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Georgia Tax Sale Cases for 2005
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RITCHIE
v.
METRO TAX INVESTORS, INC.
S05A1774
Supreme Court of Georgia
December 1, 2005
HINES, Justice.
This is a challenge by adjacent landowner Helen Ritchie ("Ritchie") to
rulings by the Superior Court of Fulton County in favor of tax deed holder
Metro Tax Investors, Inc. ("Metro Tax") in this action by Metro Tax to quiet
title to 1.63 acres of land in Fulton County ("the property"). The superior
court concluded that Ritchie lacked standing in the case, and consequently,
granted summary judgment to Metro Tax as to Ritchie's claim of encroachment
and challenge to the tax deed. Subsequently, the superior court issued a
final order and decree vesting Metro Tax with fee simple title to the
property. For the reasons which follow, the superior court's rulings are
affirmed.
As high bidder at the tax sale, on March 4,2003, Metro Tax received a tax
deed to the property. Metro Tax held the property for one year and then
undertook the process of giving notice of foreclosure of the right to redeem
pursuant to OCGA § 48-4-45.[1] The property was not redeemed within the
redemption period, and on August 6,2004, Metro Tax filed the present
petition to quiet title to the property pursuant to OCGA § 23-3-60[2] et
seq. In accordance with OCGA § 23-3-65 (a),[3] Ritchie, as an adjoining
landowner, was served with notice of the quiet title action.
Ritchie filed an answer in the suit, asserting that Metro Tax did not have a
right to the land it acquired pursuant to the tax deed, and that she had
acquired a portion of the property through adverse possession. Ritchie
eventually withdrew her adverse possession claim, and amended her answer to
assert a claim that the property encroached upon her land.[4] Metro Tax
executed in favor of Ritchie a quitclaim deed to her land;[5] the legal
description in the quitclaim deed matched that contained in the warranty
deed that Ritchie and her husband received in connection with the purchase
of their property. Metro Tax then moved for summary judgment on Ritchie's
encroachment claim and challenge to its tax deed.[6] Finding that Ritchie
had no claim whatsoever to the property, the superior court granted judgment
in favor of Metro Tax,[7] and ultimately, vested it with title to the
property.
Ritchie raises multiple contentions of error attacking Metro Tax's title and
tax deed to the property,[8] and the finding of her lack of standing.
However, in an action regarding title to land a party's right to recovery or
relief must depend upon the strength of his or her own title to the realty
involved, not the weakness of the opponent's evidence. Smith v. Georgia
Kaolin Co., 269 Ga. 475,477 (2) (498 SE2d 266) (1998). Moreover, a party
seeking to cancel or set aside the deed of another must have some title to
or interest in the subject property, prescriptive or otherwise. Whitworth v.
Whitworth, 233 Ga. 53, 54 (1) (210 SE2d 9) (1974).
But, this case is resolved by the fact that Ritchie has failed to show that
she has any interest at all in the property to support her claim of
encroachment. On summary judgment, Metro Tax demonstrated that there was no
genuine issue as to any material fact regarding Ritchie's claim that the
property conveyed in the tax deed contained real estate to which she had
title or interest. Accordingly, summary judgment in favor of Metro Tax was
warranted. What is more, Ritchie has provided no basis to disturb the order
vesting Metro Tax with fee simple title to the property.
Judgments affirmed. All the Justices concur.
---------------
Notes
[1] OCGA § 48-4-45 provides:
(a) After 12 months from the date of a tax sale, the purchaser at the sale
or his heirs, successors, or assigns may terminate, foreclose, divest, and
forever bar the right to redeem the property from the sale by causing a
notice or notices of the foreclosure, as provided for in this article:
(1) To be served upon all of the following persons who reside in the county
in which the property is located:
(A) The defendant in the execution under or by virtue of which the sale was
held;
(B) The occupant, if any, of the property; and
(C) All persons having of record in the county in which the land is located
any right, title, or interest in, or lien upon the property;
(2) To be sent by registered or certified mail or statutory overnight
delivery to each of the persons specified in subparagraphs (A), (B), and (C)
of paragraph (1) of this subsection who resides outside the county in which
the property is located, if the address of that person is reasonably
ascertainable; and
(3) To be published, if that tax sale occurs on or after July 1, 1989, in
the newspaper in which the sheriff's advertisements for the county are
published in each county in which that property is located, which
publication shall occur once a week for four consecutive weeks in the
six-month period immediately prior to the week of the redemption deadline
date specified in the notice.
(b) Nothing contained in this Code section shall be construed to require
that any notice be sent to or served upon any person whose right, title,
interest in, or lien upon the property does not appear of record in the
county in which the land is located.
(c) The heirs of any deceased owner of any land entitled to notice pursuant
to this Code section shall be served by the sheriff or notified as provided
in this article.
[2] OCGA § 23-3-60 provides:
The purpose of this part is to create a procedure for removing any cloud
upon the title to land, including the equity of redemption by owners of land
sold at tax sales, and for readily and conclusively establishing that
certain named persons are the owners of all the interests in land defined by
a decree entered in such proceeding, so that there shall be no occasion for
land in this state to be unmarketable because of any uncertainty as to the
owner of every interest therein.
[3] OCGA § 23-3-65 (a) provides:
Upon the filing of all evidence with him, the master shall:
(1)Determine who is entitled to notice, including, but not limited to, all
adjacent landowners and all adverse claimants as to whose adverse claims
petitioner has actual or constructive notice;
(2)Cause process to issue, directed to all persons who are entitled to
notice and to all other persons whom it may concern.
[4] As part of her original challenge to Metro Tax's acquisition of the
property, Ritchie also complained that because of her claim of adverse
possession, she was entitled to the statutory notice of foreclosure of the
right to redeem the property. Her abandonment of the adverse possession
claim rendered her redemption complaint in this regard moot. Furthermore,
Ritchie has not shown any other basis for a right to notice under OCGA §
48-4-45 (a) (1).
[5] The superior court found that the quitclaim deed was delivered to
Ritchie.
[6] This was Metro Tax's second motion for summary judgment; its first
motion for summary judgment was focused on Ritchie's claim of prescriptive
title.
[7] In this same order, the superior court found Metro Tax's first motion
for summary judgment, its "Motion to Require Payment of Redemption Amount
into Registry," and Ritchie's "Motion to Disqualify Special Master and
Vacate Her Report" to be moot. The court also denied Ritchie's "Motion to
Dismiss Petition for Being Null and Void Ab Initio."
[8] Ritchie contends that the superior court committed "harmful and
reversible error" in granting summary judgment to Metro Tax and finding that
it obtained and is vested with title because the record is devoid of
supporting admissible evidence; in granting Metro Tax's second motion for
summary judgment when Metro Tax failed to establish a prima facie case and
Ritchie "filed uncontested and unrebutted admissible evidence establishing
the lack of essential elements of Metro Tax's prima facie case; and by
denying Ritchie's "Motion to Dismiss Petition for Being Null and Void Ab
Initio ."
#
THARP
v.
VESTA HOLDINGS I, LLC, et al.
A05A1037.
Court of Appeals of Georgia, Third Division
November 29, 2005
THIS IS A SUBSTITUTE OPINION.
Bernes, Judge.
Appellant Nathan Tharp, Jr. appeals from the trial court's decision granting
summary judgment in favor of appellees Vesta Holdings I, LLC, Vesta Holdings
I, LLC d/b/a Heartwood 11, Inc., and Jacquelyn Barrett, individually and as
Sheriff of Fulton County in Tharp's lawsuit seeking damages for the alleged
improper tax sale of his property. On appeal, Tharp contends that the trial
court erred (1) in granting appellees' motions for summary judgment on the
ground that there are genuine issues of material fact as to whether proper
notice of the tax execution was provided and whether Vesta acted as the
Sheriff's agent such that its bid at the tax sale was prohibited; (2) in
excluding from evidence deposition testimony of the Sheriff and her
representatives given in prior actions; and (3) in denying Tharp's motion to
strike appellees' evidence. Tharp also contends (4) the trial judge was
biased and pre-judged the case against him. We find Tharp's contentions to
be without merit, and affirm.
1. Tharp contends the trial court erred in granting summary judgment to both
Vesta and the Sheriff. On appeal of a motion for summary judgment, we review
the evidence de novo to determine whether the trial court erred in
concluding that no genuine issue of material fact remains and that the party
was entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga.
App. 250 (510 SE2d 541) (1998). "Summary judgment is appropriate when the
court, viewing all the facts and evidence and reasonable inferences from
those facts in a light most favorable to the non-movant, concludes that the
evidence does not create a triable issue as to each essential element of the
case." (Citations omitted.) Id. at 251.
So viewed, the evidence shows that at the commencement of the 1998 tax year,
NCO, Inc. was the record owner/taxpayer of the subject property at 1015
Michigan Avenue, Atlanta, Fulton County, Georgia ("the property").
Thereafter, on June 19, 1998, Tharp purchased the property from NCO, Inc. On
December 10, 1998, after the 1998 city and county taxes became delinquent,
the Fulton County Tax Commissioner issued a tax writ of fieri facias ("fi.fa.").[1]
Following Vesta's service of 60-day notice of its intent to purchase the tax
executions,[2] Vesta purchased the tax fi.fa. on April 30, 1999.
Vesta delivered the tax fi.fa. to the Fulton County Sheriff's Office for
levy and sale. On August 20, 1999, at least 20 days prior to sale,[3] the
Sheriff's Office issued a Notice of Execution of Tax Levy to Tharp at the
address of the property, to NCO, Inc., and to Diversified Capital Corp.[4]
The notice was mailed certified, return receipt requested by Vesta. Notice
of the Execution and Tax Levy was tacked to the property on August 20, 1999.
Notice also was published in the Fulton County Daily Report for four
consecutive weeks prior to the sale[5]. The published notice specifically
referenced Tharp, NCO, Inc. and Diversified Capital. Thereafter, on or about
September 22, 1999, at least ten days prior to the tax sale[6], the
Sheriff's Office issued a Final Notice of Execution of Levy and Tax Sale,
which was sent via certified mail to Tharp at the property address, and to
NCO, Inc. Executed return receipts confirmed delivery of the 20-day notice
to NCO, Inc. and Diversified Capital; however, the certified mail sent to
Tharp at the property address was returned as unclaimed.
