Hall County Bd. of Tax Assessors v. Reed, s. 54028-54030

• Decision Date: 14 June 1977
• Docket Number: No. 3,Nos. 54028-54030,s. 54028-54030,3
• Citation: 236 S.E.2d 532,142 Ga.App. 556
• Parties: HALL COUNTY BOARD OF TAX ASSESSORS v. H. F. REED et al. HALL COUNTY BOARD OF TAX ASSESSORS v. Rafe BANKS, Jr., et al. HALL COUNTY BOARD OF TAX ASSESSORS v. Cora BRASELTON
• Court: Georgia Court of Appeals

Page 532

236 S.E.2d 532

142 Ga.App. 556

HALL COUNTY BOARD OF TAX ASSESSORS v. H. F. REED et al.

HALL COUNTY BOARD OF TAX ASSESSORS v. Rafe BANKS, Jr., et al.

HALL COUNTY BOARD OF TAX ASSESSORS v. Cora BRASELTON.

Nos. 54028-54030.

Court of Appeals of Georgia, Division No. 3.

June 14, 1977.

Greer, Deal, Birch, Orr & Jarrard, Stanley F. Birch, Jr., Gainesville, for appellant.

Telford, Stewart & Stephens, Joel K. Telford, Gainesville, for H. F. Reed et al.

Robinson, Harben, Armstrong & Millikan, Emory F. Robinson, Gainesville, for Rafe Banks, Jr., et al. and Cora Braselton.

WEBB, Judge.

The sole issue in these three appeals is whether the provisions of the CPA (Code Ann. §§ 81A-112, 81A-181), requiring defensive pleadings to be filed in response to a complaint, are applicable to proceedings involving appeals to the superior court from property evaluations of a county board of equalization brought pursuant to Code Ann. § 92-6912(6).

These cases arose when the taxpayers were successful in having the valuation of their property by the Hall County Board of Tax Assessors lowered by the County Board of Equalization. The Board of Tax Assessors filed an appeal in the superior court pursuant to Code Ann. § 92-6912(6) ¹ on the grounds that (1) the amounts assessed and fixed by the Board of Equalization were not uniform in value with other property in the county; (2) were not just and fair; (3) were not determined as provided in Code Ann. Chapter 92-69; and (4) as between these taxpayers and other taxpayers of Hall County, were not fairly and justly equalized so that each taxpayer would pay his proportionate share of taxes. The prayers were that the appeals be heard before a jury, that process issue and that the taxpayers "be served as provided by law."

Summons attached to the appeal instructing all taxpayers to answer within 30 days were served but none of the taxpayers filed any answer or other defensive pleadings in response. Upon discovering that no answers had been filed within 30 days of such service, the Board of Tax Assessors filed motions for default judgment against all taxpayers based upon the theory that since the appeals were de novo actions in the superior court they were governed by the CPA provisions; and that under Code Ann. § 81A-181 defensive pleadings were required to be filed pursuant to Code Ann. § 81A-112. The trial court denied the motions for default judgment but certified the orders for immediate review, and we granted the applications for interlocutory appeal.

The Civil Practice Act expressly provides that it applies "to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law, but, in any event, the provisions of this Title governing . . . defenses . . . shall apply to all such proceedings." Code Ann. § 81A-181. See Gresham v. Symmers, 227 Ga. 616, 617(2), 182 S.E.2d 764 (1971); McKnight v. Mitchell, 142 Ga.App. 344, 235 S.E.2d 763 (1977). Thus we must assume that an appeal to the superior court from a county tax assessment brought under Code Ann. § 92-6912(6) is a "complaint" as contemplated by the Civil Practice Act (Code Ann. §§ 81A-101, 81A-103) which is required to be answered by responsive pleading (Code Ann. § 81A-112). Nevertheless, we agree with the trial court that a default judgment could not properly be granted here.

First, where questions of fact are presented by such an appeal, Code Ann. § 92-6912(6)(D)(1) requires a de novo investigation by trial before a jury. See Murray v. Richardson, 134 Ga.App. 676, 677(4), 215 S.E.2d 715 (1975). The just and fair valuation of the property involved is a question of fact for jury determination.

Second, under the CPA a case does not automatically become in default upon the failure to timely file responses where the action involves unliquidated damages, "in which event the plaintiff shall be required to introduce evidence and establish the amount of damages . . ." Code Ann. § 81A-155(a). We find this analogous and applicable to the statutory design of a tax appeal to the superior court under § 92-6912, which "contemplates that findings as to fair market value shall be made." Hodsdon v. Duckett, 135 Ga.App. 922, 923, 219 S.E.2d 634, 635 (1975).

Further, the CPA precludes a default judgment from exceeding the amount, or differing in kind or form, from that prayed for in the demand for judgment. Code Ann. § 81A-154(c). "Plaintiff's relief in a judgment by default is strictly limited in nature and degree to that specifically demanded in the complaint . . ." Dempsey v. Ellington, 125 Ga.App. 707, 708(2), 188 S.E.2d 908, 909 (1972). "(W)here a judgment in a default case grants more relief than originally requested, it is to that extent a nullity." Orkin Exterminating Co. v. Townsend, 136 Ga.App. 50, 53(2), 220 S.E.2d 14, 16 (1975). Here the demand for relief was, both by the pleadings in the cases before us and also by necessary implication from the very nature of the action, that a just and fair evaluation be placed on the property involved, and this requires that a jury finding as to fair market value be made. Compare Pittman v. McKinney, 135 Ga.App. 192, 193(4), 217 S.E.2d 446 (1975), holding that a default judgment entered on a tort claim without damages having been proved before a jury is void on its face, with Building Associates, Inc. v. Crider, 141 Ga.App. 825(1), ...