Blackmon v. Scoven
| Decision Date | 26 October 1973 |
| Docket Number | Nos. 28186,28187,s. 28186 |
| Citation | 231 Ga. 307,201 S.E.2d 474 |
| Parties | John BLACKMON v. J. O. SCOVEN et al. Rembert HOUSER v. J. O. SCOVEN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The trial court erred in denying the defendants' motions to dismiss the complaint and in granting injunctive relief because the complaint did not set forth a cause in equity and the plaintiff failed to utilize the available legal remedies.
Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Gary B. Andrews, Asst. Attys. Gen., Atlanta, for Blackmon.
H. Norwood Pearce, Columbus, for appellees.
Lennie F. Davis, E. H. Polleys, Jr., Columbus, for Houser.
These two appeals involve the collection of fees and penalties for late payment of ad valorem taxes on motor vehicles.
The plaintiff appellee J. O. Scoven filed a complaint in the Superior Court of Muscogee County individually and on behalf of all others the same or similarly situated, against John Blackmon, State Revenue Commissioner, and his agents and employees. The complaint was subsequently amended to include Rembert C. Houser, Tax Commissioner of Columbus, Muscogee County, Georgia.
Thereupon the judge temporarily restrained defendants from collecting late fees from persons purchasing motor vehicle tags and paying taxes on April 2, 1973.
The amended complaint alleged essentially as follows: That the defendants had the duty of collecting license fees and ad valorem taxes which are owed the State of Georgia on motor vehicles; that these fees and taxes were required to be paid on or before April 1 of each year; that April 1, 1973, occurred on Sunday; and that the County Tax Commissioner's office was closed on Saturday, March 31, 1973, and Sunday, April 1, 1973.
The complaint further recited that the plaintiff and the class of persons on whose behalf the action was brought, while standing in line to pay the aforementioned fees and taxes, were informed by the Tax Commissioner of Muscogee County and deputy sheriffs of that county who were aiding him that the deadline for paying these fees and taxes had been extended through Monday, April 2, 1973, and that persons paying them on that date would not be charged the late fees and penalties otherwise required by law; that in reliance upon these representations he and the class for whose benefit the action was brought paid their fees and taxes after April 1, 1973; that the defendants collected or attempted to collect late fees and penalties from those persons paying after April 1, 1973; that these actions operated as a fraud upon him and his class; that they had no adequate remedy at law; and that unless permanently and temporarily enjoined, irreparable harm would result to them.
The prayers were for equitable and other relief.
Both the State Revenue Commissioner and the County Tax Commissioner filed motions to dismiss the complaint for failure to state a claim upon which relief can be granted and for lack of jurisdiction of the subject matter.
Upon the hearing the parties stipulated the material allegations of fact in the complaint to be true.
The trial court denied the defendants' motions to dismiss and continued in full force and effect the restraining order previously issued. It found that Code Ann. § 102-102(8) automatically extended the deadline for paying fees and taxes through April 2, 1973; that a fraud had been prepetrated upon the plaintiff and others similarly situated; that the plaintiff and all others similarly situated had no adequate remedy at law; and that without the intervention of equity a multiplicity of suits would occur.
In our view, the trial court erred in denying both motions to dismiss and in continuing in force the injunction because the complaint did not qualify for equity jurisdiction and the plaintiff failed to utilize the available legal remedies.
1. Our code requires that all averments of fraud 'shall be stated with particularity.' Ga.L.1966, pp. 609, 620 (Code Ann. § 81A-109(b)). The complaint here, however, fell far short of this requirement.
The plaintiff here neither alleged nor attempted to prove that he and the class of persons he purported to represent 'acted on' the defendants' representations when they left their places in line, so as to suffer injury as contemplated by Code § 37-703. Therefore it was not established that they relied upon the statements of the defendants' agents to their detriment.
To prove fraud the plaintiff must rely upon the false representations of the defendants and sustain an alleged loss and damage as the proximate result of their having been made. McLendon v. Galloway, 216 Ga. 261, 263, 116 S.E.2d 208 and cits.
From the above it is clear that the trial court erred in finding that a fraud had been perpetrated upon the plaintiff and his class by the defendants as alleged in the complaint.
2. The provisions of our public revenue statutes governing tax procedures clearly include related penalty procedures. Section 37 (Ga.L.1937-38, Ex.Sess., pp. 77, 96; Code Ann. § 92-8439) recites that
It is apparent from this provision that the trial court erroneouly concluded that a penalty was not a tax and that there was 'no tax assessment involved in this matter' in granting equitable relief when the plaintiff had made no effort to invoke the legal remedies provided by the public revenue statutes.
The plaintiff here could have properly contested the assessment of the ad valorem tax, including the late penalty imposed, by purchasing the license plate without payment of the ad valorem tax and filing with the tax commissioner an affidavit of illegality to the assessment together with a surety bond 'in an amount equal to the tax and any penalties and interest which might be found to be due.' Ga.L.1966, pp....
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...to contest the assessment. See East West Express v. Collins, 264 Ga. 774, 775, 449 S.E.2d 599 (1994); Blackmon v. Scoven, 231 Ga. 307, 309-310(2), 201 S.E.2d 474 (1973). The Tax Commissioner stands in the shoes of the State Revenue Commissioner regarding assessment and valuation of motor ve......
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...Enterprises, 267 Ga. 129(1), 475 S.E.2d 642 (1996); Cantrell v. Henry County, supra at 826(1), 301 S.E.2d 870; Blackmon v. Scoven, 231 Ga. 307, 310-311(4), 201 S.E.2d 474 (1973); Allen v. Hub Cap Heaven, 225 Ga.App. 533, 540-541(8), 484 S.E.2d 259 Strozzo has a defense to any action on the ......
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City of Atlanta v. Barnes, No. S02A1338
...brought for tax refunds was error and that Henderson must be overruled, as must cases applying its holding, such as Blackmon v. Scoven, 231 Ga. 307(4), 201 S.E.2d 474 (1973), and Blackmon v. Ga. Independent Oilmen's Ass'n., 129 Ga.App. 171(1), 198 S.E.2d 896 (1973). We also disapprove the d......
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Valentine v. State
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