Heartwood 11 acquired the property as the highest bidder at the tax sale
which took place on October 5, 1999.
a) Tharp contends the Sheriff failed to make an official entry of levy on
the property and that the sale was therefore void. See OCGA § 9-13-12 As an
initial matter, we note Tharp was unsuccessful in his attempts to have the
sale voided. See Tharp v. Harpagon Co., 278 Ga. 654 (604 SE2d 156) (2004).
We address this issue only insofar as it relates to Tharp's claim for
damages.
A levy on land may be accomplished by a simple entry[7] on the fi.fa. by the
levying officer. See OCGA § 9-13-12; Islam v. Hooks, 46 Ga. 309, 314-315
(1872 WL 2707) (1872). Notwithstanding this fact, a valid levy of an
attachment upon real estate may also be accomplished by "some overt act of
constructive seizure." (Citations omitted.) Lane v. Bradfield, 37 Ga. App.
395 (1) (140 SE 417) (1927). In this case, constructive levy of the property
was made by tacking the Notice of Execution and Tax Levy issued by the
Sheriff onto the property itself.[8] The notice specified: "We are on this
date, 8/19/1999, levying the herein described property on behalf of Vesta
Holdings I, LLC, as transferee of said FIFas. The herein described property
is now levied and served by the undersigned [Sheriff] to satisfy said Fieri
Facias." The tacked notice also was issued to the tenant in possession and
to Tharp at the address of record. As such, the evidence establishes that
the Sheriff had effectuated a levy on the property prior to issuing the
required notices, advertisements, and sale of the property.[9]
b) Tharp also claims that he was not properly served with notice of the tax
levy and sale. The record reveals that the required notices were sent in
Tharp's name to the property address and that notice had been tacked onto
the property itself. The record further reflects that the billing and
mailing address that was provided to the Tax Commissioner's Office when
Tharp purchased the property was the same as the subject property address
where the notices were sent.[10] Thus, even if Tharp did not have actual
notice of the impending sale, he at least had constructive notice. Tharp
would have known of the delinquent tax status and of the impending tax sale.
had he exercised the slightest due diligence. See Harper v. Foxworthy, Inc.,
254 Ga. App. 495, 498 (1) (562 SE2d 736) (2002). Therefore, his claims as
alleged create no genuine issues of fact or law.[11]
c) Tharp further asserts that the notices of tax levy and sale were invalid
since they were served by Vesta rather than the Sheriff. We disagree. The
notices of levy and tax sale of record reflect that they were issued on the
Sheriff's official letterhead and under the Sheriff's signature. Vesta
mailed the notices by certified mail, arranged for a court-appointed process
server to tack notice to the property, and arranged for publication of
notice in the Fulton County Daily Report. In Harper, 254 Ga. App. at 496-498
(1), this Court approved of the trial court's determination that proper
statutory notice of the tax sale had been provided to the appellant taxpayer
under circumstances when Vesta prepared and mailed the notices on the
Sheriff's behalf. Following Harper, we hold that as a matter of law these
procedures for issuance of the tax sale notices to Tharp were not invalid in
this case.
d) Citing to OCGA § 15-16-18, Tharp further contends that Vesta should have
been barred from bidding at the tax sale on the grounds that Vesta acted as
the Sheriff's agent while preparing and serving the tax sale notices. OCGA §
15-16-18 provides:
No sheriff or deputy or other officer discharging a similar duty shall be
permitted to purchase any property whatever at his own sale, either upon his
own bid or upon the bid of any other person for him, directly or indirectly.
. .All such sales and deeds in pursuance thereto, . . .shall be null and
void.
Pretermitting whether by mailing the notices Vesta acted as an "other
officer discharging a similar duty" as contemplated in OCGA § 15-16-18, the
remedy for a violation of the statute is that the sale "shall be null and
void." In his previous lawsuit, Tharp was unsuccessful in having the tax
deed canceled and the sale voided. See Tharp v. Harpagon Co., 278 Ga. 654,
655 (4) (604 SE2d 156) (2004). He cannot relitigate this issue in this
appeal.
Moreover, while a party may arguably pursue an action for damages under OCGA
§ 15-16-18 when there is evidence of fraud in carrying out the sale, see
Giles v. Bank of Southwestern Ga., 102 Ga. 702, 705 (2) (29 SE 600) (1897),
Tharp has failed to produce evidence essential to his claim.
The tort of fraud has five elements: a false representation by a defendant,
scienter, intention to induce the plaintiff to act or refrain from acting,
justifiable reliance by plaintiff, and damage to plaintiff. For an action
for fraud to survive a motion for summary judgment, there must be some
evidence from which a jury could find each element of the tort. Because
summary judgment is appropriate if only one essential element of [Tharp's]
claim is eliminated, we need not address all the issues raised on appeal or
in the motion for summary judgment to resolve this appeal.
(Citation omitted.) Johnson v. Rodier 242 Ga. App. 496, 498 (2) (529 SE2d
442) (2000).
Tharp predicated his claims for fraud, deceit and misrepresentation on
appellees' alleged failure to provide him with notice of the tax sale. There
is no evidence of record to support his contention that appellees breached
any duty to provide him with notice of the tax sale or that there was
evidence of any misrepresentation. As we held in Division 1 (b) herein,
appellees provided Tharp sufficient notice of the tax sale. Additionally,
there is a lack of evidence showing due diligence by Tharp. Tharp failed to
provide the tax commissioner with a proper address and failed to pay his
taxes. "One allegedly defrauded must have exercised due diligence to
discover the fraud perpetrated against him before he can recover."
(Citations and punctuation omitted.) Delk v. Tom Peterson Realtors, Inc.,
220 Ga. App. 576, 577 (469 SE2d 741) (1996).
Since Tharp failed to present evidence that appellees breached any duty to
notify him of the tax sale and further failed to show that he exercised due
diligence, his fraud claim must fail. Therefore, the trial court was
authorized to grant summary judgment in favor of Vesta as to these claims.
e) Tharp further claims that the Sheriff violated her duties by allowing
Vesta to serve the Notice of Foreclosure of Right to Redeem ("the notice of
barment").[12] OCGA § 48-4-45 (a) (1) (A) provides, "[a]fter 12 months from
the date of the tax sale, the purchaser at the sale . . . may . . . forever
bar the right to redeem the property from the sale by causing a notice or
notices of the foreclosure . . . [t]o be served upon . . . the defendant in
execution under or by virtue of which the sale was held." OCGA § 48-4-46 (b)
further requires the purchaser to deliver the notice with a list of the
persons to be served to the Sheriff for service. In this case, however,
there is no evidence in the record showing that the notice of barment was
ever provided to the Sheriff by the purchaser for service. Consequently,
there is no evidence that the Sheriff violated her duties regarding service
of the notice of barment as alleged.
Tharp's claims before the trial court and his appellate arguments were all
based on the validity of the conduct of the tax levy and sale. We uphold the
tax levy and sale based on the issues raised, and conclude that the trial
court's decision granting summary judgment in favor of appellees' was
proper.[13]
2. Tharp next contends that the trial court erred by excluding from evidence
deposition testimony given by the Sheriff and her representatives in
unrelated prior actions. "The admission of evidence lies in the sound
discretion of the trial court." (Citation omitted.) Dept. of Transp. v.
Mendel, 237 Ga. App. 900, 902 (2) (517 SE2d 365) (1999). According to Tharp,
the trial court abused its discretion by excluding the deposition testimony
because the deponents' statements were admissible under OCGA § 9-11-32 (a)
(2) and OCGA § 24-3-31.
Pretermitting whether the trial court abused its discretion by excluding the
deposition testimony, we note that Tharp never argued before the trial court
that the statements made in the depositions were admissible under either of
these two statutory provisions. "We do not consider arguments neither raised
nor ruled on by the court below and that are asserted for the first time on
appeal." (Citation and punctuation omitted.) Johnson v. Riverdale Anesthesia
Assoc., 249 Ga. App. 152, 153 (1), n.6 (547 SE2d 347) (2001) (appellants
raised argument for first time on appeal that testimony was admissible
because appellees had "opened the door"). See also Prince v. State, 257 Ga.
84, 86 (3) (355 SE2d 424) (1987) (refusing to consider argument raised for
first time on appeal that hearsay statements were admissible as prior
statements of an in-court witness); Whitley v. Gwinnett County, 221 Ga. App.
18, 21 (3) (470 SE2d 724) (1996) (failure of appellant to raise argument
before trial court that evidence could be admitted for impeachment purposes
foreclosed appellate consideration). Hence, Tharp's failure to raise before
the trial court his arguments for admissibility predicated on OCGA § 9-11-32
(a) (2) and OCGA § 24-3-31 precludes appellate review of those arguments.
3. Tharp further contends that the trial court erred by denying his motion
to strike appellees' evidence. Tharp's written motion sought to strike "[a]ny
and all statements of fact" on the alleged grounds that they were made
without personal knowledge. Tharp also sought to strike multiple documents
on the grounds that the documents were not properly authenticated and
contained hearsay, unsupported conclusions, or irrelevant information.
The trial court denied the motion to strike, ruling that it was not specific
and sought to strike virtually every piece of evidence submitted by the
movants. We agree with the trial court's ruling.
Tharp's objection that the documents were not properly authenticated is
without merit.
OCGA § 24-3-14 prescribes the statutory standard for the admission in
evidence of records made in the regular course of business. This Code
section is to be liberally interpreted and applied. OCGA § 24-3-14(d). . . .
Before a writing or record is admissible, under OCGA § 24-3-14(b), a
foundation must be laid through the testimony of a witness who is familiar
with the method of keeping the records and who can testify thereto and to
facts which show that the entry was made in the regular course of a business
at the time of the event or within a reasonable time thereafter. . . . A
witness identifying business records under OCGA § 24-3-14 does not have to
have personal knowledge of the correctness of the records or have made the
entry himself.
(Citations and punctuation omitted.) Hertz Corp. v. McCray, 198 Ga. App.
