Carl R. Daily v. Bowie Central Appraisal District, et al--Appeal from 202nd District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00055-CV
______________________________
CARL R. DAILY, Appellant
V.
BOWIE COUNTY APPRAISAL DISTRICT, ET AL., Appellees
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 05C-1430-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Carl R. Daily appealed a determination of the tax evaluations placed on his properties by the Bowie County Appraisal District (Bowie CAD) as ratified by the Bowie County Appraisal Review Board. After a trial before the court, he was granted partial relief by the trial judge (1) and appeals the sufficiency of the relief and the finding denying him other relief. We affirm the judgment.

Daily, appearing pro se, first attempted to file an appellant's brief, which was rejected as far too lengthy, and he was ordered to re-brief; he subsequently filed a shorter brief which, for the most part, is disorganized, confusing, and extraordinarily difficult to comprehend. Likewise, at trial, it is almost impossible to determine from the record at which point Daily abandons the role of his own advocate and attempts to assume the role of a witness. The Texas Rules of Appellate Procedure require an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). On appeal, as at trial, the pro se appellant must properly present his case. Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.--Amarillo 2003, pet. denied); Karen Corp. v. Burlington N. and Sante Fe Ry. Co., 107 S.W.3d 118, 125 (Tex. App.--Fort Worth 2003, pet. denied). A pro se litigant is obligated to comport with the Rules of Procedure just as one represented by an attorney is required to comply with them. Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.--Amarillo 1998, pet. denied).

Nevertheless, in the interest of justice, to the extent that we are able to glean the nature of Daily's complaints, we attempt to address them.

Daily's statement of the case is a two-sentence rendition which relates:

This appeal involves property tax issues concerning five different properties owned by appellant, Carl R. Daily, (Daily). These properties are located in Bowie County, in the city [of] Texarkana, and in the city of Wake Village.

 

Appellant filed suit against Bowie County Appraisal District (BCAD) based upon misapplication and misinterpretation of the Texas Property Tax Code in determination of appraisal values.

In his first point of error, Daily complains that the trial court erred in its failure to require a limitation on value of certain properties due to restrictions on use as imposed by governmental action, citing Section 23.22 of the Texas Tax Code.

In points of error two through six, Daily complains about ultimate rulings which he, in essence, says are unsupported by the evidence. For the purposes of this opinion, we will treat these as complaints regarding the factual and legal sufficiency of the evidence.

In his point of error number seven, Daily complains generally of alleged violations of the Texas Public Information Act and the Texas Open Meetings Act and of the ruling by the trial court that such alleged violations were not relevant to the issues in the case.

Finally, Daily complains of the refusal of the trial court to award him attorney's fees, court costs, and other fees.

In an appeal from the administrative processes of evaluation of property for ad valorem tax purposes, the evidence is reviewed by a trial court on a de novo basis; a reviewing court may not admit in evidence the fact of prior action by the appraisal review board, except to the extent necessary to establish its jurisdiction. Tex. Tax Code Ann. 42.23 (Vernon Supp. 2007).

As can best be determined from Daily's trial pleadings, from his argument at trial, and from his brief filed with this Court, it appears that Daily's complaint is that he believes the values placed on his properties are excessive valuations. In that circumstance, should he have proven that allegation, then the remedy which would be available to him would be that he would be "entitled to a reduction of the appraised value on the appraisal roll to the appraised value determined by the court." See Tex. Tax Code Ann. 42.25 (Vernon 2001).

It appears that Daily primarily challenged the conduct and impartiality of Roy Milton Moore, an appraiser for the Bowie CAD, together with the efficacy and accuracy of the evaluations of Daily's property as urged by Moore and as adopted by the Bowie CAD. Although Daily challenged Moore and the other witnesses concerning their opinions and the bases for them, the only actual opinions regarding value which were presented by either Daily or by the Bowie CAD were those advanced by the Bowie CAD; Daily presented none.

When a party with the burden of proof challenges the legal sufficiency of the evidence, it must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); City of Pasadena v. Gennedy, 125 S.W.3d 687, 692 (Tex. App.--Houston [1st Dist.] 2003, pet. denied). In conducting our legal sufficiency review, we first examine the record for evidence that supports the challenged finding, ignoring the evidence to the contrary. Francis, 46 S.W.3d at 241. If no evidence exists to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law, and we will sustain the point of error only if the contrary proposition was conclusively established.

