295 Ga. 29
FINAL COPY

      S13A1566. NEWTON TIMBER COMPANY, L.L.L.P. et al. v.
          MONROE COUNTY BOARD OF TAX ASSESSORS et al.


      HINES, Presiding Justice.

          This is an appeal by landowners from the Superior Court of Monroe

County’s denial and dismissal of their petition for a writ of mandamus and

related adverse rulings involving their real property tax appeals. For the reasons

that follow, we affirm.

      The appellants include various entities and individual members of the

Newton family (hereinafter “Newton Entities”) who collectively own numerous

parcels of land totaling thousands of acres in Monroe County. Beginning in 2008

and continuing each year through 2012, Newton Entities contested the tax

assessments made by the Monroe County Board of Tax Assessors (“Board”) for

their properties, totaling more than 100 separate tax appeals. See OCGA § 48-5-

299.1 In 2008 and 2009, they filed notices of appeal to the Monroe County

      1
       OCGA § 48-5-299 provides:
              (a) It shall be the duty of the county board of tax assessors to investigate diligently
      and to inquire into the property owned in the county for the purpose of ascertaining what
      real and personal property is subject to taxation in the county and to require the proper
      return of the property for taxation. The board shall make such investigation as may be
      necessary to determine the value of any property upon which for any reason all taxes due
the state or the county have not been paid in full as required by law. In all cases where the
full amount of taxes due the state or county has not been paid, the board shall assess
against the owner, if known, and against the property, if the owner is not known, the full
amount of taxes which has accrued and which may not have been paid at any time within
the statute of limitations. In all cases where taxes are assessed against the owner of
property, the board may proceed to assess the taxes against the owner of the property
according to the best information obtainable; and such assessment, if otherwise lawful,
shall constitute a valid lien against the property so assessed.
        (b) (1) In all cases where unreturned property is assessed by the county board of
tax assessors after the time provided by law for making tax returns has expired, the board
shall add to the amount of state and county taxes due a penalty of 10 percent of the
amount of the tax due or, if the principal sum of the tax so assessed is less than $10.00 in
amount, a penalty of $1.00. The penalty provided in this subsection shall be collected by
the tax collector or the tax commissioner and in all cases shall be paid into the county
treasury and shall remain the property of the county.
                 (2) (A) The provisions of paragraph (1) of this subsection to the contrary
        notwithstanding, this paragraph shall apply with respect to counties having a
        population of 600,000 or more according to the United States decennial census of
        1970 or any future such census.
                 (B) In all cases in which unreturned property is assessed by the board after
        the time provided by law for making tax returns has expired, the board shall add
        to the assessment of the property a penalty of 10 percent, which shall be included
        as a part of the taxable value for the year.
        (c) Real property, the value of which was established by an appeal in any year,
that has not been returned by the taxpayer at a different value during the next two
successive years, may not be changed by the board of tax assessors during such two years
for the sole purpose of changing the valuation established or decision rendered in an
appeal to the board of equalization or superior court. In such cases, before changing such
value or decision, the board of assessors shall first conduct an investigation into factors
currently affecting the fair market value. The investigation necessary shall include, but
not be limited to, a visual on-site inspection of the property to ascertain if there have been
any additions, deletions, or improvements to such property or the occurrence of other
factors that might affect the current fair market value. If a review to determine if there are
any errors in the description and characterization of such property in the files and records
of the board of tax assessors discloses any errors, such errors shall not be the sole
sufficient basis for increasing the valuation during the two-year period.
        (d) When real or personal property is located within a municipality whose
boundaries extend into more than one county, it shall be the duty of each board of tax
assessors of a county, wherein a portion of the municipality lies, to cooperatively
investigate diligently into whether the valuation of such property is uniformly assessed
with other properties located within the municipality but outside the county where such
property is located. Such investigation shall include, but is not limited to, an analysis of

