DD&D Family Props., LLC v. Wright

• Decision Date: 03 November 2020
• Docket Number: A20A1339
• Citation: 851 S.E.2d 221,357 Ga.App. 632
• Court: Georgia Court of Appeals
• Parties: DD&D FAMILY PROPERTIES, LLC v. WRIGHT.

357 Ga.App. 632

851 S.E.2d 221

DD&D FAMILY PROPERTIES, LLC

v.WRIGHT.

A20A1339

Court of Appeals of Georgia.

November 3, 2020

Charles Clay Black, for Appellant.

Tisinger Vance, C. David Mecklin Jr., Samson C. Newsome II, for Appellee.

Barnes, Presiding Judge.

This lawsuit concerns title to certain real property sold at a tax sale. On cross-motions for summary judgment by the disputing parties, the trial court ruled in favor of R. David Wright and against DD&D Family Properties, LLC. For the reasons that follow, we vacate the judgment and remand the case.

Summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]" OCGA § 9-11-56 (c). "In our de novo review of the grant or denial of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant." (Citations and punctuation omitted.) AgSouth Farm Credit v. West , 352 Ga. App. 751, 752, 835 S.E.2d 730 (2019).

On July 5, 2017, the underlying tax sale was conducted against MHD Communities, LLC, and Kaila Fisher. DD&D Family Properties thereby acquired for the purchase price of $6,000 a tax deed to the Carroll County property known as 109 Holly Creek Drive within the Regal Oaks Subdivision (the "Property").

On July 5, 2018, Wright tendered a $7,608 check to DD&D Family Properties to redeem the property. Rejecting such tender, DD&D Family Properties mailed the check back to Wright's counsel on July 17, 2018, stating that "[i]n Georgia, only certain persons are authorized to redeem property from a tax sale. OCGA § 48-4-40.^{[1 ]} Your client is not one of those persons." On July 20, 2018, Wright's counsel wrote DD&D Family Properties a letter acknowledging the return of Wright's tender. Wright's counsel pointed out that he had already emailed to DD&D Family Properties a copy of the quitclaim deed by which Wright was claiming an interest in the Property, but was additionally attaching to the letter a copy of that quitclaim deed. Wright's counsel ended the letter with:

I do not understand what game you ... appear to be playing concerning this matter. I have attempted in good faith to contact you and obtain the information necessary to make the purchaser at the tax sale whole in accordance with the state statutes. The response has appeared to be avoidance and denial. If DD&D properties does not accept the tender of the funds to redeem the [P]roperty ... back to ... Wright as the holder from the Defendant in Fi. Fa., then the appropriate action will be taken to recover the same through legal means and to pursue any and all claims for fees and bad faith damages.

On October 23, 2018, Wright filed the instant lawsuit, alleging that on June 20, 2018, he had obtained title to the Property through a quitclaim deed from a defendant in fi. fa. Wright attached a copy of the quitclaim deed to his complaint; the quitclaim deed identified the grantor, however, as "MHD Acceptance, LLC."² Wright sought, among other things, a declaratory judgment that he was a person authorized under OCGA § 48-4-40 to redeem the Property from the tax sale purchaser by the payment of the amount required for redemption.

DD&D Family Properties denied that Wright was entitled to any relief, then filed a motion for summary judgment. Among the arguments advanced, DD&D Family Properties contended that Wright was not within any category of persons authorized to redeem the Property under OCGA § 48-4-40, asserting that the grantor on the quitclaim deed was "someone that did not own the property at the time the [tax] deed was delivered." DD&D Family Properties also argued that the amount proffered by Wright for redemption was insufficient under OCGA § 48-4-42.³ According to DD&D Family Properties, the required amount as of the date tendered was not $7,608; it was $7,800, which it calculated as $6,000 (amount paid at tax sale) + $1,200 (20 percent of amount for the first year) + $600 (10 percent for each subsequent year or portion thereof). Furthermore, DD&D Family Properties asserted that the right to redeem the Property was foreclosed on August 28, 2018 with proper notice having been provided to MHD Communities, LLC, and Kaila Fisher;⁴ DD&D Family Properties went on to assert that Wright, "having a deed that was not recorded[,] was not required to be noticed."⁵

Thereafter, in July 2019, Wright tendered into the court's registry $7,800, as "the sum [DD&D Family Properties] claims was necessary to redeem the [P]roperty." He also filed a motion for summary judgment, arguing that he had demonstrated entitlement to redeem the Property.

