THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Herman Blake,        Appellant,

v.

Joy Logan, Treasurer of Beaufort County, Beaufort County and Yvonne Wilson,        Respondents.

Appeal From Beaufort County
Thomas Kemmerlin, Circuit Court Judge

Unpublished Opinion No. 2004-UP-062
Submitted January 12, 2004 – Filed January 29, 2004

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

R. Thayer Rivers, Jr., of Ridgeland, for Appellant.

David S. Black, of Beaufort and J. Ray Westmorland, of Hilton Head Island, for Respondents.

PER CURIAM:  Herman Blake brought this action against the Beaufort County Treasurer and Yvonne Wilson seeking to set aside a tax sale of his property due to the county treasurer’s failure to divide the property as prescribed in S.C. Code Ann. § 12-51-40 (Supp. 2003) .  During trial, Blake sought to amend his complaint to conform to the proof that he had redeemed the property pursuant to S.C. Code Ann. § 12-51-90. [1]   The trial court denied his motion and found the statute of limitations contained in S.C. Code Ann. § 12-51-160 (2000) barred the claim asserted under section 12-51-40.  Blake now appeals.  We affirm in part, reverse in part, and remand.

FACTS

In 1972, Blake purchased 3.7 acres of land on Daufuskie Island in Beaufort County.  In 1993, he failed to pay his Beaufort County property taxes.  To satisfy this delinquent tax obligation, the Beaufort County Treasurer sold two acres of Blake’s property at a public tax sale held on February 6, 1995.  The highest bidder for the property was Wilson, who bid and paid $27.27 for the two-acre parcel.  The deed to Wilson was recorded on May 1, 1996. 

On October 30, 1998, Blake commenced this action in an effort to set aside the tax sale deed issued to Wilson.  His complaint contained the single allegation that the sale violated South Carolina Code section 12-51-40  because the County only needed to sell a small portion of the property to satisfy the delinquent tax bills.

At trial, Blake sought to amend his complaint to conform to the evidence.  Blake argued that proof had been placed into evidence that tended to show he had properly redeemed the property prior to the expiration of his statutorily prescribed right of redemption.

The question of whether Blake had redeemed the property was raised early on at trial.  On direct examination, Blake testified he thought he had paid the taxes for 1993, specifically referring to a letter he received from the county treasurer dated February 6, 1996 indicating he had paid his taxes.

On cross-examination, defense counsel pressed Blake further on whether he was claiming he had paid the delinquent taxes or had timely redeemed title to the property.  After further questioning, Blake produced a copy of the February 6, 1996 letter he received from the county treasurer.  He maintained it contained the check he originally sent to the county treasurer to redeem title to the property.  This letter was ultimately admitted into evidence without objection by defense counsel.

Later in his testimony, Blake also produced a copy of the letter dated December 22, 1995 and sent to him by the county treasurer.  The letter advised Blake that his property had been sold and informed him of his right to redeem by sending $53.99 to the treasurer by February 1, 1996.  Blake also produced a cashier’s check dated February 1, 1996.  It was drawn as payable to the county treasurer in the amount of $53.99.

Blake’s counsel’s subsequent request to admit the December 22, 1995 letter along with the cashier’s check was met with objection by defense counsel.  The following exchange ensued:

[DEFENSE COUNSEL]:  I’m going to object on that, Your Honor.  What we now have is testimony about whether he’s paid taxes or not and I suppose I kind of opened the door on that, but really the issue here is whether this was an excessive sale.  In other words, the issue is whether Beaufort County sold too much of the property not whether he’s made payment and this shouldn’t have happened altogether at all.

COURT:  Right

[DEFENSE COUNSEL]: That’s not the allegations in the complaint and so I’m going to object to that.

COURT:  What about that?

[BLAKE’S COUNSEL]:  Well, as [Defense Counsel] candidly said, Your Honor, he opened the door to that.  And Mr. Blake has now shown he actually had paid the delinquent tax sale monies so I’m probably going to move to amend the complaint to reflect the proof proffered.  Because he’s the one that asked about it, not me.  I’m not sure he has a leg to stand on if he wants to object to it.

COURT:  The thing of it is, you’ve got another lawsuit now.  And I would not deny you the right to amend but I would not make him go forward at this time without an opportunity to look into that question.

The trial court held in abeyance its decision regarding the motion to amend until the conclusion of the trial.

As further grounds in support of his motion to amend, Blake asserted he had noted in his supplemental responses to Wilson’s request for production that he intended to admit the February 6, 1996 letter from the county treasurer in evidence.  This response, Blake argued, was sufficient to put the respondents on notice that he would claim that he had properly redeemed the subject property.

