File: 061418F - From documents transmitted: 11/19/2007
AFFIRMED; Opinion Filed November 19, 2007.
Court of Appeals
Fifth District of Texas at Dallas
LYLE HODGE AND DEBORAH HODGE, Appellants
DALLAS CENTRAL APPRAISAL DISTRICT, Appellee
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
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.
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
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.
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.
Footnote 1 In particular, the Hodges' counsel made the following remarks in his opening
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.”