State v. Kennedy
| Decision Date | 08 May 1974 |
| Citation | 52 Ala.App. 470,294 So.2d 439 |
| Parties | STATE of Alabama v. Ellis D. KENNEDY and June R. Kennedy. STATE of Alabama v. Ralph D. KENNEDY and Margaret B. Kennedy. Civ. 277 and 278. |
| Court | Alabama Court of Civil Appeals |
William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue and Asst. Atty. Gen., Herbert I. Burson, Jr., Asst. Counsel, Dept. of Revenue and Asst. Atty. Gen., J. Dawson Britton, Asst. Deputy Dist. Atty., Jefferson County, for appellant, State of Ala.
Norman K. Brown, Bessemer, for appellees.
This is an appeal by the State from a judgment of the Circuit Court of Jefferson County rendered under the provisions of the Expeditious and Economical Tax Appeals Act. That act is an alternative to the general statute (Title 51, § 110), Code of Alabama 1940, providing for appeals from a decision of the County Board of Equalization fixing the assessed value of real property for ad valorem tax purposes. The Expeditious and Economical Tax Appeals Act, hereinafter called the Act, applies only to counties having a population of 400,000 or more.
The Kennedys protested and then appealed the assessed valuation of their real property by the Board of Equalization of Jefferson County for the tax year 1971. There were two separate appeals brought under the Act in the Bessemer Division of the Jefferson County Circuit Court. Such appeals were consolidated for trial and remain so upon this appeal.
The Act provides generally that an appeal to the circuit court may be taken from the decision of the board of equalization fixing the assessed value of real property. A three man commission remaining from a panel of nine, after the taxpayer and the state each strike three, shall be the triers of fact. The court appoints the panel of nine commissioners who are required to be licensed real estate brokers, salesmen or appraisers, with a minimum of five years experience in the profession and who are actively engaged in the profession, with their major livelihood derived therefrom. The commission has the duty of fixing and reporting to the court the assessed valuation of the property under the supervision and control of the court. The court has the duty to see that the parties have the opportunity to present to the Commission all data relevant to the value of the property, and of being heard by argument. The court has complete authority to make orders, rules and regulations as in the court's opinion will facilitate an expeditious and proper determination of the issues. The judgment of the court shall be in accord with the report of the commissioners. The commissioners shall have the right to fix the assessed valuation for years subsequent to that appealed from which have accrued after the date of appeal.
Appeal from the judgment of the circuit court is to this Court. Upon such appeal, the appellant may assign as error the report of the commissioners and the judgment of the court.
Acting under the provision of the Act, the circuit court appointed commissioners from whom three were chosen. It directed them to find the correct full market value of the pieces of real estate owned by the parties and involved in the appeal. A date was set for the receiving of relevant data and argument. All parties and commissioners appeared on the date set. Evidence from appealing parties as to the fair market value of their property was heard. Evidence from an expert appraiser retained by the Board of Equalization was heard. Documentary data relevant to the issue of ratio of fair market value used to determine actual assessment was submitted. Such data covered the ratio used by boards of equalization in every county of the state and the average of such ratios.
After the hearing the commissioners submitted a report to the court wherein they found the fair market value of each property for the tax years 1971 and 1972. The court entered judgment accordingly by applying to such finding a ratio of 13.3% For the year 1971, and a ratio of 20% For the year 1972, the latter year having accrued while the appeal was pending. The resulting amount after applying the respective ratio was entered by the court as the assessed valuations.
From the judgment the State appeals. It has assigned twelve errors and cites numerous propositions of law in support of such errors. The argument in support of the charged errors is divided into five segments. The effect, as we see it, is to argue five errors. We shall consider the five segments of appellant's argument.
The first contention is that by the provisions of Title 51, Section 110 and the decisions of the Supreme Court construing that statute, the final assessment of the Board of Equalization is presumed prima facie correct on an appeal therefrom. Therefore, the burden is upon the appealing taxpayer to overcome such presumption by clear and compelling evidence.
