Darby v. Borger Independent School Dist.

• Decision Date: 11 January 1965
• Docket Number: No. 7430,7430
• Citation: 386 S.W.2d 572
• Parties: L. D. DARBY, Appellant, v. BORGER INDEPENDENT SCHOOL DISTRICT et al., Appellees.
• Court: Texas Court of Appeals

Page 572

386 S.W.2d 572

L. D. DARBY, Appellant, v. BORGER INDEPENDENT SCHOOL DISTRICT et al., Appellees.

No. 7430.

Court of Civil Appeals of Texas, Amarillo.

Jan. 11, 1965.

Rehearing Denied Feb. 8, 1965.

White, White & White, Borger, for appellant.

Jack Hood, Gassaway, Allen & Norman, Borger, for appellees.

CHAPMAN, Justice.

Plaintiffs, Borger Independent School District and Borger Junior College District, filed suit on March 17, 1961, against L. D. Darby for collection of ad valorem taxes then delinquent upon his restaurant building and fixtures. By supplemental petition filed on June 31, 1963, they impleaded the other taxing units and sued additionally for all taxes that might become delinquent subsequent to the filing of such petition and before judgment. The record shows no answer to have been filed until June 5, 1961. It appears that four amended answers were filed by appellant but the record shows only the pleadings of Defendant's Fourth Amended Answer and First Amended Action for Injunction to Restrain Enforcement of the Tax Assessment, which he filed on September 2, 1962. The trial of the case to a jury started on June 17, 1963.

In reply to five issues submitted the jury answered that the boards of equalization for the taxing units involved did not make a bona fide effort to assess the taxable property within such districts at a fair, just, equal and uniform valuation for taxing purposes and that the valuations by such boards as to appellant's property were not equal and uniform as compared to valuations placed upon other taxable property within such districts. However, the jury found in issue number five, the only other issue submitted, that no substantial injury resulted to Mr. Darby by reason of the valuations made by the boards of equalization. The county is not involved in the appeal. The named educational institutions are plaintiffs and will be referred to as such or as appellees when their respective names are not used. The City of Borger is intervenor and will be referred to as such or as The City.

The trial court after studying the record disregarded the answers of the jury to the first four issues submitted and upon the jury's answers to special issue number five rendered judgment for the taxing units and for penalty, interest, and attorney's fees to March 17, 1961. He required a remittitur of penalty and interest from the last named date because it was not, he said, appellant's fault that the suit was not tried any sooner.

Appellant first contends reversible error for failure of the taxing units to make out a prima facie case 'in that neither had introduced or proved the tax rolls are properly certified, authenticated copies thereof.'

Exhibits introduced into evidence without objection show certified copies of the tax records of the taxing units. The statement of facts shows the original rolls were in the courtroom available for use and counsel for appellant agreed they might be returned to the vaults. No objections to the copies as such were ever made and no request made to compare them with the originals. Under this state of the record we believe the point is without merit. Article 7326, Vernon's Ann.Tex.Civ.St.; Stone v. City of Dallas, Tex.Civ.App., 244 S.W.2d 937 (writ dismissed); Newton v. Highland Park Independent School Dist., Tex.Civ.App., 361 S.W.2d 916 (N.W.H.); Rachford v. City of Port Neches, Tex.CivApp., 46 S.W.2d 1057 (N.W.H.); Rees v. State, Tex.Civ.App. 149 S.W.2d 184 (writ dismissed, judgment correct).

The taxing units having made out a prima facie case of the validity of the assessed valuations, the burden then rested upon appellant to go forward with proof which would meet requirements of law for avoiding the valuations. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; State v. Republic Natural Gas Co., Tex.Civ.App., 181 S.W.2d 592 (refused w. m.).

Appellant next contends that his assessed valuations on which percentage of taxes were taken had been changed without notice.

On numerous occasions throughout the trial, in attempting to follow the testimony, the court told counsel in effect that he was confused on what they were attempting to prove and as to what the witnesses had said. In studying the record, we can certainly understand his reason for such statements. There are many, many repetitious statements and more than a few contradictions and contradictory contentions. For example, in numbered paragraph four of appellant's Fourth Amended Answer, in reference to all taxes he is contesting, he pleaded: 'That the defendant duly protested these taxes both before the tax assessors and the boards of equalization, but that no action was taken on his protest.' We find it impossible from the statement of facts, because of contradictory statements and contentions, to determine if he did or did not do so before each board of equalization for each of the years. His testimony as to the schools shows:

'Q. Now, tell us the College and School, bearing in mind that the Equalization Boards were the same persons and met at the same times and places for the school and the college?

'A. I have nothing written for the school in 1956, but that was the year that the Pritchard & Abbott appraisal was made. I appeared there at the Sam Houston Junior High School building there. Now, that was oral and there was nothing to that. Nothing written on--to the effect of that. There was no information on that whatsoever.

'Q. But your independent recollection, independent of any----

'A. 1956.

'Q.--written memorandum----

'A. 1956.

'A.--indicates to you that you were--that you did appear before them in 1957, and 8, and possibly 1959?

'A. No; I will withdraw the 1959. I have the information here in '57 and '58.

'Q. You did appear before the Independent School District and College District Board of Equalization during 1957 and 1958?

'A. If they are one and the same; yes.'

We believe it well to state just here that the taxing units involved employed the professional appraising firm of Pritchard & Abbott prior to the years here involved to appraise what they considered to be the cash market value of all the property in the county. Mr. Darby's testimony shows that he had knowledge of the Pritchard & Abbott appraisal in 1956 and that he talked to the city officials that year with respect to his taxes being unfair. We believe this is sufficient to show that he had notice of some sort concerning the change in his city taxes.

It is true that Article 1053, V.T.C.S. provides that where the board of equalization raises the value of any property the secretary of the board shall give written notice to the owner of such property or the person rendering the same of a date for hearing, when the owner or person rendering the property may appear and show cause why the value should not be raised. However, our Supreme Court has held that where owners learn of the hearings and appear they submit themselves to the jurisdiction of the board of equalization. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414.

Additonally, the failure to receive notice is a defensive issue and the record shows no pleading raising the issue nor any request for submission of any issues thereon. To the contrary, as heretofore stated, appellant pleaded that he protested the taxes both before the tax assessors of the districts and before the boards of equalization. Rule 279 Vernon's Ann.Texas Rules of Civil Procedure, provides upon all independent grounds of recovery or of defense...