CROWNOVER v. KEEL

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CROWNOVER v. KEEL

2015 OK 35

Case Number: 112728

Decided: 05/26/2015

THE SUPREME COURT OF THE STATE OF OKLAHOMA

Cite as: 2015 OK 35, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL

RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

VERNON L. CROWNOVER, Plaintiff/Appellant,

v.

GARLAND KEEL,

COUNTY TREASURER OF McINTOSH COUNTY and BOARD OF COUNTY COMMISSIONERS OF

McINTOSH COUNTY, Defendants/Appellees.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION

III

¶0 Appellant landowner neglected to pay taxes on certain real property in

McIntosh County, Oklahoma. The property was sold at a tax sale and a tax deed

was issued to the buyer. The landowner filed suit seeking to invalidate the tax

deed and quiet title in himself, asserting that the sale and resultant deed were

void because he was not given constitutionally sufficient notice of the sale and

was denied his right to redeem the property. Both the landowner and the county

defendants moved for summary judgment. The trial court granted the county

defendants' motion and denied the landowners. The landowner appealed, and the

Court of Civil Appeals affirmed. We hold: 1) that the landowner did not receive

constitutionally sufficient notice; and 2) the sale and resultant tax deed are

therefore void.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF

CIVIL APPEALS VACATED; TRIAL COURT REVERSED AND

CAUSE

REMANDED.

Michael P. Brogan, Oklahoma City, Oklahoma, for Plaintiff/Appellant Vernon L.

Crownover.

Carman D. Rainbolt, Checotah, Oklahoma, for Defendant/Appellee

Garland Keel.

Gregory R. Stidham, Assistant District Attorney for McIntosh

County, Eufaula, Oklahoma, for Defendants/Appellees County Treasurer of McIntosh

County and Board of County Commissioners of McIntosh County.

COMBS, V.C.J.:

¶1 The question presented on appeal is whether an owner of real property

received constitutionally sufficient notice of the sale of his property for

delinquent taxes when notice was provided only by publication and certified mail

that was returned undelivered. We hold that he did not.

I.

FACTS AND PROCEDURAL HISTORY

¶2 At issue in this cause is the ownership of certain real property in

McIntosh County, Oklahoma. Plaintiff/Appellant Vernon L. Crownover (Crownover)

originally obtained title to this property by virtue of warranty deed recorded

in the McIntosh County Clerk's Office on May 18, 2001. The undisputed facts

indicate Crownover ceased paying taxes on this property after paying the 2005 ad

valorem taxes by check dated January 1, 2006.

¶3 After Crownover failed to pay taxes on the property for several years, the

property was offered by McIntosh County for sale during the 2010 resale,

pursuant to 68 O.S. 2011 §§ 3105

and 3125. It is undisputed that the notice provisions of 68 O.S. 2011 § 3106, mandating

notice by mail and publication, were complied with. Notice was sent by certified

mail to Crownover at the address he provided when he purchased the property in

McIntosh County, and was also published in a newspaper in McIntosh County.

Unbeknownst to county treasurer's office, Crownover no longer lived at the

address to which notice was sent.

¶4 Defendant/Appellee Garland Keel (Keel) purchased the property at the 2010

tax resale and received a resale tax deed. Keel contacted Crownover after

obtaining the resale tax deed to inquire about a boat and trailer Crownover had

left on the property. Apparently only at this point did Crownover become aware

that the property had been sold at the tax resale due to his failure to pay

delinquent taxes. 1

¶5 Crownover filed suit against Defendants/Appellees County Treasurer of

McIntosh County and Board of County Commissioners of McIntosh County

(collectively, "County") in the District Court of McIntosh County on August 12,

2010, alleging he was the true owner of the subject property and seeking to

quiet title in himself. Crownover alleged that Keel's resale tax deed was void

because Crownover received no actual notice of the delinquent taxes or the tax

resale. Crownover argued that he did not receive notice because while the

notices of delinquent taxes and of the resale were sent to the address he

provided to McIntosh County when he purchased the property, Crownover no longer

lived at that address. Crownover asserted that the County should have sent

notice to the address listed on the last check he wrote for taxes on January 1,

2006. Crownover asserted that had notice been mailed to his correct address and

had he received it, he would have immediately paid taxes on the property and

would have redeemed it from the tax resale. Accordingly, he claimed he was

denied his right to redemption by the County's failure to provide him with

notice.

¶6 On June 4, 2013, Crownover moved for summary judgment, alleging that there

was no dispute as to the material facts and that he was denied due process

because he did not have actual notice of the delinquent taxes and 2010 tax

resale, and that the County's efforts were insufficient to provide him with that

notice. The County responded to Crownover's motion for summary judgment on

August 20, 2013, and also moved for summary judgment, alleging that it complied

with all statutory notice requirements by: 1) mailing notice by certified mail

to the address Crownover had originally provided; and 2) publishing notice of

the resale in a publication in McIntosh County. The County asserted the burden

was on Crownover to provide notice that his address had changed, and that it

should not have been required to assume that a single check with a different

address constituted that notice. 2

¶7 In a response to County's motion for summary judgment filed on September

6, 2013, Crownover contended that the notice sent by the County to his old

address via certified mail was returned to the County treasurer marked "Not

Deliverable as Addressed Unable to Forward." 3 In two separate orders filed on March

11, 2014, the trial court overruled Crownover's motion for summary judgment and

granted summary judgment in favor of the County.

