Fulton Cnty. Bd. of Tax Assessors v. Tech. Square, LLC

359 Ga.App. 837

860 S.E.2d 133

FULTON COUNTY BOARD OF TAX ASSESSORS

v.TECHNOLOGY SQUARE, LLC (three cases).

Technology Square, LLC

v.Fulton County Board of Tax Assessors.

A21A0204, A21A0205, A21A0206, A21A0357

Court of Appeals of Georgia.

June 17, 2021

Meredith West Germain, Valerie Anne Ross, for Appellant in A21A0204, A21A0205, A21A0206.

Lindsey Walker Hillis, Atlanta, Delia Jane Williams-Carroll, for Appellee in A21A0204, A21A0205, A21A0206.

Sarah McCormack, Jean Miller Kutner, for Appellant in A21A0357.

Joann Brown Sharp, David Anthony Canale, Atlanta, for Appellee in A21A0357.

Barnes, Presiding Judge.

In Case Nos. A21A0204, A21A0205, and A21A0206, the Fulton County Board of Tax Assessors (the "Board") seeks reversal of the trial court's judgments that certain real estate is fully exempt from ad valorem taxation for particular tax years. In Case No. A21A0357, the owner of that real estate, Technology Square, LLC, contends that the Board's three appeals should have been dismissed for failure to timely file a transcript. Because each of the orders denying Technology Square's motions to dismiss is inadequate on its face, each is vacated; and Case No. A21A0357 is remanded with direction. We thus do not reach at this juncture the merits of the Board's appeals; hence, Case Nos. A21A0204, A21A0205, and A21A0206 are remanded with direction.

Case No. A21A0357

1. Technology Square cites OCGA § 5-6-48 (c) in contending that the trial court erred by denying its motions to dismiss the Board's appeals for failure to timely file a transcript.

In relevant part, that statutory provision states that "the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party." OCGA § 5-6-48 (c). Pertaining thereto, the Supreme Court of Georgia has espoused,

Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed within 30 days after filing of the notice of appeal .... A delay in excess of 30 days is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.

(Citations and punctuation omitted; emphasis supplied.) Kelly v. Dawson County , 282 Ga. 189, 189, (646 S.E.2d 53) (2007). A trial court's decision whether to dismiss an appeal under OCGA § 5-6-48 (c) is reviewed for abuse of discretion. ACCC Ins. Co. v. Pizza Hut of America , 314 Ga. App. 655, 657, (725 S.E.2d 767) (2012).

On December 13, 2019, the Board filed the notices of appeal underlying Case Nos. A21A0204, A21A0205, and A21A0206, stating in each notice that "[t]ranscripts of evidence and proceedings shall be filed for inclusion in the record." Five months later, Technology Square filed on May 14, 2020 a motion to dismiss in each of those three cases, pointing out that the Board had filed neither a transcript, nor a motion for an extension of time to do so pursuant to OCGA § 5-6-39.¹ A month afterward, on June 17, 2020, the Board filed its responsive pleading, readily acknowledging that "the transcript was not timely filed and no extension was sought," but positing that those facts did not mandate that its appeals be dismissed. As the Board claimed, circumstances surrounding the delay warranted the trial court to exercise its discretion and deny Technology Square's dismissal motions. In particular, the Board cited the statewide judicial emergency that was declared in response to the COVID-19 pandemic, and attached to its responsive pleading copies of the orders effecting and extending such declaration.

The trial court conducted a hearing on Technology Square's motions,² and subsequently entered the three identical orders contested in this appeal. Therein, the trial court determined that "[t]he transcript was due to be filed no later than January 13, 2020," that "[d]ue to [the Board's] inadvertent mistake, the transcript ... was not filed on time and no extension was obtained." The trial court went on to find that in response to the "unprecedented public health emergency from the COVID-19 pandemic," the Chief Justice of the Supreme Court of Georgia had issued on March 14, 2020 an Order Declaring Statewide Judicial Emergency ("Emergency Declaration"), thereby suspending, tolling, extending, and otherwise granting relief from deadlines or other time schedules or filing requirements.³ The trial court further found that while the Emergency Declaration (as extended) was still in effect, the Board had filed the sole anticipated transcript on June 19, 2020. Concluding that the Board had "[come] forward with evidence rebutting the presumption that the delay in filing the transcript was unreasonable" and that the delay was not inexcusable, the trial court denied Technology Square's three motions to dismiss.

