DALLAS CENTRAL APPRAISAL FROM A DISTRICT COURT DISTRICT and DALLAS COUNTY APPRAISAL REVIEW BOARD, APPELLANTS, v. JAGEE CORPORATION, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00831-CV
 
DALLAS CENTRAL APPRAISAL                 FROM A DISTRICT COURT
DISTRICT and DALLAS COUNTY
APPRAISAL REVIEW BOARD,
 
        APPELLANTS,
 
v.
 
JAGEE CORPORATION,
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, BAKER AND KINKEADE
OPINION BY JUSTICE KINKEADE
JULY 25, 1989
OPINION ON MOTION FOR REHEARING
        The June 22, 1989 opinion of this Court is withdrawn, and the following is now the opinion of this Court. The motion for rehearing of appellants, Dallas Central Appraisal District and Dallas County Appraisal Review Board, is overruled.
        In this ad valorem tax case, the trial court entered judgment in favor of appellee, Jagee Corporation, and against appellants, Dallas Central Appraisal District and Dallas County Appraisal Review Board (referred to collectively as "Dallas"). The trial court rendered judgment that the 1986 and 1987 appraised market value of Jagee's property was $4,135,000, not $6,207,780 as contended by Dallas, and awarded Jagee $10,000 in attorney's fees. Dallas complains of both the appraised market value and the award of attorney's fees. We affirm.
        Jagee owns a 12.05-acre strip shopping center in Dallas County. K-Mart, the primary tenant at the shopping center, acquired its leasehold interest by way of a lease dated December 21, 1970, from Jagee's predecessor in title. The K-Mart initial lease expires in 1995, but K-Mart has four five-year options to renew the lease on its present terms. K-Mart was not contractually obligated to pay ad valorem taxes on the real property. Although the K-Mart lease was a market lease when it was executed, it was an undermarket lease as of January 1, 1986, and January 1, 1987, because the market price for comparable leases was higher at those times. The parties stipulated that the market value of the property on January 1, 1986, and 1987, "exclusive" of the impact of the K-Mart lease, was $6,207,780. The parties also stipulated that the market value of the property on January 1, 1986, and 1987, considering the effect of the K-Mart lease, was $4,135,000. The trial court entered judgment that the appraised value of the property as of January 1, 1986, and January 1, 1987, was $4,135,000.
        In points of error one through five, Dallas contends that the trial court erred in appraising the property at $4,135,000 because (1) such valuation considers the impact of the unfavorable K-Mart lease, (2) such valuation is based on what the property would bring if sold subject to the K-Mart lease, (3) the parties stipulated that the value of the property is $6,207,780 if it were leased at current market rates, (4) the parties stipulated that the value of the property, not considering the impact of the K-Mart lease, was $6,207,780, and (5) the parties stipulated that the market value of the property, if not subject to any lease, was $6,207,780.
        In its brief, Dallas asserts that the Texas Constitution requires taxation to be equal and uniform. TEX. CONST. art. VIII, § 1. Dallas and Jagee stipulated that Dallas does not consider the impact of actual unfavorable leases when determining the market value of property. The parties further stipulated, and Dallas admitted at oral argument, that Dallas considers the impact of actual favorable leases when determining market value. Dallas asserts that this case is controlled by Martin v. City of Mesquite, 590 S.W.2d 793 (Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.). Martin held that property should be valued as if it were not subject to any leases or were subject to leases at current market rental rates. Martin, 590 S.W.2d at 798. However, Martin is factually distinguishable because Dallas has stipulated that it considers favorable leases in determining property value. There was no such stipulation in Martin. Based upon this stipulation between these parties to this case, we hold that, because Dallas considers favorable leases when determining market value, the equal and uniform taxation requirement of the Texas Constitution requires Dallas to consider Jagee's unfavorable K-Mart lease when determining the market value of Jagee's property. TEX. CONST. art. VIII, § 1. The trial court correctly considered the unfavorable K-Mart lease when determining the market value of Jagee's property. We overrule Dallas's points of error one through five.
        In point of error six, Dallas contends that the trial court erred in awarding Jagee attorney's fees because Jagee did not prevail in an appeal to the trial court under sections 42.25 or 42.26 of the Texas Tax Code and therefore is not entitled to recover attorney's fees under section 42.29 of the Code. In point of error eight, Dallas asserts that there is no evidence or, in the alternative, insufficient evidence to support an award of attorney's fees.         Section 42.29 of the Texas Tax Code provides: "A taxpayer who prevails in an appeal to the court under Section 42.25 or Section 42.26 of this code may be awarded reasonable attorney's fees not to exceed the greater of $5,000 or 20 percent of the total amount of taxes in dispute." TEX. TAX CODE ANN. § 42.29 (Vernon Supp. 1989). Section 42.25 states: "If the court determines that the appraised value of property according to the appraisal roll exceeds the appraised value required by law, the property owner is entitled to a reduction of the appraised value on the appraisal roll to the appraised value determined by the court." TEX. TAX CODE ANN. § 42.25 (Vernon 1982).
