Thеse interlocutory appeals stem from the same case in which Southern Development, III, L.P. (“Southern”), sued Bartow County seeking payment of excess funds following a tax sale. The County appeals from the denial of its summary judgment motion (Case No. A13A2069) and the grant of Southern’s motion to add the Bartow County tax commissioner as a party (Case No. A13A2068). For the reasons that follow, we reverse in Case No. A13A2069 and dismiss as moot Case No. A13A2068.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment asa matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and.we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.1
So viewed, the record shows that in 2004, Southern conveyed a parcel of property to James and Sandra Wade, and Southern was granted a security deed in the property. Both deeds were recorded in
Meanwhile, as a result of unpaid taxes on the property, in September 2009 the Bartow County tax commissioner sent notices of a tax levy and sale to persons believed to have an ownership interest, including to the address listed for Southern оn a website maintained by the Georgia Secretary of State. The tax commissioner received a signed return receipt of the notice, but Southern disputes receiving any notice of the tax levy or sale. A tax sale was held in November 2009, and a third party bought the property for $31,000 and recоrded the tax sale deed in January 2010.
Also in January 2010, the tax commissioner issued a check to the County for $26,052.31 in excess funds from the tax sale. The tax commissioner sent notice of this to Southern’s address on file with the Secretary of State, but Southern maintains that it never received the notice.
In July 2010, the Wades (or their daughter) inquired about claiming the excess funds and filled out paperwork to claim the funds from the County. A week later, the Wades visited the County offices, presented identification, filled out paperwork averring that there were no other legal claimants, and claimed the excess funds.
Therеafter, Southern learned of the excess funds, and in May 2011 sent an ante litem notice to the County demanding payment of the excess funds. The County refused, citing its payment to the Wades, and Southern filed suit against the County in February 2012. The County answered, asserting a sovereign immunity defense, and following discovery, moved fоr summary judgment. Following a hearing, the trial court denied summary judgment in a one-sentence order and issued a certificate of immediate review. The trial court also granted a motion filed by Southern to add the tax commissioner as a party. This Court granted the County’s application for interlocutory review, giving rise to these appeals.
Case No. A13A2069
1. The County contends that the trial court erroneously denied its summary judgment motion because the present action against the County is barred by sovereign immunity. We agree.
Southern’s complaint asserts a single claim for excess funds (plus attorney fees) pursuant tо OCGA § 48-4-5, which Code section pro
(a) If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax сommissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. Such notice shall be sent by first-class mail within 30 days after the tax sale. The notice shall contain a description of the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds collected and held by the tax commissioner, tax collector, sheriff, or other officer. The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exist.
Based on this, Southern’s complaint alleged that the County breached its statutory duty by failing to notify Southern that excess funds from the tax sale were available for distribution and by disbursing the funds to the Wades.
In response, the County answerеd and asserted sovereign immunity among its defenses. When it later moved for summary judgment, the County did not brief the issue, but it raised it three times at the hearing on the motion. Southern, on appeal and below, has not addressed the merits of the sovereign immunity defense, but merely argues that the defense was not sufficiently assеrted below such that it needed to respond. In light of the County’s answer and explicit argument at the summary judgment hearing, Southern misconstrues the parties’ burdens in this сase.
Sovereign immunity extends to the [Sjtate and all of its departments and agencies[, including counties].[2 ] The sovereign immunity of the [S]tate and its departmеnts and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extеnt of such waiver. . . .
*882 Furthermore, OCGA § 36-1-4 provides that “[a] county is not liable to suit for any cause of action unless made so by statute.” [Thus, a] county’s immunity is thus complеte unless waived by statute.3
Further,
sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver. Thus, [Southern], not [the County], had the burden оf establishing [a waiver of] sovereign immunity.4
Here, Southern has pointed to no statute creating a waiver or any factual scenario warranting a waiver with respect to the claim it brought in its complaint. For example, a county sheriff, which could be liable in a money rule petition brought under OCGA § 15-13-3, is subjeсt to the explicit statutory waiver of immunity under OCGA § 15-13-2 providing that “[a]ny sheriff shall be liable to an action for damages . . . whenever it appears that the sheriff has injured the party by... [n] eglecting to pay over to the plaintiff or his attorney any moneys collected by the sheriff by virtue of any fi. fa. or other legаl process. . . .”
Case No. A13A2068
2. In light of our holding in Case No. A13A2069 resolving the controversy between the parties to this appeal, the County’s
Judgment reversed in Case No. A13A2069. Appeal dismissed as moot in Case No. A13A2068.
Notes
(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp.,
See generally Gilbert v. Richardson,
(Citation and punctuation omitted.) Rutherford v. DeKalb County,
(Citation omitted; emphasis supplied.) Ga. Dept. of Human Resources v. Pass,
See Barrett v. Marathon Investment Corp.,
See Currid v. DeKalb State Court Probation Dept.,
See generally Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196, 197, n. 3 (
See Nuvell Nat. Auto Finance, LLC v. Monroe Guar. Ins. Co.,