throbber
24-DCV-318642
`CAUSE NO. __________________________
`
`Filed
`7/26/2024 12:02 PM
`Beverley McGrew Walker
`District Clerk
`Fort Bend County, Texas
`Alvi Aimen
`
`IN THE DISTRICT COURT
`
`Fort Bend County - 458th Judicial District Court
`________ JUDICIAL DISTRICT
`
` FORT BEND COUNTY, TEXAS
`
`§§
`
`§§
`
`§
`§
`
`§§§
`
`SPOTTED HAWK AVIATION LLC
`
`v.
`
`FORT BEND CENTRAL APPRAISAL
`DISTRICT; JORDAN WISE and
`WILLIAM DYBALA
`
`PLAINTIFF’S ORIGINAL PETITION FOR
`REVIEW OF APPRAISAL REVIEW BOARD’S DETERMINATIONS,
`OR ALTERNATIVELY, WRIT OF MANDAMUS
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`COMES NOW, SPOTTED HAWK AVIATION LLC, Plaintiff herein, and complains of
`
`FORT BEND CENTRAL APPRAISAL DISTRICT, JORDAN WISE, and WILLIAM
`
`DYBALA, Defendants herein and hereinafter referred to as “Defendants,” and for cause of
`
`action would show that:
`
`I.
`
`Plaintiff SPOTTED HAWK AVIATION, LLC, (hereinafter “Spotted Hawk”), is a
`
`foreign limited liability company duly licensed under the laws of the State of Colorado with its
`
`principal place of business located in Gunnison, Colorado, and is and has been at all times
`
`pertaining to this petition, the owner of personal property located in Fort Bend County, Texas.
`
`Defendant FORT BEND CENTRAL APPRAISAL DISTRICT is located in Fort Bend
`
`County, Texas, and is duly organized pursuant to the laws of Texas, and may be served with
`
`process by serving the Chief Appraiser, Jordan T. Wise, at 2801 B.F. Terry Blvd., Rosenberg,
`
`Fort Bend County, Texas 77471.
`
`Defendant JORDAN WISE, hereinafter referred to as “Wise,” is the Chief Appraiser of
`
`07/26/2024 AA
`
`

`

`the Fort Bend County Central Appraisal District and is a natural person who may be served at his
`
`place of business at 2801 B.F. Terry Blvd., Rosenberg, Fort Bend County, Texas 77471.
`
`Defendant WILLIAM DYBALA, hereinafter referred to as “Dybala,” is the chairperson
`
`of the Fort Bend Appraisal Review Board and is a natural person who may be served at his place
`
`of business at 2801 B.F. Terry Blvd., Rosenberg, Fort Bend County, Texas 77471.
`
`Plaintiff intends that discovery should be conducted in accordance with a discovery
`
`control plan under Civil Procedure Rule 190.3 (Level 2), and affirmatively plead that it seeks
`
`monetary relief of $250,000.00 or less and nonmonetary relief.
`
`II.
`
`Venue is proper in Fort Bend County as the personal property in question is located in
`
`Fort Bend County. This Court has jurisdiction over these claims pursuant to § 42.41, Tex. Tax
`
`Code.
`
`Likewise, this Court has jurisdiction over Defendants Dybala and Wise because they are
`
`residents of Texas, have engaged in activities in Fort Bend County, Texas, and Plaintiff’s
`
`cause(s) of action arise out of Defendants Dybala’s and Wise’s activities in Fort Bend County.
`
`III.
`
`Defendants do not enjoy immunity from the claims asserted herein as immunity has been
`
`waived. A party can maintain a suit against a governmental entity and/or its representatives to
`
`determine its rights without having to obtain legislative permission, see Federal Sign v. Texas S.
`
`Univ., 951 S.W.2d 401, 404 (Tex.1997), including suits for declarations, City of Dallas v.
`
`Martin, 214 S.W.3d 638, 644 (Tex.App.—Dallas 2007, pet. rev. filed), and for equitable
`
`remedies for violations of constitutional rights. City of Beaumont v. Bouillion, 896 S.W.2d 143,
`
`149 (Tex.1995).
`
`

