                              SECOND DIVISION
                                MILLER, P. J.,
                           DOYLE, P. J., and REESE, J.

                     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.
                                 http://www.gaappeals.us/rules


                                                                    February 20, 2018




In the Court of Appeals of Georgia
 A17A1850. SUNTRUST BANK v. TODD COWAN, AS TAX
     COMMISSIONER FOR DOUGLAS COUNTY et al.

      REESE, Judge.

      SunTrust Bank (“SunTrust”) appeals the trial court’s order disbursing excess

tax sale funds in this interpleader action. SunTrust asserts that the trial court erred in

finding that J. Michael Vince, LLC (“JMV”) had a priority interest in the excess

funds and disbursing those funds to JMV. For the reasons set forth, infra, we reverse

and remand.

      The record shows that on October 12, 2011, SunTrust obtained a security deed

in the amount of $246,535.26 on the real property located at 1000 Landon Drive

Douglasville (“the Property”), granted by Regina Jordan.1 On March 3, 2015, Douglas


      1
          Regina Jordan is not a party to this appeal.
County conducted a tax sale of the Property. ACS Burton, LLC purchased the

Property at the tax sale. On April 1, 2015, the Mirror Lake Community Association,

Inc. (“the MLCA”) executed and recorded a notice of lien on the Property in the

amount of $1,237.19. The record contains a document dated April 14, 2015,

appearing to assign the MLCA lien on the Property to JMV.

      On April 15, 2015, a redemption quitclaim deed from ACS Burton, LLC and

in favor of Regina Jordan was recorded in Douglas County. In June 2015, the

Douglas County Tax Commissioner filed an interpleader action in the Superior Court

of Douglas County stating that the Property sold for “$165,000, leaving excess funds

in the amount of $152,232.58” and deposited the excess funds into the court’s

registry. Both SunTrust and JMV timely filed answers to the interpleader seeking the

excess funds and claiming first priority lienholder status.

      The trial court, on October 26, 2015, issued a “Final Order” awarding the

Douglas County Tax Commissioner $1,240 in attorney fees and the remaining excess

funds totaling $150,992.58 to JMV. The trial court explicitly relied on Wester v.

United Capital Financial of Atlanta,2 and United Capital Financial of Atlanta v.

      2
        282 Ga. App. 392 (638 SE2d 779) (2006), overruled by DLT List v. M7VEN
Supportive Housing & Dev. Group, 335 Ga. App. 318, 323 (1) (779 SE2d 436)
(2015), aff’d by DLT List v. M7VEN Supportive Housing & Dev. Group, 301 Ga. 131,

                                          2
American Investment Assoc.3 as controlling legal authority. Just two weeks later,

however, this Court unanimously overruled Wester and United Capital in DLT List

v. M7VEN Supportive, (“DLT List I”).4 This Court held that as to excess tax sale

funds, a redeeming creditor can only make a claim for the funds in the amount of the

pre-tax sale lien that gave it the right to redeem.5

      On April 29, 2016, SunTrust filed a motion to set aside the “Final Order,”

because the bank never received the “entered order.” Pursuant to OCGA § 9-11-60

(g), the trial court vacated the “Final Order” on May 12, 2016. SunTrust filed a

motion to compel JMV to return the excess funds to the court’s registry, and JMV

filed a motion to reinstate the “Final Order.”

      On September 6, 2016, the Supreme Court of Georgia granted a writ of

certiorari in DLT List I .6 On September 14, 2016, JMV moved the trial court to stay



132 (800 SE2d 362) (2017).
      3
        302 Ga. App. 400 (691 SE2d 272) (2010), overruled by DLT List, 335 Ga.
App. at 323 (1), aff’d by DLT List, 301 Ga. at 132.
      4
          DLT List, 335 Ga. App. 318 (779 SE2d 436) (2015).
      5
          DLT List, 335 Ga. App. at 323 (1).
      6
       See DLT List v. M7VEN Supportive Housing & Dev. Group, S16C0646
(September 6, 2016).

                                           3
the proceedings until the Supreme Court of Georgia ruled on DLT List I,

acknowledging that “that decision may directly affect the outcome of the instant

matter.”

      The trial court held a hearing to address the three motions. After the hearing,

the trial court issued an order, dated September 26, 2016: (1) granting SunTrust’s

motion to compel payment of the excess funds into the registry of the trial court or

post a bond; (2) granting JMV’s motion to stay the proceedings until the Supreme

Court of Georgia ruled in DLT List I; and (3) denying JMV’s motion to reinstate the

“Final Order.”

      On January 24, 2017, JMV filed a motion seeking to dismiss the entire case or

alternatively reinstate the “Final Order,” informing the trial court that it had already

spent the excess funds “in the ordinary course [of business] without any information

on SunTrust’s concerns.” The trial court denied the motion to dismiss the action but

granted JMV’s request to re-enter the “Final Order.” This appeal followed.




                                           4
       Whether JMV has a priority interest in the excess funds pursuant to statutory

authority is a question of law, which we review de novo.7 With this guiding principle

in mind, we turn now to SunTrust’s specific claims of error.

      As an initial matter, the Supreme Court of Georgia issued an opinion in DLT

List v. M7VEN Supportive Housing & Dev. Group, (“DLT List II”)8 on May 15, 2017,

which affirmed this Court’s opinion DLT List I, but under a different rationale.9 Thus,

“a redeeming creditor of a tax sale property does not have a priority lien against

excess funds arising from that sale.”10

      SunTrust asserts that the trial court erred in finding that JMV had a priority

interest in the excess funds. We agree and therefore reverse the judgment and remand

this case.




      7
          See Bridges v. Collins-Hooten, 339 Ga. App. 756, 758 (1) (792 SE2d 721)
(2016).
      8
          301 Ga. 131 (800 SE2d 362) (2017).
      9
        DLT List, 301 Ga. at 136 (1) (following a tax sale, Nat. Tax Funding, v.
Harpagon Co., 277 Ga. 41 (586 SE2d 235) (2003), does not apply to the distribution
of excess tax sale funds amongst competing lienholders).
      10
           DLT List, 301 Ga. at 136 (2) (punctuation omitted).

                                           5
      The Supreme Court of Georgia has declined to “adopt a rule of universal

retroactivity in all civil cases.”11 Instead, to determine whether to default to the rule

of retroactivity,

      Georgia courts assess three factors: (1) whether the decision in question
      established a new principle of law either by overruling past precedent or
      deciding an issue of first impression, the resolution of which was not
      clearly foreshadowed; (2) whether retroactive application would further
      or retard the operation of the rule in question; and (3) whether
      retroactive application would result in substantial inequitable results.12


      In DLT List I, this Court did not create new law; rather, it corrected a judicial

misconstruction and misapplication of an existing law. Further, this Court’s opinion

did not state that the ruling should not be applied retroactively or that it should only

be applied in a pure or selective prospective manner.13

      As for the second Findley factor, our Supreme Court addressed the issue of

whether the reversal of Wester and United Capital would “disrupt the law and prove




      11
           Findley v. Findley, 280 Ga. 454, 460 (1) (629 SE2d 222) (2006).
      12
       Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 738 (3) (691
SE2d 218) (2010) (citations omitted).
      13
           See Findley, 280 Ga. at 460-461 (1).

                                           6
problematic” to those who relied on those cases.14 The Court stated that Wester,

which “extended the lien priority in OCGA § 48-4-43 to the distribution of excess tax

sale funds, was decided only ten years ago and with very little analysis. Moreover, the

[Wester] decision has proven unworkable because of the year-long redemption

window in OCGA § 48-4-40.”15

      Finally, applying the decision in DLT List I would not result in a substantially

inequitable outcome for either party. As shown above, two weeks after the initial

Final Order was issued, this Court unanimously overruled Wester and United Capital,

the cases on which the trial court relied. Also, less than a year after the Final Order

was initially issued, the Supreme Court granted certiorari in DLT List I. After the

grant of certiorari, JMV moved the trial court to stay the proceedings, specifically

acknowledging that the Supreme Court’s decision might affect the outcome of the

proceedings.

      Consequently, JMV can not show justifiable or “good faith reliance”16 on

Wester and United Capital. For the same reasons, we find no merit to JMV’s claims


      14
           DLT List II, 301 Ga. at 135 (2).
      15
           Id. (punctuation omitted).
      16
           See Findley, 280 Ga. at 456 (1), 462 (1).

                                              7
(1) that it had “vested” rights to the excess funds or (2) that the issue was moot

because it had already spent the funds. Therefore, we reverse the Final Order and

remand this action to the trial court for further consideration in light of the holdings

in DLT List I and II.

      Judgment reversed and case remanded. Miller, P. J., and Doyle, P. J., concur.




                                           8
