Sherman v. Development Authority

730 S.E.2d 113, 317 Ga. App. 345, 2012 Fulton County D. Rep. 2605, 2012 WL 3104819, 2012 Ga. App. LEXIS 707
CourtCourt of Appeals of Georgia
DecidedJuly 5, 2012
DocketA12A0587
StatusPublished
Cited by9 cases

This text of 730 S.E.2d 113 (Sherman v. Development Authority) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherman v. Development Authority, 730 S.E.2d 113, 317 Ga. App. 345, 2012 Fulton County D. Rep. 2605, 2012 WL 3104819, 2012 Ga. App. LEXIS 707 (Ga. Ct. App. 2012).

Opinion

Mikell, Presiding Judge.

John S. Sherman appeals from a Fulton County Superior Court judgment that validated and confirmed certain revenue bonds and bond security. For the reasons that follow, we vacate the judgment and remand the case.

In accordance with the Revenue Bond Law,1 the State of Georgia initiated a bond validation proceeding in July 2011 by filing a “Petition and Complaint for Bond Validation,” naming as defendants the Development Authority of Fulton County (“DAFC”) and Lowe’s Home Centers, Inc. (“Lowe’s”). The pleading sought a judgment confirming and validating DAFC’s issuance of proposed taxable revenue bonds and related security as required by the Development Authorities Law.2 The bonds were intended to finance the acquisition, renovation, and equipping of a warehouse distribution center in Fulton County (the “Project”) that would be developed by Lowe’s. DAFC and Lowe’s filed acknowledgments of service and answers.

The petition sought to create a bond transaction leasehold estate,3 where in consideration for the issuance of the bonds, Lowe’s agreed to transfer fee simple title in the Project to DAFC, and DAFC and Lowe’s agreed to execute a lease agreement under which Lowe’s would have the right to possession of the Project for a term of ten years. At the [346]*346conclusion of the lease term, Lowe’s would have a right to acquire the Project for nominal consideration.

In connection with the transaction, the Fulton County Board of Tax Assessors (the “Board”), DAFC, and Lowe’s executed a Memorandum of Agreement (“Memorandum”) establishing the valuation methodology the Board was to use in assessing ad valorem taxes on the leasehold estate.4 Because the transaction gives Lowe’s the right to acquire a fee simple interest in the Project for a nominal amount after the expiration of the ten-year lease period, DAFC’s appraisal expert, Henry Wise, testified at the validation hearing that the real value of Lowe’s leasehold interest is in that “reversionary interest.” Accordingly, the Memorandum dictates that the Board will determine the fee simple market value of the Project utilizing the income approach, and then will determine the value of Lowe’s leasehold interest by utilizing a “ramp-up schedule.” The “ramp-up schedule” assumes that the value of the leasehold interest in the first year of the lease is 50 percent of the fee simple market value, and that value increases by five percent per year as the ten-year term progresses, moving closer to the benefit of the reversionary interest.

Sherman, as a resident of Fulton County, intervened in the proceedings and filed a pleading captioned “Objections to Bond Validation, Denial of Bond Validation Petition Allegations and Plea in Abatement.”5 Sherman’s objection listed numerous grounds for denying the state’s petition, and requested that the trial court provide an order setting forth findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a).

The bond validation proceeding was heard by the trial court, but counsel for Sherman did not appear and provide any argument. After a hearing, the trial court issued an order validating and confirming the bonds and bond security (the “Validation Order”).

The parties agree that the facts in this case are not in dispute. Accordingly, “this Court conducts a de novo review of the record in determining whether the trial court committed plain legal error.”6

[347]*3471. Sherman first contends that the Validation Order is “void on its face,” arguing that the trial court did not have personal jurisdiction over Lowe’s because its acknowledgment of service and answer were signed by Gary E. Wyatt, the senior vice president of Lowe’s, rather than a Georgia licensed attorney, as required by law.7 Sherman did not raise this argument in the trial court below. As a general rule, we will not consider issues raised for the first, time on appeal.8 Citing OCGA § 9-12-16, Sherman argues that an exception to this rule applies because the trial court lacked personal jurisdiction over Lowe’s due to a faulty acknowledgment of service. OCGA § 9-12-16 provides that “[t]he judgment of a court having no jurisdiction of the person or the subject matter ... is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” Pretermitting whether Lowe’s executed a valid acknowledgment of service, we find that Lowe’s waived any possible objections to personal jurisdiction it might have had by appearing and filing a pleading on the merits of the case.9 Because Lowe’s raised no objection to personal jurisdiction of the trial court in this matter, we find that the trial court had personal jurisdiction over the corporation and, accordingly, Sherman’s enumeration is without merit. Further, we cannot consider Sherman’s enumeration of error in regards to Lowe’s answer for the first time on appeal because it does not deal with issues of personal jurisdiction.

2. The Validation Order held that the parties had the authority to enter into the Memorandum and held that the Memorandum was valid and enforceable. Sherman contends that the trial court was without jurisdiction to rule upon the Memorandum’s validity, arguing that pursuant to the statutes constituting the Revenue Bond [348]*348Law,10 a bond validation order may address only the validity of the bonds and the security for the payment of the bonds. We disagree.

The bonds at issue in this case are not issued under the Revenue Bond Law,11 as Sherman contends. Rather, they are issued under the Development Authorities Law (the “Act”).12 Bonds issued under the Act are required to undergo the validation process set forth in the validation provisions set forth in the Revenue Bond Law.13 These validation procedures dictate, among other things, how the validation hearing is to be noticed14 and tried and direct that the “judge of the superior court shall proceed to hear and determine all questions of law and of fact in the case and shall render judgment thereof.”15 Unlike bonds issued under the Revenue Bond Law, bonds issued under the Act must be payable solely from privately paid proceeds pledged to repay the bonds, including rental or sale proceeds.16 Accordingly, in a transaction such as this one, in which the bonds will be paid through lease proceeds, all agreements relating to the lease are properly within the court’s jurisdiction. Because the Memorandum is referenced by the lease and dictates the methodology to be used to value Lowe’s leasehold estate for ad valorem tax purposes, which is necessary “to provide [Lowe’s] with sufficient information and certainty upon which it can base its decision” to enter into the lease that secured the bond transaction, it constitutes an integral part of the lease agreement and was properly before the trial court.17

3.

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Cite This Page — Counsel Stack

Bluebook (online)
730 S.E.2d 113, 317 Ga. App. 345, 2012 Fulton County D. Rep. 2605, 2012 WL 3104819, 2012 Ga. App. LEXIS 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-development-authority-gactapp-2012.