`

`The Uniform Declaratory Judgments Act, TEX. CIV. PRAC. & REM. CODE Chapter 37
`
`hereinafter “UDJA,” “is remedial; its purpose is to settle and to afford relief from uncertainty
`
`and insecurity with respect to rights, status, and other legal relations; and it is to be liberally
`
`construed and administered.” TEX. CIV. PRAC. & REM. CODE § 37.002(b). Under the UDJA
`
`“[a] court of record within its jurisdiction has power to declare rights, status, and other legal
`
`relations whether or not further relief is or could be claimed.” TEX. CIV. PRAC. & REM.
`
`CODE § 37.003(a).
`
`The legislature, via the UDJA, has expressly waived Defendants’ immunity with respect
`
`to declaratory requests: “A person . . . whose rights, status, or other legal relations are affected
`
`by a statute. . . may have determined any question of construction or validity arising under
`
`the . . . statute . . . and obtain a declaration of rights, status, or other legal relations
`
`thereunder.” TEX. CIV. PRAC. & REM. CODE § 37.004 (a) (emphasis added).
`
`There is also no immunity from a recovery of attorney’s fees under the UDJA. Texas
`
`Education Agency v. Leeper, 843 S.W.2d 41 (Tex.1994). Additionally, “suits for equitable
`
`remedies for violation of constitutional rights are not prohibited,” City of Beaumont v. Bouillion,
`
`896 S.W.2d 143, 149 (Tex.1995).
`
`No Immunity for Money Had and Received
`
`A governmental entity is prohibited from charging and collecting unconstitutional taxes,
`
`fines, or fees. A wronged party may seek restitution of unlawfully charged and collected taxes,
`
`fines, and fees under the equitable theory of Money Had and Received, together with declaratory
`
`relief. Fort Bend Central Appraisal District is not immune from claims under the unjust
`
`enrichment equitable doctrine of Money Had and Received. It is well established that revenue
`
`

`

`generated by an illegal tax, fine, or fee is not to be treated as the property of the governmental
`
`entity and an illegally collected tax, fine, or fee must be refunded without respect to waiver of
`
`sovereign immunity and no legislative consent to sue is needed under these circumstances. See
`
`Gatesco, Inc. v. City of Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010,
`
`no pet.), Nivens v. City of League City, 245 S.W.3d 470, 473 (Tex.App.—Houston [1st Dist.]
`
`2007, pet. denied); Dallas County Cmt. College Dist. v. Bolton, 185 S.W.3d 868, 876-79
`
`(Tex.2005).
`
`Plaintiff affirmatively pleads that it has, and had at all times relevant hereto, a property
`
`interest in and to the continuous use of its property triggering constitutional protections. Said
`
`property interest is subject to protection under the Due Course of Law Clause of the Texas
`
`Constitution.
`
`Plaintiff has standing to file this action against Defendants Wise and Dybala to seek a
`
`judicial interpretation of statutes and to determine whether these individuals charged with
`
`appraising property, sending legally required notices, scheduling and conducting hearings, and
`
`issuing orders, as mandated by statute, have acted and/or are acting without legal authority, and
`
`thus acting ultra vires, in failing to, among other things: properly appraise property, send legally
`
`required notices, schedule and conduct proper hearings, and issue proper orders as mandated by
`
`statute and whether those activities may therefore be affirmatively enjoined. See TEX. CIV.
`
`PRAC. & REM. CODE § 37.006(b); Tex. Lottery Comm’n, 325 S.W.3d at 633; Heinrich, 284
`
`S.W.3d at 373, n.6. Defendants Wise and Dybala do not enjoy governmental immunity from
`
`claims based on their ultra vires extra-statutory and extra-constitutional conduct and, therefore,
`
`this Court has subject-matter jurisdiction over Plaintiff’s claims for declaratory relief against
`
`Defendants Wise and Dybala.
`
`

`

`IV.
`
`The personal property owned by Spotted Hawk that is a subject of this cause is described
`
`as Personal Property Aircraft N950MH 2005 Beech King Air (B300) 350 Serial # FL451
`
`Located @ 12888 Highway 6 in Sugar Land (Quick Reference: P377938; Account No: 9980-19-
`
`223-0005-907).
`
`V.
`
`FACTUAL BACKGROUND
`
`1.
`
`The personal property at issue is an aircraft used solely for personal, non-income
`
`producing purposes. Prior to being hangered in Sugar Land, Texas, the property was hangered in
`
`Waller County and was not subject to any ad valorem taxation as the aircraft was used solely for
`
`personal, non-income producing purposes.
`
`2.
`
`Defendant failed to deliver any notice of appraisal for the 2023 tax year, nor any
`
`notice of assessment for the 2023 tax year, nor any notice of taxes due for the 2023 tax year to
`
`Plaintiff.
`
`3.
`
`To date, Plaintiff has not received from the District any of the notices required by
`
`the Texas Tax Code.
`
`4.
`
`On April 3, 2024, Plaintiff learned that taxes had been levied against the property
`
`and collection efforts were under way.
`
`5.
`
`For the first time, Plaintiff learned that there existed an alleged tax bill due and
`
`that the District had appraised the property’s 2023 value at $2,910,000.
`
`6.
`
`On April 30, 2024, Plaintiff paid under protest the taxes and penalties allegedly
`
`due.
`
`