¶8 Crownover appealed, filing his Petition in Error and Preliminary Statement

on April 7, 2014, in accordance with Oklahoma Supreme Court Rule 1.36, 12 O.S.

Supp. 2013, Ch. 15, App. 1, governing accelerated procedure for summary

judgments. This Court issued a show cause order on April 9, 2014, directing

Crownover to show cause why his appeal should not be dismissed for lack of an

appealable order because the trial court's order granting summary judgment for

the County did not dispose of Crownover's claims against Keel. Crownover

responded to the show cause order on April 23, 2014, and asserted that adequacy

of notice was the controlling issue in determining the validity of Keel's tax

deed. Because adequacy of notice to Crownover would determine the validity of

the tax deed issued to Keel, Crownover asserted the trial court's order denying

his motion for summary judgment was a final order disposing of his claims

against all parties, including Keel. This Court agreed, and allowed Crownover's

appeal to proceed.

¶9 In an unpublished opinion issued on December 5, 2014, the Court of Civil

Appeals , Division III, affirmed the decision of the trial court. The COCA

determined that the County completed all the statutory requirements to vest in

the County treasurer the authority to issue the tax deed, including mailing

notice to Crownover's address of record. The COCA also noted that pursuant to 68 O.S. 2011 § 3106, Crownover's

failure to receive this notice did not invalidate the sale. 4 Further, the COCA stated that

although Crownover claimed the County Treasurer's records showed the envelope

sent to his previous address was marked "not deliverable as addressed unable to

forward," Crownover did not attach a copy of the envelope and therefore it was

not part of the record.

¶10 Crownover filed his Petition for Writ of Certiorari on December 26, 2014,

arguing that the COCA erred by incorrectly stating that Crownover failed to

attach a copy of the certified mail envelope marked "not deliverable as

addressed unable to forward." Crownover further asserts that under the

undisputed facts he was entitled to summary judgment as notice via certified

mail was insufficient to satisfy due process when the County was aware that he

did not receive that notice. He also argues that a simple inquiry on their part

would have allowed them to determine his current address and provide actual

notice, which they failed to do. This Court granted Crownover's Petition for

Certiorari on March 30, 2015, and the cause was assigned to this office on April

1, 2015.

II.

STANDARD OF REVIEW

¶11 A moving party is entitled to summary judgment as a matter of law only

when the pleadings, affidavits, depositions, admissions, or other evidentiary

materials establish that no genuine issue of material fact exists. Miller v.

David Grace , 2009 OK 49,

¶10, 212 P.3d 1223; Davis v.

Leitner , 1989 OK 146, ¶9, 782 P.2d 924. In reviewing the grant

or denial of summary judgment, this Court views all inferences and conclusions

to be drawn from the evidentiary materials in a light most favorable to the

nonmoving party. Trinity Baptist Church v. Brotherhood Mut. Ins. Services,

LLC , 2014 OK 106, ¶9, 341

P.3d 75; Miller , 2009 OK

49, ¶10; Wathor v. Mut. Ins. Adm'rs , 2004 OK 2, ¶4, 87 P.3d 559.

¶12 Because a grant of summary judgment is a purely legal issue, this Court's

standard of review on appeal is de novo . Trinity , 2014 OK 106, ¶9; Miller , 2009 OK 49, ¶10; Carmichael v.

Beller , 1996 OK 48, ¶2, 914 P.2d 1051. In conducting a de

novo review of a trial court's legal rulings, this Court possesses plenary,

independent, and non-deferential authority to examine the issues presented.

Sheffer v. Carolina Forge Co., L.L.C. , 2013 OK 48, ¶10, 306 P.3d 544; Martin v. Aramark

Servs., Inc. , 2004 OK 38,

¶4, 92 P.3d 96.

III.

NOTICE TO A PROPERTY OWNER VIA CERTIFIED MAIL

PRIOR TO

SALE OF THE PROPERTY FOR DELINQUENT TAXES

IS

INSUFFICIENT TO SATISFY THE REQUIREMENTS OF DUE

PROCESS

WHEN THAT NOTICE IS RETURNED UNDELIVERED.

¶13 The Oklahoma Statutes provide for the eventual sale of real property by

the county in which it is located if taxes remain unpaid for a long enough

period of time. The applicable statute authorizing the sale of real property for

delinquent taxes is 68 O.S. 2011§

3105, which provides in pertinent part:

A. The county treasurer shall in all cases, except those provided for in

subsection B of this section, where taxes are a lien upon real property and

have been unpaid for a period of three (3) years or more as of the date such

taxes first became due and payable, advertise and sell such real estate for

such taxes and all other delinquent taxes, special assessments and costs at

the tax resale provided for in Section 3125 of this title, which shall be

held on the second Monday of June each year in each county. The county

treasurer shall not be bound before so doing to proceed to collect by sale

all personal taxes on personal property which are by law made a lien on

realty, but shall include such personal tax with that due on the realty, and

shall sell the realty for all of the taxes and special

assessments.

