STRONG et al.
JWM HOLDINGS, LLC JWM HOLDINGS, LLC
STRONG et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
BARNES, PRESIDING JUDGE.
companion appeals arise out of a dispute over the right to
redeem certain real property sold at a tax sale. In Case No.
A17A0544, Annette Lowe Strong, as administrator of two
estates, and Douglas Slappey, a potential heir of one of the
estates, appeal the trial court's grant of summary
judgment to JWM Holdings, LLC ("JWM") on the
estates' claims relating to the redemption of the
property. In Case No. A17A0545, JWM appeals the
trial court's final order and judgment denying its
counterclaim for declaratory relief. For the reasons
discussed below, in Case No. A17A0544, we affirm the trial
court's order granting summary judgment to JWM on the
estates' claims pertaining to the redemption of the
property. In Case No. A17A0545, we vacate the trial
court's final order and judgment denying JWM's
counterclaim for declaratory relief, and we remand with the
instruction that the counterclaim be dismissed without
prejudice for lack of subject matter jurisdiction.
record reflects that certain real property located in Fulton
County (the "Property") was deeded to Charlene West
in 1958. Charlene later married Oscar Frazier and changed her
last name to Frazier, and the couple lived together in the
Property throughout their marriage. Charlene died in 1974. No
will was probated in common or solemn form following her
death, and there was no record of the Property being deeded
to anyone from Charlene's estate.
Charlene died, Oscar continued to reside in the Property and
to pay all of the property taxes until his death in 1998. No
will was probated for Oscar's estate following his death.
Oscar's death, the property taxes for the Property were
not paid for several years. A tax sale of the Property was
conducted in 2013, and the Property was sold to the highest
bidder. The highest bidder conveyed the Property to JWM in
who was Oscar's niece, was appointed to serve as
administrator of Oscar's estate in March 2014 and as
temporary administrator of Charlene's estate in May 2014.
Strong thereafter filed suit on behalf of both estates
against JWM, the Fulton County tax commissioner, and Slappey,
who was one of Charlene's potential heirs. Strong sought
to quiet title to the Property and to enjoin the defendants
from preventing her from redeeming the Property on behalf of
answered and asserted several counterclaims, including a
counterclaim for declaratory relief that Strong was barred
from ever redeeming the Property on behalf of the estates
because Strong had failed to satisfy the requirement of
tender of the redemption price before filing the present
suit. Slappey answered and filed a cross-claim
against JWM seeking a declaration with regard to his and the
estates' rights to redeem the Property.
filed a motion for summary judgment on Strong's claims,
Slappey's cross-claim, and several of its own
counterclaims, including its counterclaim for declaratory
relief. The trial court granted summary judgment to JWM on
Strong's claims, concluding that the uncontroverted
evidence showed that Strong had failed to satisfy the
requirements for tendering the redemption price to JWM before
filing her lawsuit, which was fatal to her
claims. The trial court also ultimately granted
summary judgment to JWM on Slappey's cross-claim on
contrast, the trial court denied summary judgment to JWM on
its counterclaim for declaratory relief, concluding that
JWM's claim that Strong was barred from redeeming the
Property on behalf of the estates in future litigation was
premature and that her failure to make a proper tender in
this case did not foreclose the possibility of later
redemption of the Property by Strong. Subsequently, after a
bench trial, the trial court entered a final order and
judgment denying JWM's counterclaim for declaratory
relief on the same grounds. These companion appeals followed.
Appellants Strong and Slappey argue that the trial court
erred in finding that Strong had failed to make a proper
tender of the redemption price on behalf of the estates to
JWM before filing suit and in granting summary judgment to
JWM on Strong's claims on that ground. The appellants
maintain that there was evidence that the requirement of
actual tender of the redemption price was waived by JWM based
on pre-suit communications in which JWM's counsel stated
that JWM would reject any tender made by Strong in her
personal or representative capacities.
judgment is proper if the pleadings and evidence "show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law." OCGA § 9-11-56 (c). On appeal from the
grant of summary judgment, we "conduct a de novo review,
construing all reasonable inferences in the light most
favorable to the nonmoving party." Bank of North Ga.
v. Windermere Dev. Inc., 316 Ga.App. 33, 34 (728 S.E.2d
OCGA § 48-4-40, the article of the Georgia Code
governing redemption of property after a tax sale to satisfy
unpaid taxes, a delinquent taxpayer has the right to redeem
the property by paying the amount required for redemption at
any time within 12 months of the sale and at any time after
the sale until the right to redeem is foreclosed by the new
owner pursuant to OCGA § 48-4-45 or by the ripening of
the purchaser's title through prescription. OCGA §
48-4-48. The right to redeem property sold under a tax
execution is conditioned upon the tender of the amount
required for redemption, which must be made before the filing
of the redemption action, must be continuous unless waived by
declaration or conduct, and must be made to the party
entitled to payment. Mark Turner Properties v.
Evans, 274 Ga. 547 (3) (554 S.E.2d 492) (2001);
Machen v. Wolande Management Group, 271 Ga. 163, 165
(517 S.E.2d 58) (1999); Forrester v. Lowe, 192 Ga.
469, 475-476 (15 S.E.2d 719) (1941) (tender insufficient
where not made before action filed in court). See Durham
v. Crawford, 196 Ga. 381 (26 S.E.2d 778) (1943) (tender
ineffective when made during the pendency of the suit). This
affords the new owner the "opportunity to accept the
money and convey the property ...