COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

F- STAR SOC ORRO, L .P., Appellant,

v.
ELPASO CENTRALAPPR AI SAL DI STRI CT AND THO MSON, I NC., Appellee s. § § § § § § No. 08-08-00050- CV

Appea l from the 346th J udicial District Court of El Paso County , Texas (TC# 2006-1950)

O P I N I O N F- Star Socorro, L .P. appeals fr om the trial court’ s order g rantingthe El Paso Central Appra isal District’s plea to the jurisdiction. Appe llant’s first issue cha lleneg es the trial c ourt’s failure to file finding s of fa ct and c onclusions of law. In I ssues Two throug h Four , Appellant argues the trial c ourt g rante d the plea to the jur isdiction in error be cause it was excused from exhausting its administrative reme dies prior to filing suit in t his instance. I ssues Five and Six addre ss questions of contrac tual privity and collate ral e stoppel, which we re r aised a s alternative g rounds for dismissal. Aff irmed. F- Star Socorro, L .P. is a lim ited partne rship operating in El Paso County . In 1998, F- Star ac quired a

pproxi mately

140 acr es of a g ricultural land in El Paso County as par t of a
commerc ial rea l estate de velopment projec t. When F-Star pur chase d the land, it also neg otiated 1

A more de tailed explanation of F- Star’s re al estate dealing s in El Paso Count y can be 1 found in this Court’s prior opinions: F-Star Socorro, L.P. v. City of El Paso , 281 S.W .3d 103, 104-05 (Te x .App.--E l Paso 2008, no pet.) and Duncan v . F-Star Managem ent, L.L.C

. , 281 S.W .3d 474, 476-78 (Te x .App.--E l Paso 2008, pet. denied).sever al tax abatement agree ments with the local taxing authorities: the City of Socorr o; the El Paso County

Communi ty

College District; the L ower Valley Water District; El Paso County ; the El Paso County

Hospital District; and Socorro I ndepende nt School District. The abatement ag ree ments eac h provide for a 50 per cent tax abateme nt of the asse ssed value of the prope rty

for ten y ear s, beg inning the year afte r F -Star complete d construction on the pr operty . F- Star completed c onstruction, and lea sed the prope rty to Thomson, I nc. in J une 1998. The El Paso Centra l Appraisal District ( “EPCAD”) administers proper ty taxes withi n El Paso County

. SeeT E X . T A X C O D E AN N . § 6.01 (Ve rnon 2008). F -Star filed this lawsuit ag ainst the appra isal district in April 2006, seeking a dec laratory judgme nt that EPCAD had misapplied the abatement ag ree ments in the annual prope rty appra isals. F-Star pr esente d its alleg ations as follows: 13. Fr om inception, in violation of the Abateme nt Ag ree ments and Texas law, EPCAD has incorr ectly

cer tified the appr aised va lues of the improve ments on the Elig ible Real Proper ty to the City . As a re sult, the Cit y has annua lly prepa red tax bills t o F- Star, which incor rec tly state the amounts of ad valore m tax es asse ssed ag ainst the improvements to the Elig ible Real Property . I nstead of a

bating the taxes assessed, the City ’s tax bil ls to date have unif ormly ref lected a 50% re duction in the appra ised values of the improvements on the Elig ible Real Proper ty , which re duction is refe rre d to on the tax bil ls as an ‘e x emption.’ 14. As a re sult of the manner in which EPCAD has ce rtified to the City the taxable value of the improvements to the Elig ible Real Proper ty lease d by Thomson, the tax bi lls prepar ed by the City ref lect amounts of a ssessed ad valore m tax es there on which, in ef fec t, give the full value of the Abateme nt Ag ree ments to Thomson, rather tha n to F-Star, in violation of the lease and in an unc onstitut ional depra vation and takingof F -Star’s proper ty without due proce ss of law. F- Star repr esente d to the court that a ccor ding to the le ase a g ree ment, Thomson was require d to pay

the full amount of ad va lorem taxes assessed e ach year , absent the be nefit of the
-2-abate ment ag ree ments neg otiated by F- Star. F- Star claimed this provision was intende d to allow F- Star to “par

tially rec oup its costs for deve loping [the proper ty ] and the investment which it made f or the utilities and other infr astructur e . . . .” T homson filed a plea in intervention in this
case on J uly