A. Constitutionally adequate notice to an owner of real property is

required before that property can be sold for delinquent taxes.

¶14 While 68 O.S. 2011 § 3105

authorizes the sale of real property for delinquent taxes, the U.S. Const.

amend. XIV, § 1 and Okla. Const. Art. 2, § 7 ensure that no person may be

deprived of life, liberty, or property without due process of law. 5 At a minimum,

due process requires notice and a meaningful opportunity to appear and be heard.

Edwards v. City of Sallisaw , 2014 OK 86, ¶19, 339 P.3d 870;

Daffin v. State ex rel. Okla. Dep't of Mines , 2011 OK 22, ¶16, 251 P.3d 741.

¶15 Accordingly, constitutionally sufficient notice must be given to real

property owners before the property is sold for failure to pay taxes. Jones

v. Flowers , 547 U.S. 220, 234, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006)

("[B]efore forcing a citizen to satisfy his debt by forfeiting his property, due

process requires the government to provide adequate notice of the impending

taking."). See Southwestern Commercial Capital, Inc. v. Cornett Packing

Co. , 2000 OK 19, ¶16, 997 P.2d 849; Luster v. Bank of

Chelsea , 1986 OK 74, ¶18, 730 P.2d 506.

¶16 Notice to the property owner prior to selling real property for

delinquent taxation is also required by statute, and the requirements are set

out in 68 O.S. 2011 § 3106, which

provides:

The county treasurer, according to the law, shall give notice of

delinquent taxes and special assessments by publication once a week for two

(2) consecutive weeks at any time after April 1, but prior to the end of

September following the year the taxes were first due and payable, in some

newspaper in the county to be designated by the county treasurer.

Such notice shall contain a notification that all lands on which the

taxes are delinquent and remain due and unpaid will be sold in accordance

with Section 3105 of this title, a list of the lands to be sold, the name or

names of the last record owner or owners as of the preceding December 31 or

later as reflected by the records in the office of the county assessor,

which records shall be updated based on real property conveyed after October

1 each year and the amount of taxes due and delinquent. If the sale involves

property upon which is located a manufactured home the notice shall contain

the following language: "The sale hereby advertised involves a manufactured

home which may be subject to the right of a secured party to repossess. A

holder of a perfected security interest in such manufactured home may be

able to pay ad valorem taxes based upon the value of the manufactured home

apart from the value of real property." In addition to said published

notice, the county treasurer shall give notice by mailing to the record

owner of said real property as of the preceding December 31 or later as

reflected by the records in the office of the county assessor, which records

shall be updated based on real property conveyed after October 1 each year,

a notice stating the amount of delinquent taxes owed and informing the owner

that the subject real property will be sold as provided for in Section 3105

of this title if the delinquent taxes are not paid and showing the legal

description of the property of the owner being sold. Failure to receive said

notice shall not invalidate said sale. The county treasurer shall charge and

collect in cash, cashier's check or money order, in addition to the taxes,

interest and penalty, the publication fees as provided by the provisions of

Section 121 of Title 28 of the Oklahoma Statutes, and Five Dollars ($5.00)

plus postage for mailing the notice, which shall be paid into the county

treasury or whatever fund the publication and mailing fee expenses came

from, and the county shall pay the cost of the publication of such notice.

But in no case shall the county be liable for more than the amount charged

to the delinquent lands for advertising and the cost of

mailing.

¶17 The parties do not dispute that the County satisfied the requirements of

68 O.S. 2011 § 3106 by publishing

notice in a newspaper in McIntosh county and sending notice by certified mail to

the address Crownover had originally provided. The County asserts that its

compliance with the statute was sufficient to satisfy the requirements of due

process, even if Crownover did not receive actual notice. The County points

specifically to the portion of 68

O.S. 2011 § 3106 which states: "[f]ailure to receive said notice shall not

invalidate said sale." Crownover asserts that mere compliance with the statute

was insufficient to satisfy due process where the County knew that Crownover did

not have actual notice, because the certified envelope was returned marked as

undeliverable as addressed and unable to forward.

¶18 This Court has long recognized that the statutory notice provisions for a

tax sale are mandatory, and the absence of such notice nullifies the sale of the

property. Garcia v. Ted Parks, L.L.C. , 2008 OK 90, ¶13, 195 P.3d 1269; Smith v.

Bostaph , 1924 OK 937, ¶0, 229 P. 1039 (overruled on other

grounds by Wilson v. Levy et al. , 1929 OK 457, 282 P. 679). However, compliance

with the notice provisions 68 O.S.

2011 § 3106 is not in and of itself sufficient if the notice provided is

constitutionally deficient:

when notice is a person's due, process which is a mere gesture is not due

process. The means employed must be such as one desirous of actually

informing the absentee might reasonably adopt to accomplish it. The

reasonableness and hence the constitutional validity of any chosen method

may be defended on the ground that it is in itself reasonably certain to

inform those affected

Mullane v. Central Hanover Bank & Trust Co ., 339 U.S. 306, 315, 70

S.Ct. 652, 94 L.Ed. 865 (1950).

B. Notice via certified mail does not satisfy the requirements of due

process when it is returned undelivered and other reasonable steps can be taken

to supply notice.

