Tax Sale Isn’t an Arm’s Length Sale

Again on the topic of property tax assessments, the Court of Appeals issued a ruling that a purchase at a tax sale doesn’t qualify for the one-year purchase price freeze. The opinion is here. Typically when a person buys a house, the maximum tax assessed value for the following year will be the purchase price. The appellant in this case purchased properties at tax sales and argued that the assessment should be equal to the amount paid at the tax sale.

Tax sales occur when a property owner is delinquent on his or her property taxes. When a buyer purchases the property at a tax sale, the property owner is allowed up to a year to redeem the property by paying the tax sale purchaser the amount paid at the tax sale plus a percentage. If anybody is interested, the Richmond County properties that will be sold at the upcoming tax sale can be found here.

As the court noted, the purchaser at a tax sale doesn’t receive fee simple title to the property. In short, the Court reasoned that tax sales do not reflect a fair market valuation of the property and are irrelevant with respect to the statute freezing the assessment at the purchase price.

I agree with the Court’s opinion. The intent of the statute is to tax property at the fair market value and tax sales normally do not come close to bringing what a property is actually worth on the market. I am surprised the appellant went all the way to the Court of Appeals with this argument.

Ga. Court of Appeals Property Assessment Opinion

If you have been following this blog, then you probably know that one of my favorite topics is property tax assessments. Today the Georgia Court of Appeals issued an opinion dealing a blow to the Fulton County Board of Assessors. click here for the opinion

In this case the plaintiff bought a residential property from Freddie Mac in 2011 for $207,000. Pursuant to Georgia law, in the year following the purchase of the property (assuming it was an arms-length transaction), the tax assessor may only assess the property at a value no greater than its purchase price. Therefore, pursuant to Georgia law, as long as the plaintiff’s purchase was a bona fide arms-length transaction, the assessed value of the plaintiff’s house for 2012 could not exceed $207,000.

Despite this, the Fulton County Board of Assessors appraised the property at $370,000. After an appeal to the Board of Equalization the house was assessed at $340,000. The plaintiff appealed that decision to the Superior Court and eventually to the Georgia Court of Appeals.

Fulton County did not consider the plaintiff’s purchase from Freddie Mac to be a bona fide arms-length transaction. Therefore, the Board argued, that it did not have to honor the $207,000 figure. Because Freddie Mac is a government entity, the Board argued, it cannot act in its own best interest and therefore cannot meet the statutory definition of an arm’s length transaction, that requires “both parties to the transaction be acting in their own best interests.”

As a practice Fulton County disregarded the values of all sales involving government entities. The Court noted that not only is the statute devoid of any language suggesting this policy, but that the Board’s position: “that the best interests of a governmental entity are not and can never be synonymous with the best interests of the public which that entity serves” is “contrary to our fundamental understanding of government.”

Broken down further, the Board basically asserts that a government entity is never buying or selling property at a fair market value. If true, this should be a concern to all citizens.

Thankfully the Court remanded the matter to Superior Court with the instruction to enter judgment in favor of the plaintiff and to consider awarding attorneys’ fees to the plaintiff.

Booting of Vehicles

Have you ever had your vehicle booted? Several years ago in Atlanta I came out of the hotel to my car only to find it booted. And that was after I thought I had paid the appropriate fees. It is a frustrating experience, especially if you have somewhere to be.

Apparently one man had had enough of the booting of vehicles. James Whitfield sued Atlanta and a parking enforcement company over the constitutionality of Atlanta’s ordinance allowing boots to be placed on cars. Unfortunately for Mr. Whitfield he failed to properly enter the ordinance into the record. In an opinion released today, the Supreme Court of Georgia refused to pass judgment on the constitutionality issue due to Mr. Whitfield’s failure. You can read the opinion here: http://bit.ly/1EB4xyB.

What do you think about booting cars for parking violations? Will this be implemented in Augusta if/when they install parking meters?

The Redneck Riviera

When you hear Redneck Riviera what comes to mind? The panhandle of Florida? Orange Beach, Alabama? Mississippi? Today’s post comes from a decision rendered by the Trademark Trial and Appeal Board. In 2012, Rich Marks, LLC applied for the trademark of “Redneck Riviera Fest” and “Redneck Riviera” for, among other things, entertainment and live music concerts. (thanks to http://thettablog.blogspot.com/ for bringing this to my attention, decision is here: http://ttabvue.uspto.gov/ttabvue/v?pno=85789873&pty=EXA&eno=16).

The trademark examining attorney denied the application primarily because the applicant intended for its goods and services, entertainment and concerts, to originate from the area known as the Redneck Riviera – a geographical location defined by the attorney that extends from the panhandle of Florida to southeastern Mississippi. Because, according the the attorney, the area is known for live music and entertainment, the mark is primarily geographically descriptive and/or geographically deceptively.

Rich Marks appealed this decision to the TTAB. Rich Marks first argued that Redneck Riviera isn’t a a “generally known geographic place”. Instead, the applicant argued, it is a pop-culture term “to describe a beautiful beach with lower-class inhabitants”.