484, 485 (2) (402 SE2d 298) (1991).
Lieutenant Earl Glenn testified during his deposition in this case that he
was the custodian of the Sheriff Department's tax levy files and the
notices, logs and tax deeds were kept in those files or in the record room
as a common practice. He also identified the documents which were attached
as exhibits to his deposition. During the Glenn deposition, counsel for the
parties further stipulated that the documents - - including the tax fi.fas.,
notices, certified mail logs and receipts, and tacked notice, attached as
exhibits - - came from the Sheriff Department's file. Also, Thomas Biggers
of the Fulton County Tax Commissioner's Delinquent Tax Division attested in
his affidavit that he had knowledge of the tax history of the property
concerned in this case, and the tax records attached to his affidavit were
business records issued by his office, which handled the delinquent billing
and the issuance and transfer of fi.fas. The testimony in this regard was
sufficient to authorize a finding that these witnesses were familiar with
the method of keeping the records and that the documents were made in the
regular course of business at the time of the events. Therefore, the trial
judge was authorized to admit the documents into evidence as records made in
the regular course of business. OCGA § 24-3-14 (b). See also Carter v. Tokai
Fin. Svcs., Inc., 231 Ga. App. 755, 759-760 (3) (500 SE2d 638) (1998).
Tharp's remaining objections amounted to general objections and as such,
were improperly raised.
Where evidence is objected to in its entirety, some portion of which is
admissible, such objection is not well taken, though some of the evidence
may be inadmissible. The same rule pertains to a motion to exclude. . . .
The court [is] not obliged to separate the wheat from the chaff [in ruling
upon the admissibility of evidence.]
(Citations and punctuation omitted.) Mark Inn, Inc. v. Dept. of Transp., 174
Ga. App. 420, 421 (1) (330 SE2d 134) (1985). See also Brantley v. Heller,
101 Ga. App. 16, 18 (1) (112 SE2d 685) (1960); McDaniel v. Department of
Transp., 200 Ga. App. 674, 679 (3) (409 SE2d 552) (1991).
Tharp's motion to strike and his argument to the trial court presented
nothing more than a general objection which failed to clarify what portion
of the documents was objectionable. The trial court was not required to
separate the wheat from the chaff, and therefore, there was no abuse of
discretion in the denial of Tharp's motion to strike. Mark Inn, Inc., 174
Ga. App. at 421 (1).
4. Tharp last contends that the trial court was biased and improperly
pre-judged the case. Although Tharp raised this issue at the motion for
summary judgment hearing, he did not invoke a ruling from the trial court or
file a motion to recuse. As such, this allegation has not been preserved for
appeal. Tharp "waived any objection that he had to the judge's presiding
over the case." In re C.C.C., 188 Ga. App. 849, 850 (1) (374 SE2d 754)
(1988). See also Langton v. Dept. of Corrections, 220 Ga. App. 445, 447 (3)
(469 SE2d 509) (1996).
Judgment affirmed. Blackburn, P. J., and Miller, J., concur.
---------------
Notes
[1] The tax fi.fa. was issued in the name of NCO, Inc., the previous
property owner. In Tharp v. Harpagon Co., 278 Ga. 654, 655 (4) (604 SE2d
156) (2004), the Georgia Supreme Court determined that it was proper to
issue the tax execution in the name of Tharp's predecessor in interest who
owned the property as of January 1 of the tax year at issue.
[2] Prior to being repealed under Ga. L. 2002, p. 1481, § 1, OCGA § 48-3-19
(b)(1) required that a person who is not a lawful heir or an equity holder
in the property provide 60 days' notice of an intention to purchase the tax
fi.fa. to the property owner by certified mail and to its occupant by first
class mail.
[3] OCGA § 48-3-9 (a) provides in pertinent part: "Whenever any real estate
is levied upon by the sheriff for taxes, it shall be the sheriff's duty
before proceeding to advertise the property for sale as provided by law to
give 20 days' written notice of the levy to the record owner of the property
and the record owner of each security deed and mortgage affecting such
property . . . either in person or by registered or certified mail or
statutory overnight delivery, with return receipt requested at the address
given on the list." See also OCGA § 9-13-13 (a) ("written notice of the levy
must be given personally or delivered by certified mail or statutory
overnight delivery to the tenant in possession and to the defendant if not
in possession.").
[4] In executions for ad valorem taxes, notice shall be sent to the fi.fa.
defendant's last known address as listed in the records of the county's tax
commissioner. OCGA § 48-4-1 (a) (1). The record owner of the property listed
in the Fulton County Tax Commissioner's Office was NCO, Inc. at the property
address. There is no evidence that Tharp provided the Fulton County Tax
Commissioner's Office with different contact information for sending tax
bills and notices upon his subsequent purchase of the property. Accordingly,
subsequent to Tharp's purchase, the notices were sent to the property
address in Tharp's name.
[5] OCGA § 48-4-1 (a) requires that when a levy is made upon property, the
property be advertised and sold in the same manner as provided for
executions and judicial sales. OCGA §§ 9-13-140 (a) and 9-13-141 provide for
advertisement for four weeks in a newspaper published at the county site.
[6] In addition to other notice required by law, ten days' written notice of
the tax sale must be given by registered or certified mail or statutory
overnight delivery. OCGA § 48-4-1 (a).
[7] The entry must "plainly describe the property levied on and the amount
of the interest of defendant therein." OCGA § 9-13-12.
[8] The record shows that Darian Driver was legally appointed as a permanent
process server by the court, and thus, was authorized to tack the notice
onto the property on behalf of the Sheriff.
[9] Even if entry of levy had not been officially made, the entry could be
made by order of the court nunc pro tunc to August 20, 1999 the date the
tacked notice of levy was made. "If the sheriff or other executing officer
fails to make an official return which by law he should have made, the entry
or return may be made nunc pro tunc by order of the court, so as to make the
proceedings conform to the facts at the time the entry should have been
made." OCGA § 15-16-16.
[10] In Tharp's affidavit, he claims that he purchased property at the
address of 1152 Arlington Avenue in Fulton County in 1990 and received mail
at that address through the year 2000. However, this was not the billing and
mailing address provided to the Tax Commissioner's Office when Tharp
purchased the property at issue in 1998. An Affidavit of Service entered by
a process server indicated that an attempt to serve the Notice of
Foreclosure of Right to Redeem to Tharp at that Arlington Avenue address on
November 11, 2000 was unsuccessful and noted there was wet unopened mail on
the premises.
[11] We also find no merit in Tharp's contention that he "has lost his
property because of their illegal and improper manipulations of the tax sale
statutes and Georgia law." Tharp lost his property because he failed to
ensure payment of the property taxes. The Fulton County Tax Commissioner's
ad valorem payment history shows that Heartwood paid the property taxes for
the years 1998, 1999 and 2000.
[12] In this case, the record shows that attempted service of the notice of
barment was made by an appointed process server.
[13] In light of our decision that there was no evidence of a wrongful act
upon which the Sheriff could be held liable, we need not address the issue
of whether the Sheriff was entitled to immunity for the performance of her
official duties in the tax levy and sale. Since there is no liability, the
immunity issue is moot.
# # # # # # # # # # # # # # # # # # # # # # # # #
621 S.E.2d 722 (Ga. 2005)
279 Ga. 840
COMMUNITY RENEWAL AND REDEMPTION, LLC
v.
NIX.
No. S05A0877.
Supreme Court of Georgia
Nov. 7, 2005
Sam G. Dickson, Atlanta, for Appellant.
Hugh C. Wood, Woods & Meredith, LLP, Robert L. Rothman, Roger Allan
Chalmers, Arnall Golden Gregory, LLP, Atlanta, for Appellee.
BENHAM, Justice.
This appeal involves the exercise of the right of redemption of property
sold at a tax sale.[1] The property in question was sold by DeKalb County in
December 1993 to satisfy a tax delinquency. There being no other purchaser,
DeKalb County took the property under a tax deed, held it until February
1999, and then sold it to Nix. The defaulting taxpayer quitclaimed her
interest in the property to Community Renewal and Redemption, L.L.C. (CRR)
in January 2003. In that same month, CRR sought to redeem title by tendering
to Nix what it contended was the correct redemption price pursuant to OCGA §
48-4-42.
Page 723
When Nix refused the tender, CRR filed suit seeking to force redemption of
the property. On cross-motions for summary judgment, the trial court ruled
that title had vested in DeKalb County prior to its sale of the property to
Nix, foreclosing CRR's effort to redeem title, and that all other issues
were moot. CRR seeks reversal of the grant of summary judgment to Nix and a
ruling that denial of its motion for summary judgment was error.
1. The trial court based its conclusion that title had vested in DeKalb
County prior to the sale to Nix on this Court's holding in Moultrie v.
Wright, 266 Ga. 30 (1), 464 S.E.2d 194 (1995), that under the provisions of
OCGA § 48-4-48 as it was at the time of the tax sale in that case, the
expiration of a statutorily-designated period without an effort to redeem
placed the purchaser's title beyond defeasance through redemption. Moultrie
v. Wright, supra, followed the holding in Patterson v. Florida Realty &
Finance Corp., 212 Ga. 440 (1a), 93 S.E.2d 571 (1956), that the predecessor
to OCGA § 48-4-48 "provided a method for perfecting title to property sold
under an execution for taxes." The language on which Moultrie and Patterson
were based was the second sentence of section 2A of the statute which
provided in pertinent part as follows: "Any tax deed properly executed at a
valid and legal sale ... shall convey after the expiration of seven years
from the date of the tax deed a fee simple title ...." Ga. L. 1949, pp.
1132, 1133, § 2-A.
However, in a special concurrence in Moultrie, Justice Carley pointed out
OCGA § 48-4-48 was amended in 1989 to remove that language and the statute
now makes clear that for all tax deeds executed after July 1,1989, the
ripening of title must occur by prescription, not by the mere passage of
time. Citing that concurrence, this Court held in Blizzard v. Moniz, 271 Ga.
50, 54, 518 S.E.2d 407 (1999), that "the plain language of OCGA § 48-4-48
... requires ... adverse possession by the tax deed grantee in order for
title to ripen under the statute." The trial court here recognized the
effect of the 1989 amendment, but held the amendment to the statute did not
serve to change the existing state of the law until this Court's decision in
Blizzard, supra, in 1999.
