On November 7, 2016, the Supreme Court of Georgia released 15 opinions, of which three are within the scope of our coverage. Summaries of the cases and decisions are set forth below.
S16A0913 Nix v. 230 Kirkwood Homes, LLC
In a unanimous decision by Justice Melton, the Supreme Court of Georgia affirmed the trial court’s order quieting title to a piece of property in DeKalb County in Kirkwood Homes. It held that, when Nix rejected a financially sufficient tender by Kirkwood Homes in 2015, Nix’s tax deed was extinguished and she waived any further tender.
The saga began in 1993, with the tax sale of the property to DeKalb County. DeKalb County did not foreclose the redemption right before conveying the tax deed to Nix, who then conveyed it to Bank of America to secure a debt. The debt was cancelled in 2009, and the deed reverted to Nix then. The owner of the property before the tax sale transferred her interest in 2003, and that buyer tried to redeem the property, but Nix rejected the offer. After quiet title litigation between Nix and that buyer ended in 2011, the buyer’s interest passed through one entity before ending up with Kirkwood Homes. Kirkwood Homes tendered the redemption amount to Nix, who again rejected the offer. Kirkwood Homes then filed its own quiet title action, and the trial court ruled in its favor.
The Supreme Court affirmed that judgment. It held that the Quiet Title Act, OCGA §§ 23-3-40, et seq., does not require Nix to pay the fees of the special master before filing her appeal. The Court rejected the suggestion that payment was required by analogy to the fees of auditors under title 9 of the Georgia Code, finding the reasoning of the Court of Appeals in Davis v. Harpagon Co., LLC, 300 Ga. App. 644, 686 SE 2d 259 (2009), as “flawed.” It noted that nothing in the Quiet Title Act requires such payment and overruled Davis to the extent that it could be “read to apply to unpaid fees of special masters specifically appointed under the Quiet Title Act.”
In addition, the Court held that the earlier litigation that concluded in favor of Nix did not bar Kirkwood Homes’ action. Quoting Durham v. Crawford, 196 Ga. 381, 387, 26 SE 2d 778 (1943), it noted that a prior judgment may have limited effect in that it “binds only as to the facts and events existing at the time of such judgment” and allows for “re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants.” In this case, Bank of America no longer had an interest in the property, Nix had never foreclosed on the right of redemption, and Kirkwood Homes was not bound by the earlier judgment.
Finally, the Court rejected Nix’s claim to the property, finding that she did not adversely possess the property for the required four years. It excluded the time in which the property was held by Bank of America and the time taken up by the earlier litigation. As a result of those exclusions, Nix’s prescriptive period did not begin to run until February 2011. Moreover, she did not show that she publicly, continuously, exclusively, and peaceably held the property on an uninterrupted basis under a claim of right for the four year period.
S16A0972 Veterans Parkway Developers, LLC v. RMW Development Fund II, LLC
In a unanimous decision by Presiding Justice Hines, the Supreme Court of Georgia reversed an interlocutory injunction that blocked certain activities by Veterans Parkway Developers (VPD).
VPD owns a 75% interest in a project to construct the Veterans Parkway Apartments, and RMW owns the other 25%. RMW filed suit reflecting its disagreement with the way in which VPD was managing the project. Before the lawsuit was filed, VPD purchased a 60 foot strip of land that would serve as a second entrance to the apartment complex, asserting that it was needed because the Georgia Department of Transportation decided to put a median in front of the main entrance. The trial court entered an injunction blocking the construction of the second entrance.
The Supreme Court concluded that the record did not support the injunction. While the project involved construction on land owned by the company in which VPD and RMW held an interest, RMW’s interest was in the company not in the real property. That interest was not sufficient to complain about a threat to the land. In addition, RMW’s complaints about spending would support a claim for money damages against VPD, so RMW had an adequate and complete legal remedy available.
S16A1019 City of Waycross v. Pierce County Board of Commissioners, et al.
In a unanimous decision by Chief Justice Thompson, the Supreme Court of Georgia affirmed a trial court’s injunction directing the City to continue the delivery of water and sewer services to a de-annexed area formerly within the City and in Pierce County. It held that the requirements for interlocutory injunctive relief were met, noting that the test is a balancing test that does not require proof of all four factors. In particular, it found the showing of irreparable harm adequate in that, if the City did not provide water and sewer services to the residents and businesses in the de-annexed area, the County would have to.