                                           2
Board of Equalization (“BOE”), which heard the appeals in March 2010. See

OCGA § 48-5-311 (e) (1) (A).2 Not satisfied with the determinations of the BOE,

Newton Entities appealed to the superior court in April 2010. See OCGA § 48-5-

311 (g) (1).3 They then appealed their 2010 and 2011 tax assessments to the


      the assessment to sales ratio of properties that have recently sold within the municipality
      and a comparison of the average assessment level of such properties by the various
      counties wherein a portion of the municipality lies. The respective boards shall exchange
      such information as will facilitate this investigation and make any necessary adjustments
      to the assessment of the real and personal property that is located in their respective
      counties within the municipality to achieve a uniform assessment of such property
      throughout the municipality. Any uniformity adjustments pursuant to this subsection shall
      only apply to the assessment used for municipal ad valorem tax purposes within the
      applicable county.
      2
        OCGA § 48-5-311 (e) (1) (A) provides:
              (1) (A) Any taxpayer or property owner as of the last date for filing an appeal may
      elect to file an appeal from an assessment by the county board of tax assessors to either:
              (i) The county board of equalization as to matters of taxability, uniformity of
      assessment, and value, and, for residents, as to denials of homestead exemptions pursuant
      to paragraph (2) of this subsection;
              (ii) An arbitrator as to matters of value pursuant to subsection (f) of this Code
      section; or
              (iii) A hearing officer as to matters of value and uniformity for a parcel of
      nonhomestead real property with a fair market value in excess of $1 million pursuant to
      subsection (e.1) of this Code section. . . .
      3
        OCGA § 48-5-311 (g) (1) provides:
              The taxpayer or the county board of tax assessors may appeal decisions of the
      county board of equalization or hearing officer, as applicable, to the superior court of the
      county in which the property lies. By mutual written agreement, the taxpayer and the
      county board of tax assessors may waive an appeal to the county board of equalization
      and initiate an appeal under this subsection. A county board of tax assessors shall not
      appeal a decision of the county board of equalization or hearing officer, as applicable,
      changing an assessment by 20 percent or less unless the board of tax assessors gives the
      county governing authority a written notice of its intention to appeal, and, within ten days
      of receipt of the notice, the county governing authority by majority vote does not prohibit
      the appeal. In the case of a joint city-county board of tax assessors, such notice shall be

                                                3
BOE, which appeals were heard in March 2012. Dissatisfied with these BOE

decisions, Newton Entities again appealed to the superior court. They filed

notices of appeal as to the 2012 tax assessments for certain parcels directly to the

superior court in July 2012. Newton Entities did not pay the filing fees for the

five years of tax appeals to the superior court.

      In April 2011, Newton Entities submitted a Conservation Use Value

Assessment application (“CUVA”) for 18 different parcels. See OCGA § 48-5-

7.4 The number “2008" was handwritten on the top of each printed


      given to the city and county governing authorities, either of which may prohibit the
      appeal by majority vote within the allowed period of time.
      4
        OCGA § 48-5-7 provides:
              (a) Except as otherwise provided in this Code section, taxable tangible property
      shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made
      by each respective tax jurisdiction according to 40 percent of the property's fair market
      value.
              (b) Tangible real property which is devoted to bona fide agricultural purposes as
      defined in this chapter and which otherwise conforms to the conditions and limitations
      imposed in this chapter shall be assessed for ad valorem property tax purposes at 75
      percent of the value which other tangible real property is assessed and shall be taxed on a
      levy made by each respective tax jurisdiction according to said assessment.
              (c) Tangible real property which qualifies as rehabilitated historic property
      pursuant to the provisions of Code Section 48-5-7.2 shall be assessed at 40 percent of its
      fair market value and shall be taxed on a levy made by each respective tax jurisdiction
      according to 40 percent of the property's fair market value. For the purposes of this
      subsection, the term “fair market value” shall mean the fair market value of rehabilitated
      historic property pursuant to the provisions of subparagraph (C) of paragraph (3) of Code
      Section 48-5-2.
              (c.1) Tangible real property which qualifies as landmark historic property pursuant
      to the provisions of Code Section 48-5-7.3 shall be assessed at 40 percent of its fair
      market value and shall be taxed on a levy made by each respective tax jurisdiction

                                               4
application.5 All of these applications were approved in 2011 for a period to

begin on January 1, 2011.

