Moxie Capital, LLC v. Delmont 21, LLC

363 Ga.App. 152

869 S.E.2d 127

MOXIE CAPITAL, LLC

v.DELMONT 21, LLC et al.

A21A1574

Court of Appeals of Georgia.

February 4, 2022

Reconsideration Denied March 10, 2022

Sam G. Dickson, Atlanta, for Appellant.

Clark Law Group, John Cambron Clark, Alpharetta, Tahra T. Porterfield, Atlanta, Eugene Paden Smith Jr., Bert Whitfield, for Appellee.

Phipps, Senior Appellate Judge.

Moxie Capital, LLC ("Moxie"), appeals from the superior court's Order and Final Judgment adopting a special master's findings and awarding Delmont 21, LLC ("Delmont"), fee simple title to two parcels of property after Moxie failed to properly redeem the properties from Delmont, the purchaser of the properties’ tax deeds. Moxie argues that the superior court erred in finding that (1) its tender of personal checks pursuant to its attempt to redeem the properties was not a valid tender under OCGA §§ 48-4-42 and 48-4-44 (c) ; (2) other than accepting a statutorily proper tender, a tax deed holder has no duty to cooperate in a reasonable manner with a party seeking redemption of properties under the tax deed redemption statutes; and (3) no genuine issues of material fact exist surrounding Delmont's alleged obstruction of Moxie's redemption effort and whether such actions by Delmont constituted a waiver of the tender requirements, including the form of tender. For the following reasons, we affirm the superior court's final judgment.

At the outset, we note that Moxie's appellate briefs do not comply with this Court's rules in a number of respects. Notably, many of the factual recitations do not contain proper citations to the specific page numbers of the record or transcript that are essential to consideration of the enumerated errors. See Court of Appeals Rule 25 (a) (1), (c) (2) (i). Factual representations contained in the parties’ briefs that are unsupported by evidence of record cannot be considered in the appellate process. See Crewe Acquisitions v. Kendrick , 351 Ga. App. 624, 626, n. 5, 832 S.E.2d 442 (2019). In addition, Moxie's briefs include numerous conclusory legal statements and arguments devoid of any citation of authorities – or citation to relevant authorities – in violation of Court of Appeals Rule 25 (a) (3).

Briefs that do not conform to our rules hinder our ability to determine the basis and substance of an appellant's appeal. Williams v. State , 318 Ga. App. 744, 744-745, 734 S.E.2d 745 (2012). In addition, "[t]he burden is upon the party alleging error to show it affirmatively in the record," and "[a]ppellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument." Bennett v. Quick , 305 Ga. App. 415, 416, 699 S.E.2d 539 (2010) (citations and punctuation omitted). Here, many of Moxie's appellate claims are unsupported by argument or citations to relevant authority, and those claims, therefore, may be deemed abandoned. See Court of Appeals Rule 25 (c) (2) ; Bennett , 305 Ga. App. at 416-417, 699 S.E.2d 539.

Nonetheless, we turn to the relevant facts and merits of this appeal, as best as we can discern them. The facts this Court can confirm show that in October 2017, Theodore Jackson, as Sheriff of Fulton County, conducted tax sales on behalf of Reginald Jackson, as trustee for 0 Moreland Trust, involving two parcels of property in Atlanta. Delmont acquired the fieri facias tax liens on the properties and recorded tax deeds on November 9, 2017. After the one-year period following the tax sales, Delmont began foreclosing on the right to redeem the properties from the tax sales pursuant to OCGA § 48-4-45 by publishing notices in the Fulton Daily Report. The notices tracked the statutory language in OCGA § 48-4-46, stating that "[t]he property may be redeemed any time before November 20, 2018 by payment of the redemption price as fixed and provided by law to the entity listed below at the following address: Delmont 21, LLC[,] PO Box [XXXXXX,] Atlanta, GA 30342."

