*1 OF TAXASSESSORS COUNTY BOARD A08A1644. FULTON NATIONAL BISCUIT COMPANY. Judge. BERNES, appeal, Board of Tax Assessors the Fulton In this tax judgment valuing superior challenges certain commercial court’s the Company. by taxpayer, property Biscuit The the National owned the property was limited to the value for the ruled that the tax finding notwithstanding equalization, by its board of value set proving higher of a value had met its burden that the tax assessors by preponderance conclude that the court’s of evidence at trial. We a ruling therefore, erroneous, and we reverse. was appraised and assessed shows that the tax assessors

The record property taxpayer’s fair market value of commercial at a taxpayer private year. obtained a $7,469,500 appraisal the 2005 tax The for appealed property $4,200,000 and valued the at that equaliza- equalization. The board of to the board of assessed value valuing property $5,196,360. The at a decision tion entered taxpayer superior seeking appeal court, a further filed an then Following property’s a bench of the assessed value. reduction proven property of had a value ruled that the tax assessors the court by preponderance evidence. The court neverthe- $5,650,000 of the property could not exceed the value set that the less concluded equalization tax assessors had not filed of since the the board equalization’s cross-appeal separate decision. The tax of the board contending that the court erred filed the instant assessors agree. limiting property We valuation. so (3) provides (g) tax OCGA superior “[t]he In a constitute a de novo action.” shall action, de novo brought up] [is below, from the court

the whole record competent be admissible on the trial all evidence shall not; on a former trial or either thereof, whether adduced on the whole merits of the case. is entitled to be heard had. anew as no trial had been Such a case must be tried if province court on such an It is not the of the rulings review the to review and affirm or original try pass tribunal, anew and but issue judgments questions involved as there had been no on the if previous trial. (Citations original.) emphasis punctuation omitted; Weeksv. (1) Equalization, Ga. Gwinnett Bd. Tax 865) (1976). City 5-3-29; OCGA See also of Griffin *2 (1) (53 App. Co., Southeastern 420, Textile 79 Ga. 422-423 (1949). required independent such, As the court was to exercise its judgment valuing property, being by giving in the without bound or equalization’s findings. City deference to the board of Griffin, See of (1). 79 Ga. at 421-423 § Significantly, (g) contemplates OCGA 48-5-311 that the final greater determination of value on can be than the valuation (4) (B) by § equalization. (g) set the board of See OCGA 48-5-311 (iii) (“If appeal greater the final determination of value on than the by county equalization, taxpayer valuation set the board of . . . the year question[.]”) shall be liable for the increase in in taxes for the (emphasis supplied). taxpayer And, while either the or the tax may pursuant assessors file a tax (1) (g) provision requiring statute, subsection of the there is no cross-appeal opinion tax assessors to file a to be heard on its of Regardless party valuation. of which initiates the tax the tax charged proving opinions assessors are with the burden of “their of validity proposed by preponder- value and the of their assessment (3).1 § (g) ance of evidence.” OCGA 48-5-311 their burden of the evidence at the de novo If the tax assessors met

proving particular by preponderance of the court was authorized to enter judgment proven. its valuation determination and See, in the amount so e.g., Trichinotis, 19, Jr. Mills Constr. v. 223 Ga. 141) (1996) (ruling appealed SE2d superior that when a claim is to a state or “[ejither investigation, court for a de novo is entitled to be heard on the whole merits of the case” and if additional damages proven, they may appeal). are in be awarded upon County court, however, The relied Gwinnett Bd. Tax of (3) Assessors v.Ackerman Indian 723, / 794) (1991), support in of its decision. In Gwinnett County, appealed jury the board of tax assessors from a verdict valuing property taxpayer. the tax in favor of the The tax assessors failing jury claimed that it could raise the assessed in court erred to instruct the property by value over the value set equalization. ultimately any board of Id. This court concluded that jury’s such error was harmless since the value determined equalization’s finding. verdict was less the board But, than Id.

opinion state, dictum, went on to in obiter that the tax assessors they appealed could not claim error since had not from the board of equalization’s findings decision, thus, had not called the board’s question. into Id. (3) (g) impose proof require was in amended 1999 to the burden of 1043, p. L.

ment. Ga. 3. County principle

The dicta in Gwinnett sets forth an erroneous in the context of tax and is contained in a division of the physical precedent, authority binding that is which is not jurisprudence.2 To the state’s extent that persuasive authority, Lowder, be cited as see Pechin v. prudent expressly

203, 204-205 we deem it disapprove language the erroneous Gwinnett preclude any improper upon Accordingly, further reliance its dicta. disapprove we dicta Gwinnett to the extent that it holding appeal requires *3 conflicts regardless novo, with that a tax a trial de party superior of which files the and that the by any equalization’s prior findings. is not bound of the board of The court’s determination in of value this tax was not equalization. restricted to the valuation of the board of The court holding contrary. erred in to

Judgment Miller, J., Johnson, J., Blackburn, J., reversed. C. P. P Ellington, Phipps, Doyle, Smith, J., Mikell, Adams, JJ., P. specially. specially Barnes, J., Andrews, J., concur. concurs P. concurs judgment only. and in Presiding Judge, concurring specially judg- and in ANDREWS, only.