       Over a year later, on October 2, 2012, Newton Entities filed a petition for

a writ of mandamus against the Board, requesting, inter alia, two counts of


        according to 40 percent of the property's fair market value. For the purposes of this
        subsection, the term “fair market value” shall mean the fair market value of landmark
        historic property pursuant to the provisions of subparagraph (D) of paragraph (3) of Code
        Section 48-5-2.
                (c.2) Tangible real property which is devoted to bona fide conservation uses as
        defined in this chapter and which otherwise conforms to the conditions and limitations
        imposed in this chapter shall be assessed for property tax purposes at 40 percent of its
        current use value and shall be taxed on a levy made by each respective tax jurisdiction
        according to 40 percent of the property's current use value.
                (c.3) Tangible real property located in a transitional developing area which is
        devoted to bona fide residential uses and which otherwise conforms to the conditions and
        limitations imposed in this chapter for bona fide residential transitional property shall be
        assessed for property tax purposes at 40 percent of its current use value and shall be taxed
        on a levy made by each respective tax jurisdiction according to 40 percent of the
        property's current use value.
                (c.4) Tangible real property which qualifies as brownfield property pursuant to the
        provisions of Code Section 48-5-7.6 shall be assessed at 40 percent of its fair market
        value and shall be taxed on a levy made by each respective tax jurisdiction according to
        40 percent of the property's fair market value. For the purposes of this subsection, the
        term “fair market value” shall mean the fair market value of brownfield property pursuant
        to the provisions of subparagraph (F) of paragraph (3) of Code Section 48-5-2.
        (d) The requirement contained in this Code section that all tax jurisdictions assess taxable
tangible property at 40 percent of fair market value shall not apply to any tax       jurisdiction
whose ratio of assessed value to fair market value exceeded 40 percent for the tax year 1971. No
tax jurisdiction so exempted shall assess at a ratio of less than 40 percent except as necessary to
effect the preferential assessment provided in subsection (b) of this Code section.
        (e) Each notice of ad valorem taxes due sent to taxpayers of counties and municipalities
shall include both the fair market value of the property of the taxpayer which is subject to
taxation and the assessed value of the property after being reduced as provided by this Code
section.
       5
         This appears to have been an attempt to make each application, and thus the preferential
tax treatment for each parcel of land, retroactive to tax year 2008.

                                                 5
specific relief.6 Count I stated:

       Pursuant to O.C.G.A. § 9-6-20 et seq., Plaintiffs seek a writ of
       mandamus from the court compelling the [Board] to perform its
       official public duties, thereby requiring [the Board] to comply with
       O.C.G.A. § 48-5-311 (g) (2) and certify its appeals to the Monroe
       County Clerk of the Superior Court.

Count II stated:

       Pursuant to O.C.G.A. § 9-6-20 et seq., Plaintiffs seek a writ of mandamus
       from the court compelling the [Board] to perform its official public duties,
       thereby requiring [the Board] to comply with O.C.G.A. § 48-5-7.4 (j) (1)
       and approve or deny the CUVA applications.

At a hearing before the superior court on December 12, 2012, Newton Entities

argued, inter alia, that the Board had a duty to certify its appeals to the clerk of

the superior court pursuant to OCGA § 48-5-311 (g) (2). The Board countered

that Newton Entities had to pay the filing fees prior to certification of their tax

appeals, and that they had failed to do so. Following the hearing, Newton

Entities offered to pay an amount in filing fees based upon combining the tax

appeals for various of the parcels, resulting in a calculated number of appeals far




       6
        The petition contained a third count in which Newton Entities asked for attorney fees
pursuant to OCGA § 9-15-14.

                                                6
fewer than the notices of appeal filed.7

       On February 12, 2013, the superior court issued an order finding that the

Board had certified the tax appeals to the superior court on December 17, 2012;

therefore, Newton Entities’ request for issuance of a writ of mandamus against

the Board regarding the certifications had become moot.8 It directed Newton

Entities to pay $206 in court costs to the clerk of superior court, based upon

“contiguous property on appeal [proceeding] with the same case number and

filing fee,” but “all other non-contiguous properties” generating “an additional

filing fee of [$206]” to be paid within the time required by law or such an appeal

would be subject to dismissal.

       On March 19, 2013, Newton Entities filed in superior court a “motion for

clarification and for issuance of mandamus nisi.” Newton Entities alleged that

as they had not been served by the Board with copies of the notices of appeal and



       7
         It appears that Newton Entities offered the Board $2,884 as payment for certifying the
appeals, contending that each appeal to the superior court from a BOE decision regarding parcels,
contiguous and non-contiguous, which had been consolidated for the purpose of the BOE hearing
constituted a single civil action; thus, instead of in excess of 100 appeals with the consequent
court costs for each, there would be costs only for 14 cases.
       8
        The Board had asked that the petition for a writ of mandamus be dismissed for non-
payment of filing fees and costs. In this same order, the superior court denied the request for
dismissal as “premature,” because of the delay in the certifications of the tax appeals.

