Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors

• Decision Date: 22 August 1997
• Docket Number: No. A97A2038,A97A2038
• Citation: 491 S.E.2d 812,228 Ga.App. 371
• Parties: , 230 Ga.App. 539, 97 FCDR 3241 MORETON ROLLESTON, JR. LIVING TRUST v. GLYNN COUNTY BOARD OF TAX ASSESSORS.
• Court: Georgia Court of Appeals

Page 812

491 S.E.2d 812

228 Ga.App. 371, 230 Ga.App. 539, 97

FCDR 3241

MORETON ROLLESTON, JR. LIVING TRUST v. GLYNN COUNTY BOARD OF TAX ASSESSORS.

No. A97A2038.

Court of Appeals of Georgia.

Aug. 22, 1997.

Reconsideration Denied Sept. 4, 1997.

Certiorari Granted Jan. 5, 1998.

Moreton Rolleston, Jr., Atlanta, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Gregory T. Carter, W. Gary Moore, Brunswick, for appellee.

ELDRIDGE, Judge.

Appellant, Moreton Rolleston, Jr. Living Trust owned three properties in Glynn County, Georgia: (1) Cottage No. 303, Lots 1072, 1073-1071, 05-00166 0011-10 014-004, Sea Island, Georgia ("Tract One"); (2) Vacant Lot, Lot 1, 2 Blk 65, 05-00176 0011-10 019-001, Sea Island, Georgia ("Tract Two"); and (3) 2225 Bruce Drive, 04-02972, S001-00 006-008, 19 & 20 Bl 27, East Beach, St. Simons Island, Georgia ("Tract Three"). In 1995, appellee Glynn County Board of Tax Assessors ("Assessors") reassessed the property by raising the fair market value ("FMV") as follows: (1) Tract One from $839,776 to $1,146,375; and (2) Tract Two from $235,000 to $279,000; the raise in FMV of Tract Three was subsequently settled and is not in dispute. Within 45 days of the date of assessment by the Assessors, on September 11, 1995, appellant filed a notice of appeal pursuant to OCGA § 48-5-311(e)(2). The Assessors did not respond to appellant's notice of appeal for over 180 days, which under OCGA § 48-5-311(e)(3), should automatically cause the appeals to be referred to the Joint Board of Equalization for hearing upon such failure by the Assessors; this referral has never been made by the Assessors. The Board of Equalization failed to set a hearing date within 15 days of the receipt of the notice of appeal as required by OCGA § 48-5-311(e)(6)(A) and failed to hold a hearing within 30 days of the notification of the appeal, because no notification was given to them by the Assessors under OCGA § 48-5-311(e)(6)(A) and (B).

On June 26, 1996, in Civil Action 93-00359, Superior Court of Glynn County, Gary Moore, Glynn County Attorney, acting on behalf of Glynn County Assessors, entered into a settlement with appellant of a prior tax appeal over reassessments of the property. The settlement was made and entered as a consent order and judgment that established the FMV of Tract One at $839,776 and of Tract Two at $235,000, for the ad valorem taxable years of 1992, 1993, and 1994.

On June 17, 1996, appellant filed a complaint against the Assessors in the Superior Court of Glynn County, praying "[t]hat this Court enter an Order declaring that the increase in fair market value of Plaintiff's property for the years 1995 and 1996 be declared invalid." The basis for declaring the reassessments invalid is "[t]he failures of the Assessors and the Board of Equalization [of Glynn County] to follow procedures set forth hereinabove nullifies the increase in fair market values of Tracts One, Two and Three over and above the fair market values established for said Tracts for the tax years [1995 and 1996]." The Assessors answered on August 1, 1996. On August 12, 1996, appellant moved for summary judgment. The Assessors filed their motion for summary judgment on September 9, 1996.

On January 22, 1997, the trial court dismissed the complaint for lack of jurisdiction, finding "that it is without jurisdiction to entertain such motions. The Georgia Supreme Court has held in a number of cases that 'as a matter of policy and judicial economy, a Superior Court should not exercise its equitable jurisdiction in tax assessment cases to address issues of valuation, taxability, uniformity, constitutionality, including the constitutionality of appraisal methods, and procedure, which may be reviewed via statutory appeal to a county board of equalization pursuant to OCGA § 48-5-311.' " Appeal was filed to the Supreme Court timely. By order of the Supreme Court of Georgia, this appeal was transferred to this Court.

1. Appellant's first enumeration of error is that the trial court erred in dismissing the complaint.

Appellant filed a complaint asking the trial court for declaratory relief, i.e., to find that the reassessments by the Assessors for the years 1995 and 1996 were invalid for failure to follow OCGA § 48-5-311(e)(2), (3), and (6)(A) and (B). While the complaint does not specifically invoke OCGA § 9-4-1 et seq., the complaint sets forth a case of uncertainty, where declaratory judgment is sought to declare the assessments for 1995 and 1996 invalid, because the Assessors have failed or refused to act under a statutory mandate that would otherwise give appellant the right to appeal to superior court.

