
Opinion issued October 14, 2004





            











In The
Court of Appeals
For The
First District of Texas
 

 
 
NO. 01-04-00107-CV
__________

MARUBENI AMERICA CORPORATION, Appellant

V.

HARRIS COUNTY APPRAISAL DISTRICT AND
HARRIS COUNTY APPRAISAL REVIEW BOARD, Appellees
 

 
 
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2003-00466
 

 
 
O P I N I O N
          In this ad valorem property tax case, appellant, Marubeni America Corporation
(Marubeni), challenges the trial court’s rendition of summary judgment in favor of
appellees, the Harris County Appraisal District (HCAD) and the Harris County
Appraisal Review Board (HCARB) (collectively, the taxing authorities).  In its sole
issue, Marubeni contends that the trial court erred in granting the taxing authorities’
motion for summary judgment and in denying Marubeni’s motion for summary
judgment because the summary judgment evidence established, as a matter of law,
that, due to a clerical error, Marubeni had inaccurately reported the value of its
inventory to HCAD for appraisal and taxation.
          We affirm.
Factual and Procedural Background
          In 2000, Marubeni, a commodity trading company, owned and stored mixed
xylene
 in two leased tanks located in Harris County.  In April 2001, Marubeni
submitted a “Report of Stored Product Inventory” to HCAD in which Marubeni’s
representative, E.B. Andrew, stated that, as of January 1, 2001, Marubeni’s inventory
of mixed xylene totaled 584,261.83 gallons and was valued at $2,439,192.  HCAD
then appraised and taxed this inventory based on the value listed in the report.
          In October 2002, Marubeni timely filed a “Personal Property Correction
Request / Motion” with HCAD requesting a correction of the 2001 appraisal roll and
listing the basis for the requested correction as “[p]roperty over-appraised by more
than 1/3.”  In its motion to correct the appraisal roll, Marubeni’s Vice-President, H.
Onodera, explained, “The warehouse report was not available at the timing [sic] of
filing the original 2001 rendition.  The value of the inventory was incorrectly
computed.”  Onodera also stated that the correct value of the 2001 inventory was
$855,193.  Following a hearing, HCARB subsequently denied Marubeni’s motion to
correct the appraisal roll.
          Marubeni subsequently filed a lawsuit against the taxing authorities, seeking
a judgment directing the taxing authorities to correct the 2001 appraisal roll to reflect
the “proper” value of Marubeni’s mixed xylene inventory and to refund any
overpayment of ad valorem property taxes resulting from the adjusted value. 
Marubeni also filed a motion for summary judgment arguing that, as a matter of law,
the figures that Marubeni had submitted to HCAD in the 2001 inventory report
regarding both the volume and the value of its mixed xylene inventory amounted to
“a clear case of clerical error” and were subject to correction under the provisions of
section 25.25(c) of the Tax Code.

          As summary judgment evidence, Marubeni submitted the affidavit of its
Assistant Marketing Manager, Cathy Wolfe.  Wolfe stated that the 2001 inventory
report contained “inadvertent errors in both the quantity of material . . . and the value
of that material” and that “[t]he error was apparently created by Mr. Andrew using
internal reports that were not intended to accurately reflect the year-end volume.” 
Wolfe explained that, in its 2001 inventory report, Marubeni had understated the
volume of its mixed xylene inventory and had overstated its inventory’s value.  Wolfe
stated that the actual volume of mixed xylene held in Marubeni’s inventory in January
2001 was 880,216.92 gallons and that its market value was $855,193.