The trial court thus conflated the statute with the appellate interpretation
of the statute, delaying the effect of the amendment until this Court issued
a decision recognizing the change made by the statute. The trial court's
holding conflicts with OCGA § 1-3-4, which provides that legislative acts
become effective either on the date specified in the act or on July 1 or
January 1, whichever comes first after enactment of the legislation, and
with OCGA § 1-3-6, which provides that "[a]fter they take effect, the laws
of this state are obligatory upon all the inhabitants thereof." The 1989
amendment became effective on July 1,1989, and specified that a four-year
period of prescription applied to all tax deeds executed after that date,
but omitted the language which Patterson and Moultrie found to cause fee
simple title to vest by the passage of time alone without regard to the
requirements for prescriptive title. The requirement for adverse possession
recognized in Blizzard became effective in 1989 when the amendment to the
statute became effective, not when Blizzard recognized the change in 1999.
See Smith v. State, 218 Ga.App. 429 (1), 461 S.E.2d 553 (1995), recognizing
that subsequent statutory amendment supersedes an appellate court's
statutory construction.
Since the tax deed in this case was executed after July 1,1989, the pre-1989
provision recognized in Moultrie and Patterson as providing for the vesting
of title by the passage of time alone was no longer in effect, and the trial
court erred in ruling that title had vested in DeKalb County by virtue of
the passage of time. It follows that the trial court erred in granting
summary judgment to Nix on that basis.
2. Asserting the record shows Nix did not take the steps necessary to take
title by prescription, CRR urges this Court to apply a right-for-any-reason
analysis and reverse the trial court's denial of its motion for summary
judgment. However, the trial court's decision to grant summary judgment to
Nix and deny it to CRR based on an erroneous legal theory not only left
unanswered the question of Nix's entitlement to prescriptive
Page 724
title, but also left unresolved other defenses raised by Nix and pending
motions filed by both sides. Under those circumstances, we believe judicial
economy is best served by merely reversing the judgment entered below and
permitting the trial court, upon the return of the remittitur, to consider
the remaining issues on their merits. City of Gainesville v. Dodd, 275 Ga.
834, 838 573 S.E.2d 369 (2002).
Judgment reversed.
All the Justices concur.
---------------
Notes
[1] Pursuant to OCGA § 48-4-40, a person whose property has been sold for a
tax delinquency, or any person with an interest in the property, has a right
to redeem the property by paying the redemption price calculated according
to OCGA § 48-4-42. That right exists for at least 12 months (OCGA § 48-4-40
(1)), and continues thereafter until the right of redemption is foreclosed
by notice pursuant to OCGA § 48-4-45 or by the ripening of the purchaser's
title through prescription. OCGA § 48-4-48.
---------------
# # # # # # # # # # # # # # # # # # # # # # # # #
CROFT
v.
FAIRFIELD PLANTATION PROPERTY OWNERS ASSOCIATION, INC. et al.
No. A05A1029.
Court of Appeals of Georgia, First Division
October 27, 2005
Phipps, Judge.
William Croft appeals, pro se, from the trial court's order granting summary
judgment to Fairfield Plantation Property Owners Association, Inc., Kristen
Bonner,[1] and Don Harmon[2] and denying Croft's motion for summary
judgment. Croft contends the trial court's order requiring him to pay
homeowners association fees should be reversed because his purchase of the
subject properties in a tax sale did not convey fee simple title obligating
him to pay homeowners association fees. For the reasons set forth below, we
disagree and affirm.
"Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. [Cit.] A de novo
standard of review applies to an appeal from a grant of summary judgment,
and we view the evidence, and all reasonable conclusions and inferences
drawn from it, in the light most favorable to the nonmovant." [Cit.][3]
The undisputed evidence shows that, on June 6, 2000 and July 5, 2000, Croft
purchased a total of seven residential lots in the Fairfield Plantation
subdivision at a tax sale resulting from unpaid property taxes.[4] These
lots are subject to restrictive covenants running with the land that require
the payment of homeowners association assessments for maintenance of the
common areas in the subdivision. One of the covenants provides that:
Every person upon acquiring title, legal or equitable, to any lot in the
Subdivision[] shall become a member of the [Fairfield Plantation] Property
Owners Association, Inc.,[5] a Georgia non-profit corporation, herein
referred to as "Association" and as long as he is the owner of any such lot,
he must remain a member of the Association. Such membership is not intended
to apply to those persons who hold an interest in any lot merely as security
for the performance of an obligation to pay money, e.g., mortgages, deeds of
trust, or real estate contract purchases. However, if such a person should
realize upon his security and become the real owner of a lot, he will then
be subject to all the requirements and limitations imposed in these
Restrictions on owners of lots within the Subdivision and on members of the
Association, including those provisions with respect to payment of annual
charges.
When Croft refused to pay the Association's annual charges for the lots, it
hired a collection agency and later filed liens against the properties.
Croft then filed suit against the Association, Bonner, and Harmon seeking $1
million in damages for extortion and removal of the liens. The Association
counterclaimed for the unpaid assessments, late charges, interest, and its
attorney fees. The trial court granted summary judgment to the defendants on
Croft's claims and also granted summary judgment to the Association on its
counterclaim for past due assessments, late fees, interest, and attorney
fees.
1. Croft contends that the title he acquired in the tax sale was
insufficient to trigger membership in the Association and an obligation to
pay annual assessments. In support of this argument, Croft points to the
statutory right of redemption granted to his predecessors in title.[6] OCGA
§ 48-4-40 provides that title can be restored to specified predecessors
through payment of the statutory amount of redemption within 12 months from
the date of the sale, or at any time before the right to redeem is
foreclosed by the tax sale purchaser giving of notice under OCGA § 48-4-45.
Another mechanism by which the purchaser at a tax sale can cut off the right
of redemption is through adverse possession of the property for the
requisite number of years after the tax deed is recorded.[7] Croft argues
that since he did not exercise his right to cut off the right of redemption
through either (1) the giving of notice 12 months after the tax sale; or (2)
adversely possessing the property, he does not have fee simple title and is
not obligated to pay the Association's assessments.
While we agree with Croft's contention that he did not obtain a fee simple
absolute title, he did receive title sufficient to trigger automatic
membership in the Association. In Patterson v. Florida Realty & Finance
Corp.,[8] the Supreme Court held that "the title which the purchaser
acquires in consequence of a tax sale is not a perfect, fee-simple title,
but is a defeasible title which terminates upon redemption within the time
prescribed by statute. . . ."[9] A defeasible fee
may endure forever, but may also be brought to an end by a stated event. It
has the attributes of a fee interest, such as general inheritability, but is
not a fee simple due to the fact that it may be defeased. The event may be
the continuance or end of some situation, the happening or failure of
happening of some occurrence, or the performance or nonperformance of some
condition." P. 12, "Defeasible Fees," by Wm. H. Agnor. The essentials of a
defeasible fee are that the devisee must first take an estate in fee, which
may run indefinitely, subject to being defeated by some contingency which
may occur after the devisee's estate has become vested. [Cit.][10]
In Patterson, the Supreme Court concluded that the purchaser at a tax sale
"acquires an interest in the property even during the time within which it
might be redeemed, which is sufficient to render him liable for taxes
accruing on the property."[11]
We find that this interest is also sufficient to render the purchaser liable
for homeowners association assessments. A contrary holding would result in a
situation in which a tax deed purchaser could, by inaction, keep the
redemption period alive indefinitely, reap the benefit of property value
increases, and avoid the obligation to pay maintenance expenses which
increase the value of the property. It would be inequitable to allow a tax
deed holder to obtain the benefit of restrictive covenants that require the
homeowners association to maintain the surrounding amenities such as roads
and common areas, all of which increase the value of the property purchased
at the sale, without having to pay a proportional share of the cost of these
benefits for an indefinite period of time.
2. To the extent Croft makes constitutional challenges to the Georgia
Property Owners' Association Act,[12] we find that they are waived because
he failed to raise them below and obtain a ruling by the trial court.
"Appellate courts exist to review asserted error but where the [party] makes
no objection or obtains no ruling of the trial court, the contended problem
cannot be made the basis of appellate review as there is no ruling to
review."[13]
Judgment affirmed. Andrews, P. J., and Mikell, J., concur.
---------------
Notes:
[1] Bonner is an employee of the Association.
[2] Harmon is a member of the Association's Board of Directors.
[3] McCoy v. West Bldg. Materials &c., 232 Ga. App. 620 (502 SE2d 559)
(1998).
[4] See OCGA § 48-4-1 et seq.
[5] The name of the association was changed in 1982 from Treasure Lake of
Georgia Property Owners Association, Inc. to Fairfield Plantation Property
Owners Association, Inc.
[6] See OCGA § 48-4-40.
[7] OCGA § 48-4-48. See also Blizzard v. Moniz, 271 Ga. 50, 54 (518 SE2d
407) (1999).
[8] 212 Ga. 440 (93 SE2d 571) (1956).
[9] Id. at 442 (1) (b).
[10] McDonald v. Suarez, 212 Ga. 360, 362 (2) (93 SE2d 16) (1956).
[11] Patterson, supra.
[12] OCGA § 44-3-220 et seq.
[13] Sanders v. State, 179 Ga. App. 168, 169 (2) (345 SE2d 677) (1986).
---------------
# # # # # # # # # # # # # # # # # # # # # # # # #
620 S.E.2d 447 (Ga.App. 2005)
275 Ga.App. 196
SCOTT
v.
VESTA HOLDINGS I, LLC et al.
Vesta Holdings I, LLC
v.
Scott.
Nos. A05A1226, A05A1227.
Court of Appeals of Georgia
Aug. 23, 2005
Page 448
William J. Linkous, IIII, Chief Asst. County Atty., Atlanta, Sam L. Brannen,
Sr. Asst. County Atty., Statesboro, for appellant.
Proctor, Chambers & Hutchins, Robert J. Proctor, Bradley A. Hutchins, Adam
C. Caseky, Atlanta, for appellees.
Barnes, Judge.