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civil action file numbers assigned to the appeals, they lacked the ability to

ascertain whether their appeals had been certified. They further alleged that

clarification regarding the filing fees was required because some of the appeals

to the BOE had been consolidated for hearing and that the Board had not told

them that receipt of the filing fees was a prerequisite to certifying the appeals;

they asked the court to direct the Board to accept their $2,884 tender as payment

in full of the filing fees or give guidance on “what other amount [was] more

appropriate.” Newton Entities also requested a “mandamus nisi” as to their

CUVA applications, which they maintained were for 2008, and had not been

approved or denied. On March 28, 2013, the Board moved for a protective order

and an emergency stay of discovery pending a hearing on the protective order,

asking that the county taxpayers not be put through the burden and expense of

complying with the Newton Entities’ voluminous discovery request inasmuch as

their mandamus petition was no longer viable. On April 4, 2013, the superior

court issued an order temporarily staying discovery pending a hearing on the

filed motions.

      A hearing was held on April 23, 2013, and on May 16, 2013, the superior

court issued an “order denying petition for writ of mandamus” and an “order

                                        8
regarding filing fees.” In the mandamus order, the superior court denied Count

I of the petition as the certification issue had already been ruled moot in its prior

order. As to Count II involving the CUVA applications, the superior court found

that a representative of Newton Entities was informed by the Board that it “could

not give [them] CUVA beginning in 2008, because the applications were

untimely since they were filed in 2011"; Newton Entities were asked if they

wanted CUVA to apply to the 18 properties beginning on January 1, 2011, and

they gave direction to proceed with the submitted applications for 2011;

subsequently, the Board approved all 18 CUVA applications to begin on January

1, 2011, as instructed by Newton Entities; Newton Entities were sent 18 separate

notices that the applications were approved; each notice stated that the requested

tax reduction would begin on January 1, 2011; all 18 CUVA approvals were filed

with the clerk of superior court and the filing fees were paid for by check from

Newton Entities’ representative; inasmuch as the CUVA is for a ten-year period

beginning on a date certain and cannot have two start dates and there was only

one CUVA application filed for each parcel, the approvals of CUVA beginning

January 1, 2011 also constituted the denials of January 1, 2008 as a beginning



                                         9
point for the special tax treatment; CUVA is a contract between the Board and

the taxpayer; Newton Entities had been receiving benefits under the contract in

the form of tax reduction for over two years; and Newton Entities are estopped

to challenge the validity of the contract inasmuch as they have received benefit

from it. The superior court concluded that there was no refusal to act by the

Board; therefore, mandamus would not lie. All of Newton Entities’ requests for

relief were denied,9 and the petition for a writ of mandamus was dismissed in its

entirety.

       As to the order regarding filing fees, the superior court found that although

Newton Entities had filed 107 notices of appeal with the Board, they had

tendered only enough money to pay for 27 appeals, therefore, the Board was “at

a loss as to which 27 appeals to file”; taxpayers were required to pay filing fees

to the clerk of the superior court before a civil action was filed; the filing fee for

a civil case in the Superior Court of Monroe County was $206; the only method

for combining parcels for the purpose of constituting a consolidated tax appeal

is found in OCGA § 48-5-311 (e) (6) (C), and that such requirements were not


       9
          Inasmuch as mandamus relief was denied, the superior court also denied Newton
Entities’ request for attorney fees in Count III.


                                              10
met as to any two parcels; that at the BOE hearings for the 2008 and 2009 tax

appeals there was no written request that the appeals be consolidated; each notice

of appeal for 2008 and 2009 lists only one parcel; at the BOE hearings for the tax

appeals for 2010 and 2011, Newton Entities orally requested to present an

argument that would apply to all of the parcels but they were informed that

though they would be allowed to do so, the appeals were not being consolidated

into one appeal and the attorney for Newton Entities agreed that it was not

possible to consolidate the appeals; there was no order from the BOE for the

purpose of combining any appeals; as to 2008 through 2011, there was no

documentary evidence that any two parcels were ever combined for the purposes

of appeal; and inasmuch as the 2012 appeals went straight to superior court, the

statute did not apply to combine the appeals into one civil action. The superior

court concluded that Newton Entities were required to pay $206 for each parcel

subject to a notice of appeal filed in superior court.