Rich Marks next argues that Redneck Riviera isn’t a defined geographical area. Unlike “Carolina” (a state), “Old Dominion” (used to refer to Virginia), or “Nashville” (a city), Redneck Riviera does not have a boundary. Some publications refer to only the panhandle of Florida as the Redneck Riviera, while other publications claim it stretches from Florida to Mississippi. Because, Rich Marks argues, there is no definite region the mark is more like “Dixie” than the preceding terms; therefore “the primary significance of the mark is not a generally-known geographic place or location”.

The TTAB rejected Rich Marks’ arguments. The Board found that the primary significance of Redneck Riviera was to point to “beaches on the northwest Gulf Coast in Florida, Alabama, and part of Mississippi.” Although Rich Marks argued at the hearing that Redneck Riviera could refer to any beach to which “rednecks” have easy access to, such as Myrtle Beach, the Board found that Redneck Riviera points to primarily to the specific region. In short, the Board found the marks to be “primarily geographically descriptive”.

Have you ever been to the Redneck Riviera? Does it refer to only the Gulf Coast? Does it also refer to Myrtle and Daytona?

Pay your pet’s vet bills

Today I was reading recently published opinions by the Georgia Court of Appeals. I read Gomez v. Innocent, a case involving a dispute over a veterinarian’s bills for medical services and boarding costs of a dog. After nonpayment of the bills, the vet kept the dog in his possession. The opinion revolved around Georgia’s veterinarian lien statute, O.C.G.A. Section 44-14-490.

I have dealt, quite extensively, with the mechanic and materialmen lien statute but had not realized veterinarians had similar rights after treating or boarding an animal or pet. The statute allows the vet to retain possession of the animal until the bill is paid. If the bill remains unpaid, Section 44-14-490 allows the vet to sell or give away the animal, or euthanize the animal if a humane society is not within a fifty mile radius.

South Carolina has a similar statute found at Section 40-69-285 of the South Carolina Code. South Carolina gives the vet the right to retain the animal until the bill is paid and the right to sell the animal if the bill is not paid within ten days of notice.

It appears that some other states do not give veterinarians similar rights in the animals they treat and board. What do you think?

Please visit my law office’s website at www.nehlaw.com.

Grocery Store Injury

This case comes to us from the files of “just because you are injured doesn’t mean you have a good lawsuit”. In Ingles Markets, Inc. v. Carroll (a Georgia Court of Appeals decision found here), the plaintiff was shopping for groceries when a 11 year old boy ran into her and caused her to suffer injuries.

The plaintiff alleged that the store failed to monitor its customers, in this case children, closely enough to prevent injuries like this from occurring. Ingles regularly conducted sweeps to ensure no children were running around and causing potential hazards. Such a sweep occurred only 30 minutes prior to the injury suffered by the plaintiff.

In reaching its conclusion, the Court observed: “…based on her own testimony – that when she initially saw the child out of the corner of her eye, he was not running, but ‘walking fast’ – the child could only have been running a very short time before he ran into her. Thus, only a constant patrol – the type of procedure we have specifically declined to impose on proprietors under normal circumstances – could have possibly prevented her injury here.”

Readers should note that this might be a case of negligent parenting. The first footnote indicates that the boy and his parents were named in the complaint but failed to answer the complaint and defaulted.

Please don’t forget to visit my firm’s website at http://nehlaw.com/,

How a fake Facebook profile led to litigation

Last Friday the Georgia Court of Appeals issued the following opinion in the case of Boston v. Athearn: link.

The case involves some mischievous seventh grade students. A couple of seventh graders decided it would be fun to create a fake facebook profile for one of their classmates, a girl, they did not like.

Using the fake profile, the kids became facebook friends with many of their classmates and teachers. Posing as their classmate, the children posted many derogatory and offensive facebook statuses and claimed that their classmate had a mental illness and took illegal drugs.

The Plaintiffs, who are the parents of the victim suing on the victim’s behalf, filed claims against the children and their parents for libel and intentional infliction of emotional distress. As the opinion states, a parent can be held directly liable for their child’s tortious behavior if the parent fails to supervise or control the child “with regard to conduct which poses an unreasonable risk of harming others.”

In this case, the parents were alerted of their child’s tortious actions in May of 2011. The parents did not direct the child to delete or remove the fake facebook profile but only grounded the child for a week. The fake profile remained active for 11 months after the parents were first notified of their child’s involvement in its creation.

One of the questions presented to the Court, was whether a jury could find that the parents were negligent in failing to compel their child to remove the facebook page once they learned of its existence.

The Court answered affirmatively. They found it undisputed that the child created the facebook profile with malicious intent and that the parents “continued to be responsible for supervising [his] use of the computer and Internet after learning that he had created the unauthorized Facebook profile…..Given that the false and offensive statements remained on display, and continued to reach readers…we conclude that a jury could find that the [parents'] negligence proximately caused some part of the injury [Plaintiff] sustained from [the child's] actions….”

