Bartow County v. Southern Development

Citations: 325 Ga. App. 879; 756 S.E.2d 11; 2014 Fulton County D. Rep. 483; 2014 WL 804087; 2014 Ga. App. LEXIS 90Docket: A13A2068, A13A2069

Court: Court of Appeals of Georgia; March 3, 2014; Georgia; State Appellate Court

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Interlocutory appeals arise from Southern Development, III, L.P.'s lawsuit against Bartow County over excess funds from a tax sale. The County appeals the denial of its summary judgment motion (Case No. A13A2069) and the approval of Southern's motion to add the Bartow County tax commissioner as a party (Case No. A13A2068). The court reverses the denial of summary judgment in Case No. A13A2069 and dismisses Case No. A13A2068 as moot.

Summary judgment is appropriate when there are no genuine material facts in dispute, and the movant is entitled to judgment as a matter of law. A de novo review standard applies, viewing evidence favorably to the nonmovant. The facts indicate that Southern conveyed property to James and Sandra Wade and later foreclosed due to default. A tax sale occurred in November 2009 due to unpaid taxes, and a third party purchased the property. The tax commissioner issued a check for excess funds, which Southern claims it never received notice about, although the commissioner sent it to Southern's registered address.

The Wades later claimed these excess funds, asserting they were the rightful recipients. Southern filed a notice to the County demanding payment in May 2011, which the County denied based on its payment to the Wades. The County's defense includes sovereign immunity, which it claims bars Southern's lawsuit. The court concurs with the County's argument regarding sovereign immunity, stating that Southern's claim for excess funds, governed by OCGA § 48-4-5, requires proper notification of excess funds to the record owner and other interested parties, which Southern disputes it did not receive.

The notice required for a tax sale must include a description of the sold land, the sale date, the purchaser's name and address, the total sale price, and any excess funds held. It should inform that these excess funds are available for distribution to the owners based on their priority interests. Southern alleged that the County violated its statutory duty by failing to notify them of the excess funds and by distributing them to the Wades. The County claimed sovereign immunity as a defense, which it raised multiple times during the summary judgment hearing, though it did not provide detailed arguments in its written brief. Southern did not contest the merits of the sovereign immunity claim but argued that the County had not sufficiently asserted it. Sovereign immunity protects the State and its departments, including counties, and can only be waived by specific legislative action. Under OCGA § 36-1-4, counties are not liable unless a statute explicitly provides for such liability. The burden of proving a waiver of immunity lies with Southern, which failed to identify any statutory waiver relevant to its claim against the County. The court noted that while sheriffs have a specific waiver under OCGA § 15-13-2, no such waiver exists for the County in this context. Therefore, Southern did not meet its burden to demonstrate a waiver of immunity, leading to the conclusion that the trial court erred in denying the County's motion for summary judgment. Consequently, the challenge to add the tax commissioner was deemed moot, resulting in the dismissal of one appeal and the reversal of judgment in another. The decision was made on March 3, 2014, with concurrence from Judges McFadden and Boggs.

In Matjoulis v. Integon Gen. Ins. Corp., the court addressed the waiver of sovereign immunity, emphasizing that without specific statutory language indicating both a waiver and its extent, no waiver can be demonstrated. The case references multiple precedents, including Gilbert v. Richardson and Rutherford v. DeKalb County, which provide context on constitutional provisions and interpretations related to sovereign immunity. Additionally, the case of Ga. Dept. of Human Resources v. Pass is noted, which was overruled on different grounds, and further cases, such as Barrett v. Marathon Investment Corp. and Currid v. DeKalb State Court Probation Dept., are cited to underscore the overarching legal principles involved. The excerpt also mentions the role of the tax commissioner as an ex-officio sheriff per relevant Georgia statutes.