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Strong v. JWM Holdings, LLC

Court of Appeals of Georgia, First Division

April 28, 2017

STRONG et al.
v.
JWM HOLDINGS, LLC JWM HOLDINGS, LLC
v.
STRONG et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          BARNES, PRESIDING JUDGE.

         These 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.[1] 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.

         The 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.[2] 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.

         After 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.

         After 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 March 2014.

         Strong, 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 the estates.

         JWM 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.[3] Slappey answered and filed a cross-claim against JWM seeking a declaration with regard to his and the estates' rights to redeem the Property.

         JWM 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.[4] The trial court also ultimately granted summary judgment to JWM on Slappey's cross-claim on several grounds.[5]

         In 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.

         Case No. A17A0544

         1. 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.[6] 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.

         Summary 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 714) (2012).

         Under 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 ...


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