Johnson v. Arbabi

¶1dissenting:

¶2While I agree with the majority’s analysis and result on the question of the agency relationship between Dr. and Mrs. Arbabi, under the peculiar circumstances of this case I respectfully disagree with their conclusion on the question of the sufficiency of the legal notice. Therefore, I dissent.

¶3The critical issue is whether the tax collector of Beaufort County strictly complied with the requirements of S.C.Code Ann. § 12-51-120 (2000 & Supp.2000) in sending only one written notice addressed to co-tenants at their home address rather than two notices to the same address.

¶4While the law of this state unquestionably requires the taxing authorities to strictly comply with all the legal requirements surrounding tax sales,71 think those requirements were met in this case. First, there is no question but that the correct method of mailing was employed. That is the factual distinction between this case and Manji v. Blackwell>8 where the notice was sent certified mail only and not “deliver to addressee only.” That deviation from the requirement of the statute was the sole reason the tax sale was held to be invalid in Manji.

¶5Second, the correct and appropriate address was utilized. That is the distinguishing factor between this case and the cases of Benton v. Logan9and Good v. Kennedy,10In Ben ton, it was determined that the tax official failed to exercise due diligence in determining the best address available when a notice was returned to him marked “Forwarding Order Ex*147pired.” No such return was made in this case. In Good, the tax collector used an address other than the one on the deed and a tax sale was set aside for that reason. There is no question but that the correct address of Dr. and Mrs. Arbabi was utilized in this case, as it was the address they put on their deed and was additionally confirmed by letter from Dr. Arbabi’s personal attorney directing any and all notices to him be sent to the address utilized by the county treasurer.

¶6Under the circumstances, the sole question then is whether the county treasurer should have sent two separate notices to the same address. If so, should he have sent two notices, both addressed to both people, or should he have sent the two notices addressed individually? It is respectfully submitted either way the result would have been identical to the result in this case.

¶7It is as important to point out what this case does not involve as what it does involve. It does not involve failing to send the required notice to the delinquent taxpayer. The notice was sent to Dr. Arbabi at his best address. It does not involve multiple owners who each provide separate addresses for tax notice purposes. Both owners provided the same address. It does not involve a failure to exercise due diligence. There was no reason for the treasurer to believe that Dr. Arbabi was not being appropriately noticed pursuant to the statute. It makes little sense to me that where multiple owners provide only one address for notice purposes each one must be sent a separate notice but all to the same address.

¶8Had the statute in question been worded so as to provide that the mailing must be made to “each owner of record,” I would have no complaint with the result reached by the majority. However, the statute merely requires notice be sent “ ‘to the owner of record ’ ... at the best address of the owner available.” The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.11 Under the plain meaning rule, it is not the court’s place to change the meaning of a clear and unambiguous statute.12

¶9*148Under the circumstances of this case, I would hold that the specific requirements of the statute have been met and, while it is regrettable that Dr. Arbabi did not receive actual notice, that is not required by the statute and his failure to receive notice is not attributable to any omission on the part of the treasurer, but is solely due to his own unfortunate situation. I would affirm.