Buckler v. DeKalb County Board of Tax Assessors, A07A1576.

• Decision Date: 08 November 2007
• Docket Number: No. A07A1576.,A07A1576.
• Parties: BUCKLER et al. v. DeKALB COUNTY BOARD OF TAX ASSESSORS.
• Court: Georgia Court of Appeals

288 Ga. App. 332

654 S.E.2d 184

288 Ga.App. 332

BUCKLER et al. v. DeKALB COUNTY BOARD OF TAX ASSESSORS.

No. A07A1576.

Court of Appeals of Georgia.

November 8, 2007.

Troutman Sanders, Matthew R. Almand, Atlanta, for appellant.

Constangy, Brooks & Smith, Edgar W. Ennis, Jr., Macon, and Duane D. Pritchett, for appellee.

MILLER, Judge.

This is the second appearance of this ad valorem tax appeal action before this Court. In 2001, Robert and Jane Buckler's residence at 2692 Mabry Road was assessed at $1,500,900 and the Bucklers appealed. Following a jury trial, the jury returned a verdict finding the fair market value of the property to be $1,146,600. In Buckler v. DeKalb County Bd. of Tax Assessors, 263 Ga.App. 305, 587 S.E.2d 797 (2003), we reversed such verdict, finding

that the trial court erred by (1) excluding evidence [showing] that the County raised the assessments on two properties it considered comparable in 1998 at a much lower rate than the Bucklers' property; (2) excluding evidence of the County's last assessment of the property in 1998; [and] (3) excluding a statement made by the County in the Board of Equalization proceeding.

Id. at 305-307(1)-(3), 587 S.E.2d 797.

Upon the retrial of the case in 2004, the jury returned a verdict finding that the fair market value of the Bucklers' property in 2001 was $930,000. Because the foregoing verdict was less than 85 percent of the 2001 tax assessment of $1,500,900,¹ the Bucklers petitioned for their attorney fees pursuant to OCGA § 48-5-311(g)(4)(B)(ii).² Following a hearing thereon, at which the Bucklers sought their attorney fees of $146,862.50, the trial court awarded them such fees of $41,040 for work done in prosecuting the underlying litigation in the trial court at an hourly rate of $200 per hour, but denied them their attorney fees for work done in connection with their appeal of the first jury verdict. It is from the latter ruling alone that the Bucklers now appeal. Finding that the Bucklers' appeal of the first jury verdict was among the "means" by which they successfully prosecuted their tax appeal, we affirm in part, reverse in part, and remand for a further hearing on attorney fees not inconsistent with this opinion. The order below is otherwise affirmed.

"When a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the plain legal error standard of review." (Citations and punctuation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824(1), 543 S.E.2d 733 (2000); see also Simmons v. Bd. of Tax Assessors of Effingham County, 268 Ga.App. 411(1), 602 S.E.2d 213 (2004).

The Bucklers contend that the trial court erred in denying their request for attorney fees incurred in connection with their appeal of the first jury verdict to this Court. In support of their claims, the Bucklers cite OCGA § 48-5-311(g)(4)(B)(ii), which authorizes the recovery of such fees "incurred in the [taxpayer's] action." (Emphasis supplied.) The question at issue then is whether the legislature's use of the word "action" was intended to limit the recovery of attorney fees to those incurred in the trial court. In this regard, we need not look beyond the Georgia Civil Practice Act for direction. Therein, the word "action" is defined broadly as the "means of enforcing a right." (Emphasis supplied.) OCGA § 9-2-1.

Were the right of appeal not literally a "judicial means" of enforcing a right, the Bucklers would not now be before this Court. See Telecom* USA v. Collins, 260 Ga. 362, 363(1), 393 S.E.2d 235 (1990) (The "golden rule" of statutory construction requires this Court to "`follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to [e]nsure that the legislature meant something else.'[Cit.]"). The Bucklers' attorney fees in connection with the appeal of the first jury verdict, therefore were incurred...