Equivest Fin., LLC v. Ravenel
| Citation | 422 S.C. 499,812 S.E.2d 438 |
| Decision Date | 14 February 2018 |
| Docket Number | Appellate Case No. 2015-002257,Opinion No. Op. 5536 |
| Court | Court of Appeals of South Carolina |
| Parties | EQUIVEST FINANCIAL, LLC, Respondent, v. Mary B. RAVENEL and AAA Plumbing, Inc., Defendants, Of Whom Mary B. Ravenel is the Appellant. |
Bruce Alan Berlinsky, of Charleston, for Appellant.
Steven R. Anderson, of Law Office of Steven R. Anderson, and James B. Richardson, Jr., both of Columbia, for Respondent.
In this action to quiet title to a property sold at a tax sale, Mary Ravenel appeals the trial court's finding the tax sale of her property valid. Ravenel contends (1) the trial court erred in failing to take testimony; (2) the tax sale was void because the property was not levied, advertised, and sold in the name of the true owner; (3) judicial estoppel does not apply because Ravenel was not a party to the previous action; and (4) the delinquent tax collector did not comply with statutory requirements in sending notice to Ravenel. We affirm as modified.
The subject real property is a home and land originally purchased by Ravenel on October 22, 2001. While Ravenel purchased five lots in total, only the lot on which she built her home was sold at the tax sale and is the subject of this appeal. Ravenel conveyed all five lots to her daughter and son, Lashanda Ravenel and Henry Lee Ravenel II, (collectively, Children) via a deed dated November 6, 2007, for the stated consideration of "$5, love and affection." On November 7, 2007, Ravenel filed for bankruptcy and did not indicate the recent conveyance on her sworn schedules.
Ravenel recorded the deed but never delivered the deed to Children, nor told them about the conveyance. Subsequently, the property taxes on the home became delinquent for the year 2007. The Charleston County Delinquent Tax Collector (DTC) first sent an execution notice to Children by regular mail, dated April 7, 2008, at the address given on the deed conveying the property to Children. This notice informed Children if the amount due was not paid, an official notice of levy would be mailed to them, the property would be advertised in the Charleston Post & Courier, a sign would be placed on the property announcing it would be sold due to nonpayment of taxes, and finally, the property would be sold.
When the 2007 taxes remained unpaid, the DTC levied upon the property by way of a levy notice sent by certified mail to Children's address dated May 22, 2008. This notice was returned unclaimed to the DTC on May 24, marked "Return to Sender, Unable to Forward." A sign was placed on the property on August 1, 2008, announcing the property was to be sold due to the nonpayment of taxes. The property was advertised in the local newspaper on August 15, 22, and 29, 2008. The DTC then sent the Final Notice of Property Redemption, also by certified mail, one to each of Children and one to them jointly, all of which were returned marked "Return to Sender/Unable to Forward" on October 26, 2009. The DTC then sent a courtesy copy of this notice by regular mail. After receiving the courtesy redemption letter, which was addressed to Children, Ravenel called the DTC to try and redeem the property. DTC informed Ravenel that in order to save the property, she would have to pay the redemption amount of $27,849.06, which she did not pay.
When the taxes remained unpaid, the property was sold at the tax sale on November 3, 2008, to Equifunding. Notices of redemption were sent to Children but were returned to the DTC unclaimed. These notices were addressed to Children at the address given in the deed conveying the property to them. This address was the same post office box shown as the address on the deed conveying the property to Ravenel. This post office box belonged to Ravenel's mother, who would collect the mail and bring it to her daughter. Because the property was not redeemed, a tax deed was delivered to Equifunding. Equifunding thereby conveyed the subject real property to Equivest Financial, LLC in a deed recorded on October 4, 2010.
In 2010, Children brought an action to quiet title to set aside the tax deed. In her testimony, Ravenel provided the reason for the transfer of the property to Children was to protect the assets from her creditors. The Master-in-Equity found the tax sale was valid and Ravenel had not delivered the deed to Children. The master found Ravenel's conveyance to Children was in violation of the Statute of Elizabeth, as she intended to defraud her creditors, and thus found the deed to the children was void and of no effect. Children appealed to this court, which affirmed the decision of the master on the grounds that Ravenel had not delivered the deed to Children. Equivest Fin., LLC v. Scarborough , 2013 WL 8541673, Op. No. 2013-UP-495 (S.C. Ct. App. filed Dec. 23, 2013).
