Opinion
No. 05-08-00115-CV
Opinion issued July 15, 2009.
On Appeal from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-04121-M.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
OPINION
Friends of the Military d/b/a Vet to Vet, a charitable organization, applied to the Dallas Central Appraisal District for an exemption from ad valorem taxes on property it owned in Dallas County. The Appraisal District denied the exemption and Vet to Vet appealed to the Appraisal Review Board. The Appraisal Review Board upheld the denial and Vet to Vet filed this lawsuit in district court challenging the denial. A jury found in favor of Vet to Vet. The Appraisal District appeals, arguing that the evidence is legally and factually insufficient to support the jury's findings. We affirm.
Legal Insufficiency of the Evidence
In evaluating whether the evidence is legally insufficient to support a jury finding, we must assume jurors made all inferences in favor of the finding if reasonable minds could and disregard all other inferences. City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005). If the evidence would allow reasonable and fair-minded people to differ in their conclusions, then we must allow jurors to do so. Id. We cannot substitute our judgment for that of the jury so long as the evidence falls within this zone of reasonable disagreement. Id. The ultimate test in a legal insufficiency review is whether the evidence allows reasonable minds to reach the finding under review. Id. at 822. Anything more than a scintilla of evidence is legally sufficient to support a challenged finding. Walker v. Cotter Props., Inc., 181 S.W.3d 895, 899 (Tex.App.-Dallas 2006, no pet.). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Id.
A. Is the evidence legally insufficient to support the jury's answer to question one
Question one of the jury charge asked:
For tax year 2004 did the property in question have incomplete improvements that were under physical preparation?
Answer "Yes" or "No."
Answer: Yes
The Appraisal District first argues that the evidence is legally insufficient to support the jury's finding that in 2004 Vet to Vet's property had "incomplete improvements that were under physical preparation." Unimproved real property owned by a qualified charitable organization is exempt from ad valorem taxes if the property consists of "an incomplete improvement that is under . . . physical preparation." Act of May 6, 1999, 76th Leg., R.S., ch. 138, § 1, 1999 Tex. Gen. Laws 596, 597, amended by Act of May 28, 2003, 78th Leg., R.S., ch. 288, § 1.01, 2003 Tex. Gen. Laws 1256, 1256, subsequent amendments omitted (current version at Tex. Tax Code Ann. § 11.18 (Vernon 2008)). The charge instructed the jury that "an incomplete improvement is under physical preparation if the charitable organization has engaged in architectural or engineering work, soil testing, land clearing activities, or site improvement work necessary for the construction of the improvement; or conducted an environmental or land use study relating to the construction of the improvement." Because Vet to Vet stated in oral argument that it is not relying on evidence of land-clearing activities to support the jury's verdict, the only one of these various methods of proving "physical preparation" at issue in this appeal is whether Vet to Vet "conducted . . . [a] land use study relating to the construction of the improvement." The jury charge did not define "land use study" and neither party objected to the absence of a definition in the charge. Accordingly, we measure the legal sufficiency of the evidence against the term's commonly-understood meaning. EMC Mortgage Corp. v. Jones, 252 S.W.3d 857, 869 (Tex.App.-Dallas 2008, no pet.); Kroger Co. v. Brown, 267 S.W.3d 320, 323 (Tex.App.-Houston [14th Dist.] 2008, no pet.).
We cite the controlling version of the tax code.
The jury instruction comported with the definition contained in section 11.18(m). See Act of May 6, 1999, 76th Leg., R.S., ch. 138, § 1, 1999 Tex. Gen. Laws at 597.
James Johnson, Vet to Vet's founder, testified that he established Vet to Vet as a nonprofit charitable organization to assist disabled veterans. He testified that Vet to Vet acquired approximately two acres of vacant land along Northwest Highway adjacent to Garvin Cemetery, a small, historic cemetery in Dallas. Vet to Vet's property surrounds Garvin Cemetery on three sides. In 2002, Johnson talked to a company about placing a small building on the property for Vet to Vet's use in teaching computer skills to veterans and helping them to obtain jobs. But Johnson testified that someone told him that Vet to Vet could not build on its property. Unknown to Vet to Vet, the City of Dallas had begun a process to designate Garvin Cemetery and Vet to Vet's property as a historical landmark cemetery. The process was in its final stages in 2003 when Johnson learned what the city intended to do. Vet to Vet received a notice of the "final meeting" to change the designation of the property and Johnson attended the meeting. He said the "people . . . [had] already made up their mind[s] . . . [and] were already moving on the rezoning [of] this land." Johnson testified that he attended approximately twelve meetings over the next three years in his effort to stop the rezoning of Vet to Vet's property. He testified that, in 2005, "we started changing minds [and] demonstrating the values of the land; that it's not a cemetery, outside of the small . . . area." In his testimony, Johnson explained the process involved in obtaining the approval for Vet to Vet to build on its property. He said the historical committee "would review the land usage" and the zoning committee determined whether construction would actually be allowed. He also explained the various committees that had to approve the historical landmark committee's recommendation before it went to the city council for approval. He said this process took three and one-half years and that the council passed an ordinance in April 2007, while this lawsuit was pending, authorizing Vet to Vet to build on its property.
Johnson testified that he knew Vet to Vet could not build on its property until the zoning issue was resolved, but he said it was still Vet to Vet's intent in 2004 to place a building on the property to help disabled veterans. Johnson said it was "absolutely" necessary to resolve the zoning issue before he could start the process of building. So, while the meetings to rezone the property were taking place, Vet to Vet applied to the Appraisal District for an exemption from ad valorem taxes on the property for calendar year 2004. Elizabeth Sarles, a senior staff appraiser for the Appraisal District at that time, testified that Vet to Vet's attorney came to her office before he submitted the application to "discuss the situation." The attorney described the land and the "situation" to her, and she told him to submit the application and she would review it. Sarles and Scott Hammer, the Appraisal District's supervisor of exemptions and property records at that time, evaluated the application and inspected the property. Sarles testified that the field inspection showed that the property was "a vacant, mowed land with no signs of construction or activity" and that the application was denied. Sarles testified that a land use study is a "feasibility study" but that she did not know the scope of a land use study or whether it included matters relating to zoning.
