Opinion filed November 12, 2015




                                    In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-13-00337-CV
                                  __________

    ESTATE OF MARVIN L. SMITH, JR., D/B/A IDLEWOOD
           TERRACE APARTMENTS, Appellant
                                       V.
        ECTOR COUNTY APPRAISAL DISTRICT, Appellee


                    On Appeal from the 244th District Court
                             Ector County, Texas
                       Trial Court Cause No. C-134,054


                                  OPINION
      This appeal presents a procedural conundrum. Both parties filed competing
no-evidence motions for summary judgment on the same legal issue. Neither party
filed a response to the other party’s no-evidence motion for summary judgment.
Instead, each party argued that the other party bore the burden of proof on the
controlling legal issue. Accordingly, the resolution of this appeal hinges on our
review of the trial court’s implicit determination that Appellant bore the burden of
proof. We affirm.
                                 Background Facts
      This is a dispute over a property tax valuation. In April 2012, the Ector
County Appraisal District mailed Appellant, the Estate of Marvin L. Smith, Jr., d/b/a
Idlewood Terrace Apartments, a “Notice of Appraised Value” that its property was
appraised at a total market value of approximately $1.5 million. Appellant timely
protested this appraisal by filing a Property Tax Notice of Protest. See TEX. TAX
CODE ANN. § 41.41 (West 2015). The Ector County Appraisal Review Board held
a hearing on Appellant’s protest. The Review Board issued an order in which it
determined the total market value of the property to be approximately $1.3 million.
Appellant then appealed this order to the district court as provided by Chapter 42 of
the Texas Tax Code by filing an “Original Petition for Review of Appraisal Review
Board.” See id. § 42.01. Appellant alleged in the petition that “[t]he Review Board’s
Value is erroneous for the following reason: the Review Board’s Value represents
an unequal and discriminatory appraisal when compared to similar apartment
complexes.” See id. § 42.26.
      The Appraisal District filed a general denial in response to Appellant’s
petition. Almost a year later, the Appraisal District filed a no-evidence motion for
summary judgment in which it alleged that Appellant had the burden to produce, and
had not produced, any evidence of an “unequal appraisal.” Appellant did not file a
response to the Appraisal District’s no-evidence motion for summary judgment.
Instead, Appellant filed a competing no-evidence motion for partial summary
judgment in which it alleged that the Appraisal District had the burden to prove that
the appraised value was equal to “similarly situated properties” and asserted that the
Appraisal District had produced no evidence of similar valuations. The Appraisal
District did not file a response to Appellant’s no-evidence motion for partial
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summary judgment. The trial court held a hearing on the competing no-evidence
motions for summary judgment. It granted the Appraisal District’s motion and
denied Appellant’s motion. In one issue on appeal, Appellant contends that the trial
court erred when it granted summary judgment in favor of the Appraisal District
because the Appraisal District had the burden of proof in the district court.
                                       Analysis
      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). A no-evidence summary judgment motion under
Rule 166a(i) is essentially a motion for a pretrial directed verdict; it requires the
nonmoving party to present evidence raising a genuine issue of material fact
supporting each element contested in the motion. TEX. R. CIV. P. 166a(i); Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 581–82 (Tex. 2006). When reviewing a no-evidence summary
judgment, we “review the evidence presented by the motion and response in the light
most favorable to the party against whom the summary judgment was rendered,
crediting evidence favorable to that party if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not.” Timpte Indus., 286 S.W.3d
at 310; Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208
(Tex. 2002)).
      Ordinarily, when competing motions for summary judgment are filed and one
is granted and the other denied, the reviewing court must review the summary
judgment evidence presented by both sides, determine all questions presented, and
render such judgment as the trial court should have rendered. Comm’rs Court of
Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). While this case involves
competing motions for summary judgment, it is not an ordinary situation because
neither party filed a response to the other party’s no-evidence motion for summary
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judgment. Accordingly, neither party presented the trial court with any summary
judgment evidence in opposition to the other party’s no-evidence motion for
summary judgment.1
        Rule 166a(i) permits a party to move for “summary judgment on the ground
that there is no evidence of one or more essential elements of a claim or defense on
which an adverse party would have the burden of proof at trial.”                                   TEX. R.
CIV. P. 166a(i). Thus, only a party without the burden of proof may move for no-
evidence summary judgment. See id.; Burges v. Mosley, 304 S.W.3d 623, 628 (Tex.
App.—Tyler 2010, no pet.); Reyes v. Saenz, 269 S.W.3d 675, 676–77 (Tex. App.—
San Antonio 2008, no pet.). As reflected by its pleadings, Appellant sought relief
under Section 42.26 for an allegedly unequal appraisal. Appellant contends that the
trial court should have granted its no-evidence summary judgment because the
Appraisal District had the burden of proof to establish an equal appraisal under
Section 42.26.         Conversely, the Appraisal District filed its own no-evidence
summary judgment motion in which it alleged that Appellant had the burden of proof
to establish an unequal appraisal under Section 42.26. Therefore, the controlling
question is who bears the burden, the Appraisal District or the property owner, in the
district court to establish a claim under Section 42.26.
        The Tax Code prescribes procedures for challenging the appraisal of property
for ad valorem purposes. TAX §§ 41.43, 42.01. The Tax Code provides an initial
administrative review process before the appraisal review board. See id. §§ 41.01–
.71. This administrative review process is intended to “resolve the majority of tax


        The Appraisal District attached copies of Appellant’s discovery responses to its no-evidence
        1

motion for summary judgment. In doing so, the Appraisal District asserted that “[Appellant’s] failure to
produce any [evidence under Section 42.26] is demonstrated by its responses to [the Appraisal District’s]
discovery requests.” If evidence is attached to a no-evidence motion for summary judgment brought solely
under Rule 166a(i), that evidence should not be considered unless it creates a fact question. Binur v. Jacobo,
135 S.W.3d 646, 651 (Tex. 2004). Appellant has not asserted that its discovery responses create a fact
issue. Accordingly, we do not consider the discovery responses as summary judgment evidence. Id.

