*1 598 INDUSTRIES, INC. et al. v. GORDON ALDON

COUNTY BOARD OF TAX ASSESSORS. Presiding Judge. Deen, twenty-eight appellants here, involved whose by superior cases were court, trial in the consent consolidated for appeal finding judgment from the on a verdict against their contentions that the tax of Gordon assessors County, admittedly who based for assessments property taxes on 40% of the 100% value which market at personal property returned, such based assessments county figures on real situate at considerably thereby creating amount, under this unequal impermissible tangible subclassifications of purposes. appealed for tax The assessments were equalization up to the board of tax set under the provisions § 92-6912, of Code and from there to the Superior County. Court of Gordon Held: appeal 1. The motion to dismiss the D. is denied. J. (1) (175 Jewell, Hancock, Inc. v. 226 Ga. 480 SE2d Young State, v. SE2d stipulated personal property 2. It is value, returned at 100% of its fair market and that was § figure required by 40% assessed at of this Code ("All tangible property subject by 92-5703 to taxation any county, taxing jurisdiction State, or shall provided be returned law at its fair per market and shall be at 40 assessed cent of said according per fair market value and taxed to said 40 cent levy respective of its fair market value on a made each taxing jurisdiction. purpose . . It is the intent and of the Assembly tangible General of this State that the value of property as referred to in the tax laws ofthis State shall be per property.”) cent of the fair market value of such

It was further uncontested that real estate and tangible personal property (except exceptions for few vehicles) single such as motor constitute a class of purposes for tax and must be valued in the same the same manner. "All taxation shall be uniform subjects class of within the territorial limits of the authority levying Georgia, the tax.” Constitution of Art. (Code 2-5403.) VII, taxing authority I, Sec. Par. Ill single tangible property not subdivide a class into subcategories. Griggs Green, v. SE2d 617) 116); Herring Ferrell, (this ruling being modifying opinion, affirmed in the 599)). Herring Ferrell, 1Ga. *2 finding

At issue is whether the demands a appraised substantially that real figure at a lower county than fair market value in the as a whole represented something with the result that assessments like 30% instead of 40% of fair market and thus value unjustifiable impermissible threw an tax burden on tangible property. subclassification of This is an important large matter for both and small business part large inventory concerns whose are in taxes levied on apartment fixtures, and and on dwellers who own personal property but little or no real estate. appellants twenty-one introduced records of pieces during year of estate which had been sold question previous year prices in ranging and the with sales along $4,000 $222,000,

from with evidence the sales were and uncoerced most themof were substantially uniformly prices cash sales. Sales ran ahead appraised (assuming of values the extent that the sales value) prices represented in fact fair market sale) (on appraised values $160,000 ran between 28% a sale) (on county $48,000 and 77% a of market values. The contended sales, that the sales were not all cash that the cross section was too small to allow definitive appraised reflection of values, versus market and that in speculative subject special some cases sales were or value, considerations and should not be taken at face being duty of the board of tax assessors "to see that all county taxable within the is and assessed just returned at its and fair valuation arid that valuations fairly justly as between the individual are and equalized taxpayer pay so that each shall near only proportionate required by his share of taxes” as (a). (4) (B): § Also, Code 92-6911 under "If Code 92-6912 equalization] [of uniformity the board determines present, power not the board shall have the to order the county as is such action board of tax assessors to take Moseley necessary uniformity.” Fargason, See to obtain view, under this prices, Sales if a example, For conclusive. heuristic but not are cash three houses shows 20 identical subdivision with vary appreciably these sales a and year, within sales be an value would fair market true index of price, hand, although the other the sales. On average of man estate a real testimony by had some county general to the effect tax assessors a member of the board of fair market based on in fact values were that assessed particular of forthcoming all at were examples no in the However, had the board this out. bearing instances 4,000 pieces some examined previous years upward values in fact assessed changed and had property, and to what circumstances, although where in some From the evidence fails to indicate. extent the record whole, his conclusion assessor, taken as a the tax market value at fair appraised variations shown evidence. The supported by is not value showed sales to analysis appraised plaintiffs’ their sale than half land valued at less blocks of large *3 and discrepancies the attempt explain little to with lands. on other proper appraisals to indicate attempt no showed an effort Further, testimony thrust of the the estate, no effort to but little or taxes on "equalize” market value as to its fair keep up this equalization "Realty tangible and the statute. required by rule class, the constitutional and are of the same property taxed both be in taxation uniformity requires of Howard, 211 alike.” Hutchins Ridley, and Colvard v. see for the are peculiarly While of value questions the which data in the evidence any "where there is and knowledge their own exercise jury may legitimately ” (Dixon 75)), Co., 34 Ga. App. ideas’ Cassels had a have jury may and the members of this while as property their own general experience idea from properly was property owners data of no evidence the record appraised, there is could be drawn. this conclusion from which the contention correct as to 3. The trial court was Department certain "official records of the Au- of dits” were excluded, for lack improperly proper of provides authentication. law as to how official § document must documented. See Code 38-601. There proper any- here, was nor there no authentication thing to show whatever that these communications or Department except letters bottom of 53 "Georgia from the were of Audits at the pages following: of is found the data sheets Department Davis, of Audits. E. B. State pages supplied Auditor.” by Four refer "Information Department.” adjusted equalized An Revenue digest required school tax is Ann. Code prepared by 92-7008, the same to be the auditor. These "equalized did documents not state that this adjusted digest prepared school tax Department properly Audits,” and it was not authenticated. §§ reading relating on Error enumerated of Code