¶19 The notice requirement of due process is not satisfied where, as here,

notice sent via certified mail is returned undelivered and no further action is

taken. The decision of the United States Supreme Court in Jones v.

Flowers , 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), is directly

on point concerning notice required to satisfy the requirements of due process

prior to sale of real property for delinquent taxation. In Jones , under

similar facts to this cause, the Supreme Court of the United States determined

that "when mailed notice of a tax sale is returned unclaimed, the State must

take additional reasonable steps to attempt to provide notice to the property

owner before selling his property, if it is practicable to do so." Jones ,

547 U.S. at 225. The tax sale in Jones occurred after the State published

notice in a newspaper and attempted to notify the property owner--who no longer

lived on the property--by certified mail twice, with the notice returned

unclaimed both times. Jones , 547 U.S. at 223-224.

¶20 The Jones Court reaffirmed that the due process clause of the

United States Constitution does not require that a property owner receive actual

notice before the government may take his property. 547 U.S. at 226;

Dusenberry v. United States , 534 U.S. 161, 170, 122 S.Ct. 694, 151

L.Ed.2d 597 (2002). However, the Court also noted that:

due process requires the government to provide "notice reasonably

calculated, under all the circumstances, to apprise interested parties of

the pendency of the action and afford them an opportunity to present their

objections."

..

In Mullane we stated that "when notice is a person's due ... [t]he

means employed must be such as one desirous of actually informing the

absentee might reasonably adopt to accomplish it".

Jones , 547 U.S. at 226, 229 (quoting Mullane v. Central Bank &

Trust Co. , 339 U.S. 306, 314-315, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

In Jones , much as in this cause, the State argued that it satisfied

the notice requirement of due process through the act of sending notice via

certified mail. The Court disagreed, holding:

We do not think that a person who actually desired to inform a real

property owner of an impending tax sale of a house he owns would do nothing

when a certified letter sent to the owner is returned unclaimed. If the

Commissioner prepared a stack of letters to mail to delinquent taxpayers,

handed them to the postman, and then watched as the departing postman

accidentally dropped the letters down a storm drain, one would certainly

expect the Commissioner's office to prepare a new stack of letters and send

them again. No one "desirous of actually informing" the owners would simply

shrug his shoulders as the letters disappeared and say "I tried." Failure to

follow up would be unreasonable, despite the fact that the letters were

reasonably calculated to reach their intended recipients when delivered to

the postman.

Jones, 547 U.S. at 229 (emphasis added).

The Jones court also stated succinctly that the property owner's

failure to keep his address updated, which was required by statute, did not

result in the owner somehow forfeiting his right to constitutionally

sufficient notice. 547 U.S. at 229. Further, "the common knowledge that property

may become subject to government taking when taxes are not paid does not excuse

the government from complying with its constitutional obligation of notice

before taking private property." 547 U.S. at 232.

¶21 While the Jones Court determined that the State should have taken

other reasonable measures to reach the property owner, it stopped short of

requiring the state to search elsewhere for an address for the property owner,

noting that an open-ended search for a new address would unduly burden the

State. 547 U.S. at 236. Rather, the Court suggested reasonable measures such as

posting notice on the property door, or even sending notice by regular mail,

which could at least have resulted in its delivery and presence on the property.

Jones , 547 U.S. at 235. The Court noted that it was not its

responsibility to redraft the State's notice statute, but it was sufficient that

the Court was confident additional reasonable steps were available for Arkansas

to employ before taking the property. Jones , 547 U.S. at 238. The Court

concluded:

There is no reason to suppose that the State will ever be less than fully

zealous in its efforts to secure the tax revenue it needs. The same cannot

be said for the State's efforts to ensure that its citizens receive proper

notice before the State takes action against them. In this case, the State

is exerting extraordinary power against a property owner-taking and selling

a house he owns. It is not too much to insist that the State do a bit more

to attempt to let him know about it when the notice letter addressed to him

is returned unclaimed.

Jones , 547 U.S. at 239.

¶22 Federal jurisprudence is not the only indication that notice via

certified mail is insufficient to satisfy the requirements of due process before

a sale of real property for delinquent taxation when the government is aware

that the notice was not received by the property owner. Prior decisions of this

Court also firmly indicate that the County was required to do more under these

circumstances than simply shrug and claim it complied with the notice

statute.

¶23 As stated previously, this Court has long recognized that the statutory

notice provisions for a tax sale are mandatory, and the absence of such notice

nullifies the sale of the property. Garcia, 2008 OK 90, ¶13, 195 P.3d 1269. This Court has also

previously determined that notice by publication alone is insufficient to

satisfy the requirements of due process when the party entitled to notice is

readily identifiable. Garcia , 2008 OK 90, ¶13; Southwestern

Commercial Capital, Inc. v. Cornett Packing Co. , 2000 OK 19, ¶16, 997 P.2d 849.

