Appellate court upholds county's tax sale of Pinecrest property

By Thomas Wilson

STAR STAFF
twilson@starhq.com

   The Tennessee Court of Appeals has upheld a lower court's ruling refusing to set aside the tax sale of a property located in Carter County and bought on behalf of two individuals by another man.
   The appellate court affirmed by a 2-1 majority opinion a Chancery Court ruling to dismiss a petition filed by Dwight Hunt against Carter County government to set aside the tax sale of property he sold to a third party almost 20 years ago. Judge Thomas Seeley dismissed the complaint, ruling that Hunt did not have standing to bring the action on behalf of the parties in interest.
   Judge Charles D. Susano delivered the opinion of the court, in which Judge Houston M. Goddard joined. Judge Michael Swiney filed a dissenting opinion.
   According to a deed book at the Carter County Register of Deeds, July 14, 1983, Hunt and his wife sold a 4.20-acre property located near state Highway 23 in the Pinecrest area to James W. Dotson and his wife, Sylvia Dotson.
   On March 31, 1995, Carter County filed suit, seeking to sell the property to collect delinquent taxes.
   Hunt, Dotson, and Ted Ervin were named as defendants in the county's lawsuit. In their lawsuit, the county stated that it attempted to serve notice of the delinquent tax suit on the plaintiff, Dotson, and Ervin by both mail and publication. The property was ultimately purchased at a tax sale on Nov. 24, 1997, by Robert Franklin.
   On April 7, 2000, the plaintiff filed a petition to set aside the tax sale, claiming that it was void due to insufficient service of process. The petition was styled "Dwight Hunt, individually and for the use and benefit of James W. Dotson and Ted Ervin."
   The property owner, Robert Franklin, alleged that Hunt did not have standing to bring this claim either individually or on behalf of Dotson and Ervin, according to court documents.
   Hunt filed a motion for summary judgment, and Franklin filed a motion to dismiss for failure to state a claim, according to Chancery Court documents. Along with his motion, the appellate court also referenced affidavits filed by both Franklin and his attorney, John Banks, as well as a copy of the deed in which the plaintiff conveyed his interest in the property to Dotson. The two affidavits essentially stated that the plaintiff did not have an interest in the property and that he had no authority to act on behalf of Dotson and Ervin, according to the majority opinion.
   Hunt filed an affidavit stating he had no notice of the tax sale and the "suit [by him] was brought with the knowledge and consent of James W. Dotson and Ted Ervin, the other Plaintiffs in this suit."
   In the majority opinion, Susano writes that Hunt's affidavit " ... is devoid of any statement that the plaintiff possessed an ownership interest in the property."
   Hunt also filed an affidavit of Ervin, in which Ervin also stated that he had no notice of the tax sale.
   According to the court's opinion, Ervin's affidavit read, "This suit brought by Dwight Hunt, individually and for the use and benefit of James W. Dotson and Ted Ervin, has my full support and all acts done by Dwight Hunt in furtherance of this are hereby ratified and confirmed."
   The majority opinion of Susano reads that "The record contains no affidavit from Dotson, nor is there anything in the record signed by Dotson."
   However, the court ruled Ervin's affidavit did not constitute a sufficient assertion of his rights in this case.
   "Ervin does not set forth the basis for the plaintiff's alleged authority to act on Ervin's behalf, nor does Ervin state that he lacks the capacity to file suit on his own behalf. Further, Ervin made no attempt in this affidavit to be made a party to the action individually," the court majority opinion reads.
   In his dissenting opinion, Swiney wrote that while he concurred with the majority on the trial court granting of judgment based on Hunt's lack of standing he disagreed that Ervin's affidavit was insufficient to allow him to join as the plaintiff.
   Swiney also disagreed with the trial court's decision to grant the county to submit an oral motion for summary judgment while denying Ervin's motion to enjoin the case.