Also, Plaintiff Cannot Receive Trial Expenses As Costs Based on Being Awarded Costs on Appeal from An Earlier Appeal.
Plaintiff property owner, in a prior published decision, obtained a trial court judgment affirmed on appeal in connection with a determination that the Nevada County Assessment Appeals Board failed to apply the correct burden of proof. Feeling empowered, especially after awarded costs on appeal for the win, plaintiff then attempted to recoup some trial expenses as costs of appeal, the costs of a clerk’s transcript, and $13,500 in attorney’s fees under Revenue and Taxation Code sections 1611.6 and 5152. The lower court in Farr v. County of Nevada (Farr II), Case No. C068049 (3d Dist. July 10, 2013) (unpublished) denied the fee request and cut down the $4,202 costs request down to $655 only.
Plaintiff did not succeed in obtaining a reversal this time around.
The problem was that the request for “costs on appeal” was doomed on many items because plaintiff sought to recoup impermissible trial court costs. Additionally, plaintiff requested reimbursement for a clerk’s transcript on appeal, but the defense shifted the burden of justification back to plaintiff after noting that a superior court file had been used in lieu of a CT, with plaintiff failing to explain the discrepancy or how much in expense was actually incurred through this election.
With respect to the fees request, neither R & T Code provisions were applicable. Section 1611.2 only applies if the county board’s findings are so deficient as to require a remand to enter the elements of findings required by 1661.5; the appellate court did not reach the deficiency issue in the prior appeal, but only reversed on a procedural point not addressing the legal adequacy of the Board’s findings. Section 5152, which allows for fee-shifting to a plaintiff where a court finds that the void assessment or void portion of the assessment was made in violation of a specific constitutional and regulatory provision, similarly was inapt. Here, there was no finding that the assessor failed to apply a particular provision that he or she believed to be unconstitutional or invalid, meaning the lack of this prerequisite finding did not entitle plaintiff to fees under 5152.
Finally, although arguing for the first time on appeal that fees were justified under the private attorney general theory, the appellate court found this contention was forfeited by plaintiff because he did not raise the argument in the trial court.