¶24 This cause is not the first time this Court has examined notice

requirements prior to the sale of real property for delinquent taxes through the

lens of constitutionally-required due process. In Luster v. Bank of

Chelsea , 1986 OK 74, ¶18, 730 P.2d 506, this Court held that a

tax resale deed was void where the county treasurer failed to provide the

statutorily-required 6 notice to the true owner of the real property,

because the tax rolls erroneously showed another individual as the owner. Noting

that simple compliance with the notice requirements of the statute might not

satisfy due process, this Court stated:

[a]lthough the Lusters argue the trial court correctly found that all

matters pertaining to the tax certificates and the sale at the tax resale

were in compliance with the statutes, this is not determinative of this

appeal. It is the totality of the circumstances and conditions of each

individual case that determines if the constitutional requirements of due

process are satisfied. Walker v. City of Hutchinson, 352 U.S. 112, 115,

77 S.Ct. 200, 202, 1 L.Ed.2d 178 (1956); Mullane, 339 U.S. at 314, 70 S.Ct.

at 657. Due to no fault of Mrs. Thomas, the County Treasurer did not mail

written notice of either the original sale or the resale of the property to

her because the tax rolls erroneously reflected another person as record

owner. The publication advertising the resale similarly named Mr. Vaughn as

the owner rather than the Thomases. Concededly, the published notice of the

original sale listed Mr. Thomas as the owner.

Luster , 1986 OK 74, ¶17

(emphasis added).

¶25 In Wells Fargo Credit Corp. v. Ziegler , 1989 OK 113, ¶6, 780 P.2d 703, this Court determined

that the mere act of sending notice via certified mail, in the absence of a

return receipt, was insufficient to constitute actual notice. 7 In Ziegler , the

holders of the tax deed argued, much as the County does here, that pursuant to

the statute sending notice via certified mail was sufficient regardless of

whether the mailed notice was received. This Court disagreed, holding:

[t]his is a too narrow construction. The statute requires the county

treasurer to exercise reasonable diligence in locating the mortgagee.

Furthermore, "prior to an action which will affect an interest in life,

liberty or property protected by the Due Process Clause of the Fourteenth

Amendment, a state must provide notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections." Mennonite Bd.

of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d

180, 185 (1983) citing Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), "The notice must be

of such nature as reasonably to convey the required information . . . ."

Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873. The notice as

given in this case neither comports with the statutory mandate of reasonable

diligence in locating the mortgagee nor with the constitutional requirement

of due process. The absence of a return receipt was a red flag alerting the

County Treasurer to exercise reasonable diligence in locating Wells Fargo.

Yet, the County Treasurer went no further in its attempt to provide notice

in this case. The act of mailing, in and of itself, does not constitute

actual notice. "Notice by mail or other means as certain to ensure actual

notice is a minimum constitutional precondition to a proceeding which will

adversely affect the liberty or property interests of any party. . . ."

Mennonite Bd. of Missions, 103 S.Ct. at 2712. In the instant case, the act

of mailing without proof of receipt of notice falls short of the exercise of

reasonable diligence in assuring actual notice.

Ziegler , 1989 OK 113,

¶6.

¶26 More recently, this Court examined required notice in Garcia v. Ted

Parks , L.L.C., 2008 OK 90,

195 P.3d 1269. Under the facts

of that cause, where the record owner was living on the property and her

whereabouts were known, this Court determined that nothing less than actual

notice was sufficient to meet the requirements of due process prior to sale of

the property for delinquent taxation. This Court declared:

[c]learly, to the extent that the statute implies that the failure to

give actual notice to a record owner who was living on the property and

whose whereabouts were known does not affect the validity of the tax sale,

it conflicts with constitutionally protected due process notice

requirements.

Garcia , 2008 OK 90,

¶15.

C. Under the facts of this case, Crownover did not receive

constitutionally adequate notice of the pending sale of his property for

delinquent taxes.

¶27 It is undisputed that Crownover failed to timely pay taxes on the subject

property. It is also undisputed that the County fulfilled the notice

requirements of 68 O.S. 2011 §

3106 by publishing notice and by sending notice via certified mail to the

address it had been given for Crownover. The County asserts this was sufficient

notice, regardless of whether the notice was actually received by Crownover, and

further cites Crownover's own need to notify them of an address change and his

presumed knowledge that he would owe taxes.

¶28 However, the record contains undisputed evidence that the notice to

Crownover sent via certified mail was never received by him, was in fact

returned to the County marked as "not deliverable as addressed unable to

forward." The Court of Civil Appeals erred by declaring that this envelope was

mentioned but not actually attached to the record. Pursuant to Jones ,

when confronted with the knowledge that its notice via certified mail was not

delivered and therefore not seen by Crownover, the County was required to

attempt some other reasonable method of supplying notice to Crownover. 547 U.S.

at 225. The Prior decisions of this Court also indicate that simple compliance

with the notice statute is not always enough to satisfy the requirements of due

process. See Garcia , 2008 OK

90, ¶15; Ziegler , 1989 OK

113, ¶6.

¶29 The County could have taken other reasonable steps to attempt to provide

Crownover with notice, without necessarily being obligated to conduct a lengthy

hunt for a correct address. See Jones, 547 U.S. at 235-36. Like the

Supreme Court of the United States, we do not think that a person who actually

desired to inform a real property owner of an impending tax sale of the real

property would do nothing when a certified letter sent to the owner is returned

unclaimed. Jones , 547 U.S. at 229. The return of the certified notice

undelivered was a red flag that should have tipped off the County it needed to

follow up. Ziegler , 1989 OK

113, ¶6. The County's failure to make any further effort resulted in

Crownover being denied constitutionally sufficient notice of the eminent sale of

his property.

