H & C DEVELOPMENT, INC. v. Bershader
| Decision Date | 12 March 2001 |
| Docket Number | No. A00A2104.,A00A2104. |
| Citation | 248 Ga. App. 546,546 S.E.2d 907 |
| Court | Georgia Court of Appeals |
| Parties | H & C DEVELOPMENT, INC., v. BERSHADER et al. |
OPINION TEXT STARTS HERE
Chestnut, Livingston & Pye, Tom Pye, for appellants.
Fine & Block, Kenneth I. Sokolov, Atlanta, for appellees. BLACKBURN, Chief Judge.
H & C Development, Inc. ("H & C") sought to redeem real property sold at a tax sale and filed the underlying suit against the purchaser, Albert Bershader. The trial court awarded summary judgment against H & C primarily because H & C had failed to pay or legally tender the full amount of the redemption price for the property as required by OCGA § 48-4-47(a) before filing suit and also because H & C had been administratively dissolved. H & C contends that Bershader failed to comply with the notice requirements of the redemption statute, which precluded summary judgment. We agree and reverse.
When ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.
(Citation omitted.) Hess v. Textron Automotive Exteriors.1
When viewed in a light most favorable to H & C, the nonmovant, the evidence established the following facts. In October 1987, H & C purchased a parcel of land in the City of Roswell for $37,000. In 1992, H & C was administratively dissolved by the Secretary of State for failure to file annual returns and to pay annual fees. On July 5, 1995, Bershader purchased the same property at a sheriff's sale for $1,373.24, the amount of the 1993 unpaid taxes.
In an effort to comply with the statutory notice provisions in OCGA § 48-4-45, Bershader sent notice by certified mail to H & C at an address in Knoxville, Tennessee, and arranged for notice to H & C by publication. On May 22, 1997, Bershader borrowed $120,000 from Republic Consumer Lending Group, Inc. ("Republic") using the property as collateral. After procuring title insurance, Bershader built a house on the lot.
On May 27, 1998, H & C sued Bershader, his wife, Larisa Bershader, and Republic, claiming that H & C still had title to the property because Bershader had failed to give proper notice to H & C, as the property owner of record. H & C also alleged that the security deed between Bershader and Republic was void. H & C asserted that the purchase of the tax fieri facias and the foreclosure of its right of redemption were legally deficient, insufficient, and void. H & C alleged that its power to exercise the right of redemption had not been extinguished. H & C asked the court to declare all deeds involving Bershader as void or unenforceable and to set them aside.
The defendants moved for summary judgment on several grounds. The defendants claimed that H & C lacked standing to file suit under OCGA § 9-11-9(a) because the corporation had been administratively dissolved years earlier. Bershader also asserted that the suit was untimely under OCGA § 14-2-1410 and that H & C's actual address had not been "reasonably ascertainable" under OCGA § 48-4-45(a)(2).
The trial court determined that H & C's The trial court also found that Bershader was not required to give notice to H & C because H & C had been administratively dissolved as a corporation.
1. H & C contends that the trial court erred by finding that its failure to tender the full amount of the redemption price for the property before filing suit barred that action under OCGA § 48-4-47 because it claims it did not receive the statutorily required notice. We agree.
It is well settled that because the forfeiture of the right of redemption is so harsh, the law favors the redeeming property owner. Wallace v. President Street.2 As such, the "[l]aws of this state governing the right to redeem are to be construed liberally and most favorably to persons allowed by the statute to redeem." Dixon v. Conway.3
The right to redemption following a tax sale exists "(1) [a]t any time within 12 months from the date of the sale; and (2)[a]t any time after the sale until the right to redeem is foreclosed by the giving of the notice provided for in Code Section 48-4-45." OCGA § 48-4-40. After such notice is given, no redemption action can be entertained "unless and until the plaintiff in the action pays or legally tenders to the grantee in the deed or to his successors the full amount of the redemption price for the property." OCGA § 48-4-47(a).
In this case, the evidence established that H & C had been incorporated in Cobb County, Georgia, and the only address for the corporation, its registered agent, and corporate secretary on file with the Office of the Secretary of State was an address in Marietta. Bershader, however, did not send notice to the address in Marietta of H & C's registered agent or corporate secretary. Instead, on February 26, 1997, Bershader sent H & C notice by certified mail to 1137 Durham Road, in Knoxville, Tennessee. This notice was returned as unclaimed. The record also indicates that notice by publication of H & C's right of redemption appeared in the Fulton County Daily Report on March 24, March 31, April 7, and April 14, 1997.
H & C, however, offered evidence showing that in 1996, more than eight months before the certified mailing occurred and three months before the tax deed was recorded, H & C's address had been changed at the Fulton County Tax Commissioner's Office to an Atlanta address belonging to Allen Hsu, the son of T.C. Hsu, a principal of H & C. Allen Hsu testified that at his father's request, he completed change of address forms in both Fulton County and City of Roswell in order to have H & C's mail forwarded to him in Atlanta. Allen Hsu testified that when the 1996 tax bill was mailed to him, he had forwarded it to his father in Knoxville. According to Hsu, he had resided without interruption from December 1995 through late 1997 at the address in Atlanta that he had provided to the tax office. Hsu testified that he believed that this address lies within DeKalb County, not Fulton County.
Tom Biggers, the Delinquent Tax Administrator with the Fulton County Tax Commissioner's Office, corroborated Hsu's testimony about H & C's address change. Biggers testified that:
Anyone inquiring of the Fulton County Tax Commissioner's Office as to the address contained in our...
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