Opinion issued March 26, 2009
Court of Appeals
First District of Texas
NO. 01-08-00234-CV __________ STARFLIGHT, L.L.C., Appellant V. HARRIS COUNTY APPRAISAL DISTRICT AND HARRIS COUNTY APPRAISAL REVIEW BOARD, Appellees On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2006-76682 DISSENTING OPINION The majority errs in holding that the evidence is legally sufficient to support the trial court’s finding that, as of January 1, 2006, appellant, Starflight 50, L.L.C.
(“Starflight”), had located its 1988 Desault-Breguet Falcon 50 aircraft in Harris County, Texas for “more than a temporary period.” The majority further errs in affirming the trial court’s judgment in favor of appellees, Harris County Appraisal District (“HCAD”) and Harris County Appraisal Review Board (“HCARB”) that the aircraft was subject to property taxation in Harris County for the 2006 tax year. Accordingly, I respectfully dissent. Standard of Review We must sustain a legal sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In conducting a legal sufficiency review, “a court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it.” Id. at 822. If there is more than a scintilla of evidence to support the challenged finding, we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “‘[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the 2
evidence is no more than a scintilla and, in legal effect, is no evidence.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the fact finder must be allowed to do so. Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A reviewing court cannot substitute its judgment for that of the fact finder, so long as the evidence falls within this zone of reasonable disagreement. Keller, 168 S.W.3d at 822. Temporary Period In Texas, generally, “tangible personal property is taxable by a taxing unit if . . . it is located in the unit on January 1 for more than a temporary period.” TEX. TAX CODE ANN. § 21.02(a)(1) (Vernon 2008). January 1 is “the only day of the year which the Legislature has set for fixing the questions of tax liability and situs.” City of Austin v. Davis, 615 S.W.2d 316, 319 (Tex. Civ. App.—Austin 1981), aff’d, Davis v. City of Austin, 632 S.W.2d 331 (Tex. 1982). Thus, the issue presented to this Court is whether, in the words of HCAD and HCARB, “the aircraft was located in Harris County on January 1[, 2006] for longer than a temporary period . . . .” HCAD and HCARB assert that the evidence shows that the aircraft’s “presence” in Harris County as of January 1, 2006 “was not transitory or limited,” and the majority agrees. 3
In support of its conclusion that “Starflight’s airplane was present in Harris County, Texas for more than a temporary period as of January 1, 2006,” the majority emphasizes that Starflight, in August 2006, admitted that the aircraft was located in Harris County on January 1, 2006; had a “non-written agreement” to house, and did house, the aircraft at Hobby Airport after Hurricane Katrina; used the plane to serve only the owners and partners of its two clients, Versabuild and Versabar, which has had a “sales operation” in Harris County since 2002; has not rebuilt the aircraft’s hanger in New Orleans; and has admitted that “[t]he aircraft was being hangared at Hobby Airport … until adequate hangar space can be built in New Orleans.” The majority also notes that “a majority percentage of the plane’s 2005 flights departed from Houston” and Starflight employees, including the plane’s pilot, who keeps aircraft documents at his Houston home, have been relocated to Houston after Hurricane Katrina. Moreover, the majority notes that Starflight, which is authorized to do business under the laws of the State of Texas, “offered no documentation at trial indicating its business transactions occurring at offices other than the Houston addresses of its affiliated companies or that it rendered the plane for tax purposes at any other locale. Much of this evidence concerns matters that occurred after January 1, 2006 and none of it supports a logical inference that Starflight had located its aircraft in Harris
County on “more than a temporary” basis as of January 1, 2006. Although some of the evidence does serve to prove that the aircraft’s location for the 2007 tax year was in Harris County, Starflight does not contest this fact. However, focusing on the 2006 tax year and the critical day of January 1, 2006, it matters not that Starflight had yet to rebuild its hanger in New Orleans, that several employees and the aircraft’s pilot had evacuated here, or that the pilot currently keeps the aircraft’s documents in a house in Pearland. Nor does it matter that Starflight is authorized to do business in Texas or that it uses the aircraft to serve Versabar and Versabuild. Moreover, although 105 out of the aircraft’s 305 departures in 2005 were out of Texas, the Texas departures are completely understandable given the chaos following Hurricane Katrina. As explained at trial by Phillip Rundle, one of Starflight’s member managers, from the time after Hurricane Katrina until January 1, 2006, The aircraft was flying employees of Versabar and Versabuild, family members, dogs and cats, all over the country to try to keep everybody’s family together. Flying back and forth to New Orleans. I flew back there. It was pretty unbelievable. FEMA had come in and taken our generators and our forklifts and diesel tanks. And FEMA grabbed them and took them and went off with them. In fact, following Hurricane Katrina, the aircraft had also been in Champaign, Illinois on a “temporary basis.” Because one of Rundle’s partners had evacuated to a small
town outside of Champaign, “the plane was up there a lot and sometimes it was hangared in Champaign.” The aircraft was certainly present in Harris County on January 1, 2006, and Starflight arranged to house the plane at Hobby Airport. However, the undisputed fact remains that the only reason that Starflight flew its aircraft to Harris County at the very end of August 2005 was to avoid Hurricane Katrina, one of the worst natural disasters suffered in American history, and its aftermath. At trial, Rundle testified that in the four months following Hurricane Katrina and up through January 1, 2006, Starflight fully intended to return the aircraft to the Lake Front Airport in New Orleans, Louisiana, where it had been housed prior to September 2005. In fact, Starflight, Versabar, and Versabuild had made attempts to repair and rebuild their offices in New Orleans and had even rented space at Louis Armstrong Airport in New Orleans. Unfortunately, however, the chaos following Hurricane Katrina and the lack of hangar space at Louis Armstrong Airport made it impossible to permanently move the aircraft back to New Orleans as of December 5, 2007, when Rundle testified at trial. In sum, Rundle testified: And there’s absolutely, in my opinion, a hundred percent certainty that prior to Hurricane Katrina we were in New Orleans on a permanent basis. After Hurricane Katrina, I still say a hundred percent[,] we were on a temporary basis from September 1,  to [December 31, 2005]. We were located here, but it was on a temporary basis.