On appeal, the Appraisal District argues that Vet to Vet did not offer any evidence that it had conducted a land use study on the property in 2004. It argues that Johnson's testimony that Vet to Vet's intent in 2004 was to place a building on the property is "speculative, wholly uncorroborated, . . . went undisclosed to [the Appraisal District] during the exemption review process," and was contradicted by Johnson's knowledge that the property was undergoing a rezoning and that construction was not allowed. But it does not cite authority stating that a property owner litigating the denial of a tax exemption is limited to the evidence presented to the administrative bodies, nor does it cite authority stating that evidence of a witness's intent must be corroborated before it may be considered in a legal insufficiency review. It also argues that evidence that Vet to Vet "involuntarily 'participated'" in meetings is not sufficient to show that Vet to Vet itself "conducted" a land use study.
The evidence showed that Johnson talked to a company in 2002 about placing a building on the property and that it was still Vet to Vet's intent in 2004 to place a building on the property for the purpose of training disabled veterans and helping them to obtain jobs. Johnson testified that the various city committees had essentially already made the decision to rezone Vet to Vet's property as a historical landmark cemetery. He said he attended approximately twelve meetings in an effort to stop the rezoning and demonstrate the value of Vet to Vet's property, and, about two years later, convinced the committees to allow Vet to Vet to build on its property.
The jury was not given any guidance about what constitutes a land use study, the statute does not define land use study, and the Appraisal District's expert testified that she did not know the scope of a land use study or whether it involved matters relating to zoning. Johnson testified that it was necessary to resolve the zoning issue before Vet to Vet could build on its property. Viewing the evidence in a light favorable to the jury's finding, the jury could have reasonably inferred that, by Johnson's participation in the meetings of the historical designation and zoning committees, which ultimately resulted in a change in the recommendation to allow Vet to Vet to build on the property, Vet to Vet was involved in conducting a "land use study relating to the construction of the improvement" on its property and that, but for Johnson's efforts, the rezoning would have occurred and Vet to Vet would not have been allowed to build on its property.
The Appraisal District also argues that there is no evidence that the land use study "relates to the construction of the improvement" as required by the tax code. It contends that Vet to Vet "conceded that the so-called 'land use study' related only to whether [its property] was to be designated as a landmark. . . ." The Appraisal District does not cite where this concession may be found in the record. And we do not construe Johnson's testimony to say that Vet to Vet did not want to be designated a historical landmark cemetery. Instead, his testimony was that he fought the historical landmark designation because it would mean Vet to Vet could not build on its property.
We conclude that Johnson's testimony relating to his efforts to convince city planners that construction on Vet to Vet's property should not be prohibited constitutes more than a scintilla of evidence that Vet to Vet was involved in conducting a land use study under the unique facts of this case. See Hedgecroft v. City of Houston, 150 Tex. 654, 662, 244 S.W.3d 632, 636 (1951). We further conclude that the evidence is legally sufficient to support the jury's answer to question one.
B. Is the evidence legally insufficient to support the jury's answer to question two
Question two of the jury charge asked:
Were the incomplete improvements designed and intended to be used exclusively by a qualified charitable organization?
Answer "Yes" or "No."
Answer:
Yes
The Appraisal District next contends that the evidence is legally insufficient to support the jury's finding that the "incomplete improvements" were "designed and intended to be used exclusively by a qualified charitable organization." The charge defined "qualified charitable organization" as an organization that "provides support to elderly persons, including the provision of recreational or social activities and facilities designed to address the special needs of elderly persons, or to the handicapped, without regard to the beneficiaries' ability to pay."
The Appraisal District argues that the tax code requires that the use of the land must further the organization's charitable purposes and that Vet to Vet did not offer any evidence that the use of its property, and, more specifically, the building it intended to place on the property, were related to the purposes stated in its charter. It contends that the jury charge "reflects these requirements" in the definition of "qualified charitable organization" and "generally in question two." We disagree. The charge did not instruct the jury that the "incomplete improvement" must relate to Vet to Vet's charitable purposes as stated in its charter, and the Appraisal District did not object to the charge on the basis raised on appeal. Instead, the charge asked only whether "the incomplete improvements [were] designed and intended to be used exclusively by a qualified charitable organization." We measure the sufficiency of the evidence in light of the charge that was given. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).
Johnson testified in detail how Vet to Vet's charitable activities related to disabled veterans and how the building it intended to place on the property was going to be used exclusively by Vet to Vet to assist veterans. Sarles, the Appraisal District's employee and expert, agreed that Vet to Vet provides support to elderly persons or to the handicapped without regard to their ability to pay. Providing support to elderly persons or to the handicapped without regard to their ability to pay meets the definition of "qualified charitable organization" in the court's charge. We conclude, therefore, that the evidence is legally sufficient to support the jury's answer to question two.
We resolve appellant's first issue against it.
Factual Insufficiency of the Evidence
In its second issue, the Appraisal District argues that the evidence is factually insufficient to support the jury's answers to questions one and two. A party must raise factual insufficiency of the evidence in a motion for new trial to preserve the issue for appellate review. Tex. R. Civ. P. 324(b)(2). The Appraisal District did not raise factual insufficiency in its motion for new trial, and, as a result, that issue is not preserved for our review.
We resolve appellant's second issue against it.
Conclusion
We affirm the trial court's judgment.