Davis v. Harpagon Co., LLC, S06A0895.
| Decision Date | 16 October 2006 |
| Docket Number | No. S06A0895.,No. S06A1137.,S06A0895.,S06A1137. |
| Parties | DAVIS v. HARPAGON COMPANY, LLC. Davis v. Harpagon Company, LLC. |
| Court | Georgia Supreme Court |
Francis X. Moore, Rachel Elizabeth Sullivan, Frank X. Moore & Associates, Atlanta, for appellant.
Thurbert E. Baker, Atty. Gen., Daniel M. Formby, Deputy Atty. Gen., Robert J. Proctor, Bradley A. Hutchins, John Cambron Clark, Adam C. Caskey, Proctor, Chambers & Hutchins, Atlanta, Michelle Lynn Thomas, Dekalb County Law Department, William A. Castings, Jr., Atlanta, John E. Robinson, McLarty, Robinson & Van Voorhies, LLP, Decatur, for appellee.
These consolidated appeals regard the propriety of the tax sale of the home of Karen Cannon Henderson Davis. The record shows that, around January 7, 1997, the DeKalb County Tax Commissioner issued a writ of execution, or fieri facias (fifa), based on Davis' failure to pay the 1996 ad valorem property tax due on her home.1 On April 16, 1997, the Tax Commissioner transferred the fifa to MIICA, a third-party corporation. MIICA, in turn, apparently transferred the fifa to Agio Corp., which sought out a levy of Davis' property. On August 6, 2002, a tax sale was conducted, and Davis' property was sold to an affiliate of the Harpagon Company, LLC, the defendant herein.2 After waiting the required year following the tax sale, see OCGA § 48-4-45(a), Harpagon notified Davis of the barment of her right to redeem the property through a private process server. Davis, however, failed to redeem the property by paying the statutory redemption amount. OCGA § 48-4-42.
On April 21, 2004, Harpagon filed a petition to quiet title pursuant to OCGA § 23-3-40. The case was presided over by a special master, and the parties filed cross motions for summary judgment. Following a hearing, the special master determined that a genuine issue of material fact remained regarding whether there had been a proper levy on the property. The special master further determined that, contrary to Davis' contentions, she had sufficiently been placed on notice of both the transfer of the fifa to Agio Corp. and the barment of her right of redemption. Davis chose to appeal this decision, filing a notice of appeal on September 2, 2005. While that appeal was pending, the trial court ordered the parties to share responsibility for the payment of the interim fees of the special master. In a separate related case, Davis now appeals that order as well.
1. Davis contends that the special master erred by denying her right to a jury trial in Harpagon's quiet title action. Because this action was brought pursuant to the conventional quia timet statute, OCGA § 23-3-40, Davis had no right to a jury trial. Johnson v. Red Hill Associates, Inc., 278 Ga. 334(2), 602 S.E.2d 572 (2004).
2. Davis argues that the special master erred in its finding that a valid fifa was issued by DeKalb County, contending that the fifa failed to include a valid handwritten signature of the tax commissioner, rather than a computer-generated signature. " " Bank of Ringgold v. Poarch, 30 Ga. App. 102-103(a), 117 S.E. 114 (1923).3 Here, the tax commissioner appropriately attached his signature to the fifa, and the special master properly rejected Davis' contentions to the contrary.
3. Davis contends that the special master erred by finding that she had been notified of the transfer of the fifa to Agio Corp. The trial court found that Davis, as a matter of fact, was notified of the transfer, and the record supports the special master's conclusion. In a 1996 bankruptcy filing, Davis listed Agio Corp. as one of her creditors, thereby showing that she was fully aware that Agio Corp., as one of her creditors, held the fifa relating to her property.
4. Davis argues that the special master erred by finding that a question of fact remained as to whether a proper levy of her property occurred in accordance with OCGA § 9-13-12. Davis contends that no actual levy occurred because the levy was not properly entered on the fifa and the tax records, and she contends that no constructive levy occurred because there is no proof that any appropriate party otherwise levied on her property.
The record supports the special master's ruling. Davis questions whether a levy occurred based on deposition testimony from representatives of the DeKalb County Sheriff's office that raised significant questions whether required entries of the levy, including the necessary description of Davis' property, were appropriately made on the fifa and in the sheriff's records. On the other hand, however, Harpagon presented a tax sale deed which recited that the formalities required for a levy had been honored, thereby providing evidence that some seizure of the property had occurred. See, e. g., Pennington v. Palmer, 49 Ga.App. 540, 176 S.E. 697 (1934); OCGA § 48-5-359. This conflicting evidence created a question of fact whether an actual or constructive levy occurred or not. Therefore, the special master appropriately preserved this issue for consideration by the trier of fact.
5. Davis contends that Harpagon provided insufficient evidence on which to determine that a tax sale actually took place because the deed generated by the tax sale was not properly signed by the sheriff. The record shows, however, that the deed in question was properly stamped with the sheriff's signature. Bank of Ringgold, supra, 30 Ga.App. at 103, 117 S.E. 114(a). Therefore, contrary to Davis' contention, the tax sale deed was appropriately signed.
6. Davis...
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