State Bd. of Tax Com'rs v. Traylor

• Decision Date: 06 July 1967
• Docket Number: No. 2,No. 20333,20333,2
• Citation: 228 N.E.2d 46,141 Ind.App. 324,10 Ind.Dec. 676
• Parties: STATE BOARD OF TAX COMMISSIONERS of Indiana, Appellant, v. Ferris E. TRAYLOR and Mary V. Traylor, Appellees
• Court: Indiana Appellate Court

Page 46

228 N.E.2d 46

141 Ind.App. 324

STATE BOARD OF TAX COMMISSIONERS of Indiana, Appellant, v. Ferris E. TRAYLOR and Mary V. Traylor, Appellees.

No. 20333.

Appellate Court of Indiana, Division No. 2.

July 6, 1967.

Rehearing Denied Aug. 10, 1967.

John J. Dillon, Atty. Gen., Lloyd C. Hutchinson, Asst. Atty. Gen., Indianapolis, for appellant.

Early & Arnold, Evansville, for appellees.

BIERLY, Judge.

Plaintiffs-appellees filed their complaint and amended complaint in the Superior Court of Vanderburgh County, Indiana, on the 10th day of April, 1963, alleging that the assessment of their real estate with improvements thereon, situated in said county was wrongful and further requested that the same should be declared null and void. The assessment had been made by the defendant-appellant, State Board of Tax Commissioners.

Plaintiffs, subsequent to said cause, put at issue by the defendant-appellant filing an answer, filed a motion for a change of venue from the county, which motion was granted. The cause was venued to the Pike Circuit Court of Pike County, Indiana. This Circuit Court reviewed the assessment made by the appellant-defendant, and thereafter stated its findings, decision and judgment. This appeal followed.

Issues were formed by the filing of appellees amended complaint in three separate paragraphs, thence the filing of separate answers by appellant to each of aforesaid paragraphs.

Issues presented were raised by:

(1) Paragraph I of said amended complaint based upon the allegation that the assessment by appellant, State Board of Tax Commissioners, was wrongful and should be declared null and void, as being 'arbitrary and capricious.' This premise was denied by appellant.

(2) Paragraph II of said amended complaint based upon the allegation that the assessment by the said State Board of Tax Commissioners was wrongful and should be declared null and void by being 'constructively fraudulent.' This premise was likewise denied by appellant.

(3) Paragraph III of the aforesaid complaint based upon the allegation that said assessment by appellant was wrongful and should be declared null and void, by being 'an abuse of discretion.' This allegation was likewise denied by the appellant.

Following the submission of evidence, the Pike Circuit Court found for appellees on Paragraph I of the amended complaint, and that the assessment of appellant, the State Board of Tax Commissioners was arbitrary and capricious; that the assessment of said State Board was not 'constructively fraudulent' as alleged in Paragraph II of said amended complaint; and that the action of said State Board was not an abuse of discretion as charged in Paragraph III of said amended complaint.

Pursuant to Rule 1--7C of the Supreme Court, the Court found facts specially which were stated in eleven (11) paragraphs. Thence followed conclusions of law set forth in two (2) paragraphs.

The judgment of the court, omitting formal parts, is as follows:

'It is, therefore, ordered, adjudged and decreed by the Court that the assessment by the defendant of the real estate of the plaintiffs as described in the findings of fact herein be and the same is hereby adjudged null and void, and the matter of the assessment of such property is remanded to the defendant for reassessment and further proceedings in accordance with law.

'It is further ordered by the Court that the costs herein be taxed to the defendant.'

On June 20, 1964, the defendant-appellant filed its Motion for a New Trial, alleging therein that:

'1. The decision or finding of the court on Paragraph I of plaintiffs' amended complaint is not sustained by sufficient evidence.

'2. The decision or finding of the court on Paragraph I of plaintiffs' amended complaint is contrary to law.'

Said motion for a New Trial was overruled on November 2, 1964, by the court. From this ruling by the court, the appellant appealed.

The Assignment of Errors filed with the Clerk of this Court by the appellant, omitting formal parts, is in the following words and figures:

'ASSIGNMENT OF ERRORS

'The appellant, State Board of Tax Commissioners of Indiana, avers that there is manifest error in the finding, decision and proceedings had in this cause which are prejudicial to appellant in that:

'The court erred in overruling the motion for new trial of the State Board of Tax Commissioners of Indiana, appellant herein, which motion for new trial contains the following reasons:

"(1) The decision or findings of the court on Paragraph I of plaintiffs' amended complaint is not sustained by sufficient evidence.

