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In re Catherine Tower, LLC

Court of Appeals of Texas, Third District, Austin

June 20, 2018

In re Catherine Tower, LLC

          ORIGINAL PROCEEDING FROM TRAVIS COUNTY

          Before Justices Puryear, Pemberton, and Bourland.

          OPINION

          Bob Pemberton, Justice.

         A Texas property taxpayer has invoked its right, conferred on all such persons by the 1997 "Texas Taxpayer Bill of Rights, "[1] to challenge the tax appraisal of its property by comparison to "the median appraised value of a reasonable number of comparable properties appropriately adjusted, " first before the local appraisal review board, then in district court.[2] The litigation tactics of the local appraisal district ultimately yielded orders from the district court compelling production to the district, over the taxpayer's objections, and constrained only by a protective order limiting dissemination to third parties, of the entirety of a third-party financing appraisal of the taxpayer's property. This financing appraisal is over 200 pages in length and contains extensive financial and business information regarding the property and the taxpayer-matters that a taxpayer, at least in Texas, would ordinarily have no duty to disclose to an appraisal district or any other organ of government.

         The taxpayer seeks mandamus relief from the district court's order, urging among other objections brought forward that the discovery at issue is irrelevant to, and not reasonably calculated to lead to the discovery of admissible evidence regarding, the type of unequal-appraisal remedy it is seeking. We agree that mandamus relief is warranted.

         The taxpayer and relator is Catherine Tower, LLC, which in April 2016 acquired a high-rise apartment complex, commonly known as "The Catherine, " located on Barton Springs Road in Austin. This location is in Travis County, and is thus within the jurisdiction of the Travis Central Appraisal District (TCAD), the real party in interest.[3] TCAD subsequently appraised the property's value for the 2016 tax year in excess of $134 million. Catherine timely protested this proposed valuation to the local appraisal review board, was rejected, and then appealed the board's order through suit in district court.[4] In its suit, Catherine has relied solely on the ground of "unequal appraisal"-i.e., that TCAD discriminated against it relative to other taxpayers[5]-as determined through the previously described comparison to "the median appraised value of a reasonable number of comparable properties appropriately adjusted." This is the standard or means of establishing unequal appraisal in district court that the Legislature authorized through Tax Code Section 42.26(a)(3), [6] and is the counterpart to Tax Code Section 41.43(b)(3), which applies in the underlying administrative proceedings before the appraisal review board.[7]

         Catherine had financed its purchase of the property through a loan obtained from a financial-services arm of Prudential Insurance Company, secured by a deed of trust for Prudential's benefit that was recorded in the Travis County real property records. Evidently uncovering that filing, TCAD served notice in the litigation of its intent to take a deposition on written questions from Prudential, accompanied by a request for production of documents calculated to secure any analyses of the property's value that had been prepared or obtained in connection with the loan.[8] The document request called for "[a]ny appraisals, valuations or estimates of value performed in connection with the loan by [Prudential] to Catherine Tower, " and cited an attached copy of the recorded deed of trust. In fact, Catherine had been required to commission an appraisal of the property in connection with Prudential's loan, and the undertaking generated an elaborate and lengthy analysis of the property's value, taking account of, in Catherine's words, "confidential financial and budgeting projections-such as tenant names, addresses, balances owed, and lease terms; company financial health; and company financial projects and performance information."

         To simplify the material portions of a complicated ensuing procedural history, Catherine preserved objections that the document request exceeded the permissible scope of discovery by seeking information that was neither relevant to an unequal-appraisal claim brought under Tax Code Section 42.26(a)(3), nor reasonably calculated to lead to admissible evidence. The district court signed a series of orders having the ultimate effect, as indicated, of requiring production of the entire Prudential financing appraisal to TCAD, limited only by a protective order restricting dissemination beyond the parties, court, and witnesses.

         "A discovery order that compels production beyond the rules of procedure is an abuse of discretion for which mandamus is the proper remedy."[9] "Our procedural rules define the general scope of discovery as any unprivileged information that is relevant to the subject of the action, even though it would be inadmissible at trial, as long as the information sought is 'reasonably calculated to lead to the discovery of admissible evidence.'"[10] "The phrase 'relevant to the subject matter' is to be broadly construed, " but "even these liberal bounds have limits." "Evidence is relevant if '(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.'"[11] Thus, "[a]lthough the scope of discovery is broad, a request for information 'must show a reasonable expectation of obtaining information that will aid the dispute's resolution.'"[12] Likewise, discovery requests must be "reasonably tailored to include only matters relevant to the case"-i.e., they "must not be overbroad"-and such a flaw renders requests improper independently from whether they are also burdensome or harassing.[13]

         Catherine disputes that the Prudential financing appraisal is relevant to its action under Section 42.26(a)(3) or that TCAD's request is otherwise reasonably tailored to seek relevant or admissible information. TCAD insists that its discovery request is "narrowly tailored" in seeking the entirety of the Prudential financing appraisal. The parties' competing views of the discovery reflect underlying differences regarding the nature of an unequal-appraisal claim under Tax Code Section 42.26(a)(3) and specifically concerning the extent to which the inquiry there prescribed-whether "the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted"[14]-entails independent consideration of the subject property's "market value" (with both parties using the term in its conventional sense to denote the price the property would command in the marketplace between a willing and informed seller and willing and informed buyer).[15] Resolution of this underlying question impacts the discovery issue because the Prudential financing appraisal represents or includes an independent appraisal of the property's market value.

