Morrow v. Bobbitt
| Decision Date | 16 August 1996 |
| Parties | James T. MORROW and wife, Donna J. Morrow, et al, Plaintiffs/Appellees, v. Betty BOBBITT in her capacity as County Trustee for Fayette County, Tennessee, and Anne Hill, Defendants/Appellants. |
| Court | Tennessee Court of Appeals |
James F. Arthur, III, Germantown, for Defendant/Appellant Anne Hill.
J. Payson Matthews, Somerville, for Defendant/Appellant Betty Bobbitt, Trustee.
C. Thomas Cates, R. Porter Feild, Burch, Porter & Johnson, for Plaintiffs/Appellees.
In this case, Defendant-Appellant, Dr. Anne Hill ("Dr. Hill" or "Defendant"), appeals the decision of the Chancery Court of Fayette County, setting aside a tax deed challenged by Plaintiffs-Appellants, James T. Morrow, Donna Morrow, John Berry Morrow, Donnie Steve Morrow, Gerald Russell Morrow, Jr. and Tracy Ann Morrow Medley (the "Morrows" or "Plaintiffs").
All pertinent facts are undisputed: Since 1980, James and Donna Morrow have owned and possessed a 1.55 acre tract of property in Fayette County, Tennessee upon which they have maintained a home. As a result of a series of prior conveyances between family members, James Morrow holds a two-fifth undivided interest in this tract, Donna Morrow holds a one-tenth undivided interest, John Morrow and Donnie Morrow both hold a one-fifth undivided interest, and Gerald Morrow, Jr. and Tracy Ann Morrow Medley each hold a one-tenth undivided interest.
In 1988, James and Donna Morrow, the possessory owners of the property, failed to pay Fayette County property taxes on the tract. In 1990, the Fayette County Property Assessor filed a delinquent tax suit in the Chancery Court of Fayette County seeking 1988 property taxes for the tract and naming James and Donna Morrow as defendants. James and Donna Morrow were duly served with process. In May 1991, a default judgment was entered against them in the amount of $417.07 plus interest, penalties and costs.
James and Donna Morrow failed to satisfy the judgment within the thirty day period after the filing of the judgment. Consequently, pursuant to T.C.A. § 67-5-2502, the Fayette County Trustee advertised the property to be sold at a tax sale to be held on July 31, 1991. The notice and advertisement of said sale appeared in the local newspaper, the Fayette County Review, as follows:
DELINQUENT TAX SALE
In accordance with the provisions of Section 67-5-2502, Tennessee Code Annotated, this is the first and final publication of this sale.
COUNTY, TENNESSEE
Date of Sale: Friday, July 31, 1991
Time of Sale: 10:00 a.m.
By virtue of decree(s) for sale entered in the above styled cause on May 30, 1991, in Minute Book 27, Page 769, of the Chancery Court of Fayette County, Tennessee, I will sell separately at public auction to the highest and best bidder for cash, at the South door of the Courthouse in Somerville, Tennessee, Wednesday, July 31, 1991, commencing at 10:00 o'clock a.m. to satisfy the lien for unpaid city and county taxes, the hereinafter described property situated in Fayette County, Tennessee.
No payment of taxes, interest, penalties and costs will be accepted on the day of sale because of insufficient time to handle the administrative details incident to such a procedure.
Listed preceding the description of each parcel to be sold in the sum total of all city and county taxes for which the sale is being made and being inclusive of taxes, interest, penalties, attorneys fees, clerk's fees, and costs through the year 1988, plus publication and other costs.
Terms of Sale: Cash, subject to the equity of redemption of two years and subject to all taxes subsequent to the tax year 1988.
Said parcels of property together with the names of the owner(s), the total of all taxes, interests, penalties, fees and costs are described as follows, to-wit:
....
PARCEL NO. 90: Sold as property of James T. Morrow and wife, Donna J. Morrow, their unknown heirs or devisees. Total County taxes, fees and costs for the year 1988 $417.07 plus publication costs. Tax Roll: Map 100, Parcel 601.