In Appeal No. A05A1226, Tom Scott, the Tax Commissioner of DeKalb County
("the Commissioner"), appeals the trial court's judgment granting the money
rule petition of Vesta Holdings I, LLC ("Vesta Holdings").[1] The
Commissioner contends the trial court erred because Georgia law requires
that tax fieri facias, or fi. fa.[2] ("tax executions"), be satisfied by
levy and sale and requires tax commissioners to hold excess proceeds from
the sales as a fiduciary of the property owners of record at the time of the
sale. He also contends that a money rule is not a proper remedy for
collection of tax executions from him. We disagree and affirm the grant of
the money rule to Vesta Holdings.
In its cross-appeal, Appeal No. A05A1227, Vesta Holdings contends the trial
court erred by denying its petition for the 20 percent interest authorized
by OCGA § 15-13-3 and the interest on its tax executions authorized by OCGA
§ §48-3-20 and 48-2-40. Because the trial court's order does not find that
good cause was shown by the Commissioner sufficient to deny Vesta Holdings's
request for 20 percent interest, we must vacate that part of the judgment
and remand the case to the trial court for further proceedings.
The record shows that Vesta Holdings filed a Petition for a Money Rule
requiring the Commissioner[3] to remit the sums Vesta Holdings previously
demanded on its tax executions plus 20 percent per annum interest. The
petition alleged that Vesta Holdings was the nominee of Heartwood 11, LLC
("Heartwood"), that Heartwood is regularly engaged in purchasing and
collecting on tax executions, and that, as Heartwood's nominee, Vesta
Holdings held certain tax executions.
Page 449
The petition further alleged that the Commissioner had conducted a number of
tax sales of properties subject to the tax executions held by Vesta Holdings
that produced proceeds in excess of the amounts necessary to satisfy the tax
executions for which the sales were held, and that the Commissioner was
holding those excess amounts in his registry account.
According to the petition, Vesta Holdings made demand on the Commissioner to
satisfy Vesta Holdings's tax executions on those properties from these
excess proceeds, but the Commissioner refused the demand. As a result, Vesta
Holdings sought a money rule under OCGA § 15-13-1, [4] twenty percent
interest under OCGA § 15-13-3, [5] costs, and issuance of a writ of mandamus
absolute or a permanent injunction prohibiting the Commissioner from
proceeding with levies and sales for delinquent tax executions when prior
tax sales proceeds could be applied.
The Commissioner answered denying liability and subsequently filed an
amended answer adding a counterclaim and cross-claim for interpleader and
declaratory relief. The petition for declaratory judgment sought a ruling on
whether the Commissioner was "required and entitled to hold excess tax sale
proceeds as a fiduciary for the record property owners . . . or whether
those funds may properly be paid to a tax execution transferee."[6] The
interpleader sought permission to pay into the registry of the court the
excess tax sale proceeds on all of the properties involved in the case. The
defendants in interpleader were the 18 individuals or entities who were
property owners of record when the properties were sold by the Commissioner
in the tax sales.
Subsequently, the Commissioner filed a brief contending that Vesta Holdings
purchased the tax executions from him under OCGA § 48-3-19[7] and then held
them until the Commissioner conducted tax sales on the property covered by
Vesta Holdings's tax executions for tax liabilities for years after those
covered by Vesta Holdings's tax executions. He further alleged that Vesta
Holdings's plan was to purchase a tax execution, to sit on its rights to
levy and sell the property to collect the tax execution, to allow interest
to accrue at the statutory rate of twelve (12) percent per year, and then to
demand the excess proceeds when the property was sold at a later tax sale.
He also contended that Georgia law prohibited him from satisfying Vesta
Holdings's tax executions in that manner and that Vesta Holdings's remedy
was to levy and sell the property to which its tax executions related.
Relying on National Tax Funding, LP v. Harpagon Co., LLC, 277 Ga. 41 (586
S.E.2d 235) (2003), the trial court granted Vesta Holdings's petition for
the money rule. This ruling authorized Vesta Holdings to satisfy its tax
executions from the excess proceeds the Commissioner collected from
subsequent tax sales on the same parcels of property.
Case No. A05A1226
1. As the trial court found, this case is controlled by our Supreme Court's
decision in National Tax Funding :
All owners of non-exempt real and tangible personal property are subject to
taxation
Page 450
on the property's fair market value as of January first of each year. [OCGA
§§ 48-5-1; 48-5-3; 48-5-9; 48-5-10.] In order to secure payment of these
taxes when they fall delinquent, the law creates a lien which extends not
only to the property giving rise to the tax obligation, but also to all
other property owned by the taxpayer. [OCGA § 48-2-56 (a).] Generally, a
lien for delinquent ad valorem taxes arises at the time the taxes become due
and unpaid, and "covers all property in which the taxpayer has any interest
from the date the lien arises until such taxes are paid." [Id.] When taxes
are not paid, the Tax Commissioner is authorized to issue a writ of fieri
facias (or tax execution), which is a directive to the appropriate officer
(often the sheriff) to levy upon the property, sell it and collect the
unpaid taxes. [OCGA §§ 48-3-3; 48-5-127 (a)(6); 48-5-161.] Following a tax
sale, after the payment of taxes, costs, and other expenses, any excess
proceeds may be claimed by the parties entitled to receive them, including
those who hold other liens against the property. [OCGA § 48-4-5. If the tax
sale proceeds are insufficient to fully pay an outstanding tax lien, the tax
lienholder may levy upon and collect from the taxpayer's other property. See
OCGA § 48-2-56 (a).]
(Punctuation omitted, and emphasis supplied.) Id. at 42 (1). See Annual
Survey of Georgia Law, 56 Mercer L. Rev. 395 (2004), at 411. The Supreme
Court reiterated its interpretation of OCGA § 48-4-5 later in the opinion:
[F]ollowing a tax sale, the holder of a competing tax lien has two options
-- it may either file a claim to collect against any proceeds from the sale,
or it may assert its rights following the tax sale via a statutory claim for
redemption, in which case it obtains a first priority lien on the property,
which it may then enforce by levy and sale. With these two options, the
legislature has ensured that holders of competing tax liens can take
adequate steps to protect their interest in property sold at a tax sale to
another lienholder.
National Tax Funding, supra, 277 Ga. at 44 (3), 586 S.E.2d 235.
The rationale for this interpretation flows from former OCGA § 48-3-19 (a)
(1) and OCGA § 48-4-5 and OCGA § 48-2-56. Before it was repealed, OCGA §
48-3-19 (a) (1) provided:
Whenever any person other than the person against whom an execution has been
issued pays an execution issued for state, county, or municipal taxes . . .,
the officer whose duty it is to enforce the execution, upon the request of
the party paying the execution, shall transfer the execution to the party so
paying. The person to whom the execution is transferred shall have the same
rights as to enforcing the execution and priority of payment as might have
been exercised or claimed before the transfer.
Therefore, "Vesta [Holdings] stood in the same shoes as [a county seeking
funds from an excess tax sale]. Alexander Investment Group, Inc. v. Jarvis,
[supra, 263 Ga. at 490 n. 3]." Vesta Holdings I, LLC v. Tax Commissioner of
Fulton County, 259 Ga.App. 717, 718 (1) (578 S.E.2d 293) (2003). The
significance of this footing is that Vesta Holdings's tax executions had
higher priority than any other claims or liens except those for State taxes
and for county taxes, if any, which were older than those held by Vesta
Holdings. Id. at 718-720 (2).
With a few exceptions, not relevant here, OCGA § 48-2-56 (a) and (b) allow
holders of unpaid liens for State, county or municipal taxes to recover from
all property in which the delinquent taxpayer had any interest until the
taxes are paid, and give the holder of the tax liens the right to be paid
"before any other debt, lien, or claim of any kind." See also OCGA § 48-5-28
(a) ("taxes shall be paid before any other debt, lien, or claim of any
kinds.") The version of OCGA § 48-4-5[8] relevant to this appeal provided
that "[i]f there is any excess after paying taxes, costs, and all expenses
of a shall, it shall be immediately
Page 451
paid to the person authorized to receive the excess."[9]
In this appeal, Vesta Holdings, as the transferee of the tax executions,
stood "in the shoes of the State, county, or city by whose authority the tax
fi. fa. was issued. [It had] the same rights and priorities that the State,
county, or city would have had. Taxes, under our law, are the highest lien."
Ferris v. Van Ingen & Co., 110 Ga. 102, 119 (35 S.E.2d 347) (1900).
Therefore, Vesta Holdings was entitled to recover from the Commissioner the
amounts necessary to pay its tax executions from the excess proceeds of the
tax sales before any payments to the owners of record at the time of the tax
sale.
The Commissioner's position in this litigation has consistently overlooked
or rejected the fact that Vesta Holdings was entitled to collect from all
property in which the delinquent taxpayer had any interest, that these
excess sale proceeds were such a property interest, and that, as the holder
of the tax liens, Vesta Holdings had the right to be paid "before any other
debt, lien, or claim of any kind" may be claimed by the parties entitled to
receive them, including those who hold other liens against the property.
OCGA § 48-2-56 (a) and (b); Vesta Holdings I, LLC v. Tax Commissioner of
Fulton County, supra, 259 Ga.App. at 720 (2) (b).
Further, the Commissioner's reliance on Alexander Investment Group v.
Jarvis, supra, 263 Ga. 489, 435 S.E.2d 609, is misplaced. That case merely
held that the holder of a tax execution was only entitled to recover the
amount of tax debt evidenced by the execution. Once that debt was paid, it
had no further entitlement to collect from the excess proceeds. Id. at
491(2), n. 4, 435 S.E.2d 609. The case does not stand for the proposition
that a tax execution may only be satisfied by levy and sale.
2. The Commissioner's allegation that a money rule petition is not
authorized in cases of this nature is without merit. Pretermitting whether
the Commissioner would be subject to a money rule on any other basis, the
Commission is subject to a money rule as an ex-officio sheriff under OCGA §
48-5-137. OCGA § 15-13-2 (4)[10] ; Barrett v. Marathon Investment Corp., 268
Ga.App. 196, 199 (4) (601 S.E.2d 516) (2004).