Thereafter, Equivest commenced the present action to quiet title as to Ravenel because she was not a party to the first action. The trial court held Ravenel was judicially estopped from claiming she did not receive notice of the tax sale, as she was the one who attempted to fraudulently convey the property. The court further held the two-year statute of limitations applied, making the tax sale incontestable. This appeal followed.
"An action to remove a cloud on and quiet title to land is one in equity." Johnson v. Arbabi , 355 S.C. 64, 69, 584 S.E.2d 113, 115 (2003) (quoting Bryan v. Freeman , 253 S.C. 50, 52, 168 S.E.2d 793 (1969) ). "In an action at equity, tried by a judge alone, an appellate court may find facts in accordance with its own view of the preponderance of the evidence." Inlet Harbour v. S.C. Dep't of Parks, Rec. & Tourism , 377 S.C. 86, 91, 659 S.E.2d 151, 154 (2008).
Ravenel maintains the trial court erred by failing to take testimony. She contends genuine issues of material fact needed to be addressed. Specifically, Ravenel contends the issue of fact regarding whether the DTC sent her the required notices under section 12-51-40 of the South Carolina Code (2014) should have been addressed and because it was not, her argument on the issue was never fully heard. Furthermore, Ravenel argues the trial court erred in finding she intended to defraud her creditors without testimony to support its finding. We find this issue unpreserved for our review.
In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial court. Issues not raised and ruled upon in the trial court will not be considered on appeal. S.C. Dep't of Transp. v. First Carolina Corp. of S.C. , 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) ; Linda Mc Co. v. Shore , 375 S.C. 432, 438, 653 S.E.2d 279, 282 (Ct. App. 2007). A party cannot complain of error his own conduct has induced. Erickson v. Jones St. Publishers, LLC , 368 S.C. 444, 476, 629 S.E.2d 653, 670 (2006). When an appellant expressly waives an argument at trial, it cannot be raised on appeal. Richland Cty. v. Carolina Chloride, Inc. , 382 S.C. 634, 656, 677 S.E.2d 892, 903 (Ct. App. 2009). Additionally, "[a]n issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority." Bryson v. Bryson , 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008). "[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review." Glasscock, Inc. v. U.S. Fid. & Guar. Co. , 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001). When a party provides no legal authority regarding a particular argument, the argument is abandoned and the court will not address the merits of the issue. State v. Lindsey , 394 S.C. 354, 363, 714 S.E.2d 554, 558 (Ct. App. 2011).
At trial, the following exchange took place:
The trial court gave Ravenel's attorney the opportunity to augment the record and counsel chose not to do so. Therefore, this issue is not preserved for appellate review. Furthermore, because Ravenel raised the argument in her brief without providing any supporting authority, we also deem the argument abandoned.
Ravenel contends she was not a party to the previous action and therefore, she cannot be bound by the action. She further argues if the court finds she was a party to the previous action, judicial estoppel still does not apply as the issue of true ownership of the property was not actually litigated in the previous case. We agree in part and disagree in part.
"Judicial estoppel is an equitable concept that prevents a litigant from asserting a position inconsistent with, or in conflict with, one the litigant has previously asserted in the same or related proceeding." Auto-Owners Ins. Co. v. Rhodes , 405 S.C. 584, 597, 748 S.E.2d 781, 788 (2013) (quoting Cothran v. Brown , 357 S.C. 210, 215, 592 S.E.2d 629, 631 (2004) ).
For the doctrine of judicial estoppel to apply, the following elements must be satisfied: (1) two inconsistent positions taken by the same party or parties in privity with one another; (2) the positions must be taken in the same or related proceedings involving the same party or parties in privity with each other; (3) the party taking the position must have been successful in maintaining that position and have received some benefit; (4) the inconsistency must be part of an intentional effort to mislead...
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