1.55 acres in Civil District 8 of Fayette County, Tennessee as more particularly described in deed of record in Book 239, Page 59 of the Register's Office of Fayette County, Tennessee to which reference is here made for a full and complete description.
The parties agree that this notice and advertisement misstated the applicable period for redemption of property sold for delinquent taxes. On June 4, 1991, prior to the publication of the notice and advertisement the statutory right of redemption for property sold at a tax sale was reduced from two years after entry of an order of confirmation to one year after entry of an order of confirmation by 1991 Tennessee Public Acts ch. 470 §§ 1, 4-5. The amendment, according to its terms, applied to all tax sales held after June 4, 1991. 1991 Tenn. Pub. Acts ch. 470 § 5. It is not clear from the record how the error came to be published in the Fayette County Review. However, at the time of the tax sale, the County Trustee, evidently aware of the mistake in the notice and advertisement, made an announcement at the tax sale that the proper period of redemption was one year from the date of entry of an order of confirmation.
Dr. Hill purchased the Morrows' property at the tax sale for $1,000. On September 1, 1992, one year and fifteen days after the order of confirmation was entered, the Fayette County Clerk and Master issued Dr. Hill a tax deed to the property. After obtaining the tax deed, Dr. Hill telephoned James and Donna Morrow and informed them that she held a tax deed to the property. Shortly thereafter, James Morrow attempted to pay the delinquent taxes and redeem the property, however, the Clerk and Master refused his tender.
In December 1992, Dr. Hill obtained a writ of forcible entry and detainer for the property. On December 8, 1992, James and Donna Morrow brought this action against Dr. Hill and Betty Bobbitt, in her capacity as Fayette County Trustee, seeking to enjoin execution on the judgment and to set aside the tax sale or, alternatively, to redeem the property based upon the erroneous equity of redemption stated in the notice.
After the filing of the original complaint, Donnie Steve Morrow, John Berry Morrow, Gerald Russell Morrow, Jr. and Tracy Ann Morrow Medley filed motions to intervene and to amend the complaint to become party plaintiffs. The trial court granted these motions. Each of these intervening parties alleged that they had an interest in the subject property and that they had not received proper notice of the tax sale due to the fact that their names were omitted from the notice that appeared in the Fayette County Review. They asked that the tax sale be set aside due to this omission as well as the inaccurate statement concerning the period of redemption for property sold at a tax sale.
Prior to trial, both Dr. Hill and the Morrows filed motions for summary judgment. After hearing argument from both parties, the trial court granted summary judgment to the Morrows, holding that:
[T]here is no genuine issue as to any material fact regarding the defective Notice and Advertisement of the sale for taxes of the plaintiffs' property involved in this case ... therefore, said sale did not substantially comply with the applicable law and plaintiff is entitled to redeem the subject property upon making defendant Anne Hill whole by paying to her interest at the rate of ten percent (10%) per annum on the sum of $1,000.00 which she paid for the property at the time of the tax sale and her reasonable attorney fees.
Dr. Hill has appealed the trial court's decision, presenting the following issues for our review:
I. The trial court erred, as a matter of law, in granting Appellees' motion for summary judgment and denying Appellant's motion for summary judgment.
II. If the trial court did not err in granting Appellees' motion for summary judgment, it erred in the foundation of the relief afforded thereon.
We begin our analysis by noting that a trial court should grant a motion for summary judgment only if the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56.03 T.R.C.P.; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); Dunn v. Hackett, 833 S.W.2d 78, 80 (Tenn.App.1992). When a motion for summary judgment is made, the court must consider the motion in the same manner as a motion for directed verdict made at the close of the plaintiff's proof; that is, "the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence." Byrd 847 S.W.2d at 210-11. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. [Citations omitted.] In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.
Id. at 211 (emphasis in original).
The summary judgment process should only be used as a means of concluding a case when there are no genuine issues of material fact, and the case can be resolved on the legal issues alone. Id. at 210 (ci...
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