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protests at this level, thereby relieving the burden on the court system.” Webb Cnty.
Appraisal Dist. v. New Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex. 1990) (citing
Dall. Cnty. Appraisal Dist. v. Lal, 701 S.W.2d 44, 47 (Tex. App.—Dallas 1985, writ
ref’d n.r.e.)).
        Appellant protested the appraised value of the property before the Ector
County Appraisal Review Board. TAX § 41.41. The Tax Code specifically states
that, at the hearing before the appraisal review board, “the appraisal district has the
burden of establishing the value of the property by clear and convincing evidence.”
Id. § 41.43(a–3). If the appraisal district fails to establish the value of the property,
“the protest shall be determined in favor of the property owner.” Id. § 41.43(a–4).
        The decision of the appraisal review board is reviewable by trial de novo in a
district court. TAX § 42.23(a).2 Trial de novo is generally defined as a new trial on
the entire case, on both questions of fact and issues of law, conducted as if there had
been no trial in the first instance. See Lamar Cnty. Appraisal Dist. v. Campbell Soup
Co., 93 S.W.3d 642, 645 (Tex. App.—Texarkana 2002, no pet.) (citing BLACK’S
LAW DICTIONARY 1512 (7th ed. 1999)). As a general rule, a trial de novo cures all
procedural errors from the proceedings below. Id. The general rule pertaining to
trial de novo is applicable to the review of determinations by the appraisal review
board. See id. at 645–46. Notably, Section 42.23 contains no language concerning
the burden of proof. Instead, the Tax Code states that “[t]he district court shall try
all issues of fact and law raised by the pleadings in the manner applicable to civil
suits generally.” TAX § 42.23. Neither party cites, nor have we found, any cases

        2
         Section 42.23(f) contains a provision specifically dealing with a no-evidence motion for summary
judgment filed in the appeal of a decision by the appraisal review board. It provides that, “[f]or purposes
of a no-evidence motion for summary judgment filed by a party to an appeal under this chapter, the offer
of evidence, including an affidavit or testimony, by any person, including the appraisal district, the property
owner, or the owner’s agent, that was presented at the hearing on the protest before the appraisal review
board constitutes sufficient evidence to deny the motion.” TAX § 42.23(f). It is obviously inapplicable to
this appeal since neither party filed a response to the other party’s no-evidence motion for summary
judgment. See also id. § 42.23(h)(1).

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that address the issue of who carries the burden of producing evidence at the district
court level.
      Appellant cites Section 41.43(b) as the basis for its argument that the
Appraisal District had the burden of proof. It asserts that, since the judicial review
of the decision of the appraisal review board is by trial de novo, the party that had
the burden of proof before the appraisal review board should have the burden of
proof in the district court. We disagree. Section 41.43 only applies to protests before
the appraisal review board. Id. § 41.43. An appeal to the district court is governed
by Chapter 42 of the Tax Code. See TAX §§ 42.01–.43. Thus, the section cited by
Appellant is inapplicable to this case. Had the legislature intended for the burden to
be on the appraisal district in an appeal filed by the taxpayer, it could have added
similar language to Chapter 42.
      Generally, the burden of proof in a civil case is determined from the pleadings
and rests upon the party against whom judgment must be entered under the pleadings
if neither side introduced any evidence. See Walker v. Money, 120 S.W.2d 428, 431
(Tex. 1938). Unlike Section 41.43, which firmly places the burden on the appraisal
district, Section 42.23 simply instructs the district court to try all the issues “in the
manner applicable to civil suits generally.” TAX § 42.23. Here, Appellant sought
affirmative relief in the form of a reduced appraisal value. Thus, Appellant had the
burden of proof. See Vance v. My Apartment Steak House of San Antonio, Inc., 677
S.W.2d 480, 482 (Tex. 1984) (“It is a well accepted postulate of the common law
that a civil litigant who asserts an affirmative claim for relief has the burden to
persuade the finder of fact of the existence of each element of his cause of action.”);
see also Russell v. City of Bryan, 919 S.W.2d 698, 704 (Tex. App.—Houston [14th
Dist.] 1996, writ denied) (“It is well accepted that the burden of proof is on the party
claiming affirmative relief.”).


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         Appellant could not properly move for no-evidence summary judgment
because it had the burden of proof in the district court on its claim of an unequal
appraisal. TEX. R. CIV. P. 166a(i); Reyes, 269 S.W.3d at 676–77. Under the Rules
of Civil Procedure, the trial court was required to grant the Appraisal District’s no-
evidence motion for summary judgment “unless [Appellant] produce[d] summary
judgment evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i).
Appellant did not file a response to the Appraisal District’s no-evidence motion for
summary judgment. Therefore, the trial court correctly granted the Appraisal
District’s no-evidence motion for summary judgment. We overrule Appellant’s sole
issue.
                                   This Court’s Ruling
         We affirm the judgment of the trial court.




                                                      JOHN M. BAILEY
                                                      JUSTICE


November 12, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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