NEWTON TIMBER COMPANY v. MONROE COUNTY BOARD OF TAX ASSESSORS

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Supreme Court of Georgia.

NEWTON TIMBER COMPANY, L.L.L.P., et al. v. MONROE COUNTY BOARD OF TAX ASSESSORS et al.

No. S13A1566.

Decided: March 10, 2014

G. Roger Land, G. Roger Land & Associates, Atlanta, for Appellant. Michael A. Dillon, Dillon & Vaughn, P.C., Forsyth, for Appellee.

This is an appeal by landowners from the Superior Court of Monroe County's denial and dismissal of their petition for a writ of mandamus and related adverse rulings involving their real property tax appeals. For the reasons which follow, we affirm.

The appellants include various entities and individual members of the Newton family (hereinafter “Newton Entities”) who collectively own numerous parcels of land totaling thousands of acres in Monroe County. Beginning in 2008 and continuing each year through 2012, Newton Entities contested the tax assessments made by the Monroe County Board of Tax Assessors (“Board”) for their properties, totaling more than 100 separate tax appeals. See OCGA § 48–5–299.1 In 2008 and 2009, they filed notices of appeal to the Monroe County Board of Equalization (“BOE”), which heard the appeals in March 2010. See OCGA § 48–5–311(e)(1)(A).2 Not satisfied with the determinations of the BOE, Newton Entities appealed to the superior court in April 2010. See OCGA § 48–5–311(g)(1).3 They then appealed their 2010 and 2011 tax assessments to the BOE, which appeals were heard in March 2012. Dissatisfied with these BOE decisions, Newton Entities again appealed to the superior court. They filed notices of appeal as to the 2012 tax assessments for certain parcels directly to the superior court in July 2012. Newton Entities did not pay the filing fees for the five years of tax appeals to the superior court.

In April 2011, Newton Entities submitted a Conservation Use Value Assessment application (“CUVA”) for 18 different parcels. See OCGA § 48–5–7.4 The number “2008” was handwritten on the top of each printed application.5 All of these applications were approved in 2011 for a period to begin on January 1, 2011.

Over a year later, on October 2, 2012, Newton Entities filed a petition for a writ of mandamus against the Board, requesting, inter alia, two counts of specific relief.6 Count I stated:

Pursuant to O.C.G.A. § 9–6–20 et seq., Plaintiffs seek a writ of mandamus from the court compelling the [Board] to perform its official public duties, thereby requiring [the Board] to comply with O.C.G.A. § 48–5–311(g)(2) and certify its appeals to the Monroe County Clerk of the Superior Court.

Count II stated:

Pursuant to O.C.G.A. § 9–6–20 et seq., Plaintiffs seek a writ of mandamus from the court compelling the [Board] to perform its official public duties, thereby requiring [the Board] to comply with O.C.G.A. § 48–5–7.4(j)(1) and approve or deny the CUVA applications.

At a hearing before the superior court on December 12, 2012, Newton Entities argued, inter alia, that the Board had a duty to certify its appeals to the clerk of the superior court pursuant to OCGA § 48–5–311(g)(2). The Board countered that Newton Entities had to pay the filing fees prior to certification of their tax appeals, and that they had failed to do so. Following the hearing, Newton Entities offered to pay an amount in filing fees based upon combining the tax appeals for various of the parcels, resulting in a calculated number of appeals far fewer than the notices of appeal filed.7

On February 12, 2013, the superior court issued an order finding that the Board had certified the tax appeals to the superior court on December 17, 2012; therefore, Newton Entities' request for issuance of a writ of mandamus against the Board regarding the certifications had become moot.8 It directed Newton Entities to pay $206 in court costs to the clerk of superior court, based upon “contiguous property on appeal [proceeding] with the same case number and filing fee,” but “all other non-contiguous properties” generating “an additional filing fee of [$ 206]” to be paid within the time required by law or such an appeal would be subject to dismissal.

