Tyner v. Edge

• Decision Date: 22 May 2020
• Docket Number: A20A0265
• Citation: 355 Ga.App. 196,843 S.E.2d 632
• Parties: TYNER v. EDGE et al.
• Court: Georgia Court of Appeals

355 Ga.App. 196

843 S.E.2d 632

TYNER

v.EDGE et al.

A20A0265

Court of Appeals of Georgia.

May 22, 2020

Christopher David Elrod, Gainesville, for Appellant.

Kim & Bagwell, Jason Albert Kim, Gainesville, Samuel Ray Bagwell, for Appellee.

Brown, Judge.

Robert Tyner appeals from the trial court's grant of partial summary judgment in favor of The Edge Family, LLC, in his action to quiet title and seek redemption of real property following a tax sale. He asserts that the trial court erred by concluding that the right to redeem the subject property following the tax sale had been properly foreclosed. For the reasons explained below, we disagree and affirm.

"On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citation and punctuation omitted.) Giles v. Swimmer , 290 Ga. 650, 651-652 (1), 725 S.E.2d 220 (2012). In cases submitted to a special master under OCGA § 23-3-63, as in this case, "the trial court must independently evaluate the correctness of the [special master's] report before adopting it as the judgment of the court." Steinichen v. Stancil , 281 Ga. 75, 76 (2), 635 S.E.2d 158 (2006). "[T]he trial court is not obligated to accept a special master's erroneous legal conclusion." Eardley v. McGreevy , 279 Ga. 562, 565 (2), 615 S.E.2d 744 (2005). The evidence presented below consists of Tyner's verified petition, affidavits and accompanying exhibits, and The Edge Family, LLC's response to Tyner's Requests for Admissions.¹

Tyner alleged that he purchased the subject commercial property, located in Gainesville, Georgia, "from Frances Cowart by contract for $40,000[ ], payable in installments of $400[ ] per month, beginning in 1994. [He] made the final payment in 2003. Upon making the final payment, Ms. Cowart was supposed to execute a deed to the [p]roperty in [his] favor." He asserts that Frances Cowart died in October 1995, and that her estate never filed a deed "due to an oversight" even though he purchased the property and had made all of the required payments. He averred that he "exercised public, continuous, exclusive, uninterrupted, and peaceable possession and occupancy of the [p]roperty from 1994 until 2014." Additionally, he or one of his companies paid the taxes "[f]or the entire period of [his] possession," and he "treated the [p]roperty as [his] own because [he owns] it." Receipts attached to his complaint show that taxes on the subject property in a total amount of $9,848.36 were paid by Tyco Coin Systems Inc., Tyco Coin Systems, Tyco Coin, North Lake Laundry, or Robert Tyner for the years 1995 through 2010, with the exception of the year 2007. Although the receipt states that Frances Cowart paid the taxes that year, Tyner asserts that this is an error and that he was the person who actually had paid them. The fair market value for the subject property listed on the tax receipts ranged from $59,800 to $77,995. No written contract to purchase the property was attached to Tyner's affidavit and he does not specify whether the contract was in writing or oral.

Tyner asserts that he did not pay the property taxes in 2011 "[d]ue to an accounting error." On September 4, 2012, The Edge Family, LLC, purchased the subject property at a tax sale for $4,700. In December 2013, a notice of foreclosure of the right to redeem was sent by certified mail to various addresses for "Frances H. Cowart and/or The Estate & Heirs of Frances H. Cowart," as well as "Occupant(s)" of the subject property. The certified letter addressed to "Occupant(s)" was marked "Return to Sender No Such Number Unable to Forward." The notice stated that the right to redeem the delinquent property taxes would expire on February 7, 2014.

After the foreclosure process was completed, presumably some time after February 7, 2014, Ray Edge, a member of The Edge Family, LLC, took possession of the property. He described the condition of the property at that time as follows:

When I took possession of the property it was in bad shape. Water would flood the building when it would rain, from holes in the roof and through the walls, causing mildew and rot. Someone had placed oil drums against the outside wall of the building and oil and water would run into the building when it would rain. The property had been vandalized, with the wire being stolen out of the walls, and out of the machines in the building. Vandals and thieves had torn loose part of the walls in three different places to gain access to the building and had taken anything of value that was in the building. The building was full of junk, mostly old rusted and mildewed washing machines and other junk. There was no electricity or water to the building. There were trees grown up around the building, including in front making it difficult to access the building.

