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Tierra Sol Joint Venture v. City of El Paso

Court of Appeals of Texas, Eighth District, El Paso

November 24, 2004


          Appeal from the 168th District Court of El Paso County, Texas (TC# 96TX838)

          Before Panel No. 3 Barajas, C.J., Larsen, and Chew, JJ.



         This is an appeal from a delinquent tax collection suit. For the reasons stated, we reverse and remand.


         Appellee, the City of El Paso, filed suit against Appellants, Tierra Sol Joint Venture (the “Joint Venture”) and Samuel and Company, Inc., to collect taxes on two parcels of land identified as property #X214-999-000A-4530 (“#4530”) and property #X214-999-000A9625 (“#9625”). During the trial, the City introduced certified tax statements for property #4530 and #9625. The statements reflected delinquent taxes for property #4530 for the years 1989 through 1995 and for property #9625 for the years 1990 through 1995.

         The Joint Venture was formed in 1981. The purpose of the Joint Venture was to acquire two parcels of properties that are the subject of this suit, #4530 and #9625. The Joint Venture was originally composed of James E. Branson, Jr., Walter G. Passero, William J. Morgan, John H. Folmer, and Victor Apodaca, Jr. Branson assigned 10 percent of his interest in the Joint Venture to APCO Investments shortly after the formation. Morgan and Apodaca also sold their interest in the Joint Venture to Passero and Folmer. After these transactions, the Joint Venture consisted of Branson, Passero, Folmer, and APCO. In 1982, APCO transferred its interest in the Joint Venture to Robert C. Samuel. Samuel also acquired Passero's and Folmer's interests in the Joint Venture. These transactions resulted in the Joint Venture being composed of Branson and Samuel.

         Branson and Samuel were involved in numerous lawsuits between each other. During the course of these lawsuits, Samuel gave sworn testimony that he considered himself a partner of the Joint Venture since 1982 when he first acquired an interest from APCO. Samuel testified that he was bound by the Joint Venture partnership agreement. Samuel also filed pleadings during the course of the lawsuits stating he was a member of the Joint Venture and asserting his rights as a partner under the Joint Venture agreement. From 1982 through 1996, Samuel admitted that he made statements, either personally or through his attorney, to banks, governmental agencies, and providers of various services that he was a partner or joint venturer, or owned a partnership or joint venture interest in the Joint Venture.

         Branson also filed a sworn pleading asserting that Samuel became a member of the Joint Venture pursuant to an assignment of interest in June, 1982. However, Branson testified that he objected to the transfer of interest in the Joint Venture to Samuel and never agreed to admit him as a new party under the partnership agreement. Branson stated he never had any intention of allowing Samuel to become a partner and never entered into an agreement for sharing profits or losses. Branson controlled the books of the Joint Venture and did not allow Samuel access to the books. Branson stated that he and Samuel filed separate tax returns because they could not agree on how to file them. Branson and Samuel settled their differences in 1996, and Branson assigned his interest in the Joint Venture to Appellant Samuel and Company, Inc.

         During the trial, Branson denied that the Joint Venture received notices of delinquency. Samuel never alleged that he did not receive notices of delinquency, but alleged that he was not a partner in the Joint Venture during the years 1982 through 1995.

         Vincent Kemendo, the Assistant Commercial of Industrial Property Manager for the Central Appraisal District, testified that the Appraisal District's records listed Samuel as the owner of the properties for the years 1982 through 1995 because it relied on a document that recited a conveyance of the properties in question from APCO to Samuel. Kemendo testified that the Appraisal District relied on other records such as a Notice of Protest filed by Samuel's agents. The protest was for both properties, #4530 and #9625, for the year 1989. The Appraisal District's block book also contained handwritten notations changing the address for property #4530 and property #9625 from “3900 E. Camelback Road in Phoenix, Arizona” to “5141 N. 40th Street, Suite No. 500, Phoenix, Arizona 85018.” Both accounts listed Samuel as the owner. The handwritten notations read, “per R.C. Samuel call in req.”

         Juan Sandoval, the City Tax Assessor-Collector, testified that the name of the owner who appears on the tax roll is determined by the information the City Tax Office receives from the Appraisal District's certified appraisal rolls. Based on the information on the certified tax rolls, Sandoval testified that the bills for both properties which had been sent to Samuel were not returned to the City. Sandoval stated accounts coded as “returned mail” were listed with two dollar signs (“$$”) on the certified tax rolls. The City used this symbol, $$, until the late 1980's. Sandoval testified that neither property at issue was so coded.

         Appellants and Samuel filed a counterclaim against the City seeking affirmative relief pursuant to the Declaratory Judgment Act. The City filed Special Exceptions, which the trial court sustained. After a bench trial, the court entered judgment in favor of the City. The trial court, in substance, made the following findings of fact:

1. Tierra Sol Joint Venture owned the parcels identified as #4530 and #9625 on January 1st of tax years 1989 through 1995.
2. Robert C. Samuel was a partner in the Tierra Sol Joint Venture at all times during tax ...

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