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Derby Properties, LLC v. Watson

Court of Appeals of Georgia, Second Division

June 27, 2018

DERBY PROPERTIES, LLC
v.
J. W. "BILL" WATSON III, IN HIS OFFICIAL CAPACITY AS THE TAX COMMISSIONER et al.

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

          MILLER, PRESIDING JUDGE.

         This appeal stems from a tax sale between Paulding County and Derby Properties, LLC, in which Derby Properties purchased certain real property that was subject to a nuisance abatement lien. Derby Properties appeals from the trial court's denial of its motion for summary judgment against J. W. "Bill" Watson III, in his official capacity as the Tax Commissioner of Paulding County ("the County"). On appeal, Derby Properties contends that the sale was conducted improperly because the County utilized a nonjudicial tax foreclosure sale, instead of a judicial in rem tax foreclosure sale. We determine that OCGA § 41-2-9 (the "nuisance abatement statute") did not prevent the County from conducting a nonjudicial tax foreclosure sale in this case. Therefore, we affirm.

When ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citation and footnote omitted.) H & C Dev., Inc. v. Bershader, 248 Ga.App. 546, 547 (546 S.E.2d 907) (2001).

         So viewed, the record shows that, after a nuisance abatement lien[1] was placed on the subject property, the County sold the property to Derby Properties in a nonjudicial tax foreclosure sale in October 2015. Subsequently, however, Derby Properties asked the County to return the money it had paid for the property. Derby Properties claimed that the tax sale the County had used to enforce the nuisance abatement lien was illegal because the County had utilized the nonjudicial tax foreclosure procedures set forth in OCGA § 48-4-1, instead of the judicial in rem tax foreclosure procedures, as outlined in OCGA § 48-4-76 et seq. When the County refused to return the money, Derby Properties filed a petition under OCGA § 15-13-3 (the "money rule petition"), in the Superior Court of Paulding County, again challenging the legality of the sale on this same basis. Both Derby Properties and the County filed motions for summary judgment. The County argued, in part, that the nuisance abatement statute did not require the County to use a judicial in rem tax foreclosure sale to enforce the lien. The trial court awarded summary judgment in the County's favor and denied Derby Properties' summary judgment motion. This appeal followed.

         1. Derby Properties claims that the nuisance abatement statute required the County to use the judicial in rem tax foreclosure process, and that the County's use of nonjudicial tax foreclosure procedures renders the sale unlawful. This contention lacks merit.

         "The interpretation of statutes presents a question of law for the court." (Citations, punctuation, and footnote omitted.) Montgomery County v. Hamilton, 337 Ga.App. 500, 503 (788 S.E.2d 89) (2016). "The first step in our analysis of this issue of statutory construction is to examine the plain statutory language." (Citation omitted.) Morrison v. Claborn, 294 Ga.App. 508, 512 (2) (669 S.E.2d 492) (2008).

The nuisance abatement statute provides, in part,
It shall be the duty of the appropriate county tax commissioner or municipal tax collector or city revenue officer, who is responsible or whose duties include the collection of municipal taxes, to collect the amount of the lien using all methods available for collecting real property ad valorem taxes, including specifically Chapter 4 of Title 48.

(Emphasis supplied.) OCGA § 41-2-9 (b) (2).

         The methods available for collecting real property ad valorem taxes include both judicial in rem tax foreclosure sales (OCGA § 48-4-76 (a) - (b)) and nonjudicial tax foreclosure sales (OCGA § 48-4-1 (a) (1) (A)). See DLT List, LLC v. M7VEN Supportive Housing & Dev. Group, 335 Ga.App. 318, 321 (1) (779 S.E.2d 436) (2015), aff'd, DLT List, LLC v. M7VEN Supportive Housing & Dev. Group, 301 Ga. 131 (800 S.E.2d 362) (2017) ("Pursuant to OCGA § 48-4-1, if a property owner fails to pay county property taxes, the county may issue a writ of fieri facias and conduct a sale of the property to satisfy the unpaid taxes."). Thus, a plain reading of this subsection of the nuisance abatement statute evinces that the County would have been entitled to collect the amount of the lien using either type of sale.

         Moreover, the legislature expressly intended that judicial in rem tax foreclosure procedures be an alternative to nonjudicial tax foreclosure procedures, rather than replace them. The legislature made this intent abundantly clear in OCGA § 48-4-75, which reads:

The General Assembly finds that . . . nonjudicial tax foreclosure procedures are inefficient, lengthy, and commonly result in title to real property which is neither marketable nor insurable. . . . Consequently, the General Assembly further finds that the alternative to nonjudicial tax foreclosure procedures authorized by this article is an effective means of eliminating health and safety ...

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