Case No. A05A1227
3. The trial court's order on interest, attorney fees, and costs merely
states that Vesta Holdings is entitled to recover "legal interest from the
date of this order only. The court denies plaintiff's request for attorney's
fees and costs." Collection of interest in money rule cases is controlled by
OCGA § 15-13-3 (a), which states that for neglecting or refusing to pay what
is owed "the officer shall be compelled to pay interest at the rate of 20
percent per annum upon the sum he has in his hands from the date of the
demand, unless good cause is shown to the contrary." As the trial court made
no finding that good cause was shown for the Tax Commissioner's refusal to
honor Vesta Holdings's demands, we must vacate this part of the trial
court's judgment and remand the case for further proceedings to determine
whether the 20 percent interest required by OCGA § 15-13-3 (a) must be made
part of the trial court's judgment. See MacDougald v. Phillips, 262 Ga. 778
(425 S.E.2d 652) (1993); Bill Parker & Assoc. v. Rahr, 216 Ga.App. 838, 842
(5) (456 S.E.2d 221) (1995).
Further, the trial court's final order requiring the Tax Commissioner "to
remit the sums previously demanded by plaintiff for its tax executions" does
not explicitly grant or deny Vesta Holdings the interest of one percent per
month authorized by OCGA § § 48-3-20 and 48-2-40 which Vesta Holdings
included in its previous demands. Therefore, the trial
Page 452
court should clarify this part of its order when it considers whether good
cause was shown by the Commissioner sufficient to justify the denial of
interest under OCGA § 15-13-3 (a).
Judgment affirmed in part, vacated in part, and remanded with direction.
Ruffin, C. J., and Johnson, P. J., concur.
---------------
Notes
[1] Although Scott filed this appeal in the Supreme Court of Georgia, the
appeal and cross-appeal were transferred to this court because money rule
cases are not within the jurisdiction of the Supreme Court even when
mandamus is sought.
[2] "The terms tax execution and tax fieri facias or tax fi. fa. have over
the years been used interchangeably and refer to one and the same type of
writ." Alexander Investment Group v. Jarvis, 263 Ga. 489, n1 (435 S.E.2d
609) (1993).
[3] The Commissioner is an ex-officio sheriff. See OCGA § 48-5-137.
[4] "All sheriffs, deputy sheriffs, coroners, jailers, constables, and other
officers of court shall be liable to all actions and disabilities which they
incur in respect of any matter or thing relating to or concerning their
respective offices."
[5] "(a) If any sheriff, coroner, magistrate, constable, clerk of the
superior court, or attorney at law fails, upon application, to pay to the
proper person or his attorney any money he may have in his hands which he
may have collected by virtue of his office, the party entitled thereto or
his attorney may serve such officer with a written demand for the same. If
not then paid, for such neglect or refusal the officer shall be compelled to
pay interest at the rate of 20 percent per annum upon the sum he has in his
hands from the date of the demand, unless good cause is shown to the
contrary.
(b) A copy of the demand produced in court, verified by affidavit stating
when and where the original was served upon the officer, shall be
prima-facie evidence of the date and service thereof."
[6] We note that the Commissioner's petition for a declaratory judgment came
over a year after Vesta Holdings's earliest demand for payment and after he
had paid the full amount of the excess proceeds from some sales to other
claimants.
[7] This code section was by repealed by Ga. L. 2002, p. 1481, § 1,
effective May 21, 2002.
[8] The Commissioner agrees that the now repealed OCGA § 48-3-19 (a) and the
prior version of OCGA § 48-4-5 apply in this appeal.
[9] The current OCGA § 48-4-5 authorizes the Commissioner to distribute any
excess tax sale proceeds, after payment of taxes, costs, and expenses, "to
intended parties, including the owner as their interest appears and in the
order of priority in which their interest exists" through an interpleader
action in superior court.
[10] "Any sheriff shall be liable to an action for damages or an attachment
for contempt of court, at the option of the party, whenever it appears that
the sheriff has injured the party by: . . . (4) Neglecting to pay over to
the plaintiff or his attorney any moneys collected by the sheriff by virtue
of any fi. fa. or other legal process.
---------------
# # # # # # # # # # # # # # # # # # # # # # # # #
615 S.E.2d 235 (Ga.App. 2005)
273 Ga.App. 420
LINES, et al.
v.
CITY OF BAINBRIDGE.
No. A05A0074.
Court of Appeals of Georgia
May 24, 2005
Thomas L. Lehman, Kevin S. Cauley, Lehman & Cauley, Cairo, for appellants.
William C. Sanders, Alexander & Vann, Thomasville, for appellee.
MILLER, Judge.
Earl Lines, Warren Schoenfisch, and Johnny Williams sued the City of
Bainbridge for
Page 236
alleged lost profits, attorney fees, and other costs and expenses connected
with a tax sale that the city declared void. The trial court granted the
city's motion for summary judgment on the plaintiffs' claims for lost
profits and attorney fees, prompting this appeal. [1] We discern no error
and affirm.
On appeal from the grant of a motion for summary judgment, we conduct a de
novo review of the law and evidence, viewing the evidence in the light most
favorable to the nonmovant, to determine whether a genuine issue of material
fact exists and whether the moving party was entitled to judgment as a
matter of law. Holbrook v. Stansell, 254 Ga.App. 553, 553-554, 562 S.E.2d
731 (2002).
So viewed, the evidence reveals that appellants attended a public tax sale
in Bainbridge on April 2, 2002. Collectively, appellants were the successful
bidders on 36 properties. That same day, Lines wrote a check to Bainbridge
on behalf of all three appellants for the total amount of the properties for
which each appellant was the successful bidder.
Less than a week later, appellants returned to Bainbridge to check on the
county taxes owed on the properties that they had purchased. Bainbridge
informed appellants at that time that the tax sale had been voided due to
the city's failure to give proper notice to the lienholders before the tax
sale took place. See OCGA §§ 48-4-1(a); 48-4-77; 48-4-78(d). It is
undisputed that the city returned to appellants all of the money that they
paid for the 36 properties.
Appellants then sued Bainbridge for alleged lost profits stemming from the
returns that they expected to see from the properties that they had
attempted to purchase. Appellants also included a claim for attorney fees in
their complaint, contending that they were entitled to such fees for having
"been required to retain the services of an attorney to seek reimbursement
of the damages suffered." However, there is no mention of OCGA § 13-6-11 or
any other legal theory in the complaint as a basis for recovering fees.
1. Appellants contend that the trial court erred in granting summary
judgment to Bainbridge on their claim for lost profits. We disagree.
Appellants' insistence that this case involves alleged lost profits is
misplaced. It is undisputed that the Bainbridge tax sale was void due to the
city's failure to give proper notice to the lienholders. See OCGA §§
48-4-1(a); 48-4-77; 48-4-78(d). It is also undisputed that the appellants
were refunded all of the money that they paid for the properties at the void
tax sale. There was never any "sale" from which appellants could expect any
profits. There can be no "lost profits" from a sale that was void from the
beginning. See generally McCondichie v. Groover, 261 Ga.App. 784, 784-786,
584 S.E.2d 57 (2003) (investor could not recover profits he expected to make
on illegal contract). Appellants' arguments to the contrary are entirely
without merit, and the trial court properly granted summary judgment to
Bainbridge on this claim.
2. Appellants claim that the trial court erred in granting summary judgment
to Bainbridge on their claim for attorney fees. We disagree.
Appellants make no reference in their complaint to OCGA § 13-6-11 or the
criteria set forth therein as a basis for their claim for attorney fees.
Thus they have not adequately pled for such an award under the statute.
Daniels v. Price Communications Wireless, 254 Ga.App. 559, 562(2), 562
S.E.2d 844 (2002). Even if they had, moreover, there is no evidence that
Bainbridge engaged in any conduct that would authorize an award of attorney
fees under OCGA § 13-6-11. See,
Page 237
e.g., Driggers v. Campbell, 247 Ga.App. 300, 304(4), 543 S.E.2d 787 (2000).
Nor is there any other legal theory asserted by appellants that would
authorize an award of attorney fees here. See Money v. Thompson & Green
Machinery Co., 155 Ga.App. 566, 567, 271 S.E.2d 699 (1980) (attorney fees
not recoverable absent statutory provision or contract). The trial court
properly granted summary judgment to Bainbridge on this claim.
Judgment affirmed.
BLACKBURN, P.J., and BERNES, J., concur.
---------
Notes:
[1] Bainbridge moved for partial summary judgment, as it challenged all of
the plaintiffs' claims except Lines and Schoenfisch's claims for costs
allegedly incurred in preparing their bids for the tax sale. Williams did
not include such a claim in his lawsuit. The trial court therefore granted
summary judgment to Bainbridge on all of Williams's claims, but only as to
the challenged claims of Lines and Schoenfisch. Since Williams did not
include a claim for incurred costs in his ante litem notice to Bainbridge,
the trial court properly granted summary judgment on this claim. See OCGA §
36-33-5(b) ("No action shall be entertained by the courts against [a]
municipal corporation until the cause of action therein has first been
presented to the governing authority for adjustment."). Whether or not
Bainbridge may be entitled to summary judgment on Lines and Schoenfisch's
remaining claims is not an issue that is currently before us.
---------
# # # # # # # # # # # # # # # # # # # # # # # # #
613 S.E.2d 180 (Ga.App. 2005)
GEORGIA LIEN SERVICES, INC.
v.
BARRETT.
No. A05A0372.
Court of Appeals of Georgia
April 6, 2005
Page 181
M. McNeill Holloway III, Kennesaw, for appellant.
Vernitia A. Shannon, John A. Ayoub, Atlanta, for appellee.
BERNES, Judge.
Georgia Lien Services, Inc. appeals from an order dismissing its money rule
petition
Page 182
seeking excess funds held by the Fulton County Sheriff's Department for the
tax sale of certain real property. [1] Although Georgia Lien Services raises
several enumerations of error on appeal, our analyses of two of its
contentions are dispositive of this case. First, Georgia Lien Services
argues that the trial court erred in granting the sheriff's motion to
dismiss because it obtained an interest in the excess funds by acquiring a
quitclaim deed from the delinquent taxpayer who had owned the subject real
property. Alternatively, Georgia Lien Services argues that the sheriff
waived any argument she may have had that the quitclaim deed was
insufficient to convey an interest in the excess funds because a county
attorney purportedly gave incorrect legal advice to the company. Finding
these arguments unpersuasive, we affirm.