During the afternoon of November 19, 2018, the last day for redemption of the properties subject to the tax deeds, Moxie purchased fee simple title to the properties (and, as a result, the right to redeem the properties subject to the tax deeds) from Reginald Jackson. Moxie's manager, Thomas Hills, purportedly recorded the warranty deeds immediately after closing and both called and texted Delmont via its manager, Thomas Murtaugh, beginning at 1:55 p.m. to obtain the payoff amounts and options for delivery of the payoff. Murtaugh testified by deposition that he was in a real estate closing on the afternoon when Hills attempted to contact him. Murtaugh returned Hills's first call at 2:03 p.m., but the return call went unanswered. When Murtaugh failed to respond to other calls and texts, Hills arranged an evening delivery to Murtaugh's home address of two personal checks on the account of Bonneau H. Dickson, Jr., a member of Moxie but a non-party to the transactions. Delmont subsequently returned Dickson's checks to Hills, indicating they were "a legally insufficient tender."

On December 3, 2018, Moxie petitioned to quiet title and for a restraining order, an accounting on and cancellation of a security deed as to both properties, attorney fees and punitive damages for willful tort (obstruction of the right of redemption), and recovery of excess bid funds from the tax sales. Moxie amended its petition several times, and specifically requested the appointment of a special master. Delmont answered, counterclaimed to quiet title, and also requested the appointment of a special master. The superior court thereafter appointed a special master, and later issued a second order giving the special master authority to determine the parties’ quiet title claims.

Delmont filed a motion for summary judgment, which it subsequently amended. Moxie also filed a motion for partial summary judgment on its quiet title claim.

The special master held a hearing, made numerous factual findings and conclusions of law, and issued a report on May 1, 2020, recommending that Moxie's motion for partial summary judgment on its quiet title claim be denied and that Delmont's motion for summary judgment on Moxie's quiet title claim be granted. The special master, however, recommended in this particular report that Delmont's motion for summary judgment on its counterclaim for quiet title be denied because Delmont had failed to introduce evidence showing that it complied with the tax deed foreclosure statutes. As to the merits of the quiet title claims, the special master found that Moxie's tender of personal checks was insufficient tender under Georgia law. Further, the special master implicitly found that, contrary to Moxie's argument, Delmont did not act in bad faith when Murtaugh failed to respond to Moxie's calls and texts on the afternoon of November 19, 2018. According to the special master,

Tom Hills for the Petitioner[,] knowing that the address to present the proceeds was a p.o. box and knowing the statutory scheme for calculating the proceeds, waited until the afternoon of the deadline to present the proceeds [and] to contact Respondent Delmont to discuss the amount[ ] and how to deliver the proceeds. Petitioner argues that Respondent Delmont acted in bad faith in not communicating with Petitioner[, but] Petitioner has not cited to any case law or statute [standing for the proposition] that a holder of a tax deed has to do anything more than what is set out in the statutes for the redemption process. There is no requirement that the holder of the tax deed has to be on standby with the file and the calculated redemption amount on the last day of the [tax deed redemption] process at the expense of the rest of his business activities.

The superior court issued a May 12, 2020 order adopting the special master's report. Moxie thereafter filed "Objections to Special Master Report, Motion to Reject or Modify, Motion for Reconsideration, Motion for New Trial[,] and Motion to Vacate," which the superior court summarily denied on November 9, 2020.¹

Delmont subsequently filed a motion for entry of a final order and decree of title. Following another hearing, the special master made numerous factual findings and conclusions of law, and she issued a November 30, 2020 report recommending that Delmont's counterclaim be granted and that Delmont be awarded fee simple title to the real property at issue. Specifically, the special master concluded that Murtaugh's affidavits demonstrated that Delmont had complied with the tax deed foreclosure process for the subject properties.

The superior court entered an order and final judgment, adopting the special master's findings and awarding Delmont fee simple title to the properties at issue. Moxie timely appeals from that final order.

1. Moxie asserts that the superior court erred in interpreting OCGA §§ 48-4-42 and 48-4-44 (c) to require that only cash and certified checks are valid tender for tax deed redemptions and, therefore, its tender of personal checks was not valid.² We disagree.

Although the rights of property owners are favored in the interpretation of laws governing the enforcement and collection of taxes through the sale of the taxpayer's property, and provisions permitting an owner to redeem his property are liberally construed,

[u]nder our well-established rules of statutory construction, we presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. In our interpretation of statutes, we thus look to the text of the provision in question, and its context within the larger legal framework, to discern the intent of the legislature in enacting it.

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