ment majority acknowledges, Judge Carley As the when concurred “in judgment” Divisions 1 and 2 and in the in the case of Gwinnett County Bd. Tax v. Assessors Ackerman/Indian approval 723, 725 he withheld his from opinion, rendering Division 3 of the same which had the effect of physical precedent only. division as disapprove When it asks the whole Court to majority attempting division,

of this same is deprive precedential Division 3 of the Gwinnett case of it has never had. physical precedent provides

In those rare cases in which a parties only position, disap- or the trial court with the basis for proval may e.g., Chaparral See, Heath, be desirable. Boats 567) (2004) (noting 339, 344-345 trial court’s physical precedent). unambiguous statutory Here, reliance on law §§ superior contravenes the court’s decision. See (in (authorizing appeals); any a de novo action for tax de novo “[e] to a ither is entitled to be heard on 2 (a) (“an Appeals opinion physical precedent only respect See Court of Rule 33 with any opinion judgment only special Division of the for which there is a concurrence in the or a said”). agreement County, concurrence without a statement of with all that is In Gwinnett Judge Carley opinion, approval in 2 concurred Divisions but withheld his 3, containing Division the dicta at issue here. case”). authority, the whole any merits of the In the face of such physical precedent contrary precedential persuasive has no or any authority majority value of kind. And the cited for its potentially “persuasive” characterization of as upon special precedential relies concurrence which itself lacks value. See Pechin Lowder, Ga. 430) (2008), citing Chaparral Boats, 269 Ga. at 349-350 (Barnes, concurring specially eight-judge J., majority). to an judgment only. I therefore concur BARNES, Judge, concurring specially.

Although fully majority opinion, I concur in all that is said in the separately Presiding I Judge write to address Andrews’s comments special in his concurrence.

They suggest physical precedent only that an that is can precedential, persuasive, effect, have no otherwise, or and need not disapproved apparently, be unless case, as this the trial court has upon physical precedent. though relied statutory Even law contravene the division of Gwinnett Bd. Tax Assessors *4 (402 794) App. 198 Ga. 723 SE2d Ackerman/Indian (1991), history regardless of this case that, demonstrates of its precedential legal capacity value or correctness, it has the to confuse showing trial Therefore, courts. a clear statement the correct status of the case is warranted.

Unfortunately, opinions merely physical precedent that are are frequently authority, binding authority. example, cited as even For (630 441) Cayes, App. (2006), Anderson v. 278 Ga. 592, 595, n. 1 SE2d (4) (398 797) App. cited Baker, Brown v. 466, 197 Ga. 469 SE2d (1990) (physical precedent only), authority as and a footnote stated “[w]hile physical precedent only, that judge having Baker is one judgment only, approval concurred in we have cited it with and precedential without comment as to its value on several occasions.

[Cits.]” authority Brown v.Baker has been cited as times, numerous only including Cayes, but in cases, two Anderson v. did the expressly physical precedent only. note that the case was In the other merely noting cases, the authors cited Brown v. Baker without that binding precedent. it was not In the manner, same Bruno’s Food (491 881) Taylor, (1997), Stores 439, 228 Ga. 442 SE2d also authority has been cited as numerous times without notation that it only physical precedent though judge even no concurred in what appears majority opinion. to be a physical precedent only seep

These cases into our case law and given precedential judges are status even of this who upon by should better, know and are relied courts, who systems proper not. Therefore, so that the citator will show the 888 disapproved case,

status of the cases should be appropriate. when Presiding Judge special

The final lines of Andrews’s concurrence suggest giving physical precedent only cases status as even persuasive authority that, however, is somehow not allowed. To do placing would have the unusual result of decisions of this court in a Deposit courts, lesser status than decisions of federal McKeen v. Fed. 104) Corp., (2001); 46, 48, Ins. 274 Ga. n. SE2d the Restate- Torts, Simmons, Attorney 113, ment of J.C. Lewis Motor Co. v. 128 Ga. (1) (195 781) (1973); opinions, SE2d General’s Gilder, 478, Wheeler Bd. Tax Assessors v. (2) (568 786) (2002); UCC, Comments to the see Sun v. Corp., Mercedes Benz Credit many nonbinding precedent, other kinds of an unusual result indeed. 2009.

Decided March appellant. Alexander, Carmen R. for Perry, appellee. Brock E. for

A08A2437. WILLIAMS v. THE STATE. Judge. Bernes, Robert Todd Williams from the denial of his motion for discharge acquittal ground that, on the after the trial court granted timely him a new he was not tried in accordance with *5 speedy expired his demand for trial. Because Williams’s demand had original at the conclusion of his we affirm. Paulding County grand jury

A indicted Williams on two counts of and two counts of aggravated sodomy, aggravated molestation, child speedy pursuant child molestation. Williams filed a demand for to OCGA 17-7-170 He was (a). § subsequently timely tried accord- ance with his demand and convicted on all counts. See OCGA (b).1 Williams then filed a motion for new trial. The trial court granting day entered an order Williams a new trial on the after the (b) provides speedy [i]f the defendant is not tried when the demand for trial is made or at the thereafter, succeeding regular provided next court term that at both court terms juries defendant, impaneled qualified try there were the defendant shall absolutely discharged acquitted charged be of the offense in the indictment or accusation.