MONROE COUNTY BOARD OF TAX ASSESSORS v. WILSON Et Al. , 336 Ga. App. 404 ( 2016 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 25, 2016
In the Court of Appeals of Georgia
A15A1901. MONROE COUNTY BOARD OF TAX ASSESSORS
v. WILSON et al.
MCFADDEN, Judge.
The Monroe County Board of Tax Assessors filed a declaratory judgment
action against George Wilson and other taxpayers who had filed notices of ad
valorem tax appeals to the superior court, requesting a declaration that the appeals
stand as dismissed with prejudice due to the failure to pay court filing fees. The board
also sought attorney fees. After a hearing, the superior court granted the board’s
request in part by declaring that the ad valorem tax appeals of those taxpayers who
had not paid any filing fees should be dismissed, and denied the request in part by
refusing to declare that the appeals of those taxpayers who had paid the $206 filing
fee established by a prior court order should be dismissed. The trial court also denied
the board’s request for attorney fees.
The board appeals, claiming that the trial court erred in failing to declare that
all the landowners’ tax appeals should be dismissed for failure to be tried at the first
available term of court after filing as required by OCGA § 48-5-311 (g) (4). However,
the appeals have not yet been filed in superior court and thus that code section does
not apply. The board also claims that the trial court erred in finding that the filing fee
is $206 per appeal. But the board has failed to show error as that finding was based
on a prior court order that the board failed to include in the record. The board finally
contends that the trial court erred in denying its request for attorney fees. However,
the board failed to make any proffer as to the amount of such fees. Accordingly, we
affirm.
At the outset, we note that our review in this case is hampered by a deficient
record. The board has referred to prior mandamus actions filed by several taxpayers,
seeking to compel the board to certify their appeals to the superior court. Apparently
the trial court denied all of those actions, after which some of those taxpayers
appealed to our Supreme Court. See Newton Timber Co. v. Monroe County Bd. of Tax
Assessors, 295 Ga. 29 (755 SE2d 770) (2014). At the declaratory judgment hearing
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in this case, the board told the trial judge that it did not need to present evidence
because most of the facts were in the record of those prior mandamus actions.
However, the board failed to include any part of that record in this case. Our ability
to properly review the matters raised on appeal is hindered when the appellant fails
to ensure that the record is complete. Apple Investment Properties v. Watts, 220 Ga.
App. 226, (469 SE2d 356) (1996). Nevertheless, we will address the claims of error
based on the record before us.
1. OCGA § 48-5-311 (g) (4) (A).
The board contends that the trial court should have dismissed all of the appeals,
including those of the taxpayers who have paid court filing fees because those appeals
were not tried at the first available term of court as required by OCGA § 48-5-311 (g)
(4) (A). However, the board’s reliance on that code section is misplaced.
“OCGA § 48-5-311 (g) provides the means by which an aggrieved taxpayer
may appeal to the superior court from a property tax ruling made by a county board
of equalization.” Fitzpatrick v. Madison County Bd. of Tax Assessors, 292 Ga. 74, 75
(734 SE2d 397) (2012). The version of OCGA § 48-5-311 (g) (2) that was in effect
at the time of the trial court’s ruling in this case provided that such an appeal by a
taxpayer “shall be effected” by emailing, mailing or filing a notice of appeal with the
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county board of tax assessors within 30 days from the date on which the board of
equalization’s decision was mailed.1 That same code section further provided that the
county board of tax assessors “shall certify to the clerk of the superior court the notice
of appeal and any other papers specified by the person appealing[,]” and that at “the
time of certification of the appeal, the [board] shall serve the taxpayer . . . with a copy
of the notice of appeal and with the civil action file number assigned to the appeal.”
Former OCGA § 48-5-311 (g) (2).
Former OCGA § 48-5-311 (g) (4) (A), provided that such an “appeal shall be
placed on the court’s next available jury or bench trial calendar, at the taxpayer’s
election, following the filing of the appeal unless continued by the court upon a
showing of good cause.”2 (Emphasis supplied.) The former code did not expressly
define what constituted “the filing of the appeal” as that term was used in that section.
The board, relying on C. C. Leasing Corp. v. Bd. of Tax Assessors of Hall County,
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OCGA § 48-5-311 (g) was amended, effective January 1, 2016, to provide,
among other things, more detailed procedures for both taxpayers and the board in
appeals to the superior court.
2
The current version of OCGA § 48-5-311 (g) (4) (A), effective January 1,
2016, omits the “upon a showing of good cause” language at the end of the sentence,
and thus provides: “The appeal shall be placed on the court’s next available jury or
bench trial calendar, at the taxpayer’s election, following the filing of the appeal
unless continued by the court.”