When a party with the burden of proof attacks the factual sufficiency of the evidence, it must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242. In conducting our factual sufficiency review, we must consider and weigh all of the evidence, and may set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

In this circumstance, the only evidence which was presented concerning the values of the property in question were those advanced by the Bowie CAD. Therefore, even though those opinions regarding value and the bases upon which those opinions were based were aggressively challenged by Daily, they were the only values upon which the trial court could base its judgment. There was no contrary evidence presented. Therefore, the weighing process for conflicting evidence is simple: there is evidence on one side; there is no evidence on the other. There is ample evidence to sustain the legal sufficiency of the evidence. Since the burden of proof was on Daily to show an excessive evaluation and he presented no proof of that proposition, it is also factually sufficient.

As to the issue propounded by Daily regarding the alleged violations of the Open Meetings Act and the Texas Public Information Act, this is so sparsely briefed as to defy even the most generous treatment. Daily fails even to identify which portion or requirement of the Open Meetings Act (Texas Government Code Chapter 551) or the Texas Public Information Act (Texas Government Code Chapter 552) he believes were violated or the relevance which he believes it has to this case. See Tex. Gov't Code Ann. 551.001-.146, 552.001-.353 (Vernon 2004 & Supp. 2007). We would be forced to simply guess as to the nature of this complaint. Because it is inadequately briefed, we decline to address this issue. See Tex. R. App. P. 38.

Daily complains that the Bowie CAD fails to take into account the diminution in value placed upon some of his properties by zoning restrictions, pointing out that they are zoned as residential, but are valued by the Bowie CAD by looking at their value as commercial property. Daily cites Section 23.22 of the Texas Tax Code, which reads:

In appraising land the use of which is subject to a restriction that is imposed by a governmental entity and to which the owner of the land has not consented, including a restriction to preserve wildlife habitat, the chief appraiser shall consider the effect of the restriction on the value of the property.

 

Tex. Tax Code Ann. 23.22 (Vernon 2001).

It is undisputed that the Bowie CAD had placed appraised values on some of Daily's properties as commercial properties and applied commercial values to these tracts in arriving at their values (even though some of these properties were then zoned by the Cities of Texarkana and Wake Village for residential use only). We find no reported cases which carry even any mention of Section 23.22 of the Texas Tax Code or make any construction of its application to the facts at hand.

Moore testified that he was aware that some of Daily's properties were currently zoned for residential use only, but that they were readily capable of being re-zoned as commercial properties (as had nearby tracts) and that he believed that the market value approach to appraisal of Daily's properties should reflect this fact. Accordingly, the Bowie CAD did "consider the effect" of the restriction on the properties as required by Section 23.22 of the Texas Tax Code and deemed the current zoning classification to have negligible effect on the values as based upon the highest and best use of the parcels. Once that determination was made, it would have been Daily's burden to rebut this consideration and to have shown alternate values of the properties as residential use. The only potential evidence which Daily provided as to the values was that he maintained during cross-examination of the Bowie CAD's witness that these properties were totally worthless as residential properties. Therefore, the only possible evidence presented to the trial court of the value of the properties was either that they were worthless or that their values were that which was advanced by the Bowie CAD. "In its role as fact-finder, the trial court is the sole arbiter of a witness's credibility and the weight to be given his testimony." In re A.R., No. 05-06-00589-CV, 2007 Tex. App. LEXIS 8286, at *22 (Tex. App.--Dallas Oct. 19, 2007, no pet. h.) (citing Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744-45 (Tex. 1986)). The trial court committed no error in weighing these two positions and finding in favor of the Bowie CAD.

Daily filed with his brief a "SCHEDULE OF COST AND DAMAGES" which includes items for "LEGAL ADVISE [sic] AND ASISTANCE [sic] FROM ATTORINES [sic]" in the sum of $2,600.00 and "MENTAL AND PHYSICLA [sic] PAIN, SLEEPLESS NIGHTS, GERERAL [sic] HEALTH AND WEAKNESS AND COUNTLESS ORTHER [sic] DAMAGES" in the sum of $500,000.00. Although he does not now complain of the failure of the trial court to award the half a million dollars in pain and suffering damages, he does complain that he was unable to recover attorney's fees. Section 42.29 of the Texas Tax Code does make provision for the award of attorney's fees, limiting the amount of attorney's fees which can be awarded as being the lesser of (1) $100,000.00; or (2) the total amount by which the property owner's tax liability is reduced as a result of the appeal. Of course, this would presume that an attorney actually represented the appellant; Daily was pro se in this matter and never offered evidence of actually having incurred attorney's fees. See Tex. Tax Code Ann. 42.29 (Vernon 2001). This point of error is overruled.

We affirm the judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: October 11, 2007

Date Decided: November 28, 2007

1. The trial judge, presented with the evidence that Daily's home was built in 1965, rather than the 1970 date reflected by the Bowie CAD's records, ordered the home to be re-evaluated with the larger percentage of value diminution which the Bowie CAD would ordinarily employ for a house of that age. As to the other valuations advanced by the Bowie CAD, these were sustained.