The trial court denied Blake’s motion to amend, opining that:

If [Blake] truly believed that the tax deed should be set aside because he had previously paid the taxes necessary to redeem the property, then [Blake] should have put those allegations in his pleadings and should not save that testimony for trial with the prospect of then having evidence that the other parties were not prepared to defend against.

With respect to Blake’s original cause of action, the trial court found the county treasurer complied fully with South Carolina Code section 12-51-40  in dividing the property for purposes of the tax sale.  As an alternative ruling, the trial court also found that Blake had failed to bring his action within the applicable two-year statute of limitations prescribed by South Carolina Code section 12-51-160.

STANDARD OF REVIEW

An action to set aside a tax deed is in equity.  Godfrey v. Webb, 277 S.C. 246, 247, 285 S.E.2d 883, 884 (1982) . Accordingly, “[w]e may review the evidence to determine facts in accordance with our own view of the preponderance of the evidence.”  Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1990) .  Though we are permitted a broad scope of review, “we do not disregard the findings of the Master, who saw and heard the witnesses and was in a better position to evaluate their credibility.”  Id.

LAW/ANALYSIS

I.       Motion to Amend Complaint

Under Rule 15, SCRCP, the trial court may allow the pleadings to be amended to conform to the evidence presented “and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.” Rule 15(b), SCRCP.  A motion to amend the pleadings is addressed to the sound discretion of the trial judge.  Our courts, however, have consistently held that “[a]mendments to conform to the proof should be liberally allowed when no prejudice to the opposing party will result.”  Harvey v. Strickland, 350 S.C. 303, 313, 566 S.E.2d 529, 535 (2002) .  “Prejudice occurs when the amendment states a new claim or defense that would require the opposing party to introduce additional or different evidence to prevail in the amended action.”  Ball v. Canadian Am. Exp. Co., Inc., 314 S.C. 272, 275, 442 S.E.2d 620, 622 (Ct. App. 1994) ; see also 61B Am. Jur. 2d Pleading § 827 (1999)  (noting that “[t]he test of prejudice in this situation is whether the opposing party had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory.”).

In this case, we find the trial court erred in denying Blake’s motion to amend. As described above, a significant amount of testimony presented at trial centered upon the question of whether Blake had properly redeemed title to the property.  Both Blake’s lawyer and defense counsel questioned Blake and others on this subject.  On the stand, Blake produced several critical pieces of evidence in this regard: the December 22, 1995 letter from the county treasurer informing Blake of his right to redeem the property by tendering payment of $53.99; the February 6, 1996 letter from the county treasurer informing Blake that his taxes were paid and returning his check; and the check itself.  The February 6, 1996 letter was admitted into evidence with no objection by defense counsel.

Furthermore, we find the respondents have failed to demonstrate allowing the amendment would have resulted in prejudice.  Respondents point to no further testimony or documentary evidence that would be necessary to try Blake’s redemption claim on its merits.  Indeed, the record reveals that the defense was able to directly rebut Blake’s own testimony and evidence that he had redeemed the property with the testimony of Herschel J. Evans, Jr., the Deputy Treasurer of Beaufort County.  Defense counsel asked Evans: “Do your records show that there was any payment of either taxes or the redemption for what would have been charged on the property for the tax year 1993?”  Evans responded: “My records do not indicate any payment of the taxes or the redemption for tax year 1993.” (Emphasis added.) 

We conclude, therefore, that the respondents failed to meet their burden of showing that prejudice would have resulted had the amendment been allowed.

II.      Propriety of the Tax Sale Under Section 12-51-40

Blake argues the trial court erred by finding his claim under South Carolina Code section 12-51-40 was barred by the two-year statute of limitations.  We disagree. 

Section 12-51-160  provides that:

In all cases of tax sale the deed of conveyance, whether executed to a private person, a corporation, or a forfeited land commission, must be held and taken as prima facie evidence of a good title in the holder, that all proceedings have been regular and that all legal requirements have been complied with. No action for the recovery of land sold under the provisions of this chapter or for the recovery of the possession may be maintained unless brought within two years from the date of sale.

(Emphasis added.)

As noted above, the tax sale in the present case occurred on February 6, 1995.  Blake did not file his complaint until October 30, 1998, more than one and a half years after the statute of limitation had expired.  Even if we applied the statute from the time the tax sale deed was recorded—May 1, 1996—Blake’s action was commenced beyond the two-year limitation.  Blake’s cause of action under section 12-51-40 is, therefore, barred.

CONCLUSION

We therefore conclude Blake’s motion to amend his complaint to conform to the evidence that showed he, pursuant to section 12-51-90, properly redeemed the property should have been allowed under Rule 15(b), SCRCP.  We also conclude the trial court correctly held Blake’s claim under section 12-51-40 was barred by the statute of limitations contained in section 12-51-160.  We express no opinion, however, regarding the claim of redemption, including the question of whether the claim is now barred.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concur.