The contention of the State and propositions of law with supporting authority are correct when considered with the statute cited. However, the unusual provisions of the Act include a specific exclusion of the application of Title 51, Section 110 to an appeal taken under the Act. The Act contains no provision for even consideration by the commissioners of the assessment made by the Board of Equalization. The clear and evident intent of the Act is to provide a trial or consideration de novo of the issue of the proper assessment of value for tax purposes of the property involved. The commissioners are required by the Act to be experienced experts in the field of real estate valuation. No such expertise is required for appointment to the Board of Equalization. It is our conclusion that provisions for an appeal under Title 51, Section 110 have no application to an appeal under the Act--Title 51, Section 110(1).
The second segment of appellant's argument charges that bias and prejudice by the trial judge was so exemplified by his questioning of the State's expert witness as to constitute reversible error. We cannot agree.
The learned and competent trial judge did, with probing questions, delve into the basis and method by which the witness formed his opinion of the fair market value of the properties. We have carefully read the portion of the transcript where such matter occurred. We find no indication of bias or prejudice for or against the State. It merely appears that the judge wished to know, and that the commissioners know, how the witness formed his opinion. Questioning of a witness by the judge is permissible within proper bounds. Rice v. Hill, 278 Ala. 342, 178 So.2d 168.
The State next contends that the testimony of their expert witness was so superior to that of the owners of the property as to the fair market value that it was error for the triers of the facts not to accept his opinion and disregard the opinion of the owners. This contention is far from correct. It is a well established principle of law that the triers of fact are not bound by the opinion of an expert witness. Dickey v. Honeycutt, 39 Ala.App. 606, 106 So.2d 665. They are free to consider any relevant evidence and apply their own knowledge and experience in reaching their decision. National Security Insurance Co. v. Olds, 43 Ala.App. 490, 192 So.2d 749. In the instant case the commissioners as triers of the facts were uniquely qualified to apply their own expertise to the testimony of the witnesses, particularly as to their credibility.
The State next contends that the judgment is due to be reversed because of admission of illegal evidence.
We have examined all of the evidence and particularly those pages of the transcript wherein the illegal evidence admitted over objection is purported to appear. Appellant states there to be three instances. The first was a question asked of appellee, Ralph Kennedy, as to whether there was much discrepancy in the assessed valuation of the property of a neighbor and his own. This question came after the witness had already testified as to the assessed valuation of the property of another neighbor and...
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Thorn v. Jefferson County
...Phillips v. Hinkle, 262 Ala. 330, 78 So.2d 800 (1955); Smith v. Pullman, Inc., 280 Ala. 295, 193 So.2d 516 (1966); State v. Kennedy, 52 Ala.App. 470, 294 So.2d 439 (1974). "After consideration of the pleadings, arguments of counsel, and the authorities submitted by counsel, the Court is of ......
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Ex parte Williamson
...thereon appearing in the record. The testimony is thus generally admissible and not limited as to weight or purpose. State v. Kennedy, 52 Ala.App. 470, 294 So.2d 439 (1974)." Ex parte Neal, 423 So.2d 850, 852 (Ala. 1982). See also Holley v. Rane, 655 So.2d 1068 (Ala.Civ.App.1995); and Campb......
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Ex Parte Williamson, No. 1030406 (AL 1/14/2005)
...appearing in the record. The testimony is thus generally admissible and not limited as to weight or purpose. State v. Kennedy, 52 Ala. App. 470, 294 So. 2d 439 (1974)." Ex parte Neal, 423 So. 2d 850, 852 (Ala. 1982). See also Holley v. Rane, 655 So. 2d 1068 (Ala.Civ.App. 1995); and Campbell......
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Ex parte Neal
...thereon appearing in the record. The testimony is thus generally admissible and not limited as to weight or purpose. State v. Kennedy, 52 Ala.App. 470, 294 So.2d 439 (1974). Furthermore, this is a workmen's compensation case and the standard of review dictates that we must construe the fact......