Terry v. Brown

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Blondell Terry, Respondent,

v.

Emory Brown and
Virginia R. Hamilton as Delinquent Tax Collector, Defendants,

Of whom Emory
Brown is Appellant.

 

Appeal From Berkeley County

Robert E. Watson, Master-In-Equity

Unpublished Opinion No. 2008-UP-413

Submitted May 1, 2008 – Filed July 21,
2008   

AFFIRMED

Ronald L. Richter, of Charleston, for Appellant.

Ernie L. Mixon, of Monks Corner, for Respondent.

PER CURIAM:  Emory
Brown appeals the order of the master finding the tax sale of Blondell Terry’s
property was void.  Specifically, Brown maintains the tax sale notices did not
violate the statutory requirements and Terry waived her rights to challenge the
tax sale by accepting the surplus proceeds of the sale.  We affirm.[1]   

FACTS

Terry
failed to timely pay her taxes for the year 2001.  Pursuant to statutory
authority, the county mailed Terry a notice of delinquency.  When thirty days passed
with no response, the county mailed Terry a certified notice with restrictive
delivery, which was returned unclaimed after three attempts to notify Terry.  Because
Terry did not claim her notice, the county posted a tax sale notice on Terry’s
property.  The county also advertised the sale of the property in the local
newspaper for three consecutive weeks.  Brown was the successful bidder at the
tax sale and obtained the tax deed for the property on March 18, 2004.  After
the tax sale, Terry was notified by mail she was entitled to a check for the surplus
proceeds of the sale of her property, which she picked up and deposited into
her bank account.

After
the tax sale, Terry brought an action to set aside the tax deed based on
defects in the sale.  On June 23, 2006, the matter was referred to the master
and the case was tried on October 3, 2006.  During the trial, Terry testified
she was unaware the check came from the sale of her property.  Terry also
testified she never received notice by mail or posting that her house was going
to be sold at a tax sale.  Terry’s son, who lived with his mother, also
testified he never saw a posting on the land.  During the trial, the defendants
did not present a copy of the notice of delinquent property taxes mailed to
Terry.  The defendants also did not present any testimony from the employees
who posted the notice on Terry’s land or from the clerk who gave Terry the
check from the sale of her land.

On
March 1, 2007, the master entered a final order finding the tax sale void for
defects in the notices that created artificial deadlines and contradicted the
statutory language.  The master also found Terry did not waive her rights to
challenge the tax sale even though she accepted and deposited a check for the
surplus proceeds from the sale of her property.  Brown filed a Rule 59(e),
SCRCP, motion to reconsider, which was denied after a hearing on the motion.  This
appeal followed.     

STANDARD OF REVIEW

“Our scope of review for a case heard by a [m]aster
permits us to determine facts in accordance with our own view of the
preponderance of the evidence.”  Smith v. Barr, 375 S.C. 157, 160, 650
S.E.2d 486, 488 (Ct. App. 2007); see also Folk v. Thomas, 344
S.C. 77, 80, 543 S.E.2d 556, 557 (2001) (finding an action to set aside a tax
deed rests in equity, thus, an appellate court may take its own view of the
preponderance of the evidence).  However, we are not required to disregard the
factual findings of the master, who saw and heard the witnesses and was in a
better position to judge their credibility.  Smith, 375 at 160, 650
S.E.2d at 488.

LAW / ANALYSIS

I.  Delinquent
Tax Notices

Brown
alleges the master erred by ruling the tax sale notices contained artificial
deadlines for the payment of taxes, rendering the tax sale void.  We disagree. 

Section 12-51-40 of
the South Carolina Code provides the procedure for notifying delinquent taxpayers
that property will be sold to collect owed tax monies.  S.C. Code Ann. §
12-51-40 (Supp. 2007).  Tax sales of property pursuant to the statute must be
conducted in strict compliance with its requirements.  In re Ryan Inv. Co.,
335 S.C. 392, 395, 517 S.E.2d 692, 693 (1999).  In Rives v. Bulsa, 325
S.C. 287, 293, 478 S.E.2d 878, 881 (Ct. App. 1996), the court determined the
notice provision in the statute is a jurisdictional requirement:

[T]he
general law is that where a statute requires as a condition precedent to
foreclosing a taxpayer’s rights in property sold for taxes that he be given
notice of his right to redeem, such a requirement is generally regarded as
jurisdictional, and therefore, the owner’s right of redemption cannot be cut
off unless the required notice is given. 

