Robert Porche, in His Capacity as the Tax commissioner/collector for the City of Woodstock, Georgia v. Juan Pablo

• Court: Court of Appeals of Georgia
• Decided: January 15, 2014
• Docket: A13A1852
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, 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/

January 15, 2014

In the Court of Appeals of Georgia A13A1852; A13A1853. PORCHE, IN HIS CAPACITY AS THE TAX COMMISSIONER/COLLECTOR FOR THE CITY OF WOODSTOCK, GEORGIA v. NORIEGA et al.

MILLER, Judge.

In these consolidated cases, Robert Porche, the Tax Commissioner for the City

of Woodstock (the “City”), appeals from the superior court’s order denying the City’s

petitions for ad valorem tax lien foreclosure of adjoining townhomes owned by Juan

Pablo Noriega, Emilio Rafael Noriega and Ana Lilian Noriega. Porche contends that

the superior court erred in (1) holding that the petitions were not in compliance with

OCGA § 48-4-78, and (2) the City’s nuisance ordinance is unenforceable under

OCGA § 41-2-9. Discerning no error, we affirm. When, as here, a question of law is at issue we owe no deference to the superior

court’s ruling and apply a de novo standard of review. See Artson, LLC v. Hudson,

322 Ga. App. 859 (747 SE2d 68) (2013).

The record shows that Ana Noriega is the owner of a townhome located at 137

Woodberry Court in Woodstock, Georgia - Lot 17 Woodberry Field Subdivison. Juan

and Emilio Noriega own a townhome located at 139 Woodberry Court - Lot 18

Woodberry Field Subdivison. In June 2010, the City filed a municipal court nuisance

complaint seeking abatement of a cross-tie retaining wall spanning the back of five

lots (Lots 17-21) in the Woodberry Field Subdivision, including the Noriegas’

townhomes.

Following a hearing in August 2010, the municipal court entered an order

finding that the retaining wall was a nuisance and should be abated by the owners of

the five lots. The municipal court ordered the abatement of the nuisance according to

the following time constraints: submission of a plan for remediation to the City for

approval within 30 days; commencement of construction pursuant to the remediation

plan within 30 days of the City’s approval of the plan; and completion of the

remediation plan within 90 days of commencement of the physical construction

process.

2 Approximately 10 months later, the municipal court entered a second order

(hereinafter the “Final Nuisance Order”) finding that the nuisance had not been

abated and again ordered the lot owners to remediate the nuisance within similar time

constraints.

After the lot owners failed to comply with the Final Nuisance Order, the City

hired a contractor to abate the nuisance. Thereafter, on October 31, 2012, the City

recorded abatement liens against the Noriegas’ property (Woodberry Field

Subdivision Lots 17-18) in the amount of $66,478.69, including $44,750 paid to abate

the nuisance and $21,728.69 in attorney fees and expenses.

On November 15, 2012, Porche filed petitions against the Noriegas in the

Superior Court of Cherokee County for in rem ad valorem tax foreclosure of the

abatement liens. The petitions named the Noriegas because they were the owners of

137 and 139 Woodbury Court, but did not name the actual properties as respondents.

The Noreigas responded to the City’s petitions. Following a hearing, the superior

court denied the petitions, finding that they were not brought against the property to

be foreclosed as statutorily required.1

1 The superior court also found that the abatement liens were void because they were based on City Code sections that do not comply with the provisions of OCGA § 41-2-9, which is the only means by which counties and municipalities may place

3 1. Porche contends that the superior court erred in finding that the petitions

were not brought in compliance with OCGA § 48-4-78. We disagree.

OCGA §§ 48-4-76 et seq. sets forth the statutory procedures for judicial in rem

tax foreclosure of delinquent ad valorem taxes. In rem actions are proceedings

primarily against the property itself, even though they are subject to the claims of

persons owning an interest therein. See Ga. Dept. of Transp. v. Woodard, 254 Ga.

587, 589 (331 SE2d 557) (1985) (condemnation proceedings are in rem, against the

property itself, and failure to give notice to true owner of property did not void

completed proceeding); Stroupper v. McCauley, 45 Ga 74, 76 (1872 Ga. LEXIS 162)

(1872) (in rem judgments are founded on proceedings against the thing or the subject

matter itself, not against the person).

OCGA § 48-4-78 provides that the petition for in rem ad valorem tax

foreclosure shall by filed in the superior court of the county in which the property is

located, and the petition “shall have form and content substantially identical to that

form as provided in subsection (g) of this Code section.” (Emphasis supplied.) OCGA

§ 48-4-78 (b). The statute further provides that such petitions shall be filed against

the property for which taxes are delinquent. (Emphasis supplied.) OCGA § 48-4-78

abatement liens against private property.

4 (c). Finally, the statute provides that in rem ad valorem tax foreclosure petitions shall

be brought against the following respondents: “__ ACRES OF LAND LYING AND

BEING IN LAND LOT __, DISTRICT __, ______ COUNTY, GEORGIA” and the

owner(s) of the property. OCGA § 48-4-78 (g).

Porche argues that the petitions substantially complied with OCGA § 48-4-78

(g) because they were brought against the Noriegas as owners of the properties.

Where a statute is plain, unambiguous and susceptible to only one reasonable

construction, however, this Court must construe the statute according to its terms and

“the legislature’s clear intent will not be thwarted by invocation of the rule of

‘substantial compliance.’ “ (Citations and punctuation omitted.) Cook v. NC Two LP,

289 Ga. 462, 464 (712 SE2d 831) (2011).

Here, OCGA § 48-4-78 clearly and unambiguously requires petitions for in rem

ad valorem tax foreclosure to be brought against the property for which the taxes are

delinquent. The petitions show on their face that they failed to comply with the clear

and unambiguous requirements of OCGA § 48-4-78, because they were filed against

the Noriegas as owners of the properties, rather than being filed against the properties

for which the taxes were delinquent. Accordingly, the trial court properly found that

the petitions were not in compliance with OCGA § 48-4-78.

5 2. In light of our holding in Division 1, we need not address Porche’s

remaining enumerations of error.

Judgment affirmed. Barnes, P. J., and Ray, J., concur.