        Dallas argues that there is no evidence or, in the alternative, insufficient evidence of the 1986 and 1987 appraisal roll value of Jagee's property; therefore, Jagee has not shown that the appraisal roll valuation exceeds the appraised value as determined by the court. When determining a no evidence point of error, appellate court are required to consider only the evidence that supports the finding and then in its most favorable light. Holsworth v. Czeschin, 632 S.W.2d 643, 644 (Tex. App.--Corpus Christi 1982, no writ). When considering factual insufficiency points of error, appellate courts consider and weigh all the evidence in the record to determine if it supports the judgment. Id. Paragraph 16 of the agreed statement of facts states: "The Board reduced the appraised value of the Property to $6,207,780.00 for 1986 and sustained the value of $6,207,780.00 for 1987. The Board notified [Jagee] of these values in those years." Paragraph 21 of the agreed statement of facts provides in pertinent part: "The appraisal roll was approved by the Board for 1986 and 1987 in the amounts set forth in paragraph 16 above." Paragraphs 16 and 21 provide both some evidence and sufficient evidence of the 1986 and 1987 appraisal roll value of the property to support the trial court's judgment.
        Dallas argues that section 42.25 of the Texas Tax Code requires that the plaintiff complain that the appraisal roll is excessive and that Jagee has never complained that the appraisal roll is excessive; rather, Dallas argues that Jagee has only complained of the method used by Dallas to value Jagee's property. Jagee responds that its question-of-methodology argument encompasses the issue of whether the appraisal roll's valuation of its property was excessive. We agree with Jagee. The issue of methodology only arose because the methodology employed by Dallas resulted in an excessive valuation of Jagee's property.
        Dallas contends that Jagee waived its claim that the appraisal roll was excessive by stipulating that the market value of Jagee's property was $6,207,780. Jagee stipulated that $6,207,780 was the value of its property when not factoring in the unfavorable K-Mart lease. Jagee argued that an appraisal that does not factor in the unfavorable K-Mart lease does not accurately reflect the value of its property. Jagee's stipulation, when taken in the context of its entire argument, does not constitute a waiver of its contention that the appraisal of its property was excessive.
        Dallas's arguments that the award of attorney's fees was not authorized are without merit. There is both legally and factually sufficient evidence of the appraisal roll value of Jagee's property; Jagee complained that the appraisal roll valuation was excessive; and Jagee's stipulation that its property was worth $6,207,780 without considering the unfavorable K-Mart lease does not constitute a waiver of its argument that the appraisal roll valuation was excessive. Because we hold that Jagee is entitled to attorney's fees under sections 42.29 and 42.25 of the Texas Tax Code, we do not address the merits of whether Jagee is entitled to attorney's fees under sections 42.29 and 42.26 of the Texas Tax Code. We overrule Dallas's points of error six and eight.
        In points of error seven and nine, Dallas argues that the award of attorney's fees to Jagee was not authorized under section 37.009 of the Texas Civil Practice and Remedies Code. Because we have held that Jagee is entitled to attorney's fees under section 42.29 of the Texas Tax Code, we need not consider the merits of these contentions. Dallas also contends that it is entitled to attorney's fees for successfully defending the constitutionality of section 25.06 of the Property Tax Code. However, Dallas presented the constitutionality issue as an alternative argument in the trial court. The trial court did not decide the case on that basis and, in fact, did not address the issue at all. There is no evidence that Dallas defended the constitutionality of section 25.06. Furthermore, Dallas failed to put into the record any evidence as to the amount of reasonable and necessary attorney's fees. We hold that Dallas was not entitled to attorney's fees and overrule point of error ten.
        Jagee asserts one cross-point which we need not discuss because of our disposition of Dallas's points of error. Because we do not address Jagee's cross point, we need not address Dallas's reply point to Jagee's cross point. A reply point is not a point of error. It does not bring any error to the Court's attention and preserves nothing for review.         Dallas's stipulation that it considers favorable leases makes this case factually unique. Publication of this opinion as urged by Dallas would only confuse others, as it has confused Dallas, and lead some to believe that this Court has overruled Martin. In fact, we have only acknowledged the factual distinction. We have not promulgated any new rule or overruled any authority. Absent the same stipulation regarding consideration of some leases, this case could not be used as precedent. Therefore, this opinion will not be published. The trial court's judgment is affirmed.
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00831.RF
 
 
File Date[01-02-89]
File Name[880831]