The RIVER FARM, LLC v. HALL COUNTY BOARD OF TAX ASSESSORS

• Court: Court of Appeals of Georgia
• Decided: June 30, 2026
• Docket: A26A0330
• Status: Published

Opinion

SECOND DIVISION DOYLE, P. J., DAVIS, J., and SENIOR JUDGE FULLER

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules

June 30, 2026

In the Court of Appeals of Georgia A26A0330. THE RIVER FARM, LLC et al. v. HALL COUNTY BOARD OF TAX ASSESSORS.

DAVIS, Judge.

The River Farm, LLC and The River Farm Two, LLC (“River Farm”) appeal

the superior court’s order granting summary judgment to the Hall County Board of

Tax Assessors (“Board”), which determined that River Farm breached a conservation

use covenant that allowed River Farm to claim an agricultural property tax exemption.

River Farm argues that (1) a genuine issue of material fact exists as to whether the

Board complied with the statutory requirement to notify River Farm of the breach;

and (2) the superior court erroneously shifted the burden to River Farm to prove their

application was submitted, when the Board had exclusive control over the ability to

prove this fact. For the reasons that follow, we affirm. To succeed on a motion for summary judgment, the movant must show that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. OCGA § 9-11-56(c). In reviewing the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and the evidence, and we view the evidence in the light most favorable to the nonmovant.

Morgan County Bd. of Tax Assessors v. Ward, 318 Ga. App. 186, 186 (733 SE2d 470)

(2012).

So viewed, the record shows the following. On March 6, 2021, River Farm

purchased the property at issue which is located at 9412 Skitts Mountain Drive in Hall

County, Georgia. The prior owners of the property had entered into a conservation

use covenant for ten years, and when River Farm purchased the property in 2021, it

was in its last year of the ten year permit. River Farm had until April 1, 2022, to file

the application to continue the conservation use covenant. On March 23, 2022, River

Farm owner Zac Hill1 went to the Hall County Tax Assessor’s Office to verify the

conservation status on the River Farm property and two other properties he owned

that were in conservation status. Duckworth, the co-owner of the Skitts Mountain

property, did not accompany Hill to the tax office, and Duckworth stated that he

1 Zac Hill is the sole owner of The River Farm, LLC and Nathan Duckworth is the sole owner of The River Farm Two, LLC. Each entity owns 50% of the property located at 9412 Skitts Mountain Drive. 2 relied upon Hill’s assurances that the application was completed. Ultimately, although

Hill believed he had applied for the continuing conservation use permit on the Skitts

Mountain property, he did not complete that application. On April 8, 2022, the Board

sent a letter via certified mail to River Farm to explain that the April 1, 2022 deadline

had not been met and that River Farm had until May 10, 2022 to cure the breach by

filing an application to continue the conservation use permit. The Board also contends

it mailed the same letter via regular mail.2 River Farm did not receive the April 8, 2022

certified mail letter giving notice of the breach as it was returned to the Board as

“unclaimed.” On June 1, 2022, at the Hall County Board of Tax Assessors meeting,

the Board officially declared that the owners of the Skitts Mountain property had

breached the conservation use covenant. Around June 9, 2022, River Farm received

the penalty bill for the breach. River Farm appealed the Board’s decision that it had

breached the conservation use covenant to Hall County Superior Court. The Board

filed a motion for summary judgment which the superior court granted. It is from the

2 Steve Watson, the Board’s Chief Appraiser, testified to the Board’s procedure for preparing and mailing notices by both regular and certified mail using the owners’ address disclosed in the Real Estate Transfer Tax Declaration. 3 superior court’s grant of the Board’s motion for summary judgment that River Farm

appeals.

1. River Farm first argues the superior court erred in granting the Board’s

motion for summary judgment because a genuine issue of material fact exists as to

whether the Board complied with the requirement to provide written notice of the

breach because River Farm did not receive notice of the breach.3 We disagree.