Please don’t forget to visit my law office’s website: http://nehlaw.com/

Non-competition Agreements

Are your covenants not to compete enforceable? Many factors go into whether or not a court will enforce a non-compete agreement. Courts will not only consider, among other things, the scope, territorial limitation, and duration of the agreement, but also whether there was adequate consideration.

Georgia and South Carolina differ as to what constitutes adequate consideration.

For example, if an employer asked an at-will employee to sign an agreement as a condition of his continued employment, the courts in each state differ as to whether this alone constitutes adequate consideration.

Non-competition agreements may also be valuable tools in other situations such as partnerships, franchises, and settlement agreements. However, a non-compete agreement is only a benefit if it is enforceable.

Below I have linked two opinions discussing the issue of adequate consideration, one from the Supreme Court of South Carolina and one from the Supreme Court of Georgia.

Supreme Court of South Carolina

Supreme Court of Georgia

Uber

Over the last few weeks I have had the opportunity to go to Atlanta a couple of times. I met some friends over there and we decided to go out to dinner. How were we going to get there? One of my friends from Atlanta suggested we use Uber. I had read about Uber before but had never used it.

It was a great experience. We ended up being picked up by a late model large SUV. It was very clean and the wait to be picked up was short. The driver was very polite. And most importantly, it was much cheaper than a taxi or driving service. It is simple to use, you just download an app on your phone, request a pick up, and pay through paypal.

I have seen ads that Uber is coming to Augusta. It makes me wonder what kind of response Uber will receive from the local taxi companies, the commission, and the law enforcement. The Oxford, Miss. police department has been ticketing Uber drivers for violating a newly enacted ordinance preventing services such as Uber from operating without paying to be a licensed taxi company. You can read about that here.

Memphis similarly created a similar ordinance that similarly banned Uber if the drivers did not pay the taxi fees. The Memphis newspaper, the Commercial Appeal, came out against Uber stating they believed it was a matter of public safety.

My friend who lives in Memphis, wrote a a letter to the editor refuting this assertion. You can find his letter here (subscription required). Basically, he states that Uber already does a more thorough background check than that required by the city ordinance. Further, because of the GPS technology employed by Uber, it would make it virtually impossible for a driver to commit a crime against a passenger and get away with it.

I am anxious to see how the local authorities handle Uber when it gets to Augusta. I am sure the taxi companies will lobby hard against Uber (as they even opposed a city bus stop near Fort Gordon).

The Richmond County Code appears to be broad enough that an Uber driver would be required to pay the taxi regulatory fee. Ordinance Number 1400, adopted April 16, 2013 defines a taxicab as a vehicle “regularly engaged in the business of caryying passengers for hire….” Uber will likely argue that because the drivers use their personal vehciles and aren’t full-time professional drivers, that the vehicles cannot be considered to be regularly engaged in the business.

Uber is able to offer affordable transportation because, in part, they do not have to pay the costly regulatory fees. It will be interesting to see how Augusta handles Uber when it arrives.

Remember to visit my law firm’s website at www.nehlaw.com.

Terms and Conditions

Today I came across this article revealing that researchers have found it would take 15 work weeks for the average internet user to read all of the privacy policies he or she encounters in a year. That is an amazing figure but not overly surprising considering how many websites the average internet user access or subscribes to in a given year.

For example, I am sure that I agreed to a lengthy privacy policy when I bought this domain and when I downloaded the website’s theme.

The article got me thinking, though, about how long it would take the average internet user to read all of the terms and conditions, not just the privacy policies, of all the websites the user visits in a year.

Has anybody ever read the terms and conditions for a website, program, or application? LinkedIn’s user agreement, for example, is over 7,800 words (the privacy policy is about the same length). The terms and conditions on a website are just the latest versions of adhesion contracts – contracts where the consumer becomes bound by the terms if the consumer accepts the product (a/k/a shrink wrap contracts – the consumer becomes bound by the terms after opening the software package).

What has become known as browse wrap agreements – agreements binding upon the person accessing a website without deliberately consenting to the terms (you don’t have to hit “I AGREE”) – have become the norm. Many of these browse wrap agreements contain exclusive an jurisdiction provision and/or arbitration provisions. These provisions end or limit the judicial relief that would otherwise be available to the internet browser.

Because it is nearly unviversally accepted that these type of contract are enforceable, there are few local reported cases.

One that I found, from 2010 in the U.S. District Court for the Northern District of Georgia enforced the forum selection clause in Facebook’s agreement after a Facebook user brought a suit alleging copyright and patent infringement. The Court declined to address the case on the merits citing the user’s agreement to litigate only in Santa Clara County, California. In other words, the Facebook user couldn’t have his day in court in Georgia.

Given how much we surf the internet, we have likely unknowingly submitted ourselves to a plethora of terms and conditions and our only remedy for any wrong is likely in a far away locale.

The Augusta Commentator