Dillard v. Denson

• Decision Date: 28 March 2000
• Docket Number: No. A99A2418.,A99A2418.
• Citation: Dillard v. Denson, 243 Ga. App. 458, 533 S.E.2d 101 (Ga. App. 2000)
• Parties: DILLARD et al. v. DENSON et al.
• Court: Georgia Court of Appeals

533 S.E.2d 101

243 Ga. App. 458

DILLARD et al. v. DENSON et al.

No. A99A2418.

Court of Appeals of Georgia.

March 28, 2000.

Reconsideration Denied April 12, 2000.

Burt & Burt, Hilliard P. Burt, Albany, Cook, Noell, Tolley, Bates & Michael, Edward D. Tolley, Athens, for appellants.

Ellen W. Hight, Athens, for appellees.

PHIPPS, Judge.

Appellants Howard Dillard and Pace Burt, Inc. jointly own an apartment complex in Athens known as The Pace's at Woodlake. In 1996, while construction of the apartments was in the early stages, the Clarke County Board of Tax Assessors valued the property at $917,000 for ad valorem tax purposes. In 1997, when construction was nearly complete, the Board increased the valuation to $5,759,400. Dillard and Pace Burt, Inc. filed an appeal of the reassessment with the Board, but the Board rejected it as untimely. Then they filed suit against Tax Commissioner Nancy Denson and the members of the Board, seeking a writ of mandamus requiring the Board to accept their appeal and a declaratory judgment on the legality and correctness of the reassessment and the legality of a tax penalty imposed upon them. The trial court granted summary judgment to Denson and the Board. Dillard and Pace Burt, Inc. appeal, asserting the trial court erred by finding they were not entitled to an appeal with the Board and by not making the substantive findings they sought against the reassessment and penalty.

We find the trial court correctly determined as matters of law that Dillard and Pace Burt, Inc. were barred from an appeal through the Board and that it could not consider the merits of their claims against the reassessment and the penalty. Therefore, we affirm the trial court's grant of summary judgment to the tax commissioner and the members of the Board.

When a county board of tax assessors reassesses the value of property for ad valorem tax purposes, it must provide notice of the reassessment to the taxpayer.¹ The notice must inform the taxpayer of the procedure for initiating an appeal and the time period for doing so.²

The Clarke County Board of Tax Assessors hired Datamax, Inc. to print and mail reassessment notices for the 1997 tax year. Datamax's procedure was to print two sets of each notice. It mailed one copy to the taxpayer and one to the Board's office. The Board's office kept its copy as record of the mailing. The Board's office received and retained a copy of the 1997 reassessment notice for The Pace's at Woodlake property.

The notice was mailed on April 25, 1997, to Pace Burt, Inc. at 249 Pine Avenue, Albany, Georgia. It specified that any notice of appeal must be filed within 45 days from the date of mailing to initiate an appeal.

249 Pine Avenue was the location of the Burt Group office. Pace Burt, Jr., one of the owners of Pace Burt, Inc., came in every day to get his mail, though he was generally away from the office operating a construction business. Other businesses shared the office.

Appraisers with the Clarke County Board of Tax Assessors routinely reassess property after a building permit application is submitted. The building permit application for The Pace's at Woodlake listed Pace Burt, Jr. as the owner and 249 Pine Avenue as his address. After the 1996 reassessment, Pace Burt, Inc. received several pieces of correspondence from the Clarke County taxing authorities at the 249 Pine Avenue address. An agent for Pace Burt, Inc. also listed 249 Pine Avenue as the contact mailing address in a letter to the Board challenging the 1996 reassessment. The record does not show that any subsequent change of address information was submitted to the Board.

Pace Burt, Jr. swore in an affidavit that he never received the 1997 reassessment notice. The Burt Group secretary also gave an affidavit swearing that the notice was never received at the office.

On September 22, 1997, almost five months after the notice was mailed, Dillard and Pace Burt, Inc. filed a notice of appeal with the Board and requested a late appeal. The Board denied their request as untimely because it was not filed within 45 days after the notice was mailed, as required by statute. On October 16, 1997, Dillard and Pace Burt, Inc. filed suit against Tax Commissioner Denson and the members of the Board seeking a declaratory judgment and writ of mandamus.

On September 15, 1998, Denson and the Board filed a motion for summary judgment, asserting in part that the court lacked subject matter jurisdiction because Dillard and Pace Burt, Inc. had failed to pursue the statutory appeals process through the Board.

On May 20, 1999, the trial court granted the motion for summary judgment. The court ruled that Dillard and Pace Burt, Inc. were not entitled to declaratory relief or to a writ of mandamus because OCGA § 48-5-311 prescribes a time limit for filing appeals, the appeal was not filed within that period, and the Board was powerless to extend the period. The court further chose not to exercise equitable jurisdiction to hear Dillard and Pace Burt, Inc.'s claims related to the legality and correctness of the reassessment and the legality of an imposed penalty because those claims could have been addressed through the statutory appeals process.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.³ When the movant has made these showings, "the respondent may not rest on [its] pleadings but must put forth evidence showing actual issues for trial. [Cit.]"⁴

The statutory appeals process provides a vehicle for addressing issues related to the valuation, taxability, uniformity and constitutionality of ad valorem taxation.⁵ In rare circumstances, equitable jurisdiction may lie in the courts.⁶ The trial court correctly determined that neither route was available to Dillard and Pace Burt, Inc. Therefore, as a matter of law, Tax Commissioner Denson and the members of the Board of were entitled to summary judgment.

OCGA § 48-5-311 provides that a taxpayer may appeal ad valorem tax issues to the county board of tax assessors, the county board of equalization and ultimately to the superior court. To avail itself of that process, however, a taxpayer must file a notice of appeal with the county board of tax assessors within 45 days of the date the notice of reassessment was mailed to it.⁷ Here, the record clearly supports the court's determination that notice of reassessment was properly mailed to Pace Burt, Inc. and that no notice of appeal was filed within 45 days of the date the reassessment notice was mailed.

Equity jurisdiction is predicated on the lack of an adequate remedy at law.⁸ Based on the rationale that the statutory appeals process provides an adequate remedy at law, the Supreme Court of Georgia has promulgated an abstention doctrine for the...