PARK SOLUTIONS, LLC v. DeKALB COUNTY BOARD OF TAX ASSESSORS

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 23, 2016

In the Court of Appeals of Georgia
A15A2136. PARK SOLUTIONS, LLC v. DEKALB COUNTY
BOARD OF TAX ASSESSORS.

MCFADDEN, Judge.

The issue in this appeal is whether a sheriff’s sale of certain real property was

an “arm’s length, bona fide” sale under OCGA § 48-5-2 (3) so that the sale price

constituted the property’s maximum allowable fair market value for the next taxable

year. Because we find that the sheriff’s sale was such an arm’s length, bona fide sale,

the superior court’s ruling to the contrary was erroneous and must be reversed.

On June 4, 2013, Park Solutions, LLC bought a tract of land for $25,000 at a

sheriff’s sale in DeKalb County. The sheriff’s deed provided that Mollye Devault and

Robert Christopher Taylor were the owners of the property; that the owners made the

deed by and through the DeKalb County sheriff, acting in his official capacity; that
the sheriff conducted the sale to satisfy a default judgment of $37,796 obtained by

DRST Holdings LTD; that the sale was held “at the usual place for conducting

[s]heriff’s sales in DeKalb [C]ounty before the [c]ourthouse door;” and that Park

Solutions was the highest bidder at the “public outcry.”

After the sale, the county appraised the value of the property as $146,900 for

the 2014 tax year, and Park Solutions appealed that valuation to the DeKalb County

Board of Tax Assessors. The board of tax assessors issued a decision finding that the

fair market value of the property was $137,700. Park Solutions appealed that decision

to the DeKalb County Board of Equalization, which upheld the county tax assessor’s

fair market value finding of the property as $137,700. Park Solutions then appealed

to the superior court, asserting that pursuant to OCGA § 48-5-2 (3), the maximum

allowable fair market value of the property for the 2014 tax year was the $25,000

price that it had paid at the sheriff’s sale. The trial court rejected the argument,

finding that the sheriff’s sale was not an arm’s length, bona fide sale under that statute

because such “judicial foreclosure sales are not mentioned in the statute and also the

parties to the sale are related and affiliated.” The trial court concluded that the county

had accurately determined the fair market value of the property as of January 1, 2014,

to be $137,700. Park Solutions appeals from the superior court’s final order.

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 1. Sheriff’s sale.

Park Solutions asserts that the trial court erred in finding that the sheriff’s sale

in this case was not governed by OCGA § 48-5-2 (3) because such judicial

foreclosure sales are not mentioned in the statute. We agree with the assertion.

OCGA § 48-5-2 (3), which is part of the code governing ad valorem taxation

of property, provides, in pertinent part:

“Fair market value of property” means the amount a knowledgeable
buyer would pay for the property and a willing seller would accept for
the property at an arm’s length, bona fide sale. . . . Notwithstanding any
other provision of this chapter to the contrary, the transaction amount of
the most recent arm’s length, bona fide sale in any year shall be the
maximum allowable fair market value for the next taxable year.

The term “arm’s length, bona fide” sale as used in this code section is defined as

“mean[ing] a transaction which has occurred in good faith without fraud or deceit

carried out by unrelated or unaffiliated parties, as by a willing buyer and a willing

seller, each acting in his or her own self-interest, including but not limited to a

distress sale, short sale, bank sale, or sale at public auction.” OCGA § 48-5-2 (.1)

(emphasis supplied).

Thus, OCGA § 48-5-2 (3) “provides the method for assessing [fair market]

value as of [January 1 of the applicable tax year] . . ., with its focus on the actual

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market-determined value of property on the actual date the property was acquired,

rather than its value as much as a year later[.]” Columbus Bd. of Tax Assessors v.

Yeoman, 293 Ga. 107, 109 (2) (744 SE2d 18) (2013). “This amounts to a freeze on

the ad valorem tax value of property for one year. [Cit.]” Ballard v. Newton County

Bd. of Tax Assessors, 332 Ga. App. 521, 522 (773 SE2d 780) (2015).

In finding that this freeze on the value of the property did not apply to the

sheriff’s sale in this case, the trial court relied on OCGA § 48-5-1, which provides

that “[t]he intent and purpose of the tax laws of this state are to have all property and

subjects of taxation returned at the value which would be realized from the cash sale,

but not the forced sale, of the property and subjects as such property and subjects are

usually sold except as otherwise provided in this chapter.” (Emphasis supplied.) The

trial court then reasoned that foreclosure sales are considered to be forced sales and

therefore “[r]eading [OCGA] § 48-5-2 (.1) to include judicial foreclosure sales would

be contrary to the expressed intent of Title 48 to exclude values realized as a result

of the forced sale of a property.”

However, the trial court overlooked the plain language in OCGA § 48-5-1

providing that it applies “except as otherwise provided in this chapter.” Likewise, the

controlling portion of OCGA § 48-5-2 (3) itself expressly provides that it applies

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“[n]otwithstanding any other provision of this chapter to the contrary[.]” We must

construe these statutes together and harmonize them to ascertain the legislative intent.

Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394, 397 (1) (734 SE2d 84)

(2012). In so doing, even if we assume, without deciding, that there is some

inconsistency between them, it is apparent from the plain language of both code

sections that, notwithstanding anything to the contrary, the legislative intent was to

allow the specific provision of a one-year freeze on ad valorem tax value set forth in

§ 48-5-2 (3) to control over the general expression of purpose set forth in § 48-5-1.