On March 19, 2013, Newton Entities filed in superior court a “motion for clarification and for issuance of mandamus nisi.” Newton Entities alleged that as they had not been served by the Board with copies of the notices of appeal and civil action file numbers assigned to the appeals, they lacked the ability to ascertain whether their appeals had been certified. They further alleged that clarification regarding the filing fees was required because some of the appeals to the BOE had been consolidated for hearing and that the Board had not told them that receipt of the filing fees was a prerequisite to certifying the appeals; they asked the court to direct the Board to accept their $2,884 tender as payment in full of the filing fees or give guidance on “what other amount [was] more appropriate.” Newton Entities also requested a “mandamus nisi” as to their CUVA applications, which they maintained were for 2008, and had not been approved or denied. On March 28, 2013, the Board moved for a protective order and an emergency stay of discovery pending a hearing on the protective order, asking that the county taxpayers not be put through the burden and expense of complying with the Newton Entities' voluminous discovery request inasmuch as their mandamus petition was no longer viable. On April 4, 2013, the superior court issued an order temporarily staying discovery pending a hearing on the filed motions.

A hearing was held on April 23, 2013, and on May 16, 2013, the superior court issued an “order denying petition for writ of mandamus” and an “order regarding filing fees.” In the mandamus order, the superior court denied Count I of the petition as the certification issue had already been ruled moot in its prior order. As to Count II involving the CUVA applications, the superior court found that a representative of Newton Entities was informed by the Board that it “could not give [them] CUVA beginning in 2008, because the applications were untimely since they were filed in 2011”; Newton Entities were asked if they wanted CUVA to apply to the 18 properties beginning on January 1, 2011, and they gave direction to proceed with the submitted applications for 2011; subsequently, the Board approved all 18 CUVA applications to begin on January 1, 2011, as instructed by Newton Entities; Newton Entities were sent 18 separate notices that the applications were approved; each notice stated that the requested tax reduction would begin on January 1, 2011; all 18 CUVA approvals were filed with the clerk of superior court and the filing fees were paid for by check from Newton Entities' representative; inasmuch as the CUVA is for a 10–year period beginning on a date certain and cannot have two start dates and there was only one CUVA application filed for each parcel, the approvals of CUVA beginning January 1, 2011 also constituted the denials of January 1, 2008 as a beginning point for the special tax treatment; CUVA is a contract between the Board and the taxpayer; Newton Entities had been receiving benefits under the contract in the form of tax reduction for over two years; and Newton Entities are estopped to challenge the validity of the contract inasmuch as they have received benefit from it. The superior court concluded that there was no refusal to act by the Board; therefore, mandamus would not lie. All of Newton Entities' requests for relief were denied,9 and the petition for a writ of mandamus was dismissed in its entirety.

As to the order regarding filing fees, the superior court found that although Newton Entities had filed 107 notices of appeal with the Board, they had tendered only enough money to pay for 27 appeals, therefore, the Board was “at a loss as to which 27 appeals to file”; taxpayers were required to pay filing fees to the clerk of the superior court before a civil action was filed; the filing fee for a civil case in the Superior Court of Monroe County was $206; the only method for combining parcels for the purpose of constituting a consolidated tax appeal is found in OCGA § 48–5–311(e)(6)(c), and that such requirements were not met as to any two parcels; that at the BOE hearings for the 2008 and 2009 tax appeals there was no written request that the appeals be consolidated; each notice of appeal for 2008 and 2009 lists only one parcel; at the BOE hearings for the tax appeals for 2010 and 2011, Newton Entities orally requested to present an argument that would apply to all of the parcels but they were informed that though they would be allowed to do so, the appeals were not being consolidated into one appeal and the attorney for Newton Entities agreed that it was not possible to consolidate the appeals; there was no order from the BOE for the purpose of combining any appeals; as to 2008 through 2011, there was no documentary evidence that any two parcels were ever combined for the purposes of appeal; and inasmuch as the 2012 appeals went straight to superior court, the statute did not apply to combine the appeals into one civil action. The superior court concluded that Newton Entities were required to pay $206 for each parcel subject to a notice of appeal filed in superior court.

1. Newton Entities contend that the superior court erred in denying their request for a “Mandamus Absolute” by finding that the Board certified their property tax appeals. However, in order to have the right to the extraordinary remedy of mandamus, a petitioner has to demonstrate either a clear legal right to the sought relief or a gross abuse of discretion. Hertz v. Bennett, 294 Ga. 62(1), 751 S.E.2d 90 (2013). And, Newton Entities can demonstrate neither.