After a hearing on the parties’ cross-motions for summary judgment,⁶ the trial court rejected the arguments advanced by DD&D Family Properties.⁷ Granting Wright's summary judgment motion, the trial court thereby ordered DD&D Family Properties to convey the Property to Wright pursuant to OCGA § 48-4-44.⁸ DD&D Family Properties now appeals.

1. As an initial matter, we note that the Supreme Court of Georgia outlined in Ga. Land USA v. Ga. Power Co. , 297 Ga. 237, 773 S.E.2d 236 (2015) :

[W]hen property is sold for unpaid taxes, the tax sale purchaser obtains a deed to the property. This deed, however, does not provide the tax sale purchaser with absolute title to the property, but rather gives the purchaser a defeasible fee interest therein with the title remaining subject to encumbrance for at least one year after purchase due to other interested parties’ statutory rights of redemption.... [A]fter the tax sale, the delinquent taxpayer[s] or any other party holding an interest in or lien on the property may redeem the property by paying to the tax sale purchaser the purchase price plus any taxes paid and interest. If the property is redeemed, the tax sale is essentially rescinded and a quitclaim deed is executed by the tax sale purchaser back to the owner of the property at the time of levy and sale. This right of redemption, however, may be terminated by the tax sale purchaser anytime after one year following the tax sale. After that year has run, the tax sale purchaser may "terminate, foreclose, divest, and forever bar" all rights to redeem the property by giving notice under OCGA § 48-4-40 et seq. ("the barment statutes") to all parties with redemption rights. The barment statutes apply to all persons having any right, title or interest in, or lien upon the subject property.

(Citations and punctuation omitted.) Id. at 239-240 (1), 773 S.E.2d 236.

2. DD&D Family Properties maintains that it was entitled to summary judgment. Among the grounds argued, it claims that Wright failed to tender timely the statutory redemption amount. More specifically, DD&D Family Properties asserts that Wright's $7,608 check (tendered on July 5, 2018, which was prior to the foreclosure of the right of redemption) failed to include sufficient premium. Pursuant to OCGA § 48-4-42 (a) (3), premium accrues as follows: "A premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter." (Emphasis supplied.)

The record shows that the trial court essentially concluded that the statutory premium had accrued only "for the first year or fraction of a year" – that is, no (additional) premium had accrued "for each year or fraction of a year thereafter." In reaching that conclusion, the trial court expressly discerned that "[DD&D Family Properties’] calculations did not account for OCGA § 1-3-1 (d) (3)." In full, that provision states:

Computation of Time. Except as otherwise provided by time period computations specifically applying to other laws , when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty. When the last day prescribed for such action falls on a public and legal holiday as set forth in Code Section 1-4-1, the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty. When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

(Emphasis supplied.) As the trial court further reasoned in the contested summary judgment order,

July 4, 2018 (Independence Day) was a legal holiday set forth in OCGA § 1-4-1^{[9 ]} such that Wright's privilege to redeem the [P]roperty extended to the next business day, that of July 5, 2018. Therefore, the amount due to redeem the [P]roperty would have been $6,000 (purchase price) + $1,200 (20% of $6000) or $7,600, which was the amount tendered by Wright.^{[10 ]}

DD&D Family Properties takes issue with the trial court's rationale, urging that:

The 10 percent premium is due after the first year of the sale. It is not a computation of time it is a due date. A promissory note due on July 4, 2018 is in default on July 5, 2018. It is not a measurement of time; it is computation of an amount due to redeem. It is not a privilege or a discharge of a duty. The 10 percent premium after the first year is also due for a fraction of a year.

We agree with DD&D Family Properties that nothing in OCGA § 1-3-1 (d) (3) authorized the trial court to treat July 5, 2018 as falling within the first year of the redemption period for purposes of calculating the premium due. As OCGA § 1-3-1 (d) (3) states at its outset, it...