Foxworthy Inc. v. Ferdinand.

• Decision Date: 22 November 2010
• Docket Number: No. S10A2048.,S10A2048.
• Citation: 704 S.E.2d 171,288 Ga. 271
• Parties: FOXWORTHY, INC.v.FERDINAND.
• Court: Georgia Supreme Court

288 Ga. 271

704 S.E.2d 171

10 FCDR 3803

FOXWORTHY, INC.

v.FERDINAND.

No. S10A2048.

Supreme Court of Georgia.

Nov. 22, 2010.

Amelia T. Phillips, Atlanta, for appellant.William S. Sams, Atlanta, Matthew C. Welch, Kaye W. Burwell, Robert D. Ware, Atlanta, for appellee.THOMPSON, Justice.

Appellant Foxworthy, Inc. filed a money rule petition, seeking reimbursement of funds collected by appellee Arthur E. Ferdinand, the Tax Commissioner of Fulton County, Georgia. The petition alleged that on September 2, 2003, the tax commissioner's office conducted a tax sale at which certain real property was to be sold pursuant to a levy for unpaid taxes. The named defendant in tax fi. fa. was shown as “Isiah Mitchell.” Foxworthy was the highest bidder and purchased the property for $65,000. In accordance therewith, the tax commissioner issued a tax sale deed to Foxworthy, which was duly recorded. The petition further alleged that Mitchell did not in fact own the tax parcel, and that the true owner was Arthur Randall McDowell who had filed a Chapter 13 petition and was under the protection of the United States Bankruptcy Court at the time of the tax sale. Foxworthy appended to its complaint a January 2008 order and judgment of the bankruptcy court in the McDowell proceeding finding McDowell had not been notified of the tax sale because of an error in the county tax records; ¹ McDowell did not owe any property taxes; the tax sale was void ab initio as a violation of the automatic bankruptcy stay; and Foxworthy acquired no interest in the property at that sale.

Upon learning of the bankruptcy court's order, Foxworthy made a demand for repayment from the tax commissioner. When its demands were not satisfied, Foxworthy filed this action pursuant to OCGA § 15–13–3(a) (authorizing return of money collected by a levying officer), seeking a refund of all funds paid “at or after the tax sale.” The complaint also contained a claim for statutory interest of 20 percent per annum pursuant to OCGA § 15–13–3(a), a refund for property taxes Foxworthy paid from 2003 until 2006 when it learned that the sale was void, an alternative count for mandamus, and attorney fees based on the allegation that the defense lacked substantial justification.

In the proceeding below, the trial court found that the bankruptcy court's order was defective in describing the referenced property, and it interpreted the order to state the correct identifying information. The court ruled in favor of Foxworthy's petition, insofar as it awarded return of the $65,000 purchase price. But citing the need for interpretation, the trial court found “good cause” for the tax commissioner's refusal to return the purchase price and it denied Foxworthy's request for attorney fees, as well as the claim for mandamus. The court made no specific ruling on Foxworthy's claim for statutory interest.

1. Foxworthy submits that the trial court erred in failing to award statutory interest under OCGA § 15–13–3(a) (if demand not paid due to neglect or refusal of the officer, “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”). The trial court found as good cause for the tax commissioner's refusal to pay Foxworthy's claim, the fact that the bankruptcy court order was not clear on its face and required...