See Hubert Properties, LLP v. Cobb County, 318 Ga. App. 321, 323 (1) (733 SE2d

373) (2012) (specific statute will prevail over a general statute to resolve any

inconsistency between them).

Moreover, the trial court also erred in concluding that the absence of the term

“foreclosure sale” from OCGA § 48-5-2 (.1) indicates that such sales were excluded

by the legislature from that code section’s definition of an arm’s length, bona fide

sale. As recited above, OCGA § 48-5-2 (.1) defines an arm’s length, bona fide sale

as “including but not limited to a distress sale, short sale, bank sale, or sale at public

auction.” (Emphasis supplied.) Contrary to the trial court’s interpretation of this code

section, the legislature’s use of the phrase “including but not limited to” is not

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restrictive or exclusive, and instead “reflects broad language of illustration or

enlargement. [Cit.]” Hendry v. Hendry, 292 Ga. 1, 2 (1), n. 2 (734 SE2d 46) (2012).

Indeed, two of the examples of the types of sales expressly included in the

definition of an arm’s length, bona fide sale set forth in OCGA § 48-5-2 (.1) - distress

sales and public auctions - clearly include the foreclosure sale executed by the sheriff

in this case. “The statute does not define the . . . terms [‘distress sale’ or ‘public

auction,’] and we therefore look to their plain and ordinary meanings as defined by

dictionaries.” Skelhorn v. State, 332 Ga. App. 782, 787 (3) (b) (773 SE2d 782) (2015)

(citation and punctuation omitted). Black’s Law Dictionary (10th ed. 2014), defines

the term “distress sale” as “[a] form of liquidation in which the seller receives less for

the goods than what would be received under normal sales conditions,” and as a

“foreclosure . . . sale.” Under this ordinary meaning of the phrase, the sheriff’s

foreclosure sale in this case was a distress sale as contemplated by the statute.

Furthermore, Black’s Law Dictionary (10th ed. 2014) defines the word

“auction” as being “[a] public sale of property to the highest bidder,” and it defines

the term “public sale” as meaning “[a] sale made after public notice, as in an auction

or sheriff’s sale.” Consistent with this dictionary definition, another statute in our

official code provides that “the term ‘public sale’ means any sale, the notice of which

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must by law in any manner be given to the public.” OCGA § 9-13-160 (a). Thus,

under these definitions, the sheriff’s sale in this case was a public auction at which

Park Solutions was the high bidder.

“OCGA § 48-5-2 (.1) expressly defines an arm’s length, bona fide sale to

include those types of transactions where the seller might suffer a financial loss[,]

including distress sales . . . or sales at public auction[].” CPF Investments v. Fulton

County Bd. of Assessors, 330 Ga. App. 744, 749 (769 SE2d 159) (2015) (punctuation

omitted). Here, because the sheriff’s sale of the subject property was a distress sale

and public auction, it was an arm’s length, bona fide sale under the plain terms of

OCGA § 48-5-2 (.1). Consequently, the board of tax assessors could not “assess the

property at a higher value in the year following the sale, regardless of whether the

[b]oard believe[d] the sale price reflect[ed] the actual fair market value of the

property.” CPF Investments, supra at 747, n. 4. The trial court’s findings to the

contrary with regard to the sheriff’s sale in this case were erroneous and must be

reversed. Compare Ballard, supra at 525 (holding that a tax sale purchaser receives

only a defeasible fee interest and since fair market value “is not defined as the amount

a buyer would pay to purchase, and a willing seller accept, for a defeasible interest

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in property, a tax sale does not qualify as an arm’s length, bona fide sale such that the

one-year freeze of OCGA § 48-5-2 (3) would apply.”) (emphasis in original).

2. Parties to the sale.

The trial court also found that the sheriff’s sale was not an arm’s length

transaction under OCGA § 48-5-2 (.1) because the parties to the 2013 sheriff’s sale

were DRST and Park Solutions and those parties were related in that the president of

DRST and the manager of Park Solutions were, respectively, father and son.

However, regardless of the relationship between the father and son and the respective

corporate entities, the factual premise of the trial court’s ruling is flawed because

DRST was not a party to the sale.

As the sheriff’s deed plainly shows, the parties to the sale were the sheriff as

the grantor, acting in his official capacity on behalf of the property owners, and Park

Solutions as the grantee after being the highest bidder for the property at the public

auction. See Associates Financial Svcs. Co. v. Johnson, 128 Ga. App. 712, 713 (197

SE2d 764) (1973) (sheriffs who are legally authorized to make sales at a public outcry

represent the sellers of the property). Thus, contrary to the trial court’s finding, DRST

simply was not a party to the sheriff’s sale, which instead was an arm’s length sale

between the unrelated and unaffiliated parties of the grantor sheriff and the grantee

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Park Solutions. Accordingly, the trial court’s finding that the transaction was not an

arm’s length sale was erroneous. “In light of the foregoing [errors], the [final] order

of the trial court . . . is reversed.” CPF Investments, supra at 750.

Judgment reversed. Ellington, P. J., concurs and Dillard, J., concurs in the

judgment only.

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 A15A2136. PARK SOLUTIONS, LLC v. DEKALB COUNTY

BOARD OF TAX ASSESSORS.

DILLARD, Judge, concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the

majority opinion. As a result, the majority’s opinion decides only the issues presented

in the case sub judice and may not be cited as binding precedent. See Court of

Appeals Rule 33 (a).