¶30 The Jones decision also deals succinctly, from the standpoint of

U.S. Const. amend. XIV, § 1, with the County's claims concerning Crownover's

obligations. Crownover's failure to timely pay taxes and his failure to provide

an updated address to the County did not relieve it of its obligation to provide

him with constitutionally adequate notice prior to selling his property.

Jones, 547 U.S. at 229, 232. We agree.

CONCLUSION

¶31 Under the undisputed facts of this cause, Crownover was not provided with

constitutionally adequate notice prior to the sale of his property for

delinquent taxes. Jones , 547 U.S. at 225. See Ziegler , 1989 OK 113, ¶6; Luster , 1986 OK 74, ¶18. Accordingly, the

tax sale and resultant resale tax deed are void. Garcia , 2008 OK 90, ¶15; Ziegler , 1989 OK 113, ¶6; Luster , 1986 OK 74, ¶¶18-19. Summary

judgment in favor of the County was improper. The opinion of the Court of Civil

Appeals is vacated, the trial court's order granting summary judgment in favor

of the County is reversed, and this cause is remanded to the trial court for

further proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF

CIVIL APPEALS VACATED; TRIAL COURT REVERSED AND

CAUSE

REMANDED.

REIF, C.J., COMBS, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, and GURICH, JJ.,

concur.

WINCHESTER (by separate writing) and TAYLOR, JJ., dissent.

FOOTNOTES

1 In his

Response to Petition in Error, Keel alleges he contacted Crownover to inquire

about purchasing the boat and trailer. In his response to Crownover's petition

in error, Keel notes he looked for a phone number for Crownover. The fact that

Keel apparently found one without undue difficulty supports Crownover's

assertion that finding him was not exactly an insurmountable obstacle, even

after he moved.

When the parties eventually spoke, Keel alleges they

instead reached an agreement wherein Crownover would rent the property from Keel

at a monthly rate in order to store the boat and trailer. Keel asserts Crownover

paid him rent once by check, in the amount of $150.00, for the months of August

and September, 2010, and that he received no further payment from Crownover

after that point.

2 County

also asserted that the name on the last check Crownover tendered was Vernon L.

Crownover, TTEE, whereas the property was clearly held in the name of Vernon L.

Crownover. The County asserted in its response and motion for summary judgment

that it had no way of knowing that the name and address on the check was a

proper contact point for Vernon L. Crownover, the individual.

3

Crownover attached a copy of the envelope to his response as exhibit A, and that

exhibit is included in the record on appeal.

4 The

COCA opinion actually cites 68 O.S.

2011 § 3601, which is an error as that provision is unrelated to the instant

cause. Title 68 O.S. 2011 § 3106,

the relevant provision, provides in pertinent part:

.. the county treasurer shall give notice by mailing to the record owner of

said real property as of the preceding December 31 or later as reflected by the

records in the office of the county assessor, which records shall be updated

based on real property conveyed after October 1 each year, a notice stating the

amount of delinquent taxes owed and informing the owner that the subject real

property will be sold as provided for in Section 3105 of this title if the

delinquent taxes are not paid and showing the legal description of the property

of the owner being sold. Failure to receive said notice shall not invalidate

said sale.

Title 68 O.S. 2011 § 3106

(emphasis added).

5 U.S.

Const. amend. XIV, § 1 provides:

[a]ll persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the

laws.

Okla. Const. Art. 2, § 7 provides:

[n]o person shall be deprived of life, liberty, or property, without due

process of law.

Oklahoma's due process clause has a definitional sweep that is coextensive

with its federal counterpart. In Re Adoption of K.P.M.A. , 2014 OK 85, n. 3, 341 P.3d 38;

Gladstone v. Bartlesville Indep. School Dist. No. 30 , 2003 OK 30, n. 16, 66 P.3d 442; Fair School Finance

Council of Oklahoma, Inc. v. State , 1987 OK 114, n. 48, 746 P.2d 1135. However, this Court's

holdings with regard to state constitutional questions are based on Oklahoma

law, which provides bona fide, separate, adequate and independent grounds

for our decision. In Re Adoption of K.P.M.A. , n. 3; Daffin v. State ex

rel. Oklahoma Dept. of Mines, 2011 OK 22 , n. 21, 251 p.3d 741; Gaylord

Entertainment Co. v. Thompson , 1998 OK 30, ¶51, 958 P.2d 128.

6 The

notice provision at issue in this cause was 68 O.S. Supp. 1984 § 24312; a prior

incarnation of 68 O.S. 2011 §

3106.

7

Ziegler concerned notice to a mortgagee of real property being sold for

unpaid taxes, which at the time was controlled by 68 O.S. Supp. 1986 § 24331, with

different but also quite similar language and requirements to 68 O.S. 2011 §

3106.

WINCHESTER, J., with whom TAYLOR, J. joins, dissenting,

¶1 The Oklahoma State Constitution, echoing the United States Constitution,

provides that "[n]o person shall be deprived of life, liberty, or property,

without due process of law." Although, as the majority notes, the "definitional

sweep" of this clause is coextensive with its federal counterpart, this Court's

decisions with regard to state constitutional questions are based on Oklahoma

law. In Re Adoption of K.P.M.A. , 2014 OK 85, ¶ 17, n.3, 341 P.3d 38,

44.