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143 Ga. App. 520 (239 SE2d 204) (1977), claims that “the filing of the appeal” under
former OCGA § 48-5-311 (g) (4) (A) meant the taxpayer’s filing of the appeal with
the board of tax assessors, not the board’s subsequent filing of the appeal with the
superior court. But contrary to the board’s claim, C. C. Leasing held no such thing
and provides no support for such a proposition. Indeed, that case did not even involve
the issue of what constitutes “the filing of the appeal” that triggers the requirement
that an ad valorem tax appeal be placed on the next available trial calendar under
former OCGA § 48-5-311 (g) (4) (A) or its predecessor statute.
However, in McCauley v. Bd. of Tax Assessors, 243 Ga. 844 (257 SE2d 266)
(1979), our Supreme Court addressed the issue and determined that it was the board’s
certification of the appeal, not the taxpayer’s notice of appeal, that constituted the
filing of the appeal in superior court. In applying an earlier version of the same
provision set forth in former OCGA § 48-5-311 (g) (4) (A), the Supreme Court ruled
that “the appeal was not officially filed in superior court until . . . the date of the
board’s certification of the notice of appeal and filing of the statutorily required
documents. Therefore, any effort by the taxpayer to have the case heard before that
[certification] date would have been premature.” McCauley, supra at 845. The
Supreme Court went on to hold that the taxpayer had complied with the statute “by
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requesting a jury trial at the earliest opportunity after his appeal was certified” by the
board, and that any delay “was caused by the board’s tardiness in certifying the notice
of appeal[.]” Id. at 846. Thus, as explained in McCauley, a county board of tax
assessor’s certification of an appeal to the superior court constituted “the filing of the
appeal” which would trigger the requirement under former OCGA § 48-5-311 (g) (4)
(A) that the appeal be placed on the superior court’s next available trial calendar. See
generally Glynn County Bd. of Tax Assessors v. Paulding, 270 Ga. App. 851 (608
SE2d 317) (2004) (affirming denial of motion to dismiss taxpayers’ appeals, which
board had certified to superior court, where taxpayers showed reasonable excuse for
not securing a trial during first term after filing); Haldi v. DeKalb County Bd. of Tax
Assessors, 178 Ga. App. 521, 525-526 (3) (344 SE2d 236) (1986) (affirming
dismissal of taxpayer’s appeal for failure to hold trial at first term after matter had
been certified to the superior court and taxpayer failed to show excusable neglect).
a. No certification of appeals.
In the instant case, the board has neither claimed, nor pointed to any evidence
in the record showing, that it certified any of the appeals in question to the superior
court. Indeed, at the hearing before the trial judge and in its appellate briefs, the board
acknowledges that it has not certified the taxpayers’ appeals and that the appeals have
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not been filed in the superior court. Consequently, absent certification of the appeals,
the “filing of the appeal” under former OCGA § 48-5-311 (g) (4) (A) has not occurred
and thus the requirement that the case be placed on the first available trial calendar
has not yet been triggered.
As the board correctly notes, in the Newton Timber case mentioned above, the
Supreme Court ruled that the taxpayers involved in that appeal must pay the filing
fees before the board certifies their appeals. Newton Timber, supra at 36-37 (1) (755
SE2d 770) (2014). In so doing, the Supreme Court expressly overruled Fayette
County Bd. of Tax Assessors v. Oddo, 261 Ga. App. 707 (583 SE2d 537) (2003),
which had held that there was no requirement under OCGA § 48-5-311 (g) (2) that
a superior court clerk receive its filing fee before a tax appeal could be certified by
the county board of tax assessors. Newton Timber, supra at 37 (1), n. 10. Thus, based
on that ruling, the board contends that the lack of certification of the appeals to
superior court has been caused solely by the taxpayers’ delay in paying the required
filing fees. That contention ignores the ongoing dispute between the parties that led
to those mandamus actions and the earlier appeal. But even if the board’s contention
is correct, it does not alter our analysis of the board’s claim of error based on former
OCGA § 48-5-311 (g) (4) (A).
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As the board has acknowledged, the former version of OCGA § 48-5-311 (g)
set forth no deadline by which a taxpayer was required to pay the court filing fee, and
it did not provide for dismissal of an appeal based on failure to pay the fee within any
specified time. Likewise, that code section provided no deadline by which the board
was required to certify the appeal to the superior court. These gaps in the statutory
scheme appear to have been addressed by the most recently modified version of
OCGA § 48-5-311 (g) (2). But regardless of why there were delays in the payment
of filing fees and the certification of appeals, the fact remains that the taxpayers’
appeals have not been certified and filed in the superior court. Therefore, OCGA §
48-5-311 (g) (4) (A) simply does not apply, and its mandate that the appeals be placed
on the next available trial calendar “following the filing” will not take effect until the
appeals have been certified by the board to the superior court.