In regard to the issue of notice, we have noted that “[i]n some instances,

particular statutes ... mandating notice are not complied with unless or until the notice

is actually received. In various other contexts, however, it is unnecessary to show

receipt[.]” Five Star Steel Contractors, Inc. v. Colonial Credit Union, 208 Ga. App. 694,

695 (431 SE2d 712) (1993) (quotation marks omitted). Thus, “[i]n determining

whether notice required under a specific statute must be received, the language of the

3 The Board contends River Farm has failed to preserve this argument for appellate review because it raised the notice issue for the first time in its motion for reconsideration, after the superior court had granted summary judgment to the Board. But River Farm asserted in its opposition to the Board’s motion for summary judgment that it did not receive written notice of the breach of the covenant. The superior court interpreted River Farm’s argument to include a challenge to their receipt of notice, and it ruled on that issue in its initial October 24, 2024 order granting summary judgment for the Board. Therefore, because River Farm raised this claim below in opposition to the Board’s motion for summary judgment and the trial court ruled upon it, River Farm’s claim was preserved for appellate review. 4 particular statute in issue must be interpreted in accordance with recognized

principles of construction, in each case keeping in mind that the cardinal rule is to seek

diligently the intention of the legislature and effectuate the statute’s purpose.” Id. at

696. Some of the familiar principles applicable to statutory construction include the

following:

In considering the meaning of a statute, our charge as an appellate court is to presume that the legislative body meant what it said and said what it meant. And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. In sum, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.

Swarn v. Thompson, 369 Ga. App. 321, 324 (893 SE2d 474) (2023) (citation modified).

Moreover, we have been clear that “the doctrine of separation of powers is an

immutable constitutional principle which must be strictly enforced, as a result of

which appellate courts can not add a line to the law.” Morse v. SunTrust Bank, N.A.,

364 Ga. App. 571, 580(3) (873 SE2d 238) (2022) (quotation marks omitted).

Pertinently, OCGA § 48-5-7.4(k.1) (2022) provides in part that “[i]n the case

of an alleged breach of the covenant, the owner shall be notified in writing by the board

5 of tax assessors. The owner shall have a period of 30 days from the date of such notice

to [cure the breach.]” In examining this language, it is apparent that although the

Board is required to provide written notice of a breach of a covenant, there is nothing

in the plain language of the statute that requires that the owner actually receive the

notice. See McCollum v. Pope, 261 Ga. 835 (411 SE2d 874) (1992) (actual receipt of

OCGA § 44–14–162.2 notice of initiation of proceedings to exercise the power of sale

in a mortgage, security deed, or other lien contract is immaterial); Williams v. Runion,

173 Ga. App. 54, 59–60(5) (325 SE2d 441) (1984) (OCGA § 51–12–14, which directs

a claimant to “give[] written notice by registered or certified mail or statutory

overnight delivery” of a notice of claim for interest on unliquidated damages, only

requires proper mailing, and receipt of the notice is not required). The statute only

requires that written notice be sent to the owner, and to construe this provision as

requiring that an owner must actually receive notice would add a line to the law, which

we cannot do.

Nevertheless, River Farm argues that the Board did not actually send notice of

the breach because it knew by virtue of the returned certified mail that River Farm did

not receive notice. In support of this claim, River Farm relies upon the principle

6 applicable to issues involving receipt of notice[4] that notice can only be presumed where

“the letter (1) was written; (2) was properly addressed to the party; (3) contained the

correct postage; and (4) was duly mailed in the United States Post Office.” But River

Farm’s argument is unavailing and does not provide a basis to reverse the trial court’s

order. It is well settled that

[c]onstitutional due process of law under both the Georgia and the United States Constitutions includes notice and hearing as a matter of right where one’s property interests are involved. Our Supreme Court has explained that notice can be either express, constructive, or implied. Express notice embraces that which is communicated by direct information. Constructive notice is information or knowledge of a fact imputed by law because the fact could have been discovered by proper diligence and the situation was such as to cast upon a person the duty to inquire into it. Finally, implied notice is that notice which is inferred or imputed to a party by reason of [their] knowledge of facts or circumstances collateral to the main fact, of such a character as to put [them] upon inquiry, and which, if inquiry were followed up with due diligence, would lead [them] directly to the knowledge of the main fact.