          The taxing authorities responded to Marubeni’s motion for summary judgment
and filed their own joint motion for summary judgment, arguing that, as a matter of
law, the mistakes Marubeni allegedly made in its 2001 inventory report were not
clerical errors, or alternatively, that material fact questions existed concerning
whether such mistakes constituted clerical errors.  In support of their response and
their motion, the taxing authorities also relied on portions of Wolfe’s affidavit, as
well as excerpts from her deposition testimony.
          At her deposition, Wolfe testified that she could not recall whether or not she
had ever spoken to Andrew.  It was Wolfe’s understanding, based on what she had
been told by another Marubeni employee, that Andrew had obtained the figure for the
value of the 2001 mixed xylene inventory from an internal balance sheet used to track
stored material.  Wolfe explained that the figure from that balance sheet did not
reflect all of the deliveries of mixed xylene that Marubeni had made to its customers
before the end of 2001.  Wolfe also identified Maggie Tan, a Marubeni employee in
its Houston, Texas office, as the person who had given Andrew the incorrect
information regarding the volume of the 2001 inventory.  However, Wolfe admitted
that, although Marubeni routinely received daily reports from another company
regarding the volume of its inventory, she did not know how Tan had arrived at that
incorrect figure and that she had not determined the source of that miscalculation.
          The trial court subsequently denied Marubeni’s motion for summary judgment
and granted summary judgment for the taxing authorities.
Standard of Review
          A party moving for summary judgment must conclusively prove, as a matter
of law, all of the elements of its cause of action or defense.  Tex. R. Civ. P. 166a(c);
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).  When,
as here, both sides move for summary judgment, and the trial court grants one motion
but denies the other, a reviewing court should review both sides’ summary judgment
evidence, determine all questions presented, and render the judgment that the trial
court should have rendered.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000).  The determination of whether an alleged error constitutes a
“clerical” error is a matter of law.  Fort Bend Cent. Appraisal Dist. v. Hines
Wholesale Nurseries, 844 S.W.2d 857, 858 (Tex. App.—Texarkana 1992, writ
denied).
Clerical Errors
          Here, Marubeni concedes that the information that it provided to the taxing
authorities was the source of any error that occurred in the appraisal of its 2001 mixed
xylene inventory.  The parties also do not dispute that, in effect, the trial court ruled
that, as a matter of law, the mistakes that Marubeni alleges that it made in submitting
its 2001 inventory report were not clerical errors.  In its sole issue, Marubeni argues
that the trial court erred in denying its motion for summary judgment and in granting
summary judgment in favor of the taxing authorities.
          Under the provisions of the Tax Code, an appraisal review board may correct
an appraisal roll for clerical errors made by a taxpayer in its rendition of the value of
its own taxable personal property.  Tex. Tax Code Ann. § 25.25(c) (Vernon 2001);
Comdisco, Inc. v. Tarrant County Appraisal Dist., 927 S.W.2d 325, 327 (Tex.
App.—Fort Worth 1996, writ ref’d).  With regard to the correction of such clerical
errors, the Tax Code provides, in part, as follows:
The appraisal review board, on motion of the chief appraiser or of a
property owner, may direct by written order changes in the appraisal roll
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; . . . .

Tex. Tax Code Ann. § 25.25(c).  A “clerical error” is defined as an error:
 
(A)that is or results from a mistake or failure in writing, copying,
transcribing, entering or retrieving computer data, 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 appraiser,
the appraisal review 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) (Vernon 2001).
          Marubeni relies on Comdisco in support of its assertion that its alleged
mistakes in submitting the amounts of the volume and value of its 2001 mixed xylene
inventory amounted to clerical errors.  In Comdisco, the taxpayer submitted
information to a taxing authority listing the value of its taxable property at
“$13,000,000” instead of “$1,300,000.”  927 S.W.2d at 326.  The court of appeals
held that, under the provisions of section 25.25(c) of the Tax Code, the taxpayer’s
alleged mistake was the result of a clerical error, and the court of appeals reversed the
summary judgment that had been granted in favor of the taxing authority and
remanded the case for a determination of the actual value of the property.  Id. at 327-28.
          We note that, in Comdisco, the taxpayer’s alleged error resulted from the
addition of an extra decimal place.  Id. at 326; see also Handy Hardware Wholesale,
Inc. v. Harris County Appraisal Dist., 985 S.W.2d 618, 619 (Tex. App.—Houston
[1st Dist.] 1999, no pet.) (holding that taxing authority’s incorrect listing of
warehouse as having 20,125 square feet instead of 201,250 square feet was
correctable “clerical” error under section 25.25(c) of the Tax Code).  Here, Marubeni
alleges that the errors in its 2001 inventory report resulted from its employees’ use
of incorrect information and were merely the result of mistakes in “writing, copying,
transcribing, entering or retrieving computer data, computing, or calculating.”  See
Tex. Tax Code Ann. § 1.04(18).  However, Marubeni offered no summary judgment
evidence from the persons who made the alleged errors, and its representative, Wolfe,
testified that she had not determined the source or the reason for all of the alleged
errors.  Accordingly, based on the summary judgment record presented, we hold that
Marubeni did not establish, as a matter of law, that its alleged errors were “clerical
errors” subject to correction under section 25.25(c) and thus, the trial court did not
err in denying Marubeni’s motion for summary judgment.
          The taxing authorities argue that, as a matter of law, the types of errors
allegedly made by Marubeni do not amount to clerical errors as that term is defined
by the Tax Code and by the cases interpreting that provision.  See Comdisco, 927
S.W.2d at 327-28; Handy Hardware Wholesale, 985 S.W.2d at 619.  We agree.  We
hold that the summary judgment evidence submitted by Marubeni concerning the
alleged proper figures for its 2001 mixed xylene inventory established that
Marubeni’s employees did not commit errors merely in “writing, copying,
transcribing, entering or retrieving computer data, computing, or calculating.” 
Rather, its employees simply submitted figures based on allegedly incorrect
information.  Wolfe testified that Andrew had obtained the figures for the volume and
the value of the 2001 inventory from another employee and from an internal balance
sheet, respectively.
          Accordingly, we hold that, based on the summary judgment record presented,
the taxing authorities established, as a matter of law, that Marubeni’s alleged errors
were not clerical errors subject to correction under section 25.25(c), and we further
hold that the trial court did not err in granting summary judgment in favor of the
taxing authorities.
          We overrule Marubeni’s sole issue.
 

Conclusion
          We affirm the judgment of the trial court.
 

                                                                        Terry Jennings
                                                                        Justice

Panel consists of Justices Taft, Jennings, and Bland.