      1. Newton Entities contend that the superior court erred in denying their

request for a “Mandamus Absolute” by finding that the Board certified their

property tax appeals. However, in order to have the right to the extraordinary



                                        11
remedy of mandamus, a petitioner has to demonstrate either a clear legal right to

the sought relief or a gross abuse of discretion. Hertz v. Bennett, 294 Ga. 62 (1)

(751 SE2d 90) (2013). And, Newton Entities can demonstrate neither.

      In Fitzpatrick v. Madison County Bd. of Tax Assessors, 292 Ga. 74 (734

SE2d 397) (2012), this Court expressly affirmed that “a taxpayer instigating an

appeal from a county board of equalization to the superior court pursuant to

OCGA § 48-5-311 (g) must first pay the filing fee of the superior court clerk.”

Id. at 76. Although Newton Entities acknowledge Fitzpatrick, they maintain that

the holding is limited to what taxpayers must pay, but not when they must pay.

But, both the circumstances of Fitzpatrick and the mandates of OCGA § 48-5-

311 (g) (2) belie such argument.

      The landowner taxpayers in Fitzpatrick were dissatisfied with the tax

valuations of their properties by both the county board of tax assessors and

county board of equalization, and subsequently, filed an appeal in superior court,

but the board of tax assessors refused to certify the appeal to the superior court

unless the taxpayers first paid the filing fee to the superior court clerk. The

taxpayers then sought a declaratory judgment that they were not required to pay



                                       12
the filing fee, but the superior court ruled that they were indeed responsible for

paying the filing fee, resulting in the appeal to this Court.                              Thus, the

circumstances made plain that payment of the appropriate filing fee is a

prerequisite to further action in regard to a tax appeal to the superior court. And,

such requirement is consistent with the statutory mandates applicable to

certification of a tax appeal.

        OCGA § 48-5-311 (g) (2) provides in relevant part that “[a]t the time of

certification of the appeal, the county board of tax assessors shall serve the

taxpayer and his or her attorney of record, if any, with a copy of the notice of

appeal and with the civil action file number assigned to the appeal.” (Emphasis

supplied.) And, except in the situation of sworn indigence, a clerk of the

superior court is not to file a civil case or proceeding until the required fee is

paid. OCGA § 9-15-4 (a). Thus, a board of tax assessors’ complete compliance

with certification of a tax appeal becomes a matter of practical impossibility in

the circumstance in which the required filing fee is not paid.10

       10
          To the extent that Fayette County Bd. of Tax Assessors v. Oddo, 261 Ga. App. 707
(583 SE2d 537) (2003), holds that there is no requirement under OCGA § 48-5-311 (g) (2) that
the clerk of the superior court receive its filing fee before a tax appeal is certified by the county
board of tax assessors, it is hereby overruled. Compare Fulton County Bd. of Tax Assessors v.
Boyajian


                                                  13
       Newton Entities raise in mitigation the fact that they disputed the filing

fees owed, again asserting the responsibility of costs for a number of

“consolidated” tax appeals far less than their more than 100 notices of appeal to

the superior court. But, there is no evidence of record which effectively

contradicts the superior court’s express determination that Newton Entities’

appeals did not fit within the consolidation provision for contiguous properties

found in OCGA § 48-5-311 (e) (6) (C).11 Furthermore, the superior court in

February 2013 had issued a directive in regard to the fees required to be filed.

       It is undisputed that the tax appeals have been physically delivered to the

superior court and that the superior court has ruled that such appeals have been

certified to it. Thus, Newton Entities have received the sought relief regarding



271 Ga. 881 (1) (525 SE2d 687) (2000), Fulton County Board of Tax Assessors v. Jones, 264 Ga.
828, 829 (452 SE2d 99) (1995), and similar cases which hold that a board of tax assessors has no
discretion in the certification process in regard to potential procedural and other defects in the tax
appeal which would require judicial determination.
       11
         OCGA § 48-5-311 (e) (6) (C) states:
                If more than one contiguous property of a taxpayer is under appeal, the board of
       equalization shall, upon request of the taxpayer, consolidate all such appeals in one
       hearing and render separate decisions as to each parcel or item of property. Any appeal
       from such a consolidated board of equalization hearing to the superior court as provided
       in this subsection shall constitute a single civil action, and, unless the taxpayer
       specifically so indicates in his or her notice of appeal, shall apply to all such parcels or
       items of property.