Hicks v. Gabor, 354 Ga. App. 714, 718(1)(c) (841 SE2d 42) (2020) (citation modified).

4 See Nadel v. Branch Banking & Trust Co., 340 Ga. App. 213, 215 (797 SE2d 140) (2017) (stating that whether a letter was written, properly addressed, contained the correct postage, and was duly mailed gives rise to the presumption that the letter was received). 7 We addressed a nearly identical argument regarding the notice requirement in

another section of the tax code in Harper v. Foxworthy, Inc., 254 Ga. App. 495, 497-

98(1) (562 SE2d 736) (2002). In Harper, the taxpayer owned a condominium in Fulton

County, Georgia. Id. at 496. She became delinquent on her taxes in 1998, and in 1999,

a third party undertook steps to have the property transferred to themselves. Id.

Pursuant to OCGA § 48-3-19, the tax code at issue, “the tax commissioner was

required to notify [the taxpayer] in writing that her taxes had not been paid and that,

unless paid, an execution for nonpayment of taxes would be issued.” Id. Fulton

County computer records showed that a delinquency notice was sent to the taxpayer,

although she denied receiving the notice. Id. Further the third party was required to

notify the property owner of their intent to pay the tax executions. Id. The third party

submitted two letters addressed to the taxpayer with reference numbers corresponding

to entries in the U. S. Post Office Certified Mail Firmbook page. Id. The taxpayer

denied receiving these notice as well, but the sale was completed. Id. at 496-97. The

taxpayer argued the sale should have been set aside because she failed to receive the

proper notices. Id. The trial court found that although the taxpayer may not have

8 actually received the notices, the defendants had properly complied with the statutory

requirements because the notices had been sent to the taxpayer. Id. at 497(1).

In affirming the trial court’s order, we first noted “that notice can be either

express, implied or constructive.” Harper, 254 Ga. App. at 498(1). We then reasoned

that the trial court was authorized to conclude that because the third party had sent

numerous notices to the taxpayer, many of which were certified, that the taxpayer had

constructive or implied notice equivalent to the receipt of actual notice. Id.

Additionally, there was evidence that the taxpayer did not always pick up her certified

mail within a reasonable time, and she admitted receiving the last of the notices, which

was sent in the same fashion and by the same party as the earlier two certified letters.

Id. Thus, we held that with reasonable inquiry the taxpayer could have discovered her

delinquent tax status. Id.

Here, critically, River Farm expressly admits that the Board did send certified

mailing of the breach of notice. Moreover, the record before us contains copies of

several notices for the subject property addressed to River Farm at 3026 Gateway

Center Parkway, the address which was on the closing documents when River Farm

purchased the Skitts Mountain property only a year before the events at issue in this

9 case. These notices all address the approaching expiration of the conservation use

covenant. Hill testified that two people were tasked with monitoring mail at 3026

Gateway Center Parkway on behalf of River Farm and that there were no issues

receiving mail at that address. The record shows that River Farm received letters

mailed to the 3026 Gateway Center Parkway address before and after the April 8, 2022

breach notice was mailed.

Furthermore, as found by the trial court, and undisputed by River Farm, River

Farm was well aware that it had to file the application, and would face “significant

penalties” if it failed to timely file. Hill, The River Farm’s owner, averred that he was

reminded “several times” that he would have to complete the application, Co-owner

Duckworth, The River Farm Two’s owner, also averred that he knew that the

application had to be completed, and Hill’s attorney also informed him that he had to

complete the application. Indeed, Hill went to the tax office with the purpose of filling

out the application and believed he had done so, although he admits he did not recall

reading the receipts or comparing them to the tax map numbers of his properties.