¶2 The United States Supreme Court has held that, to comport with the Due

Process Clause, States must provide "notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action."

Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 314

(1950). The Court in Dusenbery v. United States , 534 U.S. 161, 170

(2002), expressly noted, however, that "heroic efforts" are not required. To the

contrary, the Supreme Court has rejected "[a] construction of the Due Process

Clause which would place impossible or impractical obstacles in the way [of the

State]." Mullane , 339 U.S. at 313-14. In determining whether an

individual has been afforded due process, therefore, courts must balance the

State's interest in efficiently managing its administrative system and an

individual's interest in adequate notice. See id. at 314. To that end,

the Supreme Court has recognized that states need not achieve actual notice in

order to satisfy the requirements of the Due Process Clause. See

Dusenbery , 534 U.S. at 169-70.

¶3 Oklahoma's statute governing notice of delinquent taxes, 68 O.S. 2011, § 3106, 1 mandates

that--prior to selling real property for which taxes have been unpaid for three

or more years--county treasurers publish notice of taxes owed upon the property,

as well as send notice by certified mail to the record owner of the property.

Nothing in the text of the law requires that the county treasurer take

additional steps to ensure the property owner receives actual notice. In

fact, the statute notes that "[f]ailure to receive said notice shall not

invalidate said sale." Id.

¶4 In rare cases, however, this Court has required that the State do more

than simply comply with the letter of the law in order to provide due process.

But the only circumstances in which notice by mail and publication is inadequate

under the Due Process Clause involve "situations where the state or local

government knew at the outset that its notice efforts were destined to fail and

knew how to rectify the problem prior to sending notice." Id. at 244

(citing Robinson v. Hanrahan, 409 U.S. 38, 39 (1972) (per curiam)

(intended recipient known to be in jail); Covey v. Town of Somers,

351 U.S. 141, 145 (1956) (intended recipient known to be incompetent and without

a guardian)). In those situations, the county treasurer certainly has a

responsibility to comply with the statute and take steps to ensure proper notice

is served. But this duty arises from the implicit requirement that notice of an

impending tax sale must be made in good faith--not from any requirement that

county treasurers must always take steps to ensure actual notice. See

Mullane , 339 U.S. at 315.

¶5 Even though the county treasurer in this case knew from the certified mail

receipt that the attempted delivery of notice had been unsuccessful, he

certainly did not believe at the outset that his efforts were "destined to

fail." A certified mail receipt verifies "that an article was delivered or that

a delivery attempt was made." 2 The absence of any receipt, therefore, indicates

that the mail was lost, delayed, or otherwise rerouted from its intended

destination, and should undoubtedly trigger an additional duty for the county

treasurer to resend the mail or take other steps to comply with the statute. A

"not deliverable as addressed" receipt, on the other hand, simply indicates that

the certified mail service was unable to make actual contact with the property

owner. Because the statute does not require the county treasurer to provide

actual notice, and because a good-faith attempt at notice is sufficient under

the Due Process Clause, see Mullane , 339 U.S. at 315, service that

results in a "not deliverable as addressed" receipt (in addition to publication)

satisfies the statutory and constitutional requirements.

¶6 A majority of this Court would essentially redraft 68 O.S. 2011, § 3106 and impose

unreasonable and impractical burdens on the State in the exercise of its

administrative duties. Specifically, the majority suggests that the county

treasurer should have located the check with which the property owner last paid

taxes. See supra , at ¶¶ 28-29. Not only was the check in this case

written more than three years prior to the notice of delinquent taxes, but also

there was no indication that the address on the check was in fact the owner's

new place of residence. Many people use checks that do not match their current

addresses, either for the sake of convenience ( e.g. , so they do not need

to order new checks after changing addresses) or due to special circumstances

( e.g. , when somebody other than the property owner pays the taxes). But

under the majority's logic, 68 O.S.

2011, § 3106 requires that the county treasurer record every address on

every check and every other document that comes to his office, and then send

notice to each of those addresses in order to comport with due process. The

majority demands that, whenever a county treasurer doubts whether an interested

party has actually received notice, he must consider additional methods to

provide such notice, including, but not limited to, sending certified mail to

every address associated with the property owner, whether or not any of those

addresses is the address of record in the county treasurer's office. 3 And if those

notices are ineffective, then the treasurer must consider additional

methods, ad infinitum , to the point that he would effectively be

required to achieve actual notice.

¶7 Not only does the majority's interpretation of the statute disregard

existing case law holding quite clearly that county treasurers need not achieve

actual notice, it also places counties at the mercy of delinquent taxpayers. To

avoid being served notice, tax evaders could simply avoid contact with process

servers standing on their doorsteps, or move to a different address and neglect

to tell the county treasurer. Under the majority's holding, such evasive antics

would require the treasurer to employ additional tactics to make contact with

the property owner until either all possible methods are exhausted or the

treasurer decides that the task is not worth its cost. Such requirements

increase the amount of time and money that must be expended by the county to

comply with the law. Those additional costs are then passed on to citizens who

actually do pay their taxes.

