City of Dallas v. Union Tower Corp. , 703 S.W.2d 275 ( 1985 )

STEPHENS, Justice,

dissenting.

I respectfully dissent. As pointed out by the majority, the trial court determined that the plaintiff was entitled to relief under former article 7345Í,¹ and that the plaintiff was injured by the assessment which was excessive when compared with other taxpayers’ assessments. I disagree. For the reasons set out below, the judgment of the trial court should be reversed and judgment rendered that Union Tower Corporation take nothing by its suit.

RECOVERY UNDER art. 7345f

In 1979 the 66th Legislature enacted the Property Tax Code, which became effective January 1, 1982. Section 26.02 of the Code expressly became effective January 1, 1981. Section 26.02 provides:

Assessment Ratios Prohibited. Except as provided by Section 26.03 of this code, the assessment of property for taxation on the basis of a percentage of its appraised value is prohibited. All property shall be assessed on the basis of 100 percent of its appraised value.

Appraised value is defined in Chapter 23 of the Code as “market value as of January 1.”

The majority opinion discusses at length the trial testimony regarding the method of assessment of the Union Tower Corporation property. Such discussion is unnecessary, because at trial the parties stipulated as follows:

1. On January 1, 1981, the actual cash market value of the Union Tower property located within the City of Dallas and within the Dallas Independent School District was $41,500,-000.00.

2. The tax rate for the tax year 1981, was $.6383 per $100.00 of the assessed value for the City of Dallas and was $.7980 per $100.00 of the assessed value for the Dallas Independent School District. The combined rate was $1.4363 per $100.00 of assessed value.

Thus, regardless of the method of appraisal adopted by the Board of Equalization, and regardless of the finding of the proper value by the court, the stipulation of the parties, as to the market value of the property and the tax rates, was binding on the parties as well as the court. Handelman v. Handelman, 608 S.W.2d 298, 301 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.); see Kincheloe v. Houston Fire & Casualty Insurance Co., 289 S.W.2d 833, 834 (Tex.Civ.App.—Texarkana 1956, no writ).

In light of Sec. 26.02 of the Property Tax Code, the stipulated tax rates should have been applied to the stipulated market value of the property of $41,500,000.00 because the stipulations were conclusive not only as to facts stipulated, but also as to all matters necessarily included therein. Han-delman, 608 S.W.2d at 301.

Consequently, Union Tower Corporation is not entitled to recovery under art. 7345(f).

CONSTITUTIONAL GROUNDS

I do not agree that the Boards assessment was grossly excessive and thus unconstitutional. See State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572-73 (1954).

Article VIII, Section 1, of the Texas Constitution provides that, “[t]axation shall be equal and uniform,” and that all property “shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.” TEX. CONST. art. VIII, § 1. Applicable law, the Property Tax Code, requires property to be assessed at market value. The market value was stipulated, yet the trial court chose to fix a lower value, which was impermissible. Since the value determined by the court was lower than the stipulated market value, it was not excessive.

Consequently, both the assessed value and the value determined by the court were contrary to the mandate of article 7345(f), the constitutional requirement that values be fixed according to law was not met in this case and recovery may not be had under this ground.

UNEQUAL ASSESSMENT AS COMPARED TO OTHER PROPERTIES

I cannot agree with the majority’s holding that the appellee was injured by the unequal assessment of its property as compared to other property. See State v. Whittenburg, 265 S.W.2d at 573.

This suit was brought after the tax rolls had been certified and adopted by the City and the Independent School District, and therefore was a collateral attack on the method of taxation. Neville v. Cass County, 523 S.W.2d 419, 420 (Tex.Civ.App.—Texarkana 1975, no writ). To be entitled to relief from a tax in collateral attack, an owner must prove that he, individually, is substantially harmed by the assessment. Id. See American Bank & Trust Co. v. Dallas County, 679 S.W.2d 566, 569-70 (Tex.Civ.App.—Dallas 1984, no writ). This is an insurmountable test under the facts of this case. The taxpayer was taxed on a figure substantially lower than that provided by law, thus no injury can be shown.

The judgment of the trial court should be reversed and judgment rendered that The Union Tower Corporation take nothing by its suit.

1 . All citations to "former article 7345f” refer to Act of June 16, 1977, ch. 764, 1977 Tex.Gen. Laws, Local & Spec. 1912-1913, repealed by Act of June 13, 1979, ch. 841, § 6(a)(1), 1979 Tex. Gen.Laws, Local & Spec. 2329.