92-6202.1, 92-6206, 92-6207, 92-6208 to methods property. returning Although some of the information applying these statutes was irrelevant to the not case as categories plaintiffs which the various were situated might so far evidence, have been shown nev- duty ertheless, to return for taxation and its at full valuation market value was relevant we nothing given, simply find in the instructions which making outlined manner returns under various circumstances, which would have been harmful to the appellants. These enumerations are merit. without

Judgment Bell, J., reversed. C. Quillian, Clark and Webb, JJ., Pannell, J., concur. P. Evans, Stolz and Marshall, JJ., dissent. Argued May 21, 1975 Decided October

Rehearing denied November *4 ap-

Langford, Pope Bailey, Pope, R. & for Thomas pellants.

Chance, Jones, Chance, Sr., Maddox & Ronald F. appellee. Jones, Howard for Judge, dissenting. Evans, County

Twenty-eight taxpayers in appealed Gordon tax assessors to made the board of their assessments equalization, the assessments were where the board of Superior appealed taxpayers to the then sustained. The County, their cases were tried Court of Gordon where sustaining jury, returned a verdict before a and the trial were filed and Motions for new the assessments. judge approved showing the trial overruled, the thus jury. verdicts of the

According census of the United States County composed it residents, and is of23,570 Gordon taxpayers, twenty-eight among fair many that to assume jury, yet were on the who of them had friends unwilling that a the evidence in such fashion to construe twenty-eight taxpayers. verdict be rendered for the could Perhaps proper several it here to set forth is (a) well-recognized principles law, to wit: When a approved by judge, evidence must verdict is be verdict. See the trial favorably sustaining construed most towards Boatright Rich’s, 121 therein, (b) a verdict is When SE2d approved by and citations "any” judge, if there is the trial support sustained; verdict, it be other should completely preponderance of the evidence is words, the although immaterial, taxpayers not conceded here preponderance of the case. had a on their side (2) State, See Davis v. Merry, App. McBowman system County, ofassessments used Gordon many counties, the true is to ascertain 100% of property, place market value of the and then same on the 40% tax for taxation at thereof. books stipulated be offered It was that evidence would taxpayers, only twenty-eight and that this two of the applied of all of cases evidence would twenty-eight taxpayers. appealed to the have not as- appeal only estate, as to

sessments made but realty personalty. They contend the assessors allowed only placed its true to be at 30% of on the books shifting great which had the effect of too a tax burden on personalty. *5 majority opinion, it, we construe as The thrust of (1) finding that the demanded a is as follows: The evidence appraised than fair market value was at less amounting county 30%, which whole, to about in the as a imposed unjustifiable burden on (2) data that the There was no evidence or valuations. property properly appraised. was twenty-eight taxpayers in are a somewhat position. They assert strained and awkward (around figure realty value), 30% of its a was assessed at too low 40%) (around higher figure as in which resulted a alleges personalty. no that he owns to real Not one of them position estate, and each is therefore helped asserting hand and that he has been on the one only says appealing hurt Each he is on the other. personalty, alleges he out but not one of them how came assessment, if words, made as In did the over-all. other admitted) (which they position their affect run? over-all contend is not realty long Usually in for better or worse valuable than his owned an individual is more way personalty, they say do one or other and as not may here, the case with these we assume that this is twenty-eight taxpayers. There is a well known rule of law appeals one to show the burden is on who affirmatively only error, not but also that the error has (3) (58 injured Campbell Powell, 768, him. 206 Ga. 829); Co., 211 Ga. SE2d 356 v. Ackerman Const. Childers 227); Kennedy, Properties SE2d Midland 120); People’s App. Harwell v. Loan 800). Co., &c.

