Neville Francis v. Nr Deed, LLC ( 2021 )

FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 4, 2021
In the Court of Appeals of Georgia
A21A0377. FRANCIS v. NR DEED, LLC.
MCFADDEN, Chief Judge.
Neville Francis appeals the final order in this quiet title action. He argues that
the trial court abused her discretion in striking his answer and counterclaim. But he
has not shown an abuse of discretion, given his failure to appear at two court
proceedings. He argues that the trial court erred by entering a judgment in favor of
NR Deed, LLC because he did not receive notice of his right of redemption after his
property was sold for nonpayment of taxes. But the record shows that he received
statutory notice. So we affirm.
1. Background.
Francis owned property in Fulton County but did not pay all of the property
taxes due. In September 2016, his property was sold for nonpayment of taxes to Deed
Co. After waiting more than a year, Deed Co. sought to foreclose the right of
redemption. See OCGA § 48-4-40 (1); see generally Saffo v. Foxworthy, Inc., 286 Ga.
284, 286 (2) (687 SE2d 463) (2009) (describing the statutory procedure for
redemption of property following a tax sale). In order to do so, Deed Co. sought to
notify those with interests in the property that they could redeem the property by
paying the statutory redemption price at any time before November 9, 2017. OCGA
§ 48-4-45 (a) (1). Deed Co. attempted to personally serve Francis, as well as any
occupant of the property, at the property address with notices of the right of
redemption. But the process server ended up posting the notice at the property
because the house appeared to be vacant.
Deed Co. conveyed its interest to appellee NR Deed. After expiration of the
time specified in the notice of the right of redemption, NR Deed filed this petition to
quiet title to the property . Francis answered the petition and filed a counterclaim
seeking to set aside the foreclosure and to be given the right to redeem his property.
The trial court scheduled a status conference for November 19, 2019. Francis
did not appear. The court scheduled a hearing for December 16, 2019. Francis did not
appear at that hearing, either. So the court granted NR Deed’s oral motion to strike
Francis’s answer and counterclaim.
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Francis moved to set aside or vacate the trial court’s order striking his answer
and counterclaim on the ground that he had forgotten to check the email address to
which notices were sent and because that email address had been hacked so he was
locked out. The trial court denied Francis’s motion because Francis had not shown
that he was not properly notified of the proceedings he failed to attend and because
he provided no explanation as to why he took no steps to keep himself informed of
the status of the litigation. Then, after a review of the record, the trial court entered
a final judgment in favor of NR Deed. Francis filed this appeal.
2. Denial of motion to set aside order striking Francis’s answer and
counterclaim.
Francis argues that the trial court erred in striking his answer and counterclaim
because his failure to appear at the proceedings was not wilful. We hold that the trial
court’s order makes it apparent that the court found Francis’s failure to appear to be
wilful, which supports the order striking his pleadings.
As a sanction for the wilful refusal to participate in court proceedings, “[a] trial
court may strike a party’s pleadings . . . pursuant to a court’s inherent power to
efficiently administer the cases upon its docket, as well as its power to compel
obedience to its orders and control the conduct of everyone connected with a judicial
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proceeding before that court.” Pennington v. Pennington, 291 Ga. 165, 166 (1) (728
SE2d 230) (2012). See also Uniform Superior Court Rule 14 (“On its own motion or
upon motion of the opposite party, the court may dismiss without prejudice any civil
action, or where appropriate, any pleading filed on behalf of any party upon the
failure to properly respond to the call of the action for trial or other proceeding.”).
The trial court can determine wilfulness without conducting a hearing, Schrembs v.
Atlanta Classic Cars, 261 Ga. 182, 182-183 (402 SE2d 723) (1991) (discovery
sanction), and the court need not use the precise word “wilful” in its order to
demonstrate that it found a party’s conduct to be wilful. See Dyer v. Spectrum Eng,
245 Ga. App. 30, 33 (2) (537 SE2d 175) (2000).
Here, a finding of wilfulness is implicit in the trial court’s conclusion that
Francis had not shown that he was not properly notified of the proceedings and that
he provided no explanation as to why he took no steps to keep himself informed of
the status of the litigation. This is sufficient. Dyer, 245 Ga. App. at 33 (2) (finding of
wilfulness implicit in trial court’s order that appellant did not provide court “with any
legitimate excuse” for failure to appear at deposition).
“[W]e will not substitute our judgment for that of the trial court when there is
no obvious or apparent abuse of discretion by the court in what clearly is a matter of
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discretion.” Atlanta Bus. Video, LLC v. FanTrace, LLC, 324 Ga. App. 559, 560 (751
SE2d 169) (2013) (citation, punctuation, and emphasis omitted). Francis has not
shown that the trial court abused her discretion in striking his answer and
counterclaim. See Truitt v. Housing Auth. of the City of Augusta, 235 Ga. App. 92,
93-94 (507 SE2d 781) (1998) (trial court did not err by striking answer when
defendant was five minutes late on the day of trial).
3. Entry of final judgment.
Francis argues that the trial court erred by entering judgment in favor of NR
Deed because he was not served with notice of his right of redemption as required by
OCGA § 48-4-46 (a). We disagree.
Under the plain language of OCGA § 48-4-46 (b), “[l]eaving a copy of the
notice [of foreclosure of the right of redemption] at the residence of any person
required to be served with the notice shall be a sufficient service of the notice.” See
also Saffo, 286 Ga. at 286 (2) (“Service . . . must be made personally, if possible, and
by publication otherwise, but leaving a copy of the notice at the residence of any
person required to be served is sufficient.”). Francis does not dispute that notice of
the right to redeem was posted on the house, which he contends is his residence (in
spite of the process server indicating that the house is vacant). Instead, he argues that
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he did not see that notice. As service of the notice of the right of redemption complied
with the plain language of the statute, we must affirm.
Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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