File: 061418F - From documents transmitted: 11/19/2007
AFFIRMED; Opinion Filed November 19, 2007.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-06-01418-CV
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DV04-09663-C
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Francis
        In this ad valorem tax case, Lyle and Deborah Hodge appeal the trial court's adverse judgment on their claims against the Dallas Central Appraisal District (DCAD). In three issues, the Hodges challenge the trial court's judgment regarding a homestead exemption, proration of taxes, and appraisal value. In a fourth issue, they complain the trial court used an incorrect standard when weighing evidence. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.
        The evidence showed that in late 1990, the Hodges purchased a house and five acres of land in Dallas County. The property had a barn, silo, and fenced pasture, and the Hodges kept between one and three horses in the pasture. The Hodges applied for a homestead exemption, and DCAD, after inspecting the property, granted the exemption in 1991. No changes were made to the property in the ensuing years.
        The area began developing commercially. In February 2003, the City of Duncanville notified the Hodges that it wanted to purchase their property for a road project. Mrs. Hodge testified that at a meeting, a city representative “joked” about the property's low appraisal value and suggested that taxes would increase in the future to more than the Hodges would “like to pay just to live there.” The Hodges refused to sell the entire tract, and the City filed a condemnation lawsuit. (The condemnation lawsuit was resolved in 2005 with the Hodges selling the City a strip of their property to construct the road.)
        The following spring, the Hodges received their appraisal notice on the property from DCAD. For the first time, DCAD had divided the Hodges' five-acre homestead property into two tracts with two separate account numbers. One tract, containing the house and 2.275 acres, received a homestead exemption. The second tract, which was the fenced horse pasture containing 2.75 acres, was not allowed a homestead exemption.
        The Hodges appealed the removal of the homestead exemption, but the Appraisal Review Board denied their appeal. At the suggestion of a DCAD appraiser, the Hodges then requested that the horse pasture be designated agricultural land. The chief appraiser denied this request, and the Hodges filed a written notice of protest with the ARB, which overruled the chief appraiser and granted the designation. In the meantime, the Hodges sued DCAD, seeking to restore the homestead exemption on the entire property and to obtain a reduction in the appraised value of the property. After receiving the 2005 tax notices, the Hodges amended their petition to include a complaint that DCAD failed to prorate their tax liabilities with respect to the property taken by the City. Following a one-day trial, the trial court found in DCAD's favor on all issues. This appeal ensued.         In their first issue, the Hodges complain the trial court erred as a matter of law in refusing to restore the homestead exemption for their entire property. Relying on section 11.43(c) of the Texas Property Tax Code, they argue that DCAD could not remove the homestead exemption unless the property “change[d] ownership, or the person's qualifications for the exemption change[d].” The Hodges assert that the only evidence at trial established that no change had occurred and they therefore were entitled to the exemption. We do not agree with the Hodges' analysis.
        At trial, DCAD argued the Hodges' horse pasture could not have both an agricultural use designation and homestead exemption. The Hodges argued the agricultural use designation was irrelevant to the trial court's decision on the homestead exemption, but, even if relevant, both the designation and exemption could apply to the same property. The Hodges specifically did not request that the agricultural designation be removed from the pasture in favor of a homestead exemption.   See Footnote 1  In its judgment, the trial court denied the Hodges' claim after specifically determining, as a matter of law, that the property tax code did not allow both the homestead exemption and agricultural use designation to simultaneously apply to the same acreage. The trial court made separate conclusions of law to the same effect.
        Consequently, whether there was conclusive evidence that the property had not changed, as contemplated by section 11.43, at the time DCAD removed the homestead exemption is not dispositive in light of the subsequent actions by the Hodges in having the land designated as agricultural use and asserting both the exemption and designation were appropriate. Rather, as argued by DCAD, the dispositive question is whether, as determined by the trial court, the tract can simultaneously receive both the homestead exemption and agriculturural use designation. The Hodges' brief, however, does not address this issue although it was litigated below and was the basis of the trial court's judgment. Because they did not address the issue, we conclude the Hodges cannot show reversible error. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an appellate court cannot reverse a trial court's judgment absent properly assigned error.”); Meachum v. Comm'n for Lawyer Discipline, 36 S.W.3d 612, 615 (Tex. App.-Dallas 2000, pet. denied ) (explaining that it is appellant's burden to establish reversible error). Additionally, we note that the Hodges did file a reply brief; however, the Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in appellee's brief but not raised by the appellant's original brief. Dallas Co. v. Gonzalez, 183 S.W.3d 94, 104 (Tex. App.-Dallas 2006, pet. denied). Regardless, the Hodges' reply brief does not sufficiently address the issue. See Tex. R. App. P. 38.1. Accordingly, we overrule the first issue.
        In their second issue, the Hodges contend the trial court erred in refusing to prorate their tax liability with respect to property taken for the road project. The evidence showed that the City of Duncanville took a .28-acre strip of the Hodges' property, which affected both the homestead and agricultural tracts. The Hodges acknowledge that DCAD did proportionately adjust the market value for both the homestead and non-homestead tracts; however, they complain DCAD also should have proportionately adjusted the capped value of their homestead.
