Burt Development Co. v. Lee County Tax Assess.

Annotate this Case

523 S.E.2d 81 (1999)

240 Ga. App. 451


No. A99A0838.

Court of Appeals of Georgia.

October 4, 1999.

Reconsideration Denied October 21, 1999.

Certiorari Denied February 25, 2000.

*82 Burt & Burt, Hilliard P. Burt, Albany, for appellants.

Ellis, Easterlin, Peagler, Gatewood & Skipper, George R. Ellis, Americus, for appellee.

JOHNSON, Chief Judge.

The Lee County Board of Tax Assessors hired a firm to reappraise the value of real property in the county, including apartments, a trailer park and a tract of land owned by the Burt family. After the reappraisals, the assessed values of the Burts' properties were higher than they had been the previous year, so the tax assessors sent notices to the Burts informing them of the increased tax assessments. The Burts appealed the higher tax assessments to the Lee County Board of Equalization, which upheld the increased valuations of the Burts' properties. The Burts then appealed the Board of Equalization's decision to the superior court. After a hearing, the trial court, on its own motion, entered an order granting summary judgment on all issues to the tax assessors. The Burts appeal from the order.

1. The Burts claim the court's grant of summary judgment was improper because it was on the court's own motion and was based solely on the pleadings. These claims are without merit.

"Summary judgment can be granted to a non-moving party provided that the grant is proper in all other respects." (Citations, punctuation and emphasis omitted.) Signet Bank/Va. v. Tillis, 196 Ga.App. 433, 434, 396 S.E.2d 54 (1990). Here, the court made specific factual and legal findings which support the conclusion that there are no genuine issues of material fact. See OCGA ยง 9-11-56. The court's grant of summary judgment, without a motion by the tax assessors, was therefore appropriate.

Given the record before us, we also cannot accept the Burts' suggestion that the court considered only the pleadings, and no evidence, in granting summary judgment. Contrary to the Burts' claim, the record provided to this court contains some evidence, including two depositions and various documents, which the trial court could have considered. *83 Moreover, numerous other pieces of evidence were expressly excluded from the appellate record by the Burts in their notices of appeal. There is no way for us to know if the trial court relied on any of that excluded evidence in granting summary judgment.

While the court's written order states that the court considered the pleadings, this statement does not necessarily mean that the court considered no evidence in reaching its decision. First of all, the pleadings themselvesthe trial briefs filed by both the Burts and the tax assessorsrefer to certain pieces of evidence. So the court in considering those pleadings must also have considered the evidence cited in them. Additionally, in the order, the court expressly refers to some evidence in the form of deposition testimony.

Finally, the record contains no transcript of the hearing held before the trial judge. Consequently, "we cannot determine whether evidentiary submissions, stipulations, or statements in place by counsel were tendered at the hearing." Gill v. B & R Intl., 234 Ga.App. 528, 531(1)(c), 507 S.E.2d 477 (1998). Absent a transcript, or some affirmative showing to the contrary, we must presume that the trial court's findings are supported by competent evidence and that the court applied the appropriate standard in granting summary judgment. Patriot Gen. Ins. Co. v. Millis, 233 Ga.App. 867, 871(3), 506 S.E.2d 145 (1998); Lakeshore Marine v. Hartford Accident &c. Co., 164 Ga.App. 417, 418(1), 296 S.E.2d 418 (1982).

2. Because this is an appeal from a grant of summary judgment, we must conduct a de novo review of the record to determine if there are genuine issues of material fact. Fowler v. City of Marietta, 233 Ga.App. 622, 623, 504 S.E.2d 726 (1998). The Burts' appellate brief, which is essentially the same brief that they filed in the trial court, does not properly assert that the trial court's grant of summary judgment was erroneous because there are genuine issues of material fact. Rather, the Burts argue that the court erred in failing to find that (1) business personal property in the county was not taxed, (2) certain real estate in the county was not taxed, (3) the notices of new tax assessments sent to them by the county were deficient, and (4) the tax assessors improperly changed the value of their apartment property from a value established by a prior appeal. Nevertheless, even if we construe these arguments as properly challenging the trial court's summary judgment rulings, the Burts still have not met their burden of proving such challenges by the record.

As the parties appealing from an adverse ruling, it is the Burts' burden to prove any alleged errors by the record. See North Fulton Feed v. Purina Mills, 221 Ga.App. 576, 577, 472 S.E.2d 122 (1996). The Burts have not met this burden because, without a transcript of the hearing held before the trial judge or a stipulation as to what occurred at the hearing, we must presume that the court's summary judgment rulings are supported by the evidence. Ga. Recovery v. Danley, 215 Ga.App. 236, 238(2), 450 S.E.2d 263 (1994). Thus, based on the limited record provided to us by the Burts, we cannot find that the court erred in ruling that there are no genuine issues of material fact on the four arguments set forth above.

3. But we do agree with the Burts' assertion that the trial court should have found that the Board of Equalization improperly failed to render any decision on the issue of whether the valuations of the Burts' properties were uniform with other real property in the county. Even the tax assessors concede in their appellate brief that the Board of Equalization did not expressly address the issue of uniformity, and they ask us to remand the case to the Board for determination of this issue. Because the parties agree that the Board did not adequately address the issue of uniformity, we reverse the grant of summary judgment on that issue only and remand the case to the trial court with direction that it remand the case to the Board of Equalization for determination of the unresolved issue of uniformity. See Hulse v. Joint City-County Bd. &c., 219 Ga.App. 309, 310(1), 464 S.E.2d 890 (1995).

Judgment affirmed in part, reversed in part, and case remanded with direction.

SMITH and ELDRIDGE, JJ., concur.