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2008-UP-413 - 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Unpublished Opinion No. 2008-UP-413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.