                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                          Assigned on Briefs September 22, 2004

   STATE OF TENNESSEE, ET AL. v. 1998 DELINQUENT TAXPAYERS

                    Appeal from the Chancery Court for Hamilton County
                   Nos. 11184 and 5557  W. Frank Brown, III, Chancellor



               No. E2004-00008-COA-R3-CV - FILED DECEMBER 22, 2004


This appeal stems from an action filed by the State of Tennessee, in its own behalf and for the use
and benefit of Hamilton County and certain municipalities (“the state”), against property owners
(collectively “the defendants”) who had not paid their 1998 real estate taxes. Following the entry
of a default judgment as to certain property, a delinquent tax sale was conducted at which Carlton
Ditto and Positive Impact, Inc. (“the purchasers”) bought a parcel of land. The purchase, however,
was subsequently voided because the Hamilton County Property Assessor (“the Property Assessor”)
inadvertently reflected someone other than the true owner on its property rolls. As a consequence
of this mistake, the true owner of the property was never made a party to the delinquent tax suit. The
purchasers sought compensation for interest on the bid amount and the cost of recording the decree
of sale. The purchasers also sought damages for the state’s negligence. The trial court awarded
interest on the bid amount and the cost of recording the decree, but refused to award damages for
negligence. The state appeals. We affirm.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Affirmed; Case Remanded

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
SHARON G. LEE, JJ., joined.

Terry L. McGhehey, Chattanooga, Tennessee, for the appellant, State of Tennessee, in its own behalf
and for the use and benefit of Hamilton County, Town of East Ridge, Lookout Mountain, Ridgeside,
Red Bank, Lakesite, Soddy Daisy, Collegedale, and Walden, Tennessee.

Hallie H. McFadden, Chattanooga, Tennessee, for the appellees, Carlton J. Ditto and Positive
Impact, Inc.

                                             OPINION
                                                        I.

        On February 16, 2000, the state filed a delinquent tax suit against the defendants for unpaid
real property taxes. One of the defendants was Chattanooga Partners, Ltd. Subsequent to a default
judgment as to that defendant, a delinquent tax sale of the property owned by Chattanooga Partners,
Ltd. was held on June 6, 2002. At the sale, the purchasers successfully bid $1,020.34 for the
property. The trial court entered a decree on June 24, 2002, confirming the sale The purchasers
subsequently recorded the decree at a cost of $26.78.

         On August 5, 2003, the trial court entered an order setting aside the delinquent tax sale on
the ground that the sale was in error. The trial court took this action based upon its determination
that, prior to the years for which the delinquent taxes were due, on February 27, 1997, the property
in question had been sold by Chattanooga Partners, Ltd. to Buckingham Apartments, LLC. The
Property Assessor, however, had maintained the tax records under the name of the previous owner,
Chattanooga Partners, Ltd. Since Buckingham Apartments, LLC, was not named as a defendant in
the delinquent tax suit and consequently received no notice of the suit, the sale was voided on
constitutional grounds. The court set aside the sale and ordered that the bid/purchase amount of
$1,020.34 be refunded to the purchasers.

         The purchasers did not receive prior notice of the order setting aside the sale. Therefore,
upon receipt of a copy of the order, the purchasers moved for additional funds by motion filed on
August 28, 2003. In particular, the purchasers sought the following: (1) ten percent interest on the
original bid amount computed through August 4, 20041; (2) reimbursement in the amount of $26.78
for costs incurred in recording the decree confirming sale; and (3) damages in the amount of $100
for the negligence of Hamilton County. The state responded that the provision relied upon by the
purchasers only pertained to redeemed property, unlike the instant case where the delinquent tax sale
was set aside and voided by court order. Therefore, according to the state, there was no provision
in the law that would permit the purchasers to recover interest or expenses. The state further averred
that it was entitled to immunity under the Governmental Tort Liability Act (“the GTLA”). The
purchasers subsequently amended their motion, asking in the alternative that the court either set aside




        1
         In their motion, the purchasers alleged that had the property been redeemed, Tenn. Code Ann. § 67-5-2703
(2003), would authorize them to recover interest on the bid amount. The statute provides that

                 [i]n order to redeem property which has been sold, any person entitled to redeem
                 the property shall pay to the clerk of the court who sold the property the amount
                 paid for the delinquent taxes, interest and penalties, court costs and any court
                 ordered charges, and interest at the rate of ten percent (10%) per annum computed
                 from the date of the sale on the entire purchase price paid at the tax sale.

