Johnson Controls, Inc. v. Carrollton-Farmers Branch Independent School Dist.

• Decision Date: 25 August 1980
• Docket Number: No. 20308,CARROLLTON-FARMERS,20308
• Parties: JOHNSON CONTROLS, INC., Appellant, v.BRANCH INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 688

605 S.W.2d 688

JOHNSON CONTROLS, INC., Appellant, v. CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 20308.

Court of Civil Appeals of Texas, Dallas.

Aug. 25, 1980.

Rehearing Denied Sept. 24, 1980.

Charles L. Perry, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellant.

Earl Luna, Mary Milford, Luna & Murto, Dallas, for appellee.

Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.

STOREY, Justice.

This is a summary judgment case. Plaintiff Johnson Controls, Inc. sued Carrollton-Farmers Branch Independent School District to recover the excess of ad valorem taxes paid for the years 1969 through 1976 which plaintiff alleged were overpaid because the school district excessively valued its real property. The suit is grounded on plaintiff's assertion that the taxes were paid under duress, and, therefore involuntarily, because the failure to timely pay would have resulted in the imposition of statutory penalties and interest.

We hold that the existence of the penalty statute alone is not in itself sufficient to raise a fact issue on the question of duress and, consequently, in the absence of any other competent summary-judgment evidence, the school district's summary-judgment proof has established as a matter of law that plaintiff's payments were voluntary. We, therefore, affirm.

One who pays an illegal tax voluntarily, that is, without duress, has no valid claim for its repayment. The opposite is true when payment is made under duress and duress may be either express or implied. Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 245 (Com.App.1934); National Biscuit Company v. State, 134 Tex. 293, 135 S.W.2d 687 (1940); City of Houston v. Feizer, 76 Tex. 365, 13 S.W. 266 (1890). This rule is said to be one of sound public policy, the object of which is to discourage litigation, and to secure the taxing authority in the orderly conduct of its affairs. The rule is based upon the premise that everyone is supposed to know the law, and if one voluntarily makes a payment which the law would not compel him to make, he cannot afterward assign his ignorance of the law as a reason why the state should furnish him with legal remedies to recover it. See City of Houston v. Feizer, supra.

Plaintiff contends first that the summary-judgment evidence raises a fact question on its claim of involuntary payment. The summary-judgment evidence consists of the affidavit of W. C. Coker, assessor and collector of taxes for the school district, and the affidavit of Loren L. Pollesch, plaintiff's director of tax affairs. Coker's affidavit states:

The 1969 ad valorem taxes on the above described property in the amount of $6,867 were paid to the Carrollton-Farmers Branch Independent School District by Johnson Controls, Inc. as assessed and levied on September 15, 1969.

There follows in sequence a separate recitation for each successive calendar year from 1970 through 1976, differing from the quoted paragraph only in amount paid and date of payment. Except for calendar year 1975, which shows a payment date of January 2, 1976, all taxes are shown to have been paid on or before December 31 of the year in which assessed. The affidavit concludes:

All ad valorem taxes owed by Johnson Controls, Inc. to the Carrollton-Farmers Branch Ind. School District for the years 1969 through 1976 were paid in full and as assessed prior to April 28, 1978.

All ad valorem taxes owed by Johnson Controls, Inc. to the Carrollton-Farmers Branch Ind. School District for the years 1969 through 1976 were paid voluntarily and prior to the foreclosure or threat of foreclosure of any tax lien.

Plaintiff's controverting affidavit recites:

Johnson Controls, Inc. did not voluntarily pay the ad valorem taxes assessed by the Carrollton-Farmers Branch Independent School District in the years (1969 through 1976). Rather, said taxes were specifically paid under protest and as a result of duress and compulsion including but not limited to the imposition of penalties and interest, and the presence or possibility of liens or other clouds on the title of corporate property located in Texas.

Plaintiff argues that because Coker's affidavit consists only of the conclusion that the taxes were paid voluntarily, the affidavit of Pollesch stating they were paid involuntarily was sufficient to raise a fact issue. In addition to the conclusory statement, however, the affidavit asserts that taxes were paid in full, as assessed, and prior to default for eight successive years. It also asserts that during the eight-year period there was no threatened foreclosure of plaintiff's property. None of these facts were controverted by plaintiff's affidavit as required by Texas Rules of Civil Procedure 166-A(c). Instead, plaintiff's affidavit contains only the conclusory statement that its taxes were paid under protest as a result of duress and compulsion and states no facts to support that conclusion. This is not sufficient to raise a fact question, and, absent summary-judgment evidence to the contrary, the school district's affidavit has established voluntary payment as a matter of law.

Plaintiff points out, however, that Tex.Rev.Civ.Stat.Ann. art. 7336 provides for the imposition of penalties and interest for failure to pay taxes when due. It argues that the threat posed by this statute is sufficient to raise a fact question on the issue of duress. We cannot agree.

The supreme court's recognition of implied duress has been limited to those cases in which a "business compulsion" is found to exist. Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242; National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687; Union...