¶8 Both parties and the majority recognize that the McIntosh County Treasurer

in this case complied with the requirements of 68 O.S. 2011, § 3106. It is not the

fault of the county that Crownover did not report his change of address, and it

should not fall to the county to engage in a paper chase to locate a missing

person. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 792, 798

(1983) (holding that "notice mailed to [the affected party's] last known

available address" is sufficient to satisfy due process). The constitutional

requirement is not that individuals be provided with every process of

law, only due process of law. What the majority opinion--and the Supreme

Court in Jones v. Flowers , 547 U.S. 220 (2006)--fails to supply is a

clear definition of due process. Without that clarity, there is no limit to how

far counties must go to provide notice sufficient under the Due Process Clause.

Because in this case the county treasurer gave due process in supplying notice

under the terms of the statute, the ruling of the Court of Civil Appeals should

be affirmed. For these reasons, I respectfully dissent.

FOOTNOTES

1 The

statute in pertinent part reads: "The county treasurer, according to the law,

shall give notice of delinquent taxes and special assessments by publication

once a week for two (2) consecutive weeks at any time after April 1, but prior

to the end of September following the year the taxes were first due and payable,

in some newspaper in the county to be designated by the county treasurer. . . .

In addition to said published notice, the county treasurer shall give notice by

mailing to the record owner of said real property as of the preceding December

31 or later as reflected by the records in the office of the county assessor,

which records shall be updated based on real property conveyed after October 1

each year . . . ."

2 United

States Postal Service, Certified Mail Receipt (Form 3800), available

at

https://store.usps.com/store/browse/productDetailSingleSku.jsp?productId=P_FORM_3800.

3 Because

the majority does not specify what "other reasonable method[s]" are required to

provide due process, such methods could easily include browsing phone books and

searching the Internet for addresses associated with the property owner. Those

resources are much easier for the county treasurer to locate (and maintain) than

is a three-year-old check, but surely no one would mandate that county officials

read through phone books to discharge their statutory duties. Yet that is the

effect of the majority's argument.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Supreme Court Cases

Cite Name Level

1986 OK 74, 730 P.2d 506, 57 OBJ 2977, Luster v. Bank of Chelsea Discussed at Length

1987 OK 114, 746 P.2d 1135, 58 OBJ 3282, Fair School Finance Council of Oklahoma, Inc. v. State Discussed

1989 OK 113, 780 P.2d 703, 60 OBJ 1783, Wells Fargo Credit Corp. v. Ziegler Discussed at Length

1989 OK 146, 782 P.2d 924, 60 OBJ 2833, Davis v. Leitner Discussed

2003 OK 30, 66 P.3d 442, GLADSTONE v. BARTLESVILLE INDEPENDENT SCHOOL DISTRICT NO. 30 Discussed

2004 OK 2, 87 P.3d 559, WATHOR v. MUTUAL ASSURANCE ADMINISTRATORS, INC. Discussed

2004 OK 38, 92 P.3d 96, MARTIN v. ARAMARK SERVICES, INC. Discussed

1996 OK 48, 914 P.2d 1051, 67 OBJ 1173, Carmichael v. Beller Discussed

1929 OK 457, 282 P. 679, 140 Okla. 74, WILSON v. LEVY Discussed

2008 OK 90, 195 P.3d 1269, GARCIA v. TED PARKS, L.L.C. Discussed at Length

2009 OK 49, 212 P.3d 1223, MILLER v. DAVID GRACE, INC. Discussed at Length

2011 OK 22, 251 P.3d 741, DAFFIN v. STATE ex rel. OKLAHOMA DEPT. OF MINES Discussed at Length

1924 OK 937, 229 P. 1039, 103 Okla. 258, SMITH v. BOSTAPH Discussed

2013 OK 48, 306 P.3d 544, SHEFFER v. CAROLINA FORGE COMPANY, L.L.C. Discussed

2014 OK 85, IN RE ADOPTION OF K.P.M.A. Discussed

2014 OK 86, EDWARDS v. CITY OF SALLISAW Cited

2014 OK 106, TRINITY BAPTIST CHURCH v. BROTHERHOOD MUTUAL INSURANCE SERVICES, LLC Discussed

2000 OK 19, 997 P.2d 849, 71 OBJ 731, Southwestern Commercial Capital, Inc. v. Cornett Packing Co. Discussed at Length

1998 OK 30, 958 P.2d 128, 69 OBJ 1404, GAYLORD ENTERTAINMENT CO. v. THOMPSON Discussed

Title 68. Revenue and Taxation

Cite Name Level

68 O.S. 3105, Real Property to be Sold for Delinquent Taxes and Special Assessments Discussed at Length

68 O.S. 24312, Renumbered as 68 O.S. § 3106 by Laws 1988, HB 1750, c. 162, § 161, eff. January 1, 1992 Cited

68 O.S. 24331, Renumbered as 68 O.S. § 3127 by Laws 1988, HB 1750, c. 162, § 161, eff. January 1, 1992 Cited

68 O.S. 3106, Notice of Sale - Fees for Publication Discussed at Length

68 O.S. 3601, Short Title Cited