6, 2006, in which the lessee arg ued that F -Star’s inter

pretation of the lease terms was in er ror, a nd that Thomson was entitled to the bene fit of the abatements. 1 EPCAD answer ed the F -Star’s law suit with a ge nera l denial, seve ral spec ial exceptions, and a ple a to the jurisdiction. I n its plea, EPCAD argued in par t that F-Star’ s failure to pursue and exhaust its adminis trative re medies provided in the T exas Property Tax Code prior to filing suit deprived the tria l court of jurisdiction over the ca se. In its response to EPCAD’s plea, F- Star asser

ted the Proper

ty Tax Code did not m andate administrative re view of this par ticular ty pe of tax dispute prior to filing suit. I t argued that its case was not an a ppraisal c ontest, but that the entity was see king r elief f

rom the, “a

pplication of an unw anted, una uthorized ex emption of a portion” of the a

ppraised va lue of the pr operty , and ther efor e wa s not require d to pursue an administrative dec ision prior to filing suit. The trial c ourt hea

rd the pa rties’ leg al ar g uments on the plea dur ing a hearing on October 24, 2007. On J anuar

y 9, 2008, the cour

t issued an orde r g rantingEPCAD’s plea, a nd dismiss ing the case for lac k of jurisdiction. F-Star raises six is sues cha lleng ing the dismiss al order and the tria l court’s fa ilure to file finding s of fa ct and c onclusions of law. I n I ssue One, F -Star conte nds the trial cour t’s failure to file finding s of fa ct and conclusions of lawdespite a timely reque st and reminder , constitutes reve rsible er ror. Te x as Thomson eventually

filed a se parate lawsuit ag ainst F-Star in September 2002, due to 1 additional lease disputes. See F ive Star International Holdings, Inc. v . Thomson, Inc. , -- S.W.3d. --, No. 08- 07-00143-CV (T ex.App.--El Paso 2009, pet. filed). -3-Rules of Civil P roce dure 296 pr ovides a pa rty with the proce dural re quirements to re quest the trial court to produc e wr itten findings of fac t and conc lusions of law. T E X .R.C I V .P. 296. Rule 297 mandates that the court make such finding s upon timely reque st and reminder

should the finding s become overdue

. SeeT E X .R.C I V .P. 297. I t is undisput ed in this case that the trial court failed to re spond to a timely reque st to do so. F-Star ar g ues that it is entitled to a reve rsal of the dismiss al orde r, and r emand f or trial on the merits, or in the alterna tive this Court m ust abate the appea l so the findings ma y be ente red. B eca

use the trial c ourt’s rulingon the jurisdictional issues befor e it did not include any fac t findings, we disag ree with F-Star’ s assertion. A par ty is entitled to findings of f act a nd conclusions of lawafte r a c onventional trial on the merits to the cour

t. IKB Indus. (

Nigeria) Ltd. v. Pro-Line Corp. , 938 S.W .2d 440, 442 (Tex. 1997). A “ trial” is a he aringin which the cour t hear s and re ceive s evidenc e. Gen. Ele c. Capital Corp. v. ICO, Inc

. , 230 S.W .3d 702, 711 (Tex.App.--Houston [14th Dist.] 2007, pet. denied)

. When, as is the case with an orde r g rantingdismiss al for la ck of jurisdiction, a judg ment is rende red a s a matter of

law, finding s and conc lusions, while not im proper , have no pur pose and should not be reque sted or conside red on a ppeal. See Pro-Line Corp. , 938 S.W .2d at 443. This is especia lly

true whe n a plea

to the jurisdiction does not involve disputed facts. Haddix v. A m. Zurich Ins. Co. , 253 S.W .3d 339, 346 (Tex.App.--Ea stland 2008, no pet.). Abse nt a fa ct question, a trial cour

t’s decision grantingor deny ing a plea to the jurisdiction is a question of law, subjec t to de novo revie w. See H addix , 253 S.W .3d at 346, citing State v. Heal , 917 S.W .2d 6, 9 (Tex. 1996). In such a r eview, the appellate court must exercise its own judg ment to deter mine eac h issue, and so ca nnot consider f

indings a nd conclusions eve n if they are included in the rec ord. See H

addix , 253 S.W .3d at 346. In addition, reg ardle ss of the trial cour t’s
-4-subjective ba sis for its decision, a par ty challeng ing a

ruling on a plea

must address all independe nt gr ounds, and demonstrate that none support the c ourt’s dec ision. See B ritton v. Tex. Dept. of Criminal Justice , 95 S.W .3d 676, 681 (Tex.App.--Houston [1st Dist.] 2002, no pet.). As such, inclusion of finding s and conc lusions can have no eff ect on the a

