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Malcom v. Morgan County Bd. of Tax Assessors

The propriety of the plaintiffs' motion for summary judgment was moot because a jury subsequently decided the same issue raised in the motion.

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Following a jury verdict in favor of the Morgan County Board of Tax Assessors “the board”, Gregory and Lisa Malcom appeal, alleging as their sole claim of error the trial court’s denial of their motion for summary judgment. We affirm. The record reveals that the Malcoms enrolled 43.78 acres of their property in a conservation use covenant for the production of hay and cattle. When during an inspection, no cows or hay were found on the property, the board declared the Malcoms in breach of the conservation use covenant, notified the tax commissioner, and notified the Malcoms that it intended to assess a penalty against them. After the Morgan County Board of Equalization affirmed the decision of the board of assessors, the Malcoms appealed to the superior court. The parties subsequently filed cross-motions for summary judgment. The trial court denied the motions, and the case proceeded to a jury trial. A jury found that the Malcoms breached their conservation use covenant, and the trial court entered a judgment accordingly.

In their sole enumeration of error, the Malcoms complain that the trial court erred in denying their motion for summary judgment “as there was no genuine issue of material fact at the time of Motion for Summary Judgment that there was no breach of the conservation use covenant.” They requested that only specific portions of the record be transmitted to this court and did not include the trial transcript in that request.

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