                                                  14
certification, even though there is no evidence that prior to the filing of the

present appeal to this Court, Newton Entities paid the ordered filing fees

attendant to its tax appeals.12

       2. As noted, Count II of Newton Entities’ mandamus petition asked that the

Board be directed to either approve or deny their CUVA applications. Newton

Entities now state that the Board did implicitly deny them CUVA treatment for

2008, and instead, argues that the superior court erred in denying their mandamus

request by finding that the Board had provided them the opportunity to appeal

the denial of their 2008 CUVA applications.13 Citing OCGA § 48-5-7.4 (j) (1),14

       12
          Upon return of the remittitur in this case, the status of the filed tax appeals should be
assessed in light of any non-payment of ordered fees.
       13
            Newton Entities state that they “do not dispute the validity of this denial.”
       14
            OCGA § 48-5-7.4 (j) (1) provides:

               All applications for current use assessment under this Code section, including the
       covenant agreement required under this Code section, shall be filed on or before the last
       day for filing ad valorem tax returns in the county for the tax year for which such current
       use assessment is sought, except that in the case of property which is the subject of a
       reassessment by the board of tax assessors an application for current use assessment may
       be filed in conjunction with or in lieu of an appeal of the reassessment. An application for
       continuation of such current use assessment upon a change in ownership of all or a part of
       the qualified property shall be filed on or before the last date for filing tax returns in the
       year following the year in which the change in ownership occurred. Applications for
       current use assessment under this Code section shall be filed with the county board of tax
       assessors who shall approve or deny the application. If the application is approved on or
       after July 1, 1998, the county board of tax assessors shall file a copy of the approved
       application in the office of the clerk of the superior court in the county in which the


                                                   15
they urge that the superior court should have ordered the Board to provide the

statutory notice of the right to appeal such denial. But, Newton Entities’

argument is unavailing.

      First, in their mandamus petition, Newton Entities did not ask for the relief

now requested; therefore, it can hardly be found error for the superior court to

fail to grant it. Second, it is plain that Newton Entities filed only one set of

CUVA applications, and that they were filed in 2011; the very statutory

provision upon which they now rely, OCGA § 48-5-7.4 (j) (1), would render

any attempt to make those applications effective for 2008 untimely as a matter

of law. Moreover, these applications were effective for 2011, and by consent of



      eligible property is located. The clerk of the superior court shall file and index such
      application in the real property records maintained in the clerk's office. Applications
      approved prior to July 1, 1998, shall be filed and indexed in like manner without payment
      of any fee. If the application is not so recorded in the real property records, a transferee of
      the property affected shall not be bound by the covenant or subject to any penalty for its
      breach. The fee of the clerk of the superior court for recording such applications approved
      on or after July 1, 1998, shall be paid by the owner of the eligible property with the
      application for preferential treatment and shall be paid to the clerk by the board of tax
      assessors when the application is filed with the clerk. If the application is denied, the
      board of tax assessors shall notify the applicant in the same manner that notices of
      assessment are given pursuant to Code Section 48-5-306 and shall return any filing fees
      advanced by the owner. Appeals from the denial of an application by the board of tax
      assessors shall be made in the same manner that other property tax appeals are made
      pursuant to Code Section 48-5-311.




                                                16
Newton Entities considered for that year. Further, all such CUVA applications

were approved, so there was no question of notice of their denial or of refusal by

the Board to act.

      Simply, the superior court properly denied mandamus relief to Newton

Entities. Hertz v. Bennett, 294 Ga. at 64 (1).

      Judgments affirmed. All the Justices concur.



      Decided March 10, 2014 – Reconsideration denied April 10, 2014.

      Mandamus. Monroe Superior Court. Before Judge Fears.

      G. Roger Land & Associates, G. Roger Land, Mitchell S. Graham, for

appellants.

      Dillon & Vaughn, Michael A. Dillon, Benjamin A. Vaughn, for appellees.




                                       17
