Cunningham v. Cason

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

Lee Edwards
Cunningham, Respondent,

v.

Gary T. Cason
and Phillips Brothers Properties, LLC, Defendants,

Of whom
Phillips Brothers Properties, LLC is Appellant.

Appeal From Oconee County

 Alexander S. Macaulay, Circuit Court
Judge

Unpublished Opinion No. 2011-UP-379 

Heard June 8, 2011 – Filed July 25, 2011

AFFIRMED

Knox L. Haynsworth, III, of Greenville, for Appellant.

David Richard Price, Jr, of Easley, for Respondent.

PER CURIAM: Phillips Brothers Properties LLC (Phillips Brothers)
appeals the order of the trial court voiding a tax sale of the property of Lee
Edwards Cunningham and voiding the deed of the tax sale purchaser, Gary T.
Cason, to Phillips Brothers.  Phillips Brothers argues the trial court erred in
(1) ruling Cunningham's action was not barred by the statute of limitations;
(2) holding Phillips Brothers was not a bona fide purchaser for value under section
15-39-870 of the South Carolina Code (2005); (3) finding Cunningham's claim was
not barred by estoppel; (4) finding it also was not barred by laches; (5)
allowing Cunningham to collaterally attack the judgment from a prior quiet
title action; and (6) holding the absence of Cunningham's mortgagee from the
quiet title action prevented Phillips Brothers from being a bona fide purchaser
for value.  We affirm. 

1. As
to the statute of limitations, we find Phillips Brothers failed to properly challenge
the trial court's rulings and did not meet his burden of demonstrating reversible
error.  The trial court ruled Cunningham's action to void the delinquent tax
sale and deed was not barred by the statute of limitations found in sections
12-51-160 and -90(C) of the South Carolina Code (Supp. 2010) because the
defects were jurisdictional and when the defect is jurisdictional, the two-year
statute of limitations does not apply.  The court found allowing the statute to
bar the claim of a person who never received due process notice would require
an interpretation and/or application of the statutes in a manner that would
circumvent the due process requirement of the Fourteenth Amendment to the
United States Constitution. Phillips Brothers failed to challenge these rulings
and merely asserted the statute began to run on the date of sale.  Accordingly,
we find the trial court's rulings on this issue are the law of the case.  See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238,
241, 489 S.E.2d 470, 472 (1997) (stating an unappealed ruling is the law of the
case and should not be reconsidered by the appellate court); McCall v. IKON,
380 S.C. 649, 659-60, 670 S.E.2d 695, 701 (Ct. App. 2008) (noting an appealed
order comes to the appellate court with a presumption of correctness and the
burden is on appellant to demonstrate reversible error).

2. As
to Phillips Brothers' argument it is a bona fide purchaser under section 15-39-870
of the South Carolina Code, we find no error in the trial court's ruling.  Phillips
Brothers failed to challenge the trial court's holding this section does not
apply to tax sales.  Therefore, it is the law of the case.  See Judy
v. Martin, 381 S.C. 455, 459, 674 S.E.2d 151, 153 (2009) ("[A]n
unappealed ruling becomes the law of the case and precludes further
consideration of the issue on appeal.").  In addition, Phillips Brothers
sets forth no argument or citation of authority to support its contention
section 15-39-870 should also apply to tax sales and quiet title actions.  See McCall,
380 S.C. at 659-60, 670 S.E.2d at 701 (stating an appealed order comes to the
appellate court with a presumption of correctness and the burden is on
appellant to demonstrate reversible error); Harris v. Campbell, 293 S.C.
85, 87, 358 S.E.2d 719, 720 (Ct. App. 1987) (noting our court is "obliged
to reverse when error is called to our attention, but we are not in the
business of figuring out on our own whether error exists").  Furthermore,
in construing the statute according to the plain and ordinary meaning of the
words used, we find the section only applies to judicial sales by decree of
court and does not apply to tax sales or quiet title actions.  See First
Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 229, 417 S.E.2d
592, 593 (1992) ("In construing a statute, its words must be given their
plain and ordinary meaning without resorting to subtle or forced construction
to limit or expand the statute's operation."). 

As
to any contention Phillips Brothers makes that it is a common law bona fide
purchaser of value, we find this argument is not within the scope of the issues
set forth in its statement of the issues on appeal.  See Rule
208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not
set forth in the statement of the issues on appeal.").  In addition,
Phillips Brothers failed to specifically challenge on appeal many of the trial
court's reasons for holding Phillips Brothers was not a bona fide purchaser for
value including (1) because the tax sale and deed were void, Cason never had
legal title and could not transfer title to Phillips Brothers; and (2) Phillips
Brothers' interest in the property was subject to Cunningham's right of
redemption.  Accordingly, these rulings are the law of the case.  Ables v.
Gladden, 378 S.C. 558, 569, 664 S.E.2d 442, 448 (2008) (holding an unappealed
ruling is the law of the case).

3. As
to estoppel, Phillips Brothers failed to discuss the issue of estoppel in its
brief; therefore, the issue is deemed abandoned.  State v. Hiott, 276
S.C. 72, 86, 276 S.E.2d 163, 170 (1981) (stating an issue raised on appeal but
not argued in the brief is deemed abandoned and will not be considered by the
appellate court).

4. As
to laches, the trial court held, "The undisputed failures to provide
Cunningham his constitutional right to due process prevented him from learning
of the facts forming the basis of his claim, and occasioned any delay by
Cunningham in bringing this action."  We find no error in this ruling.  See Smith v. Barr, 375 S.C. 157, 164, 650 S.E.2d 486, 490 (Ct. App. 2007) (finding
equity did not require the validation of a tax sale because the failure to give
the required statutory notice renders the tax sale invalid and equity follows
the law); Provident Life & Accident Ins. Co. v. Driver, 317 S.C.
471, 479, 451 S.E.2d 924, 929 (Ct. App. 1994) ("The lached party must have
had actual knowledge or inquiry notice of the facts forming the basis of its
claim, and its failure to assert its right is irrelevant until there is a
reason or situation that demands assertion."); id. (noting the
burden of proof is upon the person claiming laches). 

5. As
to Phillips Brothers' assertion the trial court's order vesting title in
Cunningham and cancelling the deeds to Cason and Phillips Brothers was an
impermissible collateral attack on the judgment in the quiet title action,
Phillips Brothers did not raise this issue to the trial court until its motion
to alter or amend.  Accordingly, it is not properly before this court.  See Kiawah Prop. Owners Grp. v. Pub. Serv. Comm'n, 359 S.C. 105, 113, 597
S.E.2d 145, 149 (2004) (stating a party may not raise an issue in a motion to
reconsider, alter, or amend a judgment that could have been presented prior to
the judgment).

6. Finally,
as to Phillips Brothers' argument the trial court erred in finding the absence
of Cunningham's mortgagee from the quiet title action established Phillips
Brothers was not a bona fide purchaser, we need not address this issue because
we affirm the trial court for the above stated reasons.  See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591,
598 (1999) (holding an appellate court need not review remaining issues when
its determination of a prior issue is dispositive of the appeal).

AFFIRMED.

HUFF,
WILLIAMS, and THOMAS, JJ., concur.