                                                       -2-
the order setting aside the delinquent tax sale or direct the state’s delinquent tax attorney to enjoin
appropriate parties.2

        Following a hearing, the trial court entered an order on October 30, 2003. In that order, the
trial court agreed with the state that this was not a redemption case, but it nonetheless found that
under another provision of the code – Tenn. Code Ann. § 67-5-2504(a)(1) (2003) – the purchasers
were entitled to relief. The trial court therefore awarded 10% interest on the $1,020.34 from June
6, 2002, through August 5, 2003, i.e., $119.04, and the cost of recording the decree confirming sale,
which amounted to $26.78. It denied the purchasers’ request for damages. From this order, the state
appeals.

                                                           II.

        The singular issue presented by this appeal is whether the trial court erred in requiring the
state to pay interest and the cost of recording when the sale was voided due to an error by the
Property Assessor. Since this issue presents a question of law, our review is de novo on the record
before us, according no presumption of correctness to the trial court’s judgment. Southern
Constructors, Inc. v. Loudon Co. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

         The state contends that the trial court’s decision was erroneous on two grounds: (1) that the
trial court’s reliance upon Tenn. Code Ann. § 67-5-2504(a)(1) was misplaced as that statute,
according to the state, does not apply to voided tax sales; and (2) that a section of the GTLA,
codified at Tenn. Code Ann. § 29-20-205 (2000), confers immunity upon the state for the inadvertent
error of the Property Assessor in listing the incorrect property owner. We address each contention
in turn.




         2
         In particular, the purchasers alleged that pursuant to Tenn. Code Ann. § 67-5-2405(b) (2003), additional parties
may be added since that provision provides that

                  [t]he bill shall be in substance and form as other bills of complaint for the
                  enforcement of liens and shall include not less than twenty-five (25) defendants, if
                  that number are delinquent; and the bill (one (1) bill) may be filed against and
                  contain the names of all the delinquent taxpayers in the county, and the fact that the
                  bill contains the names of more than one (1) defendant shall not be considered by
                  the court multifarious, or a misjoinder of parties. Additional defendants may be
                  added to the suit as a matter of right upon the filing of a notice on behalf of the
                  complainant to add additional defendants. Upon the filing of such notice, the
                  additional defendants shall be served with process pursuant to the Rules of Civil
                  Procedure and § 67-5-2415.




                                                           -3-
                                                           III.

      In holding that the purchasers were entitled to interest on the bid amount, the trial court relied
upon Tenn. Code Ann. § 67-5-2504(a)(1), which provides as follows:

                   Any person who buys real estate sold for delinquent taxes which were
                   a lien thereon, and who shall for any cause fail to get a good title or
                   to recover possession of the realty, shall be subrogated to all liens that
                   secured the taxes, and all interest, costs, penalties and fees; and such
                   person shall have the right to enforce the same in chancery for the
                   reimbursement of the purchase money paid by such person and
                   interest thereon.

The trial court determined that under Tenn. Code Ann. § 67-5-2701, et seq., a true owner who had
redeemed his or her property or filed a lawsuit to set aside a sale would be responsible for the interest
incurred on the bid money. Therefore, since the sale was voided due to a mistake by the Property
Assessor in not listing the property under the proper owner, it was incumbent upon the state to
reimburse the purchasers for the interest accrued.

        The state argues that the trial court’s reliance upon Tenn. Code Ann. § 67-5-2504(a)(1) is
misplaced because, so the argument goes, that statute does not apply to voided tax sales. In support
of this argument, the state places its sole reliance upon language in the case of Inman v. Raymer,
No. E2003-01964-COA-R3-CV, 2004 WL 948386 (Tenn. Ct. App. E.S., filed May 4, 2004). In that
case, we stated that, under the circumstances existing there, “Tenn. Code Ann. § 67-5-2504 is not
implicated because that statute does not address tax sales that are void in nature.” Id., at *3. We
hold, however, that the Inman case is not instructive with respect to the facts of the case at bar. In
Inman, we addressed whether the three-year period set forth in Tenn. Code Ann. § 67-5-2504(d)3
precluded a grantee in a tax sale deed from filing a complaint to quiet title prior to the expiration of
the three-year statutory period. Id., at *1. The scope of that decision, and therefore its language,
only pertains to that three-year period. At no time did we reference that part of the statute upon
which the trial court relied in the instant case. Therefore, since the language in Inman cited by the
state only pertains to subsection (d) of Tenn. Code Ann. § 67-5-2504, a part of the statute not
implicated by the facts of the instant case, Inman does not support the state’s position in the case
at bar.