Where, as here, the issue is a question of law, we owe no deference to the trial
court’s ruling and apply a de novo standard of review. Fuciarelli v. McKinney, 333
Ga. App. 577 (773 SE2d 852) (2015). Because the board has failed to show any legal
error based on the trial court’s refusal to declare that the taxpayers’ appeals stand
dismissed pursuant to OCGA § 48-5-311 (g) (4) (A), this claim of error provides no
basis for reversal of the trial court’s judgment.
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b. Newton Entities.
We note that one of the taxpayers specifically named in the trial court’s order
as having paid filing fees is called the “Newton entities.” The name “Newton
Entities” was also used to refer to “various entities and individual family members of
the Newton family” in the prior Supreme Court case involving mandamus cited
above, but it did not identify those specific entities and family members. Newton
Timber, supra at 29. In that case, the Supreme Court stated that the Newton Entities’
“tax appeals have been physically delivered to the superior court and . . . the superior
court has ruled that such appeals have been certified to it.” Id. at 37 (1). Thus, for any
such certified appeals, the requirement of former OCGA § 48-5-311 (g) (4) (A) that
they be placed on the next available trial calendar would apply.
However, the board has failed to show by the record that the Newton Entities
in the instant case are the same taxpayers involved in that prior case. While the board
has alluded to the same “Appellees” being involved in both cases, it has failed to
support this factual assertion with citations to the record establishing which of the
Newton Entities in our case are the same taxpayers discussed in the Supreme Court
case. Moreover, as noted above, although at the hearing in this case the board
expressly referred to facts allegedly appearing in the record of the mandamus cases,
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it failed to include any of those records in the instant case. While some, or even all,
of the Newton Entities in the instant case may be the same taxpayers involved in the
prior case, it is the board’s burden to support its factual assertions with citations to
the record. See Court of Appeals Rule 25 (a) (1); Cox v. Erwin, 246 Ga. App. 439,
440 (1) (541 SE2d 69) (2000).
When an appellant omits evidence necessary for determination of issues
on appeal affirmation is required. It is well established that the burden
is on the party alleging error to show it by the record and that where the
proof necessary for determination of the issues on appeal is omitted
from the record, an appellate court must assume that the judgment below
was correct and affirm.
Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998) (citations
and punctuation omitted).
Furthermore, even if we were to assume for purposes of this appeal that the
Newton Entities are the same taxpayers in both cases, the board still has failed to
carry its burden of showing by the record that the trial court abused its discretion in
refusing to declare the appeals dismissed pursuant to OCGA § 48-5-311 (g) (4) (A).
See Glynn County, supra at 853 (whether to dismiss for failure to obtain trial at the
first available term is matter within the discretion of the trial court). Accordingly, we
find no reversible error. “When there is nothing in the record to support the
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contention of error, there is nothing presented to this court for review.” City of
Atlanta v. Starke, 192 Ga. App. 267, 269 (1) (c) 384 SE2d 419) (1989) (citation and
punctuation omitted).
2. Amount of filing fees.
The board claims that the $206 filing fee set by the trial court was incorrect
because the fee had increased to $207.50 approximately three months before the
taxpayers paid their filing fees. “[B]ecause the question here turns on a factual issue
resolved by the trial court after considering evidence presented . . . we will uphold the
trial court’s factual findings if there is any evidence to support them.” In re Estate of
Huff, 287 Ga. App. 614, 614-615 (652 SE2d 203) (2007) (citation and punctuation
omitted). Here, in finding that the filing fee was $206 per tax appeal, the trial court
expressly relied on a prior order of the court setting the fee as that amount. The board
failed to include that prior order in the record on appeal.
“It is well established that the burden is on the party alleging error to show it
affirmatively by the record, and that when the burden is not met, the judgment
complained of is assumed to be correct and must be affirmed. We do not have before
us all the material upon which the trial court relied.” Acker v. Jenkins, 178 Ga. App.
393, 394 (1) (343 SE2d 160) (1986) (citations omitted). We therefore assume that the
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missing order supported the trial court’s finding of fact, and thus the court did not err
in making that finding. See City of Atlanta, supra at 269 (1) (c) (under presumption
of regularity of proceedings in a court of competent jurisdiction, we must assume the
evidence supported the trial court’s ruling).
3. Attorney fees.
The board complains that the trial court erred in failing to grant it an award of
attorney fees. However, the board did not present any proffer as to the amount or
reasonableness of the fees requested, and has not cited any such evidence in the
record.
An attorney cannot recover for professional services without proof of
their value. Generally, a party will proffer the opinion testimony of his
present counsel as well as that of other attorneys in an effort to show
what constitutes a reasonable attorney fee in light of the litigation
history of the case. An award of attorney fees is unauthorized if appellee
failed to prove the actual costs of the attorney and the reasonableness of
those costs.
Fiat Auto U. S. A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987)
(citations and punctuation omitted). Accordingly, the board has failed to show error
in the trial court’s denial of attorney fees.
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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