         TCAD summarizes its position as follows:

Relator filed suit to challenge the appraised value of its property pursuant to Chapter 42 of the Tax Code. Respondent sought discovery of an appraisal of Relator's property. An appraisal of the subject property is relevant to the appraised value of that property. The trial court, therefore, did not abuse its discretion in allowing discovery that is relevant and material to the central issue in the case.[16]

         TCAD elaborates that "an assessment of a property's appraised value under Section 42.26(a)(3) is an assessment of its market value." This is so, TCAD explains, because "[b]y constitutional and statutory law, 'appraised value' is an appraisal of 'market value.'" TCAD grounds this view in the Texas Constitution's requirement in Article VIII, Section 1(a), that "[t]axation shall be equal and uniform" and the ensuing, more specific requirement in 1(b) that "property . . . shall be taxed in proportion to its value, which shall be ascertained as provided by law." As TCAD observes, the Texas Supreme Court has determined that the Article VIII provisions following 1(a)'s Equal and Uniform Clause are "examples" of "equal and uniform" taxation, such that "[a] property tax is equal and uniform only if it is in proportion to property value" and complies with 1(b).[17] And a property's "value" under 1(b), TCAD insists, is market value, pointing to a 1996 Texas Supreme Court decision in which the court stated that "our Constitution requires 'value' for ad valorem tax purposes to be based on the reasonable market value of the property."[18] The Tax Code effectuates this same understanding, TCAD further urges, by requiring in Chapter 23 that "all taxable property is appraised at its market value as of January 1, "[19] taking account of "the individual characteristics that affect the property's market value and all available evidence that is specific to the value of the property."[20]From these propositions TCAD deduces that a dispute about a property's appraised value, including one under Section 42.26(a)(3), concerns the property's market value, making relevant-and opening the door to discovery of-independent assessments of market value, "market data, " or other "evidence concerning factors that affect market value, " such as the Prudential financing appraisal.

         The Texas Supreme Court-subsequent to the district court's discovery ruling here-dismantled the logical underpinnings of TCAD's argument. EXLP Leasing, LLC v. Galveston Central Appraisal District[21] in pertinent part involved a constitutional challenge brought by the appraisal district to a specialized formula imposed under Tax Code Chapter 23 for appraising the taxable value of certain heavy equipment.[22] The formula had the effect of reducing the equipment's appraised value to what the appraisal district decried as "a minute fraction" of its market value.[23]This reduction, the appraisal district asserted, violated Article VIII, Section 1(a)'s requirement of "equal and uniform" taxation and 1(b)'s requirement that property be taxed "in proportion to its value."[24] This was so, the district reasoned, because the property "value" referenced there means market value, in essence constitutionalizing market value as the basis for appraisal and not merely as a cap.[25] The Texas Supreme Court rejected that notion:

Nothing in the constitution . . . binds the legislature to tax only on "market value" as so defined. The constitution refers only to the legislature's authority to set the "value" of property for taxation. It sets no requirement that "value" must approximate "market value." In fact, section 1(b) does not mention "market value" at all. Instead, the constitution assigns to the legislature the task of determining "value, " providing that it "shall be ascertained as may be provided by law." This provision, would seem to leave the Legislature free to adopt the mode of ascertaining the value of any class of property by such method as it might deem best.[26]

         Nor had it ever held otherwise, the supreme court asserted, distinguishing a number of its prior decisions that the district, similar to TCAD here, had touted as precedent for a constitutional linkage of "value" to market value.[27]

         The supreme court similarly rejected an argument by the appraisal district that its constitutional construction had been "codified" into the Tax Code. While acknowledging that "the tax code is built on the foundation of taxing property at market value, " the court observed that the Code's use of "market value" did not uniformly denote the conventional meaning of the price a willing buyer would pay a willing seller:

Viewing tax code chapter 23 as a whole, the legislature clearly chose a single label-"market value"-as a catch-all reference to the taxable value produced through application of the code's rules. Exactly what "market value" means for taxation purposes depends on the circumstances at hand and the rules the legislature prescribed for them. The tax code has not "codified" a single understanding of market value as the price a willing buyer would pay a willing seller. Rather, the term encompasses a variety of ways to determine taxable value.[28]

         Guided by EXLP, we reject TCAD's premise that a dispute about a property's tax appraisal value automatically or inherently places the property's market value (in the sense of what a willing buyer would pay a willing seller) at issue and thereby permits broad discovery of market-value-related information. Nor does Section 42.26(a)(3), the specific basis for Catherine's appraisal challenge here, open that door so widely. Section 42.26(a)(3) states:

(a) The district court shall grant relief on the ground that a property is appraised unequally if:
(3) the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted.[29]

         The relief authorized by Section 42.26(a)(3), as Catherine correctly observes, does not hinge upon whether the subject property's appraisal is consonant with its market value. Rather, Section 42.26(a)(3) assumes whatever "appraised value" has been assigned by the appraisal district, regardless how derived or whether correctly or incorrectly determined under that measure. Section 42.26(a)(3) thus stands in contrast to a taxpayer's challenge to the underlying ...


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