On appeal, Technology Square asserts that the Board adduced no evidence at the hearing on the dismissal motions as to why the filing of the transcript was delayed, other than to show that on March 14, 2020, the Emergency Declaration was issued and thereafter extended. Notably, the trial court recounted in its order that "[a]t the oral argument no witnesses were sworn and no additional documentary evidence was submitted by the parties." Furthermore, Technology Square points out that even before the Emergency Declaration was issued, the 30-day time period for timely filing the transcript or timely seeking a time extension had already elapsed by about 60 days. Technology Square thus contends that, because the Board provided no evidence to rebut the prima facie showing of unreasonable and inexcusable delay for that approximately 60-day period of time, the trial court had no basis to conclude that the presumption of unreasonable and inexcusable delay had been rebutted. And without any such basis, Technology Square claims, the trial court's decisions to deny its dismissal motions constituted an abuse of discretion.

Hence, for the flagged 61-day period,⁴ Technology Square challenges the trial court's findings on the specific issues of whether the delay was reasonable and whether the delay was excusable.

Although we review the trial court's decision [upon a dismissal motion pursuant to OCGA § 5-6-48 (c) ] for an abuse of discretion, the trial court must make findings on these issues before we may determine whether its discretion was abused. Failure to make these findings mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.

(Citation and punctuation omitted.) Postell v. Alfa Ins. Corp. , 327 Ga. App. 194, 195, (757 S.E.2d 661) (2014). As explained below, the orders contested in this case fall short of including requisite support for the trial court's determination that the delay – which necessarily includes the 61 days flagged by Technology Square – was neither unreasonable nor inexcusable.⁵ See generally ACCC Ins. Co. , 314 Ga. App. at 658, 725 S.E.2d 767 ("Whether a delay is inexcusable, and whether it is unreasonable, are separate and distinct questions.").

(a) We turn to the trial court's determination that the delay was not unreasonable. As this Court has recognized,

The threshold question of whether the delay was unreasonable refers principally to the length and effect of the delay. Delay is unreasonable where it may affect an appeal by: [i] directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or [ii] causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

(Citation and punctuation omitted.) Mercer v. Munn , 321 Ga. App. 723, 726 (1), (742 S.E.2d 747) (2013). In addressing the foregoing, the trial court recited in its order,

[The Board] came forward with evidence rebutting the presumption that the delay was unreasonable by demonstrating to this [c]ourt that the untimely filing was not unreasonable in that (1) [Technology Square] has not been directly prejudiced as there have been no change of conditions or inequity as a result; and (2) it has not caused the appeal to be stale.

(i) Regarding its determination that "[Technology Square] has not been directly prejudiced as there have been no change of conditions or inequity as a result" of the delay, the trial court reasoned (then reaffirmed),

Neither parties’ position or condition has changed since the beginning of this matter ... [Technology Square] continues to maintain throughout this litigation that it should be exempt from taxation and [the Board] maintains its position that [Technology Square] should be taxable. The intermediate conditions of [Technology Square] have not changed, and should not change, until this matter has been resolved on the merits at the appellate court level. Therefore, because the conditions of both parties remain status quo, there has been no prejudice by an intermediate change of conditions as a result of the delay of the filing of the transcript.

But the mere fact that the opposing sides maintain their respective positions as to whether the real estate was exempt from ad valorem taxation does not alone answer whether the 61-day delay "may affect [the] appeal by ... directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity." (Citation and punctuation omitted.) Mercer , 321 Ga. App. at 726, 742 S.E.2d 747. Indeed, maintaining the position taken in the trial court is generally a prerequisite to having a party's argument(s) heard on appeal. "To consider the case on a...