After taking possession of the property, Edge made calls to determine if anyone wanted the items in the building. When Edge called Tyner in February 2014, Tyner advised Edge that he owned the building and the equipment inside. Edge claimed that Tyner explained he had purchased the building "with a handshake." The parties disagree about what happened next. Tyner claims that Edge stated he would sell his equipment back to him for one year's rent, an offer that Tyner declined. Edge claims that he gave Tyner two weeks to investigate his ownership of the building and that when Tyner called him back, he admitted that Edge owned it. When Tyner asked to remove what he wanted from the building, Edge told him that he had to remove everything, "not just some." According to Edge, "Tyner then said that he didn't have any place to put it and told me to do what I wanted with the stuff."

In August 2014, Tyner's attorney sent a letter to Edge and The Edge Family, LLC, stating that Tyner held a "beneficial interest" in the property and demanding that a redemption price for the property be provided within ten days. In February 2015, Tyner's attorney sent another letter asserting that Tyner held an interest in the property and asked again that a redemption price for the property be calculated and provided to him. The letter also sought an accounting for the conversion of the contents of the building. After receiving no response to these letters, Tyner filed a petition to quiet title in his favor (Count 1), to redeem the property (Count 2), for damages for conversion of his personal property (Count 3), and for punitive damages (Count 4). He identified the property as the defendant in rem, as well as Ray Edge and The Edge Family, LLC as defendants (hereinafter "the Edge defendants").

In their answer, the Edge defendants admitted disposing of the personal property, but claimed that it did not belong to Tyner and did not have the $20,000 value asserted in Tyner's complaint. The Edge defendants asserted a counterclaim to quiet title in the name of The Edge Family, LLC, and for attorney fees and costs under OCGA §§ 13-6-11 and 9-15-14.

The trial court subsequently granted the request of both parties for the appointment of a special master. Tyner moved for partial summary judgment in his favor on his right to redeem the property (Count 2), and the Edge defendants moved for summary judgment in their favor on all counts of Tyner's complaint and in favor of The Edge Family, LLC, with regard to its counterclaim to quiet title. The special master held a hearing on the summary judgment motions and subsequently issued a ten-page report recommending, in part, that The Edge Family, LLC's request to quiet title in its favor be granted. The trial court adopted the special master's report "in whole," granted summary judgment in favor of The Edge Family, LLC's petition to quiet title in its favor, and denied Tyner's motion for summary judgment on his petition to quiet title² and for redemption of the property. It also declared that "Counts 3 and 4 of [Tyner]’s Complaint remain pending."³

On appeal, Tyner contends that the trial court erred by granting summary judgment in favor of the Edge defendants because he was "owner and occupant of the Property."⁴ In order to address this contention, we must examine the statutes regarding tax sales in Georgia.

OCGA § 48-4-40 provides:

Whenever any real property is sold under or by virtue of an execution issued for the collection of state, county, municipal, or school taxes or for special assessments, the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property may redeem the property from the sale by the payment of the amount required for redemption, as fixed and provided in Code Section 48-4-42 :

(1) At any time within 12 months from the date of the sale; and

(2) At any time after the sale until the right to redeem is foreclosed by the giving of the notice provided for in Code Section 48-4-45.

As the Supreme Court of Georgia explained over 20 years ago,

there is no requirement in OCGA § 48-4-40 that a party's valid interest in property must be recorded in the county's deed books before the party is entitled to redeem the property. Lack of such recordation affects only the notification duties imposed on the holder of the tax deed. See OCGA § 48-4-45 (a) (1) (C).

Freeman v. Eastern Savings Bank , 271 Ga. 439, 440 (1), 520 S.E.2d 902 (1999). With regard to these notification duties, OCGA § 48-4-45 provides:

(a) After 12 months from the date of a tax sale, the purchaser at the sale or his heirs, successors, or assigns may terminate, foreclose, divest, and forever bar the right to redeem the property from the sale by causing a notice or notices of the foreclosure, as provided for in this article:

(1) To be served upon all of the following persons who reside in the county in which the property is located:

(A) The defendant in the execution under or by virtue of which the sale

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