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Dukes v. Munoz

Court of Appeals of Georgia, Second Division

June 15, 2018

DUKES
v.
MUNOZ et al.

          MILLER, P. J., ANDREWS and BROWN, JJ.

          MILLER, PRESIDING JUDGE.

         Winfred Dukes was served by publication with notice of a quiet title action filed by three individuals who had purchased his property at a tax sale. The trial court granted judgment in favor of the purchasers, and Dukes appeals, challenging the sufficiency of service, among other things. We now reverse because the record shows that the purchasers failed to exercise reasonable diligence to ascertain Dukes' correct address.

         The relevant facts are not disputed. Dukes owned a parcel of property in Fulton County, but became delinquent in paying his property taxes. Harold F. Munoz, Beatriz Elena Porras Martinez, and Natalia M. Higgins (collectively, "the Purchasers") bought the property at a tax sale in January 2014. The 2014 county tax bill for the property listed Dukes as the owner and included the property address, but no other contact information for Dukes on the tax bill.

         In January 2015, the Purchasers sent Dukes legal notice of the impending termination, or barment, of his right to redeem the property by mailing a certified letter addressed to him at the property address. The letter was "return[ed] to sender" as undeliverable. The Purchasers then ran a legal notice in The Daily Report for four consecutive weeks, advising that the statutory right to redeem the property would be forever barred on April 15, 2015.

         In June 2015, the Purchasers filed a petition to quiet title to the property. Their attorney engaged a private investigator to locate Dukes so that he could be served with the petition. According to the investigator's affidavit, he started with "some identifying information" for Dukes giving his last known address as the Property address to which the Purchasers had sent the barment notice; however, using "normal investigative methods and procedures" he was "unable to locate more current information" for Dukes.[1]

         Based on the investigator's affidavit, the Purchasers filed a motion for permission to serve Dukes by publication. After the special master[2] appointed to hear the petition agreed that Dukes should be served by publication, the trial court granted the Purchasers' motion, and notice of the quiet title action was then published. Following a hearing at which Dukes did not appear, the special master issued a report and recommendation finding that the Purchasers had perfected service upon Dukes by publication and had properly barred his right of redemption. Accordingly, the special master concluded that the Purchasers were entitled to default judgment against Dukes.

         Shortly after the special master's report was filed, Dukes filed an objection to the report, a request for a hearing, and a motion for summary judgment, arguing that he had not been properly served with the barment notice or the quiet title action. He also tendered the redemption price for the property into the registry of the court.

         In support of his arguments regarding improper service, Dukes submitted the affidavit of a private investigator that his lawyer had hired to determine whether "any information regarding Winfred Dukes could be located that would provide for a means of making contact with him." As background, the investigator was given only the 2014 tax bill listing Dukes' name and the property address. The investigator started with a Google search for "Winfred Dukes, GA, " and the first 50 results - including a pop-up window - showed that Dukes served in the Georgia state legislature as a representative from Albany. By clicking on the search results, the investigator accessed biographical and employment information about Dukes, as well as several postal addresses, email addresses, and telephone numbers. The investigator also located multiple social media accounts for Dukes that contained contact information.

         Further, the investigator found a mailing address listed for Dukes on the website for the tax assessor for Fulton County, where the property is located. Finally, the investigator found contact information for Dukes in subscription databases, in the Secretary of State's occupational licensing division, in voter registration records, and in the property records of Dougherty County, where the Google search had shown that Dukes lives. Based on his research, the investigator concluded that "a minimal effort to locate a means for contacting Winfred Dukes would have been successful."

         The trial court entered a final order overruling Dukes' objections, adopting the special master's report, and denying Dukes' summary judgment motion. The trial court found that "[r]easonable notice was given to all parties for whom the Special Master had, or could, after due diligence, obtain a service address" and that service had been perfected upon Dukes by publication. Further, the trial court ruled that legal title to the property was vested in the Purchasers and that Dukes was responsible for paying the special master's fees. Dukes appeals, arguing that service by publication was improper, the barment notice was inadequate, legal title should not vest in the Purchasers, Dukes should not be responsible for the special master's fees, and Dukes was entitled to attorney fees.

         1. Dukes first argues that he was not properly served with the quiet title petition. We agree.

         The Quiet Title Act requires personal service upon "known persons whose address is ascertainable." OCGA § 23-3-65 (b). The trial court may order service by publication "[i]n all cases where service by publication is permitted under the laws and where the respondent or other party resides outside this state or whose residence is unknown." Id. Thus, "our first inquiry . . . is whether service by publication is permitted under the laws of this State, given the situation presented here." Floyd v. Gore, 251 Ga.App. 803, 804-805 (1) (555 S.E.2d 170) (2001).

         "[D]ue process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding." (Citations omitted.) Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 S.E.2d 909) (1983). Because service by publication is a "notoriously unreliable means" of providing actual notice, a plaintiff may serve a quiet title petition by publication only if the defendant's address is not ...


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