THIRD DIVISION BA RNES, P. J., BOGGS and B RA NCH, JJ. N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ September 8, 201 4 

## In the Court of Appeals of Georgia A14A1048, A14A1063; FULTON CO UNTY BOARD OF ASSESSORS v. T ORO PROPERT IES VI, LL C. TAX

B ARNES , Presiding Judge. In these com

panion case s, the Fulton County Board of A ssessors (the “Board”) appeals from

the superi or court’ s grant of attorney fees to Toro Properties VI, LLC (“Toro”) after T oro’s suc cessful a d valorem tax appeals challen gi ng th e Boar d’s valuation of two parcels of comm ercial real pro perty. T he Board a sserts tha t the superior court lacked jurisdiction to award litigation costs and attorney fees and, further, that the trial court’s award runs contrary to the public policy of Geor gia. We di sag ree and aff

irm. The facts of

this case are undispu

ted. Tor o is the own er of tw o adjac ent parcels of comm ercial r eal prope rty lo cated in F ulton Coun ty and which contain a large, multi- unit

apart ment

compl ex. For tax ye ar 2011, t he Fulton C ounty B oard of Equaliza tion(“F CBOE” ) determ

ined the re spective f

air market values of the par

cels1 OCGA § 48-5-311 ( g) provides that “ [t]he taxpayer . . . ma

y appe al decisio ns of the county board

of equaliz ation . . . to the superior court of the county in which the property lies.”

2 Toro filed

two separ

ate acti ons because

Parcel 1 and Parc el 2 have di fferent addresses a nd t ax identif ication num

bers. O n appeal, Case Num ber A14A 1048 specific ally

concerns the order governing Parcel 1 and Case Number A 14A1063 specific ally

concerns the order governing Parcel 2, although the legal issues raised in both cases are identical and will be addressed together. 2 to be $1,913,500 (“Parcel 1”) and $5,504,000 (“Parcel 2”). Pursuant to the procedures set forth in OCGA § 48-5-311 (g), 1 Toro appe aled eac h of the FCBOE’s valuations to the superi or court. 2 To ro then m oved for sum

mary judgm ent and ass erted tha t, contrary to the finding of the FC BOE, the actual fair market value of Parcel 1 was $1,083,600 and

the actual fair market

value of Parcel 2 was $3,116,400. The Board did not oppose the

motions and, consequently, the superior court entered two orders

on November

20, 2012, b oth entitled “

Final Or der and Judg

ment S etting Value” (the “Valuation Orders ”), in which i t set the v alues accor dingly. Sub seq uen tly, on May

6, 2013, T oro filed m

otions pursuant to OCGA § 48-5- 311 (g) (4) ( B) (ii) c ontending tha t, becau se the act

ual fai r ma rket value of each parcel was dete rmine d by the superior c ourt to be 80 percent o r less of the

valuation setby the FCBOE, Toro was entitled to recover its litigation costs and attorney fees in both appeals. The Board opposed the m

otions, but d

idnot challe nge the Valuation3

Orders. Instead, the Board argued, in part, that the superi or court lacked jur isdiction to grant the m

otions after th e expirat

ion of the term

of court i n which the

Valuatio n Orders were is sued and tha t any s uch awar

d would be c ontrary

to Georgi a’s pub li c p olicy

. Following

a hearing , the supe rior cour t rejec ted the Boa

rd’s ar gument and awarded Toro its l itigation

costs and attorney fees (the “ Fee Awards ”). In e ach of the Fee Awards , the superior

court expr

essly p rovided tha

t “[t ]here being no fur

ther issue pending bef

ore the Co urt in this case, in accorda nce with O CGA § 9- 11-54 (b), the C ourt cert ifies this is the Final Order and Judgm ent term

inating this case and t

he Clerk shall theref

ore close the file. ” This app eal follow s. The Board ar

gues that th e Valuation Orders constituted final judgments that terminated

the actions as to the parties and their claims, and that the later-issued Fee Awards amoun

ted to an una

uthorized a

ttemp t by the

superior court to modify the final judgm ents outside theterm of court in which they we re rend ered. B ecaus e the trial court did not expressly

reserve the right t o do so in theValuation Orders, the Board contends th at t he F ee A war ds “fru st rat e[ ] t he i nt ere st of j ud ici al e con omy and [are] contrary to public policy.” W e disagree. The very prem

ise of the Board’s argument—that the V al uation Orders terminated

the proce edings in

the superi or court—i s misguided. Pursuant t o OCGA4

§ 48-5-31 1 (g) ( 4) (B) ( ii), upon a ppeal to the

superior c ourt of a va

luation of

comm ercial property

set by the FCBOE, “[i]f the final determ ination of v alue . . . is 80 percent o r less of t