The underlying facts are not in dispute. On May 1, 2001, deputies from the
Fulton County Sheriff's Department conducted a tax sale of certain real
property pursuant to a levy for unpaid taxes in accordance with the
procedures set forth in OCGA § 48-4-1 et seq. At the sale, the deputies
conveyed the property to a third party company, and a tax deed subsequently
was issued to that party documenting the sale. After the relevant taxes and
costs of conducting the sale were paid, the excess funds generated from the
sale were deposited with the sheriff's department. The sheriff's department
subsequently sent notice to the delinquent taxpayer informing him that he
was entitled to receive the excess funds, but he never filed an application
to receive the funds.
Over two years after the tax sale, in July 2003, Georgia Lien Services
acquired a quitclaim deed from the delinquent taxpayer. The quitclaim deed
stated: "The purpose of this quitclaim deed is to give the grantee all the
rights, entitlements, and obligations that grantor may have in the property,
including but not limited to any rights, entitlements, or obligations under
that certain tax deed recorded at deed book 30700, page 56." On August 29,
2003, Georgia Lien Services applied to obtain the excess funds from the
sheriff's department. After reviewing the application, the sheriff's
department concluded that Georgia Lien Services was not the party entitled
to the excess funds and denied the application. Georgia Lien Services then
filed its petition for a money rule judgment under OCGA § 15-13-3, demanding
that the sheriff hand over the excess funds and pay its attorney fees and
costs. The sheriff moved to dismiss Georgia Lien Services' petition, and the
superior court granted the sheriff's motion, concluding that the company had
not acquired an interest in the excess funds by obtaining the quitclaim deed
to the subject property. Georgia Lien Services now appeals.
1. We review de novo a trial court's ruling on a motion to dismiss. Cook v.
Regional Communications, 244 Ga.App. 869, 870, 539 S.E.2d 171 (2000).
Georgia Lien Services argues that it obtained an interest in the excess
funds from the tax sale when it acquired the quitclaim deed in 2003. It is
true that because the right to excess funds from a tax sale is freely
alienable, the delinquent taxpayer was entitled to convey his interest in
the excess funds to a third party. [2] Barrett v. Marathon Investment Corp.,
268 Ga.App. 196, 198(1), 601 S.E.2d 516 (2004). However, the issue here is
whether the taxpayer actually conveyed that interest to Georgia Lien
Services by way of the quitclaim deed. We conclude that he did not.
The general rule is that a quitclaim deed conveys to the grantee only such
interest as the grantor has in real property. Horn v. Gilley, 263 Ga. 104,
105(1), 428 S.E.2d 568 (1993). And, after a tax sale, the record owner of
the real property at the time of the sale loses his interest in the subject
real property, instead only retaining a right to redeem the property for a
limited period until the tax sale purchaser properly invokes the state
barment statutes, OCGA § 48-4-40 et seq. Nat. Tax Funding v. Harpagon Co.,
277 Ga. 41, 42-43(1), 586 S.E.2d 235 (2003) .
Page 183
Once the right to redemption has been barred, as it has in the instant case,
the former record owner ceases to have any interest in the real property at
issue. Id. at 44(3), 586 S.E.2d 235. As such, at the time that delinquent
taxpayer conveyed the quitclaim deed in 2003, he no longer had an interest
in the real property at issue that he could transfer by way of the quitclaim
deed to Georgia Lien Services.
Furthermore, the taxpayer's interest in the excess funds was not even an
interest in real property, but rather an interest in money generated from
the sale of the property. Accordingly, an assignment contract, rather than a
quitclaim deed, would have been the preferred instrument for conveying such
an interest. Nevertheless, even assuming a quitclaim deed can be used to
convey an interest in excess funds from a tax sale, we conclude that the
language contained in the quitclaim deed at issue here was insufficient to
convey such an interest. [3] The quitclaim deed acquired by Georgia Lien
Services does not purport to transfer an interest in excess funds from the
tax sale, but rather only purports to transfer an interest in the real
property itself. While the quitclaim deed does provide for the transfer of
any "rights" or "entitlements" created "under th[e] ... tax deed," the
rights or entitlements created under a tax deed run only to the purchaser of
the real property at the tax sale, whom the deed vests with a fee interest
in the real property. Nat. Tax Funding, 277 Ga. at 43(1), 586 S.E.2d 235. It
follows that the language of the quitclaim deed cannot be construed as
conveying an interest in the excess funds. [4] Therefore, Georgia Lien
Services was not entitled to obtain those funds from the sheriff's
department.
2. Georgia Lien Services next contends that the sheriff waived any argument
she had that the quitclaim deed did not convey an interest in the excess
funds because a county attorney provided the company with inaccurate legal
advice. Specifically, Georgia Lien Services contends that the county
attorney advised that "you need to be very clear in your Quitclaim Deed as
to what you are acquiring" if seeking to obtain excess funds through such a
deed. Assuming that the county attorney's advice could be construed as
suggesting that a quitclaim deed may be used to convey excess funds from a
tax sale, that advice, even if incorrect, has no effect on the outcome here.
Georgia Lien Services did not heed the county attorney's admonition; it
failed to include specific language conveying the delinquent taxpayer's
interest in the excess funds to Georgia Lien Services. As such, Georgia Lien
Services cannot now claim to have relied to its detriment on advice that it
did not properly follow.
Furthermore, reliance on inaccurate legal advice from a government official,
even if the official acted negligently, is not a ground for waiver or
estoppel against the State or a local government. See Ben Hill County Bd. of
Ed. v. Davis, 270 Ga. 452, 453(2), 510 S.E.2d 826 (1999) (reliance upon
misinformation provided by agent of school board concerning school board
seat boundaries was not ground for estoppel against school board); Atlanta
Hospitality Workers v. City of Atlanta, 247 Ga.App. 650, 652(2), n. 3, 545
S.E.2d 49 (2001) (deficiency notice issued by mayor's designee allegedly
containing inaccurate information concerning appellate procedures could not
serve as basis for
Page 184
estoppel against city); P.C. Gailey Contractors v. Exxon Co., U.S.A., 143
Ga.App. 827, 828-829(2), 240 S.E.2d 208 (1977) (reliance upon alleged
erroneous legal advice provided by agents of Department of Revenue not a
ground for estoppel against state). The state and its subdivisions are bound
only by federal and state law, "and everyone must take notice thereof and
recognize that public administrative officers cannot change the laws." Id.
at 829(2), 240 S.E.2d 208. See also Corey Outdoor Advertising v. Bd. of
Zoning Adjustments, 254 Ga. 221, 224(3), 327 S.E.2d 178 (1985). For these
reasons, we conclude that Georgia Lien Services' waiver argument is
unavailing.
Judgment affirmed.
BLACKBURN, P.J., and MILLER, J., concur.
---------
Notes:
[1] The Supreme Court of Georgia transferred Georgia Lien Services' appeal
to this Court.
[2] The sheriff does not contest that the taxpayer in this case, as owner of
the subject real property at the time of the tax sale, was entitled to the
excess funds in the first instance.
[3] Georgia Lien Services relies on Marathon Investment Corp., 268 Ga.App.
at 198(1) and (2), 601 S.E.2d 516, to support its position that the
quitclaim deed it received from the delinquent taxpayer conveyed the excess
funds. However, in that case, we did not resolve under what circumstances,
if any, a quitclaim deed can be construed as conveying an interest in excess
funds. Rather, we noted that there was no transcript of the hearing or copy
of the quitclaim deed in the record on appeal, and so we were required to
presume that there was sufficient evidence to support the trial court's
grant of Marathon's money rule petition. Id. at 198(2), 601 S.E.2d 516.
[4] When excess funds are generated from a tax sale, the sheriff serves as a
fiduciary of the delinquent taxpayer who owned the property before the sale
and holds the funds for his or her benefit. Alexander Investment Group v.
Jarvis, 263 Ga. 489, 491-492(2), 435 S.E.2d 609 (1993). In light of this
fiduciary relationship, it is particularly important that contractual
language clearly convey the delinquent taxpayer's intent to transfer his
right to the excess funds.
---------
# # # # # # # # # # # # # # # # # # # # # # # # #
608 S.E.2d 597 (Ga. 2005)
HARPAGON COMPANY, LLC.
v.
GELFOND et. al.
No. S04A1605.
Supreme Court of Georgia.
Feb. 7, 2005
Reconsideration Denied March 7, 2005.
Robert J. Proctor, Bradley A. Hutchins, Alexander N. Sedki, Proctor &
Chambers, Atlanta, for Appellant.
Kenneth I. Sokolov, Fine & Block, Francis X. Moore, Frank X. Moore &
Associates, William A. Castings Jr., City of Atlanta Law Department,
Atlanta, for Appellee.
HINES, Justice.
This is an appeal by plaintiff, The Harpagon Company, LLC. ("Harpagon"),
from the grant of summary judgment in favor of defendants, Alicia Gelfond as
the Executrix of the Estate of William A. Gelfond et al. (collectively
"Gelfond"), in a petition, pursuant to OCGA § 23-3-40 et seq., to quiet
title to real property acquired by quitclaim deed following
Page 598
a tax sale. For the reasons which follow, we affirm the judgment in favor of
the defendants Gelfond.
William A. Gelfond owned commercial real estate located at 587 Virginia Hill
Avenue in Fulton County ("Virginia Hill property"); he also owned real
property located at 759 Adair Avenue in Fulton County ("Adair Avenue
property"). On March 11, 1994, he conveyed his interest in the Adair Avenue
property to THR Development Group I, Inc. ("THR"). Mr. Gelfond died in 1996.
His wife, Alicia Gelfond, was appointed executrix of his estate. On December
15, 1999, and on March 31, 2000, the Fulton County Tax Commissioner issued
writs of fieri facias ("fi.fas.") for allegedly unpaid 1999 ad valorem taxes
on the Virginia Hill property. Both fi. fas. named "William A. Gelford
(sic)" as the defendant in fi. fa. They described the property by reference
to an assigned 14-digit parcel identification number. The fi. fas. were
transferred to Vesta Holdings, as nominee for Heartwood 11, Inc.
