arguing the District’s evidence was contra dictory and created a fact issue whether the District committed a clerical error, Dish only relies upon section 1.04(18) subsection A’s definition of clerical error and argues the Distri ct made a “clerical erro r” in “calculating” its renditions as those terms are used in the definition of clerical erro r. Specifically, Dish argues its rendition for tax year 2011 included $24,079,794 in ta xable property, $10,434 in “intangibles,” and $46,115,002 in nontaxable “disposed” property, amounting to a total of $70,205,230 in taxable and nontaxable property. Nevertheless, despite “the Rendition’s clear identification of what was taxable and nontaxable ,” the District set the total taxable value at $70,076,219. Dish argues this amounted to a “clerical error” in that the Di strict included nontaxable property in its taxable value calculation. The discrepanc y between the rendition’s listing of $24,079,794 in taxable property and the District’s determ ination of $70,076,219 in taxable property, Dish argues, creates a genuine issue of materi al fact precluding su mmary judgment. Dish’s arguments attempt to revise the me thodology the District us ed to calculate the renditions. See Dallas Central Appraisal Dist. v. S.W. Airlines Co. , No. 05-10-00682-CV, 2012 WL 210964, at *3 (Tex. App.—Da llas Jan. 24, 2012, pet. denied ) (mem. op.). The record establishes that the District disagreed with Dish’s “valuation ‘theory’” and applied its own appraisal theory to its determination of the value of Dish’s taxable property. Applying one methodology when another is either called for or would produce better results is simply not a clerical error as that term is contemplated by the tax code. Id. We overrule Dish’s second issue.–6– To the extent Dish reiterates its argument that the District err oneously included certain property in its assessment, we not e the property tax code does not explain what is meant by the phrase “inclusion of property that does not exist in the form or at the location described in the appraisal roll.” Titanium Metals Corp. v. Dallas Cty. Appraisal Dist. , 3 S.W.3d 63, 66 (Tex. App.—Dallas 1999, no pet.). Neverthe less, this Court has defined the term “form” in the context of 25.25(c)(3) to mean “its identification as a ty pe of property listed under section 25.02(a), such as real property, personal prope rty, an improvement to real pr operty, or some other physical description of the property on the appraisal roll, other than its appraised value or its use.” Id. (quoting Dallas Central Appraisal Dist. v. G.T.E. Directories Corp. , 905 S.W.2d 318, 321 (Tex. App.—Dallas 1995, writ denied). T hus, the relief available unde r section 25.25(c)(3) applies only when no property exists in th e form or at the location described in the appraisal roll. Id. Stated differently, correction of the appraisal roll is only allowed when the appraisal roll erroneously reflects that a particul ar form of property exists at a specified location and, in fact, no such property exists at that location. Id. Here, the “form” of the property described in the appraisal roll is “business personal property.” Dish does not dispute that it main tains business personal property at the location described in the roll. Instead, Dish argues that it does not maintain as much business personal property at that location as the a ppraisal roll indicates. This is a complaint about the value of the property described in the apprai sal roll, not a complaint about the existence or nonexistence of certain “forms” of property at the location desc ribed. Because we conclude business personal property did exist at the location in the appraisal roll, we concl ude that amending the roll under section 25.25(c)(3) was not authorized. Titanium Metals , 3 S.W.3d at 66. Accordingly, summary judgment was proper in favor of the District on all of Dish’s claims. See Nixon , 690 S.W.2d at 548–49.–7– Finally, to the extent Dish argues summary judgment in favor of the District was improper on the grounds that Dish’s motion for correction of the appraisal roll under section 25.25(c) was untimely, we conclude we need not a ddress this issue. When multiple grounds for summary judgment are raised and the trial co urt does not specify the ground or grounds relied upon for its ruling, the a ppellate court will affirm the summa ry judgment if any of the grounds advanced in the motion are meritorious. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001). We have already addressed the merits of Dish’s challenge s to the trial court’s summary judgment on Dish’s claims under section 25.25 a nd concluded summary judgment was proper on Dish’s claims. Thus, we need not address whet her Dish was somehow pr ecluded from raising its claims under section 25.25. See id. We overrule Dish’s third issue. We affirm the trial court’s judgment.

150800F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–8– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DISH NETWORK CORPORATION AND BLOCKBUSTER, LLC, A WHOLLY OWNED SUBSIDIARY OF DISH NETWORK CORPORATION, Appellant
No. 05-15-00800-CV V.
COLLIN CENTRAL APPRAISAL DISTRICT, Appellee On Appeal from the 380th Judicial District Court, Collin County, Texas Trial Court Cause No. 380-03370-2012. Opinion delivered by Justice Bridges. Justices Lang-Miers and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee COLLIN CENTRAL A PPRAISAL DISTRICT recover its costs of this appeal from appe llant DISH NETWORK CORPORATION AND BLOCKBUSTER, LLC, A WHOLLY OWNED SUBSIDIARY OF DISH NETWORK CORPORATION.
Judgment entered April 27, 2017.