Declaratory judgments are used to "settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and this chapter is to be liberally construed and administered." OCGA § 9-4-1; Burgess v. Burgess, 210 Ga. 380, 382-383 (2), 80 S.E.2d 280 (1954); Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 315(4), 66 S.E.2d 726 (1951); City of Brunswick v. Anderson, 204 Ga. 515(1), 50 S.E.2d 337 (1948). The purpose of declaratory relief is to permit a determination of the obligations of the parties before such obligations are repudiated or rights are violated. Rowan v. Herring, 214 Ga. 370, 372-373, 105 S.E.2d 29 (1958). The goal of declaratory judgment is not to delay the trial of a case in which rights have already vested, but to guide the parties and prevent uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize their interests. Pendleton v. City of Atlanta, 236 Ga. 479(1), 224 S.E.2d 357 (1976). In the case sub judice, appellant is uncertain as to whether he must continue to follow the statutory appeal procedure under OCGA § 48-5-311(e) in order to contest the reassessment of his property, or whether such reassessment is void and can be ignored, because the Assessors failed or refused to act under the statutory mandate.

Under OCGA § 9-4-3(a), "[f]urther plenary relief, legal ..., including [legal injunction under OCGA § 9-4-3(b) and] mandamus ... , may be sought in a petition seeking declaratory judgment, and in such case, the action shall be governed as to process, service, and procedure by Code Section 9-4-5. In all such cases, the court shall award to the petitioning party such relief as the pleadings and evidence may show him to be entitled; and the failure of the petition to state a cause of action for declaratory relief shall not affect the right of the party to any other relief, legal or equitable, to which he may be entitled."

Even if no other relief is set forth in the appellant's complaint, it appears to have set forth the elements for a mandamus to issue against the Assessors to compel them to do what, they are mandated to do, within certain time parameters. OCGA § 48-5-311(e). "All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance, if there is no other specific legal remedy for the legal rights." OCGA § 9-6-20; Wofford Oil Co. of Ga. v. City of Calhoun, 183 Ga. 511, 189 S.E. 5 (1936). Mandamus is the remedy for official inaction. Coastal Svc. v. Jackson, 223 Ga. 238, 154 S.E.2d 365 (1967); Touchton v. Echols County, 211 Ga. 85, 84 S.E.2d 81 (1954). Here, the acts of the Assessors in transmitting the notice of appeal to the Board of Equalization is purely ministerial and requires no exercise of discretion after the passage of 180 days without action on their part. Anderson v. McMurry, 217 Ga. 145, 121 S.E.2d 22 (1961). Under the plain language of OCGA § 48-5-311(e), appellant has a legal right to such procedure. In fact, the trial court correctly held that appellant has no right to equitable relief, only relief under OCGA § 48-5-311(e). City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 535(3), 422 S.E.2d 651 (1992).

Under Ga. Const. 1983, Art. VI, Sec. I, Par. IV, and Art. VI, Sec. IV, Par. I, the Superior Court of Glynn County has jurisdiction over both declaratory actions and petitions for writs of mandamus. See also OCGA § 9-4-5. Therefore, the trial court erred in finding that it lacked jurisdiction as it had jurisdiction at law to afford the relief prayed for by declaratory judgment. The court also had equity jurisdiction, but should exercise judicial restraint in tax cases, under certain circumstances. City of Atlanta v. North by Northwest Civic Assn., supra at 535, 422 S.E.2d 651; Tax Assessors of Gordon County v. Chitwood, 235 Ga. 147, 153-154, 218 S.E.2d 759 (1975); Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga.App. 208, 367 S.E.2d 43 (1988). However, appellant did not bring this as an action in equity, and it appears that other possible relief exists, either in declaratory judgment and/or writ of mandamus, which the trial court has not addressed on the merits. Fulton County Bd. of Tax Assessors v. Jones, 264 Ga. 828, 452 S.E.2d 99 (1995). Therefore, the trial court's dismissal for lack of jurisdiction is reversed, and the case is remanded for further consideration not inconsistent with this opinion.

2. Appellant's second enumeration of error is that the trial court dismissed the complaint seeking the declaration that the Assessors' reassessment of the property in 1995 and 1996 was invalid under OCGA § 48-5-299(c), because in a prior appeal of a reassessment for 1992, 1993, and 1994, a consent order was issued fixing the FMV, and the Assessors were without power to reassess the property for two years under such order in 1995 and 1996, absent a showing that the reassessment came within an exception.

Appellant failed to raise this issue in the court below or to perfect the record by putting the consent order in evidence; however, on remand these issues and the construction...