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Dunson v. Jacobson

Court of Appeals of Texas, Second District, Fort Worth

August 29, 2019

Stephen Dunson, Appellant
Shirley Jacobson, Tarrant Appraisal Review Board, and Tarrant Appraisal District, Appellees

          On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-285454-16

          Before Kerr and Birdwell, JJ., and Michael C. Massengale (Former Justice, Sitting by Assignment).


          Wade Birdwell Justice.

         Appellant Stephen Dunson sued appellees-the appraisal authorities of Tarrant County-over their handling of various property-tax matters in which he was involved. The trial court granted appellees' pleas to the jurisdiction and dismissed Dunson's claims with prejudice. Because we conclude that immunity bars Dunson's claims and that this defect is not curable, we affirm.

         I. Background

         In his petition, Dunson explained that he is a licensed property-tax consultant. According to Dunson, property owners often engage tax-consulting firms to handle their property-tax matters. He alleged that these consulting firms "sometimes encounter[] logistical obstacles when acting for a property owner with numerous properties located in multiple jurisdictions." On such occasions, the firm will engage the services of another tax consultant as a local representative. According to Dunson, he often acted as a local representative, handling tax matters within Tarrant County on behalf of consulting firms based outside the county.

         But he alleged that beginning in 2015, appellees-Tarrant Appraisal District (TAD), Tarrant Appraisal Review Board (TARB), and TARB's then-chairman Olen Frazier[1]-refused to recognize some of these local-representative arrangements as valid. Appellees reasoned that these arrangements potentially ran afoul of tax code section 1.111(d), which provides that a property owner may not "designate more than one agent to represent the property owner in connection with an item of property." Tex. Tax Code Ann. § 1.111(d). Appellees asserted that unless a local representative was an officer or full-time employee of the consulting firm, both the consulting firm and the local representative would be acting as separate agents of the property owner, in violation of section 1.111(d). Dunson alleged that based on this stance, appellees enacted policies and issued guidance that limited his ability to appear as a local representative. Appellees demanded proof that he was an employee of the consulting firms he sought to represent and in some cases declined to recognize him as an authorized representative. According to Dunson, appellees went so far as to refuse to recognize their own tax-settlement agreements in matters in which he appeared as a local representative.

         For his part, Dunson argued that he should not be considered a separate agent when appearing on behalf of another consulting firm. He noted that entities such as tax-consulting firms can act only through individuals. In Dunson's view, nothing in section 1.111 limited a consulting firm's ability to choose who should appear for the firm at a tax proceeding; section 1.111 does not provide that a consulting firm may appear only through its full-time employees. Instead, normal principles of agency dictate that the firm could appear at tax proceedings through any representative it chose. And when he appeared for a consulting firm, Dunson contended, he was acting as the consulting firm and not as a separate tax agent in violation of section 1.111.

         Appellees remained unconvinced. So, Dunson filed suit, seeking a declaration that appellees' policies and conduct exceeded their authority under tax code section 1.111. He alleged that Frazier in particular had acted ultra vires. Dunson asked for a declaration ensuring that he would be allowed to appear as a local representative going forward. He also requested a declaration that his settlement agreements were valid and binding upon TARB. Finally, Dunson prayed for attorney's fees as well as mandamus relief under tax code section 41.07(a) compelling appellees to decide certain outstanding tax disputes. Id. § 41.07(a).

         Appellees filed pleas to the jurisdiction. Dunson then filed a supplemental petition in which he purported to "withdraw[] his claims for relief premised on § 41.07(a), Texas Tax Code." After hearing argument, the trial court granted the pleas to the jurisdiction and dismissed Dunson's remaining causes of action with prejudice. By subsequent letter, the court explained that it was not giving Dunson the opportunity to replead because his pleadings negated subject matter jurisdiction. Dunson appeals.

         II. Inadequate Briefing

         As a preliminary matter, appellees contend that Dunson has inadequately briefed his arguments because he failed to include citations to the record. See Tex. R. App. P. 38.1(g), (i). We disagree.

          Disposing of appeals for harmless procedural defects is disfavored. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 517 n.12 (Tex. 2015) (quoting Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam)). Instead, appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver. Id.; see Tex. R. App. P. 38.9. "Simply stated, appellate courts should reach the merits of an appeal whenever reasonably possible." Perry, 272 S.W.3d at 587.

         In his brief, Dunson provided an eight-page synopsis of the factual contentions in his petition and his supporting evidence, which he attached in his appendix. While his initial brief lacked citations to where his petition and evidence could be found in the record, he resolved this problem in his reply brief, in which he provided record citations for his petition and various other documents in the appendix. See In re L.T.H., 502 S.W.3d 338, 343 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (holding that party's reply brief cured a problem concerning lack of record citations). We therefore hold that Dunson has adequately briefed his arguments.

         III. Immunity from Suit

         Within his appellate issue, Dunson first argues that the remainder of his petition sufficiently alleged (1) a waiver of immunity under the declaratory judgments act as to TAD and TARB, and ...

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