"(2) The decision or finding of the court on Paragraph I of plaintiffs' amended complaint is contrary to law.'

'WHEREFORE, it is respectfully submitted that this Court reverse the finding and decision of the trial court on Paragraph I of plaintiffs' amended complaint, order the granting of a new trial therein and the entry of the finding and decision for the State Board of Tax Commissioners of Indiana on Paragraph I of said plaintiffs' amended complaint.'

In its finding of facts, the court in Finding #3 found that pursuant to the Property Assessment Act of 1961, said property in question, owned by plaintiffs, was assessed by the Township Assessor of Center Township of Vanderburgh County, as follows: Land $2500, Buildings $17,910, Total Assessment $20,410.

By Finding #4, the court found that the Board of Review of said county instructed its representative, Gerald Nelson, to view the land and buildings and report his determination to the Board. Nelson affirmed the assessment made by said township assessor. The Review Board refused to accept the findings of its representative, and 'arbitrarily and capriciously' assessed said property of plaintiffs-appellees as follows: Land $2500, Buildings $23,920, totalling the sum of $26,420.

By Finding #7 the Court found that the State Board of Tax Commissioners affirmed the assessment of the Board of Review, and in Finding #9 stated that said assessment was likewise 'arbitrary and capricious.'

It appears that the trial court based its conclusions that the assessment by the State Board should be adjudged null and void on its Finding #8, which is as follows, to wit:

'8. At the trial of this cause, the witness Clarence L. Crow, who testified on behalf of the defendant, admitted on cross-examination that the assessment of the plaintiffs' property was based upon fundamentally-erroneous principles in that in arriving at the value per square foot of plaintiffs' property there had been followed the rates set forth at page 145 of the 'Real Estate Assessment Guide No. 2', Second Edition, May 1961, adopted and promulgated by the State Board of Tax Commissioners, which provided for a reducing scale of values per square foot up to 3,075 square feet at a value of $10.50 per square foot, but in the assessment of plaintiffs' property the appraisal of the square footage above 3,075 square feet had been arbitrarily and incorrectly set at $12.43 per square foot.'

According to the table referred to in the above Finding #8, the cost of a residence measuring 300 square feet with 1-story and basement has a base price of $8,960, or an average of $29.87 per square foot, while such a residence with measurements of 3,075 square feet has an average base price of $39,530, or an average of $12.86 per square foot.

The trial court in said Finding #8 determined that in the assessment of plaintiffs' property, the appraisal over and above 3,075 square feet was set at $12.43 per square foot, which the trial court charged was an arbitrary and incorrect assessment.

By computing the area, represented by the difference between the total area of the residence of 4,965 square feet and 3,075 square feet, to wit: 1,890 square feet, by an average of $12.43 per square foot, produces an additional cost of $23,492.70. By further computation, when considering the cost per square foot of the total area of the residence of 4.965 square feet, divided into the total cost of the residence, equals $12.69. In Highshew v. Kushto (1956), 126 Ind.App. 584, 131 N.E.2d 652, the court said: 'We take judicial notice of the fact that a motorcycle going 40 miles per hour travels 60 feet in one second', thus mathematical computations are a proper subject of judicial notice.

Contrary to the contention of the appellees, and the finding of the trial court that the average cost per square foot of the first 3,075 square feet of the residence was lower than the cost per square foot of the remaining 1,890 square feet, the reverse is true, as relative figures per square foot were $12.86 and $12.43, respectively.

Appellant, in recognizing the Real Estate Assessment Guide #2, as authority for use by Indiana assessors in the general assessment of real estate, directs our attention to pages 142 and 143 of said Guide which gives the base price for Grade High Class AA, Residential Pricing Schedule for Frame Construction and Masonry Construction, respectively. Said pages list a definite average price per square foot over and above 4,000 square feet area, and for Masonry Construction of $19.40 for 1-story building which price was established by dividing a house or residence of 4,000 square feet area into the total cost of $77,620.

On page 145 of said Guide, the division of the base price of a 1-story residence with basement, by its square feet in progression from a 300 square foot residence, 100 square feet at a time, to a residence of 3,075 square feet, portrays a reducing scale proposition. This table clearly shows that base price, divided by the residence area in square feet, produces an average cost per square foot reduction from $29.87 to $12.86.

The appellees charge error in the computation of the true cash value of the square feet of their residence in excess of 3,075, but the computation fails to conform to the interpretation as advanced by them. This constitutes, according to appellees, a mistake in the assessment which error...