Court of Appeals of Texas, Eighth District, El Paso
TIERRA SOL JOINT VENTURE and SAMUEL & COMPANY, INC., Appellants,
THE CITY OF EL PASO, Appellee.
from the 168th District Court of El Paso County, Texas (TC#
Panel No. 3 Barajas, C.J., Larsen, and Chew, JJ.
RICHARD BARAJAS, CHIEF JUSTICE.
an appeal from a delinquent tax collection suit. For the
reasons stated, we reverse and remand.
SUMMARY OF THE EVIDENCE
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.
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.
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
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.
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
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.”
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.
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
2. Robert C. Samuel was a partner in the Tierra Sol Joint
Venture at all times during tax ...