`

`7.
`
`On May 3, 2024, Carmen P. Turner, Fort Bend County Tax Assessor/Collector
`
`deposited Plaintiff’s payment made under protest.
`
`8.
`
`On May 14, 2024, Plaintiff filed its Property Owner’s Notice of Protest with the
`
`Fort Bend Central Appraisal District. Plaintiff provided in Section 3 of the District-provided
`
`form titled “Property Owner’s Notice of Protest,” as reasons for its Protest, the fact that the
`
`“Property should not be taxed in Fort Bend County”; that there was “Failure to send required
`
`notice. Notice of Appraisal / Tax invoice or Bill, etc.”; and that “Exemption was denied,
`
`modified, or cancelled.”
`
`9.
`
`On May 30, 2024, the Fort Bend Appraisal Review Board responded to the Notice
`
`of Protest and stated that “[t]he ARB approved the appraisal records as of July 19, 2023
`
`therefore; there is no provision in the tax code that allows approval of your late filed protest after
`
`the roll has been certified.”
`
`10.
`
`On July 3, 2024, Plaintiff mailed to the Fort Bend County Central Appraisal
`
`District, the Fort Bend County Tax Assessor, and the Fort Bend Appraisal Review Board its
`
`demand for the refund of the unlawful assessment and interest and penalties which Plaintiff paid
`
`under protest.
`
`11.
`
`On July 18, 2024, the Fort Bend County Tax Assessor Collector’s Chief of
`
`Property Tax Research, Connie Gasser, emailed Plaintiff through its undersigned attorney of
`
`record, and stated that they will not be returning the payment as “the Appraisal District is stating
`
`account P377938 is correct.”
`
`12.
`
`By way of Defendant Fort Bend County Appraisal Review Board’s May 30, 2024
`
`letter, Defendant has denied Plaintiff the hearing(s) to which Plaintiff is entitled under the Texas
`
`Tax Code, thereby exhausting all of Plaintiff’s administrative remedies.
`
`

`

`13.
`
`By way of Defendant FBCAD’s refusal to refund the unlawful assessment which
`
`was paid under protest, and Plaintiff’s demand for refund properly given, this suit has become
`
`necessary.
`
`VI.
`
`Spotted Hawk’s property has been illegally appraised and the assessment paid under
`
`protest has been unlawfully withheld by Defendants, as the Property is exempt from taxation by
`
`law as it is not used for any income-producing purpose.
`
`VII.
`
`Money Had and Received
`
`Spotted Hawk paid the unlawfully assessed taxes and penalties under duress and
`
`explicitly under protest. Plaintiff paid the unlawful assessment and penalties under protest, due to
`
`business duress, because had Plaintiff refused to pay the unlawful assessment pending resolution
`
`through this lawsuit, then Plaintiff’s property would be subject to continually accruing penalties
`
`and interest, tax liens, and even foreclosure and seizure of Plaintiff’s property.
`
`In spite of Defendant’s unlawful assessment and refusal to refund the money paid under
`
`protest, the fact remains that Plaintiff’s personal property is per se exempt from taxation as it is
`
`not used for the production of income. Defendants abjectly failed to notify Plaintiff of their
`
`intention to appraise and assess the property. Plaintiff has duly demanded refund of the
`
`unlawfully assessed taxes and penalties and has repeatedly informed Defendants that it never
`
`received the legally required notices required by law and the principles of due course of law. In
`
`spite of being repeatedly informed that the taxes and penalties assessed are illegal, and in spite of
`
`Plaintiff’s demand for refund of the payment made under protest for the 2023 unlawful
`
`

`

`assessment and penalties, Defendants have refused to refund the money. As Defendants retain
`
`possession of money that belongs to the Plaintiff in equity and good conscience, Plaintiff hereby
`
`sues for Money Had and Received, for the return of the $68,356.03 paid under protest, together
`
`with interest.
`
`VIII.
`
`All conditions precedent to Plaintiff’s right of judicial review of Defendants’ actions
`
`having been performed or having occurred, Plaintiff are entitled to a trial de novo review of
`
`Defendants’ orders and determinations.
`
`IX.
`
`The market value set forth by the Defendant is not equal and uniform and is in excess of
`
`the fair market value of Plaintiff’s property as of January 1, 2023, and the levying of excessive
`
`taxes on Plaintiff’s Property based on improper valuations constitute unlawful levies, creating
`
`illegal liens on Plaintiff’s Property and constituting clouds on titles. Plaintiff hereby sues for a
`
`judgment fixing the proper market value of Plaintiff’s property as of January 1, 2023 and
`
`compelling Defendant to correct the tax rolls so as to show the proper assessed values of
`
`Plaintiff’s Properties and to accept receipts of taxes due for the year 2023, if any, based on
`
`application of the approved tax rates and exemptions to the proper assessed values.
`
`Plaintiff further sues to require the Defendants to recognize all exemptions to which
`
`Plaintiff’s property is lawfully entitled, namely that the property is exempt from all property tax
`
`as it is not used for the production of income.
`
`X.
`
`Plaintiff is entitled to recover its necessary and reasonable attorney’s fees incurred in the
`
`prosecution of this cause for which it hereby sues.
`
`