ppellate c ourt’s ana ly sis. I n this case, the tr ial court he ard only argument duringthe Octobe r 24 hea ring . There was no evidenc e introduce d by the par ties, or re fer ence d as dete rminative by the cour t, and F- Star does not identify

any specific fac t issues which wer e implicitly deter mined by the cour t in its dismiss al orde r. While the parties e x presse d disag ree ment about the leg al ef fec t of the fa cts in this case, the f

acts re lated to EPCAD’s jurisdictional arg uments are undisputed. Consequently , there wer e no fa ct issues for the trial court to re solve prior to makingits decision, and finding s of fac t and conc lusions of law would have serve d no purpose. See P ro-Line Corp. , 938 S.W .2d at 443. Acc ording ly , the trial cour t did not commit reve rsible er ror by failing to file finding s of fa ct and conc lusions of law, and ther e is no nee d to abate the appea l so that such finding s may be filed. I ssue One is ove rruled. I ssues Two throug h Four

challeng e the tria l court’s rulingon the basis that F- Star’s failure to exhaust admini strative re medies prior to filingsuit deprived the c ourt of subjec t matter jurisdiction. A plea to the jurisdiction contests a tria l court’s subjec t matter jurisdiction. Bland Ind. Sch. D ist. v. Blue , 34 S.W .3d 547, 554 (Tex. 2000). We review the trial cour

t’s ruling de

novo . Tex. De

pt. of Parks and W

ildlif e v. M iranda , 133 S.W .3d 217, 226 (Tex. 2004). The plaintiff bea

rs the burde n of plea ding f acts whic h aff

irmatively

demonstrate the court’s jurisdiction over the c ase. Schec ter v. W ildwood Dev., L.L.C. , 214 S.W .3d 117, 120 (Tex.App.-- El Paso 2006, no pet.). As this is a case wher e the jurisdictional fa cts are uncontested, the scope -5-of our r eview is limited to the fac e of the pleading s. Id

.

The Te x as Tax Code provides administrative proc edure s for prope rty owner s to contest ad valor em taxes. SeeT E X .T A X C O D E AN N . §§ 41.07-.71 (Ve rnon 2008); Cameron Appraisal Dist. v. Rourk, 194 S.W .3d 501, 502 (Tex. 2006)(per curiam). Appra isal review boards a re vested with the a

uthority to hear and dete rmine protests filed by proper ty owner s. T E X .T A X C O D E AN N . § 41.41. An administrative dec ision on a tax pay er’ s protest is final if the prope rty
owner does not appe al the dec ision to t he district cour t within si x ty

day s. T E X .T A X C O D E AN N . § 42.21(a) (Ve rnon Supp. 2009). The a dminist rative pr ocee dings c onstitut e the “ exclusive” proce dure to c halleng e ad va lorem taxes, and most defense s are barr ed if not ra ised in the ag ency . SeeT E X .T A X C O D E AN N . § 42.09. Thus, “a tax payer’ s failure to pursue an a ppraisal r eview board pr ocee ding de prives the c ourts of jurisdiction to decide most matters r elatingto ad valore m taxes.” Rourk, 194 S.W .3d at 502, quoting Matagorda Ct y. Appraisal Dist. v. Coastal L iquids Partners, L.P. , 165 S.W .3d 329, 331 (Tex. 2005). F- Star does not dispute the fa ct that it did not seek administrative re lief prior to filingsuit in the district court. Instead, F -Star asse rts a distinction ex ists between a tax “ex emption,” which it argues wa s err oneously applied to its property

by EPCAD, and a tax “abatement,” whic h the entity argues wa s what it intended to have applied to the prope rty throug h the Abate ment Ag ree ments. F-Star

contends it was not re quired to conte st this “unwanted exemption” throug h the administrative proc ess. In an alter native ar g ument, F- Star arg ues for the applica

tion of
sever al other e x ceptions to the exhaustion of remedie s doctrine to excuse its failure to pursue a protest with the appr aisal boar d. F- Star’s primar

y arg ument is premised on the re cog nition of a distinction between a tax
-6-“exemption” and a tax “abatement.” Ac cordingto F-Star, a tax “ex emption” occ urs when the appra ising e ntity , as opposed to the taxing e ntity , subtracts some pe rce ntag e of a proper ty ’s appra ised value pr ior to that value be ing listed in the a ppraisal r ecor ds. The ef

fec t of an “exemption,” there fore is to relieve the pr operty owner from the duty

to pay taxes on that perc entag e of the proper

ty ’s value. A n “abatement,” a ccor ding to F -Star re fer s solelyto a postappra isal reduc tion in the actual amount of tax es due, by the taxing entity