("Heartwood"). A tax sale was scheduled. The advertisement for the tax sale
inaccurately listed THR as owner and defendant in fi. fa., and contained an
inaccurate legal description of the property to be sold; even though the
parcel identification number in the advertisement referred to the Virginia
Hill property, the legal description was of the Adair Avenue property
Gelfond had sold to THR.
The sheriff levied upon the Virginia Hill property and sold it to the
highest bidder, Heartwood. The prepared tax deed of the sale erroneously
named THR as owner/grantor and described the conveyed real estate as the
Adair Avenue property previously conveyed by William A. Gelfond to THR.
Heartwood conveyed by quitclaim deed its interest purchased at the tax sale
to Harpagon. On August 11, 2003, Harpagon filed the present petition to
quiet title to the Virginia Hill property. Two days later, on August 13,
2003, the Sheriff of Fulton County "administratively cancelled" the tax deed
at the request of Gelfond's estate, citing procedural error in the
conducting of the sale. [1] In the present action, Gelfond moved for
judgment on the pleadings, or in the alternative, for summary judgment,
asserting that Harpagon had no title, record or prescriptive, because the
tax deed had been cancelled. Harpagon moved for partial summary judgment,
arguing that the sheriff lacked authority to "administratively cancel" the
tax deed, and that the right of redemption was barred pursuant to OCGA §
48-4-45 before the cancellation took place. After consideration of the
pleadings, evidence, and argument, the trial court concluded that Harpagon's
title was defective in that it did not acquire title from the grantor of the
Virginia Hill property and that Gelfond has superior title. Consequently,
the trial court ordered that the tax sale and tax deed were void and of no
force and effect, awarded fee simple title of the Virginia Hill property to
Gelfond free and clear of adverse claims of Vesta Holdings, Heartwood,
Harpagon, or their successors in title.
1. In its order, the trial court cited, inter alia, Canoeside v. Livsey, 277
Ga. 425, 589 S.E.2d 116 (2003), for the proposition that "when property is
sold at a tax sale as the property of someone other than the actual title
holder, the sale is void." Harpagon contends that the trial court erred in
relying on Canoeside v. Livsey because its holding applies only to
non-judicial tax sales. Citing Bibb National Bank v. Colson, 162 Ga. 471,
134 S.E. 85 (1926), Harpagon argues that the owner of the property at the
time of the tax sale is irrelevant because the tax liability attaches to the
property at the time fixed by law for its valuation in each year and remains
until the taxes are paid. But Harpagon's arguments are unavailing.
Harpagon can have no greater interest in the Virginia Hill property than its
grantor, Heartwood. See McDaniel v. Bagby, 204 Ga. 750, 755(1), 51 S.E.2d
805 (1949); Copelin v. Williams, 152 Ga. 692(1), 111 S.E. 186 (1922);
Clarence L. Martin, P.C. v. Wallace, 248 Ga.App. 284, 288(1), 546 S.E.2d 55
(2001). So the salient issue is whether Heartwood validly acquired the
Virginia Hill property via the tax sale and the resulting tax deed.
Pretermitting the questions of the effects of the misrepresentation of the
owner and defendant in fi.fa. and the erroneous legal description
Page 599
of the property in the advertisement for the tax sale, Harpagon's arguments
ignore the fact that the resulting tax deed in favor of Heartwood is fatally
defective. Not only does the deed name the wrong owner, but it is impossible
to determine with certainty the parcel of property it purports to convey.
The property is described as "That tract or parcel of land conveyed by deed
to THR DEVELOPMENT GROUP, INC. Recorded at Book 18165/Page 240 per Records
of Fulton County, Georgia." But this is the Adair Avenue property. The deed
also states that the property is known as "Virginia Ave." The Adair Avenue
property was in the "Virginia Avenue Subdivision."
A description of property contained in a deed must be sufficient to identify
the land being sold. See generally Pirkle v. Turner, 277 Ga. 308(1), 588
S.E.2d 733 (2003); Head v. Lee, 203 Ga. 191, 198(2)(b), 45 S.E.2d 666
(1947); Mull v. Mickey's Lumber & Supply Co., Inc., 218 Ga.App. 343, 344(2),
461 S.E.2d 270 (1995). "This court has often held that the description in an
entry of levy on land and in a deed is sufficient where it furnishes a key
whereby the identity of the land may be made certain by extrinsic evidence."
GE Capital Mortgage Services, Inc. v. Clack, 271 Ga. 82, 84, 515 S.E.2d 619
(1999), quoting Head v. Lee, supra. at 191(2)(b), 45 S.E.2d 666.
Harpagon cites the parcel identification number on the instant tax deed as
providing such a key. But the tax deed contains contradictory keys. Again,
the deed erroneously lists the property owner as THR and incorporates by
reference a legal description of the Adair Avenue property owned by THR.
This directly conflicts with the parcel identification number referencing
the Virginia Hill property. To accept Harpagon's argument would be to
conclude that the deed conveys two parcels of property. The parcel
identification number renders the deed internally inconsistent, even when an
attempt is made to reconcile the inconsistencies. Thus, the identity of the
property sought to be conveyed remains in question. Compare Adams v. City of
Ila, 221 Ga.App. 372(1), 471 S.E.2d 310 (1996); Lawyers Title Ins. Corp. v.
Nash, 196 Ga.App. 543, 396 S.E.2d 284 (1990).
2. Harpagon contends the trial court erred in granting Gelfond summary
judgment based on Canoeside v. Livsey, supra, because it did not have a full
opportunity to respond to the issues raised by that case. But, as has been
discussed, the fatal flaws of the conveyance in this case go well beyond
what was at issue in Canoeside v. Livsey. What is more, the sufficiency of
the tax deed was clearly in question, and Harpagon had a full and fair
opportunity to address that issue. Compare Dixon v. MARTA, 242 Ga.App. 262,
529 S.E.2d 398 (2000).
3. Harpagon also complains that the trial court erred by denying its motion
for summary judgment on the issue of whether the sheriff had authority to
administratively cancel the tax deed. However, it is unnecessary to address
the sheriff's actions in this regard because the tax deed, in substance was
void, and therefore, the propriety of the administrative cancellation of the
tax deed is irrelevant. See Division 1, supra.
4. For the reasons outlined in Division 1, there is no merit to Harpagon's
contention that it was due summary judgment on the issue of whether
Gelfond's interest has been extinguished, that is, whether Gelfond's right
to redeem the Virginia Hill property is barred under OCGA § 48-4-45. 5. In
addition to refund of the purchase price of $230,000, Harpagon contends it
was entitled to interest pursuant to OCGA § 48-4-42 because of the
administrative cancellation of the deed. However, by its own terms, the
statutory provision for interest is applicable to instances when the
delinquent taxpayer opts to exercise his or her right to redeem the
property. That is plainly not the situation in this case.
Judgment affirmed.
All the Justices concur.
CARLEY, Justice, concurring.
This case raises certain interesting and important questions, such as:
whether our recent holding in Canoeside Properties v. Livsey, 277 Ga. 425,
428(2), 589 S.E.2d 116 (2003) that, "when property is sold at a tax
Page 600
sale as the property of someone other than the actual title holder, the sale
is void[,]" applies only in the context of non-judicial tax sales; and,
whether OCGA § 9-13-172.1 or any other statutory provision grants to the
sheriff the administrative authority to cancel a tax deed. However, as the
majority notes at pp. 4-5 in Division 1 and subsequently in Division 4,
[p]retermitting th[os]e questions, ... the ... tax deed in favor of
[Appellant's grantor] is fatally defective. Not only does the deed name the
wrong owner, [as in Canoeside Properties v. Livsey, supra], but it is
impossible to determine with certainty the parcel of property it purports to
convey.
"A grant of summary judgment must be affirmed if right for any reason,
whether stated or unstated. [Cit.] It is the grant itself that is to be
reviewed for error, and not the analysis employed. [Cit.]" Albany Oil Mill
v. Sumter EMC, 212 Ga.App. 242, 243(3), 441 S.E.2d 524 (1994). Accordingly,
if the tax deed is void for lack of a sufficient description, then the grant
of summary judgment in favor of Appellees was correct regardless of any
reason proffered by the trial court.
"If two clauses in a deed are utterly inconsistent, the former shall
prevail...." OCGA § 44-5-34. Pursuant to this provision, "[w]here a deed
contains two descriptions of the land conveyed, one general and the other
particular, if there is any repugnance, the particular description will
prevail. [Cit.]" Harlan v. Ellis, 198 Ga. 678, 681(2), 32 S.E.2d 389(1944).
However, the deed in this case is utterly inconsistent in its description as
to which of two separate properties was actually conveyed. Reading the deed
as a whole, it is impossible to determine whether the conveyance is of the
Virginia Hill property or the Adair Avenue property. " ' "It is undoubtedly
essential to the validity of a grant that there should be a thing granted,
which must be so described as to be capable of being distinguished from
other things of the same kind...." ' [Cit.]" Carter v. Ray, 70 Ga.App. 419,
423(1), 28 S.E.2d 361 (1943). As the majority points out, to give effect to
this instrument "would be to conclude that the deed conveys two parcels of
property." Majority opinion, p. 6. "But where there is more than one lot of
land answering the description, ... the deed ... would be void for
uncertainty, the grantee ... having no election as to which piece he ...
will take. [Cit.]" Blackwell v. Partridge, 156 Ga. 119, 129(2), 118 S.E. 739
(1923).
Therefore, based upon the principle of "right for any reason," I concur in
the affirmance of the grant of summary judgment in favor of Appellees, and
write separately so as to emphasize that the questions raised by Appellant
regarding the permissible scope of certain decisional and statutory
authority must await resolution in a subsequent appeal.
I am authorized to state that Chief Justice FLETCHER joins in this
concurrence.
---------
Notes:
[1] The parties offer OCGA § 9-13-172.1 as possible statutory authority for
the sheriff's action.
---------
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