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B.C. Grand, LLC v. FIG, LLC

Court of Appeals of Georgia, Fourth Division

October 29, 2019

B.C. GRAND, LLC
v.
FIG, LLC et al. FIG, LLC
v.
B.C. GRAND, LLC. INVESTA SERVICES OF GA, LLC
v.
B.C. GRAND, LLC.

          MCFADDEN, C. J., DOYLE, P. J. and COOMER, J.

          Doyle, Presiding Judge.

         B.C. Grand, LLC, filed a class-action complaint[1] against Investa Services of Georgia, LLC ("Investa"); Fortress Investment Group, LLC ("FIG"); and FIG Asset Management, LLC[2] (collectively "the Defendants"), asserting that the Defendants purchased tax executions for delinquent ad valorem taxes[3] on property to collect higher interest amounts and penalties than were due because the executions were based on initial tax assessments that were later reduced. B.C. Grand alleged that the Defendants wrongly collected and then failed to repay those sums; asserted claims of negligence, unjust enrichment, conversion, and conspiracy; and requested punitive damages and attorney fees. After finding that the complaint failed to state claims for conversion, negligence, or unjust enrichment, the trial court dismissed the complaint.[4]In Case No. A19A1297, B.C. Grand appeals, arguing in a number of enumerations that the trial court erred by dismissing its complaint.

         In Case No. A19A1467, FIG cross-appeals, arguing that the trial court's dismissal could be upheld on the bases that (1) it was an improper party, (2) various statutes of limitation had expired, and (3) the voluntary payment doctrine precluded the claims. In Case No. A19A1509, Investa also cross-appeals, reiterating many of FIG's arguments and adding that the trial court also should have dismissed the complaint based on equitable estoppel. For the reasons that follow, we affirm the dismissal.[5]

         "[A] trial court's ruling on a motion to dismiss for failure to state a claim is subject to de novo review, [and] we accept the allegations of fact that appear in the complaint and view those allegations in the light most favorable to the plaintiff."[6]

         Viewed in this light, the record shows that in January 2012, B.C. Grand purchased from Trinity Properties Grant LTDLP property located on Broad Street in Atlanta, Georgia. In September 2012, after Trinity challenged the initial property value assessment, the Fulton County Tax Commissioner ("the Commissioner") issued a temporary tax bill to Trinity/B.C. Grand for a total of $128, 110.46 based on a fair market value of $7.4 million. The bill stated that "[a]fter [February 23, 2018, ] additional interest of [one percent] per month may continue to accrue until fully paid. Taxes are due as billed and must be paid by the due date regardless of appeal status." In its complaint, B.C. does not assert that either it or Trinity paid the 2012 taxes at the time of initial assessment, and in December 2012, the Commissioner issued tax executions[7] on the property - one for city taxes due and one for county taxes due.

         Investa purchased the tax executions, paying the full face value (the equivalent of the underlying tax due plus some fees) in December 2012.[8] In January 2013, Trinity challenged the assessment with the Board of Equalization ("the Board"), which affirmed the assessment. In February 2013, Investa sent Trinity a required 60-day post-transfer notice, [9] which included interest and fees that had accrued during that time. Later that month, Trinity appealed the Board's determination to Fulton Superior Court[10]; and in September 2013, the Commissioner and Trinity entered into a consent agreement reducing the assessed value of the property for 2012 from $7.4 million to $3.8 million. Based on the consent agreement, the Commissioner issued a refund on the tax overpayment ($39, 681.04 and $11, 029.24), which was paid to B.C. Grand (the property owner at that point) based on the language of the pertinent refund statute at that time.[11] B.C. Grand does not allege in its complaint that it paid any portion of the 2012 taxes at this time. In November 2013, Investa sent B.C. Grand an annual notice[12] stating that the 2012 tax executions were due.

         Eventually, in October 2014, Investa requested that the Fulton County Sheriff levy on the 2012 tax executions, and the sale was scheduled for December 2014. In November 2014, B.C. Grand filed a complaint, arguing that the 2012 tax executions were invalid because they were issued during appeal proceedings and based on the later-reduced assessment, and it requested a temporary restraining order ("TRO") until the validity of the executions was determined by the court. At the hearing on the TRO, the trial court denied the motion for a TRO, finding that B.C. Grand failed to cite authority to support its contention that the executions were void based on the change in the underlying assessment, and B.C. Grand paid the 2012 tax executions in order to prevent the sale; apparently, B.C. Grand later dismissed that case without proceeding further.

         In June 2018, B.C. Grand filed the instant class action complaint seeking a refund of any interest and penalties it argues it overpaid to Investa and FIG as a result of the tax assessment reduction. The Defendants filed motions to dismiss or for judgment on the pleadings, attaching various documents thereto. Thereafter, the trial court granted the motions, and these appeals followed.

         Case No. A19A1297

         1. Under OCGA § 48-3-3 (b), "[t]he . . . tax commissioner shall issue executions for nonpayment of taxes . . . at any time after 30 days have elapsed since giving notice as provided in subsection (c) of this Code section." The Commissioner so issued the 2012 tax executions here. Nevertheless, B.C. Grand argues that because it successfully entered into a consent agreement with the Commissioner to lower the value of the property prior to levy on the 2012 executions, the Defendants improperly demanded interest and fees based on the higher amount and must return that overpayment.

         Under OCGA § 48-3-19 (b) (1) (2012),

[w]henever any person other than the person against whom an execution has been issued pays an execution issued for state, county, or municipal taxes or special assessments, the officer whose duty is to enforce the execution may transfer the execution to the party so paying the full value of the execution. No officer whose duty it is to enforce an execution issued for state, county, or municipal taxes or special assessments shall be required to make any transfer or transfers of such execution or executions. The transferee shall have the same rights as to enforcing the execution and priority of payment as might have been exercised or claimed by the tax official. The person to whom the execution is transferred shall, within 30 days of the transfer, cause the execution to be entered on the general execution docket of the superior court of the county in which the execution was issued. In default of the required entry or entries, the execution shall lose its lien upon any property which has been transferred in good faith and for a valuable consideration before the entry and without notice of the existence of the execution.[13]

         B.C. Grand contends that this language prohibited the Defendants from demanding payment of the amount of interest it charged because the Commissioner eventually lowered the assessment ...


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