In Fitzpatrick v. Madison County Bd. of Tax Assessors, 292 Ga. 74, 734 S.E.2d 397 (2012), this Court expressly affirmed that “a taxpayer instigating an appeal from a county board of equalization to the superior court pursuant to OCGA § 48–5–311(g) must first pay the filing fee of the superior court clerk.” Id. at 76, 734 S.E.2d 397. Although Newton Entities acknowledge Fitzpatrick, they maintain that the holding is limited to what tax payers must pay, but not when they must pay. But, both the circumstances of Fitzpatrick and the mandates of OCGA § 48–5–311(g)(2) belie such argument.

The landowner taxpayers in Fitzpatrick were dissatisfied with the tax valuations of their properties by both the county board of tax assessors and county board of equalization, and subsequently, filed an appeal in superior court, but the board of tax assessors refused to certify the appeal to the superior court unless the taxpayers first paid the filing fee to the superior court clerk. The taxpayers then sought a declaratory judgment that they were not required to pay the filing fee, but the superior court ruled that they were indeed responsible for paying the filing fee, resulting in the appeal to this Court. Thus, the circumstances made plain that payment of the appropriate filing fee is a prerequisite to further action in regard to a tax appeal to the superior court. And, such requirement is consistent with the statutory mandates applicable to certification of a tax appeal.

OCGA § 48–5–311(g)(2) provides in relevant part that “[a]t the time of certification of the appeal, the county board of tax assessors shall serve the taxpayer and his or her attorney of record, if any, with a copy of the notice of appeal and with the civil action file number assigned to the appeal.” (Emphasis supplied.) And, except in the situation of sworn indigence, a clerk of the superior court is not to file a civil case or proceeding until the required fee is paid. OCGA § 9–15–4(a). Thus, a board of tax assessors' complete compliance with certification of a tax appeal becomes a matter of practical impossibility in the circumstance in which the required filing fee is not paid.10

Newton Entities raise in mitigation the fact that they disputed the filing fees owed, again asserting the responsibility of costs for a number of “consolidated” tax appeals far less than their more than 100 notices of appeal to the superior court. But, there is no evidence of record which effectively contradicts the superior court's express determination that Newton Entities' appeals did not fit within the consolidation provision for contiguous properties found in OCGA § 48–5–311(e)(6)(C).11 Furthermore, the superior court in February 2013 had issued a directive in regard to the fees required to be filed.

It is undisputed that the tax appeals have been physically delivered to the superior court and that the superior court has ruled that such appeals have been certified to it. Thus, Newton Entities have received the sought relief regarding certification, even though there is no evidence that prior to the filing of the present appeal to this Court, Newton Entities paid the ordered filing fees attendant to its tax appeals.12

2. As noted, Count II of Newton Entities' mandamus petition asked that the Board be directed to either approve or deny their CUVA applications. Newton Entities now state that the Board did implicitly deny them CUVA treatment for 2008, and instead, argues that the superior court erred in denying their mandamus request by finding that the Board had provided them the opportunity to appeal the denial of their 2008 CUVA applications.13 Citing OCGA § 48–5–7.4(j)(1),14 they urge that the superior court should have ordered the Board to provide the statutory notice of the right to appeal such denial. But, Newton Entities' argument is unavailing.

First, in their mandamus petition, Newton Entities did not ask for the relief now requested; therefore, it can hardly be found error for the superior court to fail to grant it. Second, it is plain that Newton Entities filed only one set of CUVA applications, and that they were filed in 2011; the very statutory provision upon which they now rely, OCGA § 48–5–7.4(j)(1), would render any attempt to make those applications effective for 2008 untimely as a matter of law. Moreover, these applications were effective for 2011, and by consent of Newton Entities considered for that year. Further, all such CUVA applications were approved, so there was no question of notice of their denial or of refusal by the Board to act.

Simply, the superior court properly denied mandamus relief to Newton Entities. Hertz v. Bennett, 294 Ga. 62, 64(1), 751 S.E.2d 90 (2013).

Judgments affirmed.

HINES, Presiding Justice.

All the Justices concur.

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