Thus, despite not actually receiving the Board’s certified letter which was returned

as “unclaimed,” River Farm was well aware of and had notice of the conservation use

10 application requirements for the subject property. See Five Star Steel Contractors, 208

Ga. App. at 696 (undelivered certified mail was sufficient to notify garnishee of default

judgment against him, where he was personally served at the initiation of the lawsuit

and therefore aware of the lawsuit, and thus due process was not frustrated by later

notice of post-judgment proceedings going unreceived). See also Tate v. Hughes, 255

Ga. App. 511, 512 (565 SE2d 853) (2002) (where a statute concerning notice by

certified mail to a nonresident motorist is complied with, service is valid even where

the certified mail is returned as unclaimed.) Thus, in light of all of this evidence, we

find that the trial court was authorized to conclude under these circumstances that

River Farm had constructive or implied notice equivalent to the receipt of actual

notice. See Harper, 254 Ga. App. at 498(1).5

2. River Farm next argues the superior court erroneously shifted the burden to

prove the existence of a timely application to River Farm where the Board is the party

who is in complete control of the information that could prove this issue. We disagree.

5 River Farm’s reliance on our prior decision in Morgan County Bd. of Tax Assessors v. Ward, 318 Ga. App. 186 (733 SE2d 470) (2012), is misplaced. In that case, the issue was not whether receipt of the notice was required, but whether notice had been sent in the first instance. Id. at 188–91. 11 Summary judgment is proper if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law. Cowart v. Widener, 287 Ga. 622, 623(1)(a) (697 SE2d

779) (2010); OCGA § 9-11-56(c). To prevail on a motion for summary judgment, the

movant must demonstrate there is no genuine issue of material fact. Cowart, 287 Ga.

at 623(1)(a). “A defendant who will not bear the burden of proof at trial need not

affirmatively disprove the nonmoving party’s case, but may point out by reference to

the evidence in the record that there is an absence of evidence to support any essential

element of the nonmoving party’s case.” Id. Once the movant meets this burden, the

burden shifts to the nonmovant to “set forth specific facts showing that there is a

genuine issue for trial.” Id.

The issue before the trial court was whether River Farm breached the

conservation use permit for the property located at Skitts Mountain Road. OCGA §

48-5-7.4(j)(1) requires “[a]n application for continuation of [the conservation use

permit] upon a change in ownership of all or a part of the qualified property shall be

12 filed on or before the last date for filing tax returns in the year following the year in

which the change in ownership occurred.”

It is undisputed that Hill went to the Hall County Tax Office to fill out

applications to continue the conservation use permits for various properties, including

the Skitts Mountain Road property. Although he left believing that he had taken the

necessary steps to continue the permit for the Skitts Mountain Road property,6 the

record before the trial court does not contain any evidence that River Farm had

applied to continue the permit prior to the April 1, 2022 deadline, and thus, there was

an absence of evidence in the record that River Farm made a timely application for the

Skitts Mountain Property. See Cowart, 287 Ga. at 623(1)(a) (the movant must

demonstrate there is no genuine issue of material fact). Then, the trial court properly

shifted the burden to River Farm to set forth specific facts showing that there is a

genuine issue for trial. See Id. (once the movant meets his burden, the burden shifts

to the nonmovant to “set forth specific facts showing that there is a genuine issue for

trial.”). River Farm’s argument that the Board is in exclusive possession of the

6 Hill’s affidavit states, “I asked for the application to be completed and [the office of the tax assessor’s employee] wrote the number on a form that was never fully completed.” 13 evidence that could prove a timely application was made is unavailing. River Farm had

opportunity through its pleadings as well as the normal discovery avenues of

depositions, answers to interrogatories, admissions, and affidavits to produce evidence

that it had made timely application to satisfy the requirements of OCGA § 48-5-

7.4(j)(1), and it failed to do so. Consequently, because it failed to produce evidence

giving rise to a triable issue of fact, the trial court did not err in its determination that

River Farm failed to meet its burden of setting forth facts to preclude a grant of

summary judgment to the Board.

Accordingly, we affirm the trial court’s order granting Hall County Board of

Tax Assessors’ motion for summary judgment.

Judgment affirmed. Doyle, P. J., and Senior Judge C. Andrew Fuller concur.