Opinion
NO. 2012-CA-001537-MR
01-10-2014
SOUTHERN TAX SERVICES, LLC APPELLANT v. TAX EASE LIEN INVESTMENTS 1, LLC; P & P PROPERTIES OF MUHLENBERG COUNTY, LLC; CITY OF GREENVILLE, KENTUCKY; JAMOS FUND I, LP; U.S. BANK, NATIONAL ASSOCIATION AS SUCCESSOR IN INTEREST TO WACHOVIA CUSTODIAN FOR SASS MUNI V DTR; AND COMMONWEALTH OF KENTUCKY, COUNTY OF MUHLENBERG, BY AND ON RELATION OF JONATHAN MILLER, SECRETARY OF FINANCE AND ADMINISTRATION CABINET APPELLEES
BRIEF FOR APPELLANT: William Miles Arvin, Jr. Nicholasville, Kentucky NO BRIEF FOR APPELLEES
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 10-CI-00737
OPINION AND ORDER
DISMISSING
BEFORE: CAPERTON, CLAYTON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Southern Tax Services, LLC, (Southern Tax) brings this appeal from an August 7, 2012, Final Order of the Muhlenberg Circuit Court denying Southern Tax's motion for summary judgment under Kentucky Revised Statutes (KRS) 134.452. We dismiss as interlocutory.
On April 27, 2008, Southern Tax purchased a delinquent ad valorem tax bill from the Muhlenberg County Sheriff (Tax Certificate No. 13374). The delinquent taxes were owed for the tax year of 2007 upon real property located at 661 Joyce Avenue in Greenville, Kentucky. The Tax Certificate listed the owners of the real property as Brady and Nichole Ray. However, the real property was, in fact, owned in fee simple by P & P Properties of Muhlenberg County, LLC (P & P Properties) since December 2005.
By letter dated June 14, 2008, Southern Tax sent written notice to the Rays at 661 Joyce Avenue advising the Rays that it had purchased the tax certificate, interest was accruing thereupon, and requesting payment. The record reflects that no payment was made to Southern Tax.
Subsequently, Tax Ease Lien Investments 1, LLC (Tax Ease) filed an action seeking to collect unrelated and delinquent ad valorem real property tax liens and to foreclose upon the real property located at 661 Joyce Avenue, subject to the statutory tax lien. P & P Properties was named as a defendant as it held fee simple title to the real property. Southern Tax was also named as a defendant as it held a lien claim through the tax certificate upon the real property. Southern Tax then filed a cross-claim seeking recovery upon the tax certificate and judgment for the delinquent property tax, interest, attorney's fees and related costs. Ultimately, Southern Tax filed a motion for summary judgment seeking recovery of same.
There were other named defendants; however, these defendants are not relevant to this appeal.
By Final Order entered August 7, 2012, the circuit court denied the motion for summary judgment and concluded that Southern Tax "failed to provide notice to P & P [Properties] as required by statute." The circuit court's order included finality language per Kentucky Rules of Civil Procedure (CR) 54.02. This appeal follows.
Ordinarily, an order denying a motion for summary judgment is inherently interlocutory and nonappealable. A narrow exception has been recognized where the order denying summary judgment involves only an issue of law and presents no factual issue for resolution. See Transp. Cabinet, Bureau of Highways, Com. of Ky. v. Leneave , 751 S.W.2d 36 (Ky. App. 1988). In particular, it has been recognized:
The exception applies where: (1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment . . . .Transp. Cabinet, Bureau of Highways, Com. of Ky. v. Leneave , 751 S.W.2d 36, 37 (Ky. App. 1988). Southern Tax argues that the August 7, 2012, final order denying summary judgment is appealable under the above exception as only an issue of law is implicated. We, however, disagree and believe that material issues of fact are presented.
Southern Tax is solely challenging the circuit court's denial of its motion for summary judgment. Specifically, Southern Tax maintains that it complied with KRS 134.490 and KRS 134.500 by mailing written notice to the Rays within fifty days of purchasing the tax certificate; thus, it is entitled to all amounts reasonable under KRS 134.452. In support thereof, Southern Tax maintains:
We are concerned with Kentucky Revised Statues (KRS) 134.452, KRS 134.500, and KRS 134.490, as these statutes existed in 2008.
[I]t is undisputed that [Southern Tax] mailed the required notice letter to the Rays, who were listed as the owners of record in the records of the Muhlenberg PVA. [Southern Tax] does not deny that it did not send the notice to P&P [Properties]. [Southern Tax] did not send notice to P&P [Properties] because P&P [Properties] was not listed as the owner of the Property at the records of the Muhlenberg PVA. . . .Southern Tax Brief at 3. However, the facts are not so straightforward.
Under KRS 134.490 and KRS 134.500(3), a third-party purchaser of a tax certificate must give notice within fifty days of purchasing same to the property owners as listed on the records of the property valuation administrator. Here, Southern Tax undisputedly purchased the tax certificate on April 27, 2008, and sent notice by letter dated June 14, 2008, to the Rays. Nevertheless, there appears to be an issue of fact as to whether in June 2008 the Rays were, in fact, listed as owners of the subject real property in the records of the Muhlenberg County Property Valuation Administrator. This is a crucial fact as Southern Tax mailed the statutory notice to the Rays on June 14, 2008. Based on our analysis, we conclude that the motion for summary judgment was considered prematurely and dismiss this appeal as interlocutory. We further direct the circuit court to conduct a trial on all disputed issues in accordance with CR 39.02 and CR 52.01.
There is, of course, no dispute that Southern Tax Services, LLC, may recover its acquisition cost for Tax Certificate No. 13374. This appeal only involves the issue of whether Southern Tax may recover additional sums, including attorney's fees, pursuant to applicable law.
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Now therefore be it ORDERED that Appeal No. 2012-CA-001537-MR is hereby DISMISSED as being taken from an interlocutory order denying Southern Tax's motion for summary judgment.
ALL CONCUR.
Jeff S. Taylor
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: William Miles Arvin, Jr.
Nicholasville, Kentucky
NO BRIEF FOR APPELLEES