        To support their position, the Hodges make a single reference to section 26.11 of the tax code, which provides the method for calculating the amount of taxes due on property acquired by the government. See Tex. Tax Code Ann. 26.11(a) (Vernon 2001). Other than this reference, the Hodges have not analyzed this section within the context of the tax code, and in particular, its applicability to appraisals or provisions relating to market value and capped value. Under these circumstances, we conclude the issue is inadequately briefed. See Tex. R. App. P. 38.1(h). We overrule the second issue.
        In their third issue, the Hodges argue the trial court erred in refusing to lower the appraised value of their property. Relying on Mrs. Hodge's testimony at trial, they contend they conclusively established the market value of the property and any findings to the contrary were “not supported by sufficient evidence, conflicted with the evidence, or were incorrect as a matter of law.”
        As before, the Hodges provide only a single legal citation in support of their issue. Their brief does not provide any standard of review or any applicable law regarding valuation testimony. We therefore question whether this issue is adequately briefed. Regardless, having reviewed the evidence, we conclude it is both legally and factually sufficient to support the judgment.
        When a party with the burden of proof challenges the legal sufficiency of an adverse finding, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Long v. Long, 196 S.W.3d 460, 466 (Tex. App.-Dallas 2006, no pet.). In reviewing a “matter of law” challenge, we must first examine the record for evidence that supports the finding, then we will examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem., 46 S.W.3d at 241; Long, 196 S.W.3d at 466. The issue should be sustained only if the contrary proposition is conclusively established. Dow Chem., 45 S.W.3d at 241; Long, 196 S.W.3d at 466.
        When reviewing the factual sufficiency of the evidence supporting an adverse finding on which the party had the burden of proof, the appellant must show that “the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem., 46 S.W.3d at 242; Long, 196 S.W.3d at 466. We must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
        Mrs. Hodge testified that, “[i]f we are only appraising the property as residential,” she believed it was worth $10,000 per acre, or $50,000, plus $90,000 in improvements, for a total market value of $140,000. Mrs. Hodges said she checked a couple of homestead properties, comparable in size, that were within a “half mile or so” of her property and found the land was appraised at $10,000 per acre. In their brief, the Hodges argue that DCAD did not controvert this evidence.
        To the contrary, David Pennington, DCAD's director of technical services, testified that DCAD valued the five acres at $1.40 a square foot and looked for sales of property in the area. DCAD records, offered into evidence without objection, show that the 2004 market value of the horse pasture was $167,400 and the market value of the homestead was $157,950, both $1.40 per square foot. In 2005, the market value did not change other than to account for the land taken for the road project. The documents showed that DCAD appraised the properties according to the cost method of appraisal.
        In addition to this evidence, we also note that Mrs. Hodge later testified that she received $110,000 for the .28-acre strip taken by the city of Duncanville. Although she testified that the settlement amount included attorney's fees and damages to the remainder, she was uncertain how much was allocated to either. She did testify, however, that when filing her tax return, she used the city's appraisal of $1 per square foot, which we note is more than four times higher than her earlier testimony of $10,000 an acre.
        In sum, the trial court had before it evidence that the market value of the land, at the relevant time, was $10,000 per acre; $1 per square foot; and $1.40 per square foot. After hearing the evidence, the trial court apparently believed DCAD's evidence, given its refusal to reduce the value. Having reviewed the evidence, we cannot conclude it is legally or factually insufficient to support the trial court's judgment in this case. Accordingly, we overrule the third issue.
        In their fourth issue, the Hodges contend the trial court used an incorrect standard in weighing evidence by giving deference to the findings of the appraisal district. The Hodges assert that there is no evidence to “support most of the findings of fact and conclusions of law” but then only cite two examples, again without any legal analysis. Having reviewed the record in this case, we conclude it does not support the Hodges' position that the trial judge gave deference to DCAD. We overrule the fourth issue.
        We affirm the trial court's judgment.

                                                          MOLLY FRANCIS


Footnote 1 In particular, the Hodges' counsel made the following remarks in his opening statement:

We can address the legalities of [entitlement to both homestead and agricultural designation] if the Court deems that necessary, but the focus of the Court needs to be should the exemption - the homestead exemption [-] have been removed from any of that property in 2004, not whether or not you can have both the homestead and the ag exemption. We contend that you certainly can and the code supports that, even the section cited by counsel supports that, but that's a nonissue. It is a complete red herring.

        In his closing argument, the Hodges' counsel specifically argued that the “ag exemption was granted by the ARB. Nobody appealed that. That is not before this court.” Further, counsel asserted, as in his opening, that the issue was irrelevant, but that “you can have a homestead exemption over the ag land.”

File Date[11/19/2007]
File Name[061418F]
File Locator[11/19/2007-061418F]