RS&A Piping & Fabrication, Inc. v. Ronald D. Kirby

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

RS&A Piping & Fabrication, Inc. a/k/a R. S. & A Piping,
Inc., Appellant,

v.

Ronald D. Kirby, Dylan T. Kirby, Treasurer For
Marlboro County, and Danny T. Williams, Respondents.

Appellate Case No. 2022-001791

Appeal From Marlboro County
Roger E. Henderson, Circuit Court Judge

Unpublished Opinion No. 2025-UP-085
Submitted February 1, 2025 – Filed March 12, 2025

REVERSED AND REMANDED

Leonard R. Jordan, Jr., of Jordan Law Firm, of Columbia,
for Appellant.

Jon Rene Josey, of Turner Padget Graham & Laney, PA,
of Florence; and Allison Truitt Burch, of Spencer Law
Firm, of Chesterfield, both for Respondents Ronald D.
Kirby, Dylan T. Kirby, and Danny T. Williams.

Andrew Foster McLeod, of McLeod & Ruffner, of
Cheraw; and Andrew F. Lindemann, of Lindemann Law
Firm, P.A., of Columbia, both for Respondent Treasurer
For Marlboro County.

PER CURIAM: RS&A Piping and Fabrication, Inc. (RS&A Piping) appeals the
circuit court's order dismissing its action to set aside a tax sale conducted by the
Marlboro County Delinquent Tax Collector (Marlboro County) and for conversion
against Ronald D. Kirby, Dylan T. Kirby, and Danny T. Williams. On appeal,
RS&A Piping argues the circuit court erred in finding the statute of limitations
barred its action to set aside the tax sale and dismissing its action for conversion
based upon its statute of limitations determination. We reverse and remand
pursuant to Rule 220(b), SCACR.

We hold the circuit court erred when it found the statute of limitations precluded
RS&A Piping's action to set aside the tax sale because Marlboro County failed to
strictly comply with statutory notice requirements in its mailing of the redemption
notice, a fundamental defect, which rendered the statute of limitations inapplicable.
See Folk v. Thomas, 344 S.C. 77, 80, 543 S.E.2d 556, 557 (2001) ("An action to
set aside a tax deed is in equity."); id. ("Therefore, [an appellate c]ourt may take its
own view of the preponderance of the evidence."); Dearybury v. Dearybury, 351
S.C. 278, 283, 569 S.E.2d 367, 369 (2002) ("[W]hen an appellate court chooses to
find facts in accordance with its own view of the evidence, the court must state
distinctly its findings of fact and the reason for its decision."); Smith v. Barr, 375
S.C. 157, 160, 650 S.E.2d 486, 488 (Ct. App. 2007) (explaining "this scope of
review does not require [appellate courts] to disregard the [circuit court]'s factual
findings because the [circuit court] saw and heard witnesses and was in a better
position to judge their credibility and demeanor"). The statute setting forth the
requirements for mailing the redemption notice following a tax sale requires the
notice be sent "neither more than forty-five days nor less than twenty days before
the end of the redemption period"; however, Marlboro County mailed the
redemption notice at least forty-seven days before the end of the redemption
period. See S.C. Code Ann. § 12-51-120 (2014) ("Neither more than forty-five
days nor less than twenty days before the end of the redemption period for real
estate sold for taxes, the person officially charged with the collection of delinquent
taxes shall mail a notice . . . to the defaulting taxpayer . . . ."). Although RS&A
Piping filed its action to set aside the tax sale over two years after the tax sale
concluded, tax sales are required to be in strict compliance with statutory
requirements. See S.C. Code Ann. § 12-51-160 (2014) ("An action for the
recovery of land sold pursuant to this chapter or for the recovery of the possession
must not be maintained unless brought within two years from the date of the sale as
provided in [s]ection 12-51-90(C) [of the South Carolina Code (2014)].");
§ 12-51-90(C) ("If the defaulting taxpayer . . . fails to redeem the item of real estate
sold at the delinquent tax sale within the twelve months provided in subsection (A)
and after the passing of an additional twelve months, the tax deed issued is
incontestable on procedural or other grounds."); Forfeited Land Comm'n of
Bamberg Cnty. v. Beard, 424 S.C. 137, 145, 817 S.E.2d 801, 804 (Ct. App. 2018)
("This [c]ourt has consistently held the enforcing agencies of government to strict
compliance with all the legal requirements surrounding tax sales." (alteration in
original) (quoting Dibble v. Bryant, 274 S.C. 481, 483, 265 S.E.2d 673, 675
(1980))). In fact, actual notice of the tax sale is insufficient to overcome lack of
adherence to the statutory notice requirements. See In re Ryan Inv. Co., 335 S.C.
392, 395, 517 S.E.2d 692, 693 (1999) ("Even actual notice is insufficient to uphold
a tax sale absent strict compliance with statutory requirements."). When there is a
failure to provide the required statutory notice, the defect is jurisdictional,
preventing the statute of limitations from running. See Beard, 424 S.C. at 146, 817
S.E.2d at 805 ("A number of courts have indicated that when a tax sale is not held
in strict compliance with [statutory requirements], such a defect is jurisdictional
and the statute of limitations may not run at all."); id. at 148, 817 S.E.2d at 806
("[T]he failure to provide the required statutory notice is the type of jurisdictional
defect . . . that renders the tax sale void and the statute of limitations
inapplicable."). Because the statute explicitly provided that the notice must be sent
no more than forty-five days before the end of the redemption period and Marlboro
County failed to strictly comply with this requirement, the tax sale was rendered
void and the statute of limitations inapplicable. See id. at 145, 817 S.C. at 804
("[A]ll requirements of the law leading up to tax sales [that] are intended for the
protection of the taxpayer against surprise or the sacrifice of his property are to be
regarded [as] mandatory and are to be strictly enforced." (alteration in original)
(quoting Donohue v. Ward, 298 S.C. 75, 83, 378 S.E.2d 261, 265 (Ct. App.
1989))). Based on the foregoing, we reverse the circuit court's order finding the
statute of limitations barred RS&A Piping's action to set aside the tax sale.
Furthermore, because the circuit court dismissed RS&A Piping's action for
conversion on the basis of the statute of limitations barring its claim to set aside the
tax sale, we also reverse the court's dismissal of the conversion claim and remand
for further proceedings consistent with this opinion. 1 Mims ex rel. Mims v.

1
Because we hold the court erred in finding the statute of limitations barred RS&A
Piping's action on the basis of a jurisdictional defect and its concomitant dismissal
of the conversion claim, we have not addressed its remaining arguments as to
whether the statute of limitations only begins to run once the purchaser is put into
possession of the property and whether Marlboro County had standing to seek
Babcock Ctr., Inc., 399 S.C. 341, 347, 732 S.E.2d 395, 398 (2012) (reversing a
trial court's ruling on service of process and findings related to lack of personal
jurisdiction and failure to prosecute because those findings were "premised on the
perceived error regarding service").

REVERSED AND REMANDED. 2

WILLIAMS, C.J., and GEATHERS and TURNER, JJ., concur.

dismissal of the conversion claim. See Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining an appellate court
does not need to address remaining issues when its resolution of a prior issue is
dispositive of the appeal).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.