Actually twenty-eight we assume that these taxpayers plan taxation, benefited in the over-all be- they contrary. cause do not contend to the jury circumstances, Under these a trial their with county among friends, with the verdict home their approved by very flagrant judge, error the trial unless granted, committed, and no a new trial should not appears such error this case. majority opinion places in a position asserting rather difficult finding appraised demanded a that the real at less than fair whole. In markét value as a words, directed verdict on this it is that a implied authorized. issue was proven by opinion been always

Market value has evidence is sufficient Hearsay Code 38-1709. evidence. Smith, 164 Ga. Co. v. Refining fix market value. Gulf (4) (139 Swann, 716); Landrum v. SE (1) (68 experts A not bound opinion Supply B. R. Co. v. Howard Atlantic & to market value. v. Lattimore & Wilson *6 Co., 125 478 SE 740). (2) (69 White, SE 135 Ga. the taxing admission on the of part

There was no than 40% that taxed real at less they property authorities in witnesses They expert of the fair market value. offered valued that the was prove property the real field to estate thereon at fair value and that the assessment market it thereof, was even as though experts gave 40% was property their that the fair market value of opinion expert different than the assessors’ by as testified witnesses.

Besides, in the case to show ample there was of the it to the valuation jury the had evidence before as correctly. fixed valuation realty, they and its 4,000 land of land sales out of some taxpayers’ use in the deeds the involved during period transactions (T. that wholly inadequate prove and 1973 p. the 15,000 on parcels property taxable approximately 31). (T. p. 1973 Tax are under-valued Digest that imagined figures assessment valuations were not (4) (172 82, 86 shown in v. 226 Ga. Register Langsdale, 620). Thus, and jury the could have considered with that of compared by taxpayers the data offered the Further, the the transactions taxing authority experts. by "absolutely offered the were not straight 56). (T. cash In some of p. analyzing transactions.” sales, they simply were not cash transactions taxpayers’ (T. 281, pp. Ann. 92-5702 control. whereby Code would 316). 309, 152, 58, 304, 172-174, that there majority 2. the contention As to properly that was property was no evidence or data instances, In violently. differ some appraised, we accept they that refused authorities testified taxing the fair being sales showing deed records speculation of market value of said land due to the years. in in ofthe values this the last few One expert that witnesses testified he was a real estate broker years experience; had with five there been speculation land; in considerable as to increased year including through 1968, 1969, 1973, value each but (T. 142, 143, 145). pp. in somewhat down One of the tax assessors testified that he used the combination of study determining income, cost sales fair market (T. 165); increasing value land in value due p. speculation, keep to equal. but that he tried assessments (T. 175). p. may "Market value be established either direct or circumstantial Atlantic C.L.R. evidence. 1030); App. Harris, Co. v. Landrum SE App. Swann, 8 Ga. SE Farm Products 327). Eubanks, Co. v. 604, 607 On this absolutely issue, the 'are not bound even testimony experts, uncontradicted but consider the nature of the involved and other facts or knowledge arriving circumstances within their aat provided verdict, there are evidence sufficient facts they may legitimate from which draw a conclusion.’Grant Dannals, *7 peculiarly 'Questions ofvalue are for the determination of jury, any where there is data in the jury may legitimately which the exercise their "own ’ knowledge App. and ideas.” Co., Dixon v. Cassels (3) (130 75). also, See C. L. R. v. Atlantic Co. (88 App. 809); Clements, 92 451, Ga. SE2d Childs (120 138).” Logan App. Co., Motor 103 Ga. SE2d League, Sun Ins. Co. New York 625, 626 Georgia Harwell, SE2d also Power Co. v. App. fully majority opinion, 3. I concur in Division 3 ofthe strongly judgment but I dissent from the of reversal. twenty-eight These have had they assessment in their own and then have had hearings county, or trials in their own and the last neighbors. one was before a of their friends and I feel fairly the case has been tried and would affirm the trial court.

I am Presiding Judge state that authorized Judge Judge join Pannell and Stolz and Marshall this dissent. STOP, TRUCK INC. v.

51078. DALTON AMERICAN COMPANY, ADBE INC. DISTRIBUTING Deen, Presiding Judge. appellee ADBE sued for the balance due on a equipment assigned

lease contract for surveillance to it original lessor, Zukunst, Inc. The written contract components lists the of the surveillance and intercom system, monthly payments, rental the term for which parties. signed it is rented and the Defendant the lease. (for example, While certain elements remain unclear therein), identity A and B of Plans referred to all present. of a valid contract are Code 20-107. essentials appear complaint does not from face of the either It subsequent there has been a material alteration premature. execution or the action is Notice of attorney acceleration of the debt and demand for fees was added amendment. The motion to dismiss for failure to properly state a claim denied. point

2. A motion for more definite statement "shall complained out the defects of and the details desired.” The requirements defendant’s motion fails to meet these properly overruled. Corp., 3. In Short v. General Elec. Credit it was that a held clause agrees lease which the lessee to waive defenses as against a transferee or the lessor and them reserves against the lessor alone is valid and enforceable. This provision: following may lease contains "Lessor assign .. . defenses, this lease. from all free setoffs or counterclaims kind or character which Lessee against being agreed be entitled to assert Lessor... *8 any assignee any obligations of Lessor does not assume the Lessor herein named. It is further understood agreed, may separately however, that Lessee claim against Lessor as to matters which Lessee