`

`XI.
`
`IN THE ALTERNATIVE, PETITION FOR WRIT OF MANDAMUS
`
`Without waiving the foregoing and incorporating the prior stated factual allegations,
`
`Plaintiff PLEADS IN THE ALTERNATIVE for a Writ of Mandamus from this Court to compel
`
`Defendants to (1) provide the notices legally required prior to assessing and taxing the property
`
`at issue, (2) to compel Defendants to hold the hearings that Plaintiff was denied, and (3) to issue
`
`orders determining the protest.
`
`XII.
`
`Pursuant to TEX. R. CIV. P. 193.7, Defendants are hereby put on notice that all
`
`documents produced by Defendants in this cause may be used in any pre-trial proceeding and/or
`
`at trial without the necessity of authenticating the documents.
`
`XIII.
`
`JURY DEMAND
`
`Plaintiff hereby demands trial by jury.
`
`WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Defendant be cited to
`
`appear and answer, and that on final trial, the Court render judgment:
`
`1.
`2.
`3.
`4.
`5.
`6.
`
`7.
`
`Declaring that Plaintiff’s right to due course of law has been violated;
`Declaring that Defendants Wise and Dybala acted extra-statutory;
`Declaring that Plaintiff’s right to equal protection has been violated;
`Declaring that the tax assessment of Plaintiff’s property is void;
`Compelling return of the money paid under protest to Defendants;
`Declaring that Plaintiff is entitled to a trial de novo of the determinations and
`orders issued by the Appraisal Review Board and Defendants;
`Fixing the market value of Plaintiff’s property as of January 1, 2023, at the correct
`
`

`

`8.
`
`9.
`
`10.
`
`11.
`
`market value;
`Compelling imposition of the proper assessed value of the Plaintiff’s property,
`correction of the tax rolls to show the proper assessed value of the Plaintiff’s
`property, and enforcing the exemption to which Plaintiff’s property is lawfully
`entitled;
`Ordering the return, with interest, of all of the sums Plaintiff paid under protest of
`the unlawfully assessed taxes and penalties;
`Awarding Plaintiff all costs incurred, reasonable attorney’s fees, and all other
`relief to which Plaintiff may be justly entitled;
`ALTERNATIVELY, Plaintiff prays that this Court issue Writs of Mandamus
`against Defendants compelling Defendants to provide the required notices and
`hearings to which Plaintiff is entitled and which were denied; and awarding
`Plaintiff all costs incurred, reasonable attorney’s fees, and all other relief to which
`Plaintiff may be justly entitled.
`
`Respectfully submitted,
`
`By: /s/ Kawika Vellalos__________________
` Kawika Vellalos
`S.B.N. 24103975
`2205 Avenue I, #117
`Rosenberg, Texas 77471
`808-230-9193 Telephone
`kvellalos@gmail.com
`
`Robert G. Gibson, Jr.
`S.B.N. 07873700
`P. O. Box 387
`Rosenberg, Texas 77471
`713/953-0500 Telephone
`rggibson@rggibsonlaw.com
`ATTORNEYS FOR PLAINTIFF
`
`

`

`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Kawika Vellalos on behalf of Kawika Vellalos
`Bar No. 24103975
`kvellalos@gmail.com
`Envelope ID: 90230235
`Filing Code Description: Petition
`Filing Description: Plaintiff’s Original Petition For Review Of Appraisal
`Review Board’s Determinations, Or Alternatively, Writ Of Mandamus
`Status as of 7/26/2024 3:33 PM CST
`
`Case Contacts
`
`Name
`Kawika Vellalos
`Robert Gibson
`
`BarNumber Email
`kvellalos@gmail.com
`rggibson@rggibsonlaw.com
`
`TimestampSubmitted
`7/26/2024 12:02:56 PM
`7/26/2024 12:02:56 PM
`
`Status
`SENT
`SENT
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket