Higginbotham v. Holliday Construction Co.

McMurray, Presiding Judge. Plaintiff is a partnership engaged in the business of paving contractor. The defendants are various tax officials of Elbert County. Named as defendants are Higginbotham, Tax Collector; Bond, Chairman of the County Board of Tax Assessors; the County Board of Equalizers; and Sanders, Tax Appraiser. [878] Plaintiff’s complaint alleges that it has only one place of business which is located in Meriwether County, that plaintiff owns and operates machinery and equipment which is kept and used wherever required by job locations and is subject to removal at any time according to the exigencies of plaintiff’s business; that plaintiff returned all of its machinery and equipment and was taxed thereon in Meriwether County; that one of plaintiff’s projects is roadwork on the Richard Russell Dam Project involving construction work by plaintiff in both Elbert County and in the State of South Carolina; and that notwithstanding the proper return of taxes being made by plaintiff in Meriwether County, defendants have caused an assessment made and a tax bill rendered to plaintiff on the same machinery and equipment as taxed by Meriwether County. Plaintiff’s complaint seeks a judgment declaring that plaintiff has no tax liability for the year 1981 to Elbert County and a judgment ordering defendants to refund the amount paid to the defendant tax collector of Elbert County in compliance with Code Ann. § 91A-1029 (now OCGA § 48-5-29) as a condition precedent to jurisdiction of the superior court. Defendants’ answer, as amended, raises several defenses including the failure to join proper parties defendant and that the action is an effort to sue Elbert County, and therefore, barred by sovereign immunity. Plaintiff filed its motion for judgment on the pleadings and attached affidavits supporting its position that Meriwether County was the proper taxing authority in regard to the machinery and equipment at issue, that plaintiff had made a proper tax return on its machinery and equipment in Meriwether County, and that the Elbert County assessment was improper. The superior court considered plaintiff’s evidence and treated plaintiff’s motion for judgment on the pleadings as one for summary judgment. The court granted a motion for summary judgment in favor of plaintiff and against defendants. Defendants appeal. Held: To prevail on motion for summary judgment, the movant has the burden to produce evidence which conclusively eliminates all genuine issues of material fact in the case. In the case sub judice, plaintiff presented no evidence to overcome defendants’ above-mentioned defenses. Therefore, defendants were under no duty to present counter evidence in opposition to the plaintiff’s motion. Genuine issues of material fact remain for determination and the superior court erred in granting summary judgment in favor of plaintiff and against defendants. Gary v. E. Frank Miller Constr., 175 Ga. App. 443 (333 SE2d 392); Walker v. Modnar Corp., 178 Ga. App. 374, 375 (1) (343 SE2d 148). Judgment reversed. Sognier, J., concurs. Beasley, J., concurs specially.