        3
            Tenn. Code Ann. § 67-5-2504(d) provides as follows:

                   No suit shall be commenced in any court of the state to invalidate any tax title to
                   land after three (3) years from the time the land was sold for taxes, except in case
                   of persons under disability, who shall have one (1) year in which to bring suit after
                   such disability is removed.




                                                           -4-
        We hold that the trial court’s reliance on Tenn. Code Ann. § 67-5-2504(a)(1) to award
interest on the bid amount to the purchasers was proper. The statute provides that a purchaser “who
shall for any cause fail to get a good title or to recover possession of the realty” is entitled to enforce
a claim in chancery “for the reimbursement of the purchase money paid by such person and interest
thereon.” Tenn. Code Ann. § 67-5-2504(a)(1) (emphasis added).4 Since the purchasers in the instant
case failed to recover possession of the subject real estate, we find it is proper for the state to
compensate the purchasers as decreed by the trial court since it was the state’s error that caused the
tax sale to be voided.

                                                           IV.

       The state also contends that it is shielded from liability in this matter under the section of the
GTLA codified at Tenn. Code Ann. § 29-20-205. In particular, the state relies on the following
provision:

                  Immunity from suit of all governmental entities is removed for injury
                  proximately caused by a negligent act or omission of any employee
                  within the scope of his employment except if the injury arises out of:

                                                          ***

                  (8) or in connection with the assessment, levy or collection of taxes;

Tenn. Code Ann. § 29-20-205(8). The state contends that the Property Assessor’s inadvertent error
in listing the wrong property owner on the tax records is exactly the type of situation contemplated
by the cited provision of the GTLA.

        In its decision, the trial court refused to hold that the state was immune under the GTLA,
stating that




         4
          The purchasers direct us to the case of Hunt v. Liles, 243 S.W .2d 149 (Tenn. Ct. App. 1950), as further
support for the trial court’s decision. In that case, we stated, in the context of a voided tax sale, that

                  [u]nder our cases a purchaser at a void tax sale or his successor is liable for rent but
                  entitled to reimbursement of the purchase price and all amounts expended for the
                  owners benefit, such as taxes and lien debts and for the enhanced value of the
                  property due to his improvements.

Id. at 153. The purchasers contend that this case is “on all fours with the case at hand.” In its reply brief, however, the
state attempts to distinguish Hunt from the case at bar, arguing that the language cited only pertains to reimbursement
from purchasers, that no such amounts were expended for the owner’s benefit in this case, and that the opinion does not
make any mention about interest on the purchase money. In light of our disposition of this appeal, we do not find it
necessary to address the parties’ disagreement pertaining to the Hunt case.

                                                            -5-
               [t]he Legislature has given counties the right to sell taxpayer’s real
               estate if the real estate taxes are not paid. One can argue whether the
               “wrong” was the failure to include Part Lot 2 with the other tract of
               land when both tracts were transferred to Buckingham Apartments,
               LLC in February of 1997 or something else. That “error” was not
               part of the “assessment, levy or collection of taxes” exception found
               in [Tenn. Code Ann.] § 29-20-205(8). Further, the Legislature has
               said that when property is wrongfully sold, then the purchaser is
               entitled to his/her/its bid price plus interest. The Legislature did not
               say “unless the property is sold by a governmental entity” or “unless
               the reason the sale is set aside is due to the county’s fault.” Further,
               the “true owner” of the real estate sold has never been properly and
               legally brought before the court, so no valid judgment could be
               entered against the owner for interest or anything else.

We agree with the trial court’s decision. We do not find that the error committed by the Property
Assessor falls under the rubric of the “assessment, levy or collection of taxes,” Tenn. Code Ann. §
29-20-205(8), and the state cites no authority that would suggest otherwise. Therefore, the state is
liable to the purchasers for the interest owed on the bid amount and the cost of recording the court’s
decree of sale.

                                                  V.

         With respect to the allegation of negligence, the trial court declined to award damages in the
amount of $100 as requested by the purchasers. In support of its decision, the trial court noted that
the Legislature articulated the relief to which a purchaser was entitled, and liquidated damages were
not included among the available remedies. See Tenn. Code Ann. § 67-5-2504(a)(1). We find this
to be a proper interpretation of the statutory language, and the purchasers have not argued otherwise
on appeal.

                                                 VI.

       The judgment of the trial court is affirmed. This case is remanded to the trial court for
enforcement of the trial court’s judgment and for collection of costs assessed below, all pursuant to
applicable law. Costs on appeal are taxed to the State of Tennessee, in its own behalf and for the use
and benefit of Hamilton County, Town of East Ridge, Lookout Mountain, Ridgeside, Red Bank,
Lakesite, Soddy Daisy, Collegedale, and Walden, Tennessee.



                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE



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