J. MICHAEL VINCE, LLC
MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE
Phipps, Senior Appellate Judge.
the second appearance of this case before this Court. In
SunTrust Bank v. Cowan, 344 Ga.App. 604 (812 S.E.2d
13) (2018), we reversed the trial court's award of excess
funds from a tax sale to J. Michael Vince, LLC
("JMV") because of the Supreme Court of
Georgia's holding in DLT List, LLC v. M7VEN
Supportive Housing & Dev. Group, 301 Ga. 131 (800
S.E.2d 362) (2017) ("DLT List
II") that a redeeming creditor at a tax sale
(such as JMV) does not have a first priority lien interest in
the excess funds. After remand, the trial court found JMV in
contempt of an order entered prior to the order we reversed.
For the reasons that follow, we affirm in part, reverse in
part, vacate in part, and remand with direction.
relevant procedural history and facts of this case are as
follows. On October 12, 2011, Regina Jordan
("Jordan") executed a security deed in favor of
SunTrust Bank ("SunTrust") in the amount of $246,
535.26 on the real property located at 1000 Landon Drive,
Villa Rica, Georgia (the "Property"). In March
2015, Douglas County conducted a tax sale of the Property.
After the tax sale, a homeowners' association lien on the
Property was assigned to JMV in April 2015, and JMV redeemed
the Property by paying the tax sale purchaser $198, 000.00.
The Douglas County Tax Commissioner filed an interpleader
action in the Superior Court of Douglas County stating that
the Property sold for "$165, 000.00, leaving excess
funds in the amount of $152, 232.58" and deposited the
excess funds into the trial court's registry. SunTrust
and JMV filed answers to the interpleader seeking the excess
funds and claiming first priority lienholder status.
October 2015, the trial court entered an order awarding the
Douglas County Tax Commissioner $1, 240.00 in attorney fees
and the remaining excess funds totaling $150, 992.58 to JMV
(the "October 2015 Order"), but it later vacated
the award because neither JMV nor the trial court provided
notice of the order to SunTrust. Thereafter, SunTrust moved
to compel JMV to return the excess funds to the trial
court's registry, and on September 26, 2016, the trial
court entered an omnibus order on several pending motions
(the "September 2016 Order"). In pertinent part,
the trial court ordered JMV to pay the excess funds into the
trial court's registry or post a bond within 30 days. JMV
did not deposit the funds or post a bond. Instead, JMV moved
for the dismissal, or alternatively, the reinstatement of the
October 2015 Order, and on March 20, 2017, the trial court
reinstated the October 2015 Order, awarding the excess funds
to JMV (the "March 2017 Order"). SunTrust appealed,
and we reversed the trial court's order, remanding the
case for further consideration in light of the holdings in
DLT List I and DLT List II. See
SunTrust Bank, 344 Ga.App. at 607.
remand, in May 2018, SunTrust filed a motion for contempt,
arguing that JMV "ignored [the trial court's
September 2016 Order] compelling payment of the [e]xcess
[f]unds into [c]ourt or post a bond." JMV responded that
the September 2016 Order was a nullity and that SunTrust
lacked standing as a party to the interpleader action because
the security deed executed by Jordan was improperly attested,
leaving SunTrust without a record interest in the Property,
the trial court held a hearing where JMV made the additional
argument that JMV could not comply with the order because it
had already spent the money. The trial court found JMV in
wilful contempt of the September 2016 Order. It ordered JMV
to pay $150, 992.58 into the court's registry within 30
days and found that "JMV should be sanctioned or
punished for its past acts," and as "a means to
coerce compliance with a prior court order, pursuant to this
Court's contempt authority," it ordered JMV to
"pay to SunTrust through its undersigned counsel a fine
and/or reasonable attorneys' fees and expenses in the
amount of $5, 000.00 for the costs to SunTrust of preparing
and prosecuting the [m]otion for [c]ontempt[.]" This
argues that SunTrust lacked standing to participate in the
interpleader action and to move for contempt against JMV
because SunTrust's security deed "was not a valid
(or even facially valid) instrument of record at the time of
the Tax Sale[.]" We disagree.
§ 48-4-5 (a) states:
If there are any excess funds after paying taxes, costs, and
all expenses of a sale made by the tax commissioner, tax
collector, or sheriff, or other officer holding excess funds,
the officer selling the property shall give written notice of
such excess funds to the record owner of the property at the
time of the tax sale and to the record owner of each security
deed affecting the property and to all other parties having
any recorded equity interest or claim in such property at the
time of the tax sale. Such notice shall be sent by
first-class mail within 30 days after the tax sale. The
notice shall contain a description of the land sold, the date
sold, the name and address of the tax sale purchaser, the
total sale price, and the amount of excess funds collected
and held by the tax commissioner, tax collector, sheriff, or
other officer. The notice shall state that the excess funds
are available for distribution to the owner or owners as
their interests appear in the order of priority in which
their interests exist.
OCGA § 48-4-5 (a).
statute provides that the officer selling a property at a tax
sale must provide written notice of any excess funds after
the sale to parties holding record interests in the property.
It also provides that the notice shall state that
"the excess funds are available for distribution to
the owner or owners as their interests appear in the order of
priority in which their interests exist."
Id. It does not, as JMV argues, prohibit parties
with unrecorded security interests from seeking excess funds
through an interpleader action. SunTrust, as the grantee of
the security deed through Jordan, has an ownership interest
in the Property. See Wallin v. Wallin, 341 Ga.App.
440, 444 (1) (800 S.E.2d 617) (2017) (an unrecorded security
deed "is nevertheless a valid lien on the
property"); Jackson v. Bank One, 287 Ga.App.
791, 793 (2) (652 S.E.2d 849) (2007) (the "grantee of a
security deed is under no duty to the grantor to have the
deed recorded; as between the original parties, the deed is
valid irrespective of whether it is recorded or not")
(punctuation omitted.). See generally Baxter v. Bayview
Loan Servicing, LLC, 301 Ga.App. 577, 578 (1) (a) (688
S.E.2d 363) (2009) ("Whether a mortgage is in recordable
form . . . is different from the question of whether a
mortgage exists-i.e., whether a mortgage was created by a
particular writing . . . a mortgage is good as between the
parties without any attesting witness and a mortgage
is perfectly valid as between the parties thereto, though
never recorded") (emphasis supplied) (citation,
punctuation, and footnote omitted), citing Jackson,
287 Ga.App. at 793 (2). Thus, SunTrust has an interest in the
Property sufficient to seek the excess funds.
several enumerations of error, JMV argues that the trial
court erred by finding it in wilful contempt and by
sanctioning it in the amount of $5, 000. We agree in part.
reviewing contempt cases, we bear in mind that "[t]he
question of whether a contempt has occurred is for the trial
court, and its determination will be overturned only if there
has been a gross abuse of discretion." (citation and
punctuation omitted.) Affatato v. Considine, 305
Ga.App. 755, 760 (2) (a) (700 S.E.2d 717) (2010).
asserts that the trial court erred by holding it in contempt
of the September 2016 Order because that order was no longer
in force because it was "superseded by the [March 2017
Order] before ...