.... I mean, how much more temporary can you get under the circumstances of a hurricane. I mean, it’s like, if that ain’t temporary, I don’t know what is. The trial court, as fact finder, was not free to disregard Starflight’s evidence of the circumstances surrounding the evacuation of its aircraft to Harris County and Rundle’s undisputed testimony that the aircraft, as of January 1, 2006, was not located in Harris County for more than a temporary period. See City of Keller, 168 S.W.3d at 816–17. Moreover, an appellate court, conducting a legal sufficiency review, “cannot disregard undisputed evidence that allows of only one logical inference.” Id. at 814. Here, there is no evidence to support the trial court’s finding contrary to Starflight’s contextual evidence and Rundle’s uncontradicted testimony. Accordingly, I would hold that the evidence is legally insufficient to support the trial court’s finding that Starflight’s “aircraft was located in Harris County, Texas, on January 1,2006 for more than a temporary period.” In support of its holding to the contrary, the majority relies upon City of Dallas v. Overton, 363 S.W.2d 821 (Tex. Civ. App.—Dallas 1962, writ ref’d n.r.e.) and Davis v. City of Austin, 632 S.W.2d 331 (Tex. 1982). In Overton, the City of Dallas sued Overton, a Dallas resident, contending that Overton’s airplanes, housed at the Addison Airport in Addison, Texas, were subject to ad valorem taxes under “the
common law ‘maxim mobilia sequuntur personam’ (moveables follow the person), “meaning that all movable property was considered to have its tax situs at the domicile of its owner.” 363 S.W.2d at 823. The court rejected this contention and held that “tangible personal property acquires a tax situs in a jurisdiction apart from its owner if it is kept there with sufficient permanency that it may fairly be regarded as being a part of the general mass of property within the jurisdiction.” Id. at 825. Noting that the airplanes were “not transitory nor temporarily kept at Addison,” the court held that Overton’s airplanes had acquired a permanent status in Addison, Texas, rather than Dallas, Texas, and the City of Dallas lost the case. Id. at 826–827. Overton is simply not applicable to the instant case. Davis, likewise, is wholly inapplicable. Davis, who owned an airplane and hangared it at the Austin Municipal Airport, planned to move the airplane to Tim’s Airpark outside Austin’s city limits for the upcoming 1975 tax year. Davis, 632 S.W.2d at 332. On December 30, 1974, the airplane was flown to Addison Airpark near Dallas, and, on January 9, 1975, it arrived at Tim’s Airpark. Id. at 332–33. Because Davis failed to prove that the airplane had acquired an actual situs at Tim’s Airpark on January 1, 1975, the court held that the airplane had its tax situs in the City of Austin. Id. at 335. It noted that the actual situs exception to the mobilia rule requires a showing that the property in question was located within the situs
jurisdiction on or before tax day and that the property was “permanently” located there. Id. at 334–35. Had Davis shown that the airplane actually had been at Tim’s Airpark on or before January 1, 1975 and had acquired situs there, his intent and preparatory acts would have been “important considerations in determining whether” the airplane had been “‘permanently’ situated” there. Id. at 335. The court’s discussion of actual situs in regard to the mobilia rule has absolutely nothing to do with the issue presented to this Court. Conclusion Again, I would hold that the evidence is legally insufficient to support the trial court’s finding that Starflight’s “aircraft was located in Harris County, Texas, on January 1, 2006 for more than a temporary period.” Accordingly, I would reverse the trial court’s judgment and render judgment in favor of Starflight.
Terry Jennings Justice Panel consists of Justices Jennings, Hanks and Bland. Justice Jennings, dissenting.