 “Failure to give the
required notice is a fundamental defect in the tax proceedings which renders the
proceedings absolutely void.”  Id.

Section 12-51-40(b)
mandates “[a]ll delinquent notices shall specify that if the taxes,
assessments, penalties, and costs are not paid before a subsequent sales
date, the property must be duly advertised and sold for delinquent property
taxes, assessments, penalties, and costs.” (emphasis added).  Section 12-51-40(c)
further provides if a certified mail notice is returned, a notice must be
posted “at one or more conspicuous places on the premises, in the case of real
estate, reading: ‘Seized by person officially charged with the collection of
delinquent taxes of (name of political subdivision) to be sold for delinquent
taxes.’”  S.C. Code Ann. § 12-51-40 (Supp. 2007).

In Hawkins v.
Bruno Yacht Sales, Inc., 353 S.C. 31, 577 S.E.2d 202 (2003), the supreme court
held the two notices at issue created artificial deadlines for payment, which contradicted
the statutory language.  The language in the first notice stated, “[i]f not
paid on or before 31 August this property will be duly advertised and sold for
delinquent taxes as described above on the first Monday in October this year.”  Id. at 37, 577 S.E.2d at 205.  The second notice stated the property
was subject to a sale on October 2, but also provided “[a]ll tax payments must
be received by September 15, 1995 to avoid your name and property being
advertised in The Beaufort Gazette and The Island Packet.”  Id. 

The supreme
court found the August and September deadlines were artificial because the
sales date was October 2, and the deadlines gave the impression the taxes had
to be paid weeks before the sale date.  Id. at 38, 577 S.E.2d at 206. 
The court added “the statute does not provide that the County set a date, other
than the sales date, after which the taxpayer can no longer pay his delinquent
taxes before the County can begin advertising.”  Id.

Here,
the notice mailed to Terry set the date of sale for her property as November,
4, 2002; however, the notice also provided, “if the outstanding taxes,
assessments, penalties and costs due on the property described below are not
paid before October 10, 2002, the property must be advertised for sale in a
newspaper of general circulation.”  The additional language in the notice gave
the impression Terry had to pay the taxes weeks before the date of sale, which created
an artificial deadline for payment of taxes before the set sales date of November
4, 2002.  Additionally, the notice posted on Terry’s property set the sale date
as November, 4, 2002, but contained additional language stating “if not paid by
October 10, 2002 a total cost $100.00 will accrue [for expenses related to the
levy, seizure, and sale of the property].”  This language also created an
artificial deadline. 

Therefore,
because the tax sale notices contained additional language and dates other than
the sales date, they created artificial deadlines that contradicted the
statutory language.  See id.  Thus, the master correctly found
the tax sale was void.

II. 
Surplus Proceeds

 Brown
also asserts Terry waived her right to object to the sale by accepting and
depositing a check for the surplus proceeds of the tax sale.  We disagree.

“A
waiver is a voluntary and intentional abandonment or relinquishment of a known
right.”  Janasik v. Fairway Oaks Villas Horizontal Prop. Regime, 307
S.C. 339, 344, 415 S.E.2d 384, 387 (1992).  “Generally, the party claiming
waiver must show that the party against whom waiver is asserted possessed, at
the time, actual or constructive knowledge of his rights or of all the material
facts upon which they depended.”  Id. at 344, 415 S.E.2d at 387-88.  “The
burden of proof of waiver is on the party asserting it.”  NationsBank v.
Scott Farm, 320 S.C. 299, 303, 465 S.E.2d 98, 100 (Ct. App. 1995).

The
master found Brown did not present any credible evidence to establish Terry
intended to waive her rights to challenge the tax sale.  Terry testified she
was unaware the money was from the tax sale of her property.  Brown did not
present any testimony to rebut Terry’s testimony.  Therefore, the master
correctly found Terry did not waive her claims against Brown regarding the sale
of her property.

CONCLUSION

Accordingly,
the order of the master is

AFFIRMED.

HEARN,
C.J., and SHORT and KONDUROS, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.