he valuati on set by

the [FCBOE] . . ., the taxpayer , in addition to the intere st provided f or by t his paragr

aph, sha l l recover

costs of li tigation and reasonabl e attorney ’s fee s incurre d in the act ion .” Thus, b y its e xpress ter ms, the statute manda

te s the issu ance of an award following the superior court’s final determ ination as to value

if that value trigge rs the stat utor ythreshold. See Fulton Cnty. Bd. of

Tax Assessors v. LM Atlanta Air port, LLC, 313 Ga. A

pp. 439, 44 1 (721 SE 2d640) (2011) (recogni zing that a n award o f reasona

ble attorn ey fe es and

cost s underOCGA § 48-5-311 (g) (4) (B) (ii) is required if the statutory conditions are met); Sph Glynn, LLC v. Glynn Cnty. Bd. of T ax Assess ors , 326 Ga. App. 196, 201 (2) (756 SE2d 282) (2014) (sa me); see also TermNet M erch. Se rvs., I

nc. v. Phillips , 277 Ga. 342, 344 (1) (588 SE2d 745) (2003) (“When construin g statut ory phrases, . . . we note that in its ordina

ry sign ification , ‘shall’ is a word of com mand, and the con

text ought to be very

strongly persuasive

before t hat word i s softened i nto a mere permission.”) (punctuation and footnote omitted). This is tru e whether or not Toro specific ally

pleadedfor the recov ery of costs and fees. See OCGA § 9-11-54 ( c) (1) (“[E] very final j udgmen

t shall gra nt the reli ef to whic h the party in whose favor it i s5

rendered is entitled, even if the party has not demanded such r elief in hi s pleadings

. . . .”). And this rem

ains true re gardless of the fact that the superior court entitled each of its Valua tion Or ders a s a “Final Order a nd Judgment Setting Value.” See OCGA § 9-11-54 (b ) (“ In the absence of [e xpress direction by thecourt], any order

. . ., however designated, which adjudicates fewer

than all the

claim s or the ri ghts and liabilities of fewer thanall the pa rties shal l not

terminate the action as to a ny of t he cla ims or parties . . . .”); Sotter v. Stephens , 291 Ga. 79, 82 (727 SE2d 484) (2012) (noting th at “the m ere designation of a judgment as ‘f inal’ is not controlling”) (punctuati on omitted); Metro. A tlanta Rapid Transit Au th. v. Federick , 187 Ga. App. 696, 698 (1) (37 1 SE2d

204) (1988) (“A judgment is final only w hen it dispose s of the entire controversy, leaving nothing for the C ourt t o do in th e case.”). It foll ows that b y r endering th e Fee A wards, the superi or court di d not mo dify t he Valua tion Orders, the issuance o f which had not terminated theproceedings between the parti es, but instead af

forded T oro addition al relie f to which it was sta

tutorily enti tled. See OCGA § 9-11-54 (c) (1);OCGA § 48- 5-311 (g) (4) (B) (ii). Moreover, contrary

to the Boar

d’s arg ument , render

ing the Fee A

wards after the expira

tionof the term of court

of the Valuation Orders did not frustrate judicial

eco no my or violate

Georgia ’s publicpol icy. OCGA § 48-5-311 ( g) (4) (B ) (ii)6

contains no time

limit ation d icta ting when a taxpay er m

ust mov e or a cour

t must award litigation c osts and attorn ey fe es. Compare OCGA § 9- 11-1 1.1 (f) (“Attorn ey’s fees and exp ens es u nde r th is C ode sect ion may be r equ est ed b y motio n at any t im e during the course of the action but not later than 45 day s after t

he final di sposition, including but not limited to dismissal by

the plainti ff, of t

he action. ”); OCG

A § 9-15- 14 (e) (“Attorn ey’s fees and e xpenses unde r this Code sect ion ma y be requested by motion at any timeduring the c ourse of the ac tion but not la ter than 45 days a fter the final disposition of

the action.”). And in the absence of a specific statutory dictate, the law otherwis e contains safegu ards to pr otect again st th e clut terin g of th e cour t’s docket due to unre solved case s and/or dil atory counsel. See OC GA § 9-2- 60 (b) (“A ny action or other proceeding filedin any of the cour ts of this st ate in which no writtenorder is taken for a peri od of five years shall autom atically stand dismissed with costs to be t axed against the par ty plai ntiff.” ); OCG

A § 9-11-4 1 (e) (“

Any a ction in which no w

ritten ord er is taken for a pe riod of five year s shall auto matic ally s tand dismis sed, with costs to be taxed against the party plaintiff.”). For these reasons, the Board’ s argum ents fail and the Fe e Awar ds are af firm ed. Judgments

affirmed. Boggs and B ranch, JJ ., conc ur .