itself. F- Star continues by arguing that despite its ag ree ments with the releva nt tax ing e ntities to abate 50 per cent of ad valore m tax es, the a

ppraisal boa

rd imposed a 50 pe rce nt exempti on. Followingthe impositi on of the “unwa

nted exemption,” the taxi ngauthorities must further r educe the tax bil l by applying the ag ree d abate ments, thereby reduc ing the alre ady

reduc ed tax revenue by

an additional 50 per cent. F- Star conc ludes, “[t] he 50% e x emption applied by [EP CAD] both t akes the benef it of F-Star ’s abate ments under the A

batement Agree ments awa y from it, and depr ives taxi ng authorities of substantial amounts of tax.” Even if we wer e to ac cept F -Star’s a rgued distinction, the question remains whe ther F

Star was r equire d to protest the “unwa nted exemption” to the appra isal review board pr ior to filing suit. Ag ain, F- Star conc edes that ge nera lly when a proper ty owner wishes to dispute a tax, it must file a pr otest with the appra isal review board. H oweve r, F -Star conte nds it was excused from an a dminist rative pr otest beca use the “ unwanted grant” of an e x emption is not one of the ty pes of de cisions the Tax Code permits a taxpay er to pre sent to the appra isal review board. F- Star’s ar g ument ref

ers to par ag raph ( a) of

Texas Tax C ode sec tion 41.41, tit led “Rig ht of Protest.” Para g raph ( a) state s: (a) a prope rty

owner is entitled to protest before the appr aisal re view boar d

-7-the following actions: (1) deter

mination of the appra ised value of the owner ’s prope rty

or, in the ca se of land a

ppraised a s provided by

Subchapter

C, D, E, or H, Chapter 23, de termination of its appra ised or mar ket value; (2) unequal a

ppraisal of

the owner ’s prope rty ; (3) inclusion of the owner ’s prope rty on the appr aisal re cords; (4) denial to the prope rty owner in whole or in par

t of a pa rtial exemption; (5) deter

mination that the owner’ s land does not qualify for a ppraisal as provided by

Subchapter

C, D, E, or H, Chapter

23; (6) identification of the tax ing units in which the owner’ s proper ty is taxable in the case of the a ppraisal district’s a

ppraisal r oll; (7) deter

mination that the property owner is the owner of

proper ty ; (8) a dete rmination that a cha ng e in use of la

nd appra ised under Subchapter

C, D, E, or H, Chapter

23, has occ urre d; or (9) any

other a ction of the c hief a ppraiser , appra isal district, or appra isal review

board that applies to and adve rsely aff ects the proper ty owner . T E X .T A X C O D E AN N . § 41.41(a)

. I n both its arg ument to the trial court, a nd in its brief to this C ourt, F- Star focuse s on items one throug h eig ht in this list, and concludes it was not re quired to file a n administrative protest bec ause the appra isal review board w as not vested with author ity to consider this ty

pe of tax di spute. F- Star’s ar g ument omits subparag raph nine , which as EPCAD points out, establishes a c atch- all cate g ory for c laims not already

addre ssed by

the statute. SeeT E X .T A X C O D E AN N . § 41.41(a) (9). As a lleg ed in its pleading s, F-Star ’s complaint was ba sed on an a ction by the El Paso Central Appr aisal District, an a pprisal district cre ated by the authority

of the State
-8-of Texas; and that by imposing the “ unwanted e x emption,” EPCAD adver sely eff ecte d F- Star. Wit hout addre ssing the a

pplicability

of the provisions one through eig ht, we conc lude subpara g raph nine applies, and ve sted the appr aisal re view boar d with authority to reviewFStar’s cla im. Accor dingly , F- Star was not excused fr om pursuing a n administrative protest on this basis. F-Star’s f

ailure to e x haust its administ rative r emedies, a s demonstrated f rom the fa ce of its pleading s, deprived the trial court of jurisdiction to consider the ca se. See R ourk , 194 S.W .3d at 502. The tria l court did not err by g rantingEPCAD’s plea to the jurisdiction, and we
overr ule I ssues Two, Thre e, and F our. Given our dispositi on of these issues the re is no nee d to addre ss I ssues Five and Six , or F -Star’s a lternative a rguments reg arding

exhaustion of remedies. Havingoverr

uled I ssues One through Four , we a ffirm the tria l court’s orde r dismiss ing the case for lac k of jurisdiction. May 28, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, J. and Macias, Judge Macia s, J udg e (Sitting by Assignme nt)

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