Linda Owens v. Hamilton County, Tennessee

11/28/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 18, 2018 Session

LINDA OWENS v. HAMILTON COUNTY, TENNESSEE, ET AL.

Appeal from the Chancery Court for Hamilton County

No. 16-0689 Pamela A Fleenor, Chancellor

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No. E2017-02395-COA-R3-CV

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Taxpayer brought action against the county and the purchaser at the delinquent tax

sale alleging the sale of her property was void due to the lack of notice of the delinquent

tax sale proceeding. The trial court denied the motion for summary judgment filed by the

taxpayer and dismissed taxpayer’s complaint in its entirety. Taxpayer appeals. Because

the county never effectuated proper service on taxpayer, we reverse the trial court’s

decision and remand with instructions that the trial court void the sale of taxpayer’s

property and declare taxpayer the fee simple owner.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

John P. Konvalinka, Mark W. Litchford, Hollie A. Floberg, Chattanooga, Tennessee, for

the appellant, Linda Owens.

C. Ballard Scearce, Jr., Chattanooga, Tennessee, for the appellee, Kenneth Stiner, Sr.

Rheubin Taylor, Chattanooga, Tennessee, for the appellee, Hamilton County, Tennessee.1

OPINION

I. Background

In February 2012, Hamilton County, Tennessee (“the County”), mailed the 2011

property tax bill to Ms. Linda Owens (“Appellant”). The mailing address on the tax bill

was “9410 Dexter LN,” Ms. Owens’s residential address. Ms. Owens failed to pay her

1

Hamilton County, Tennessee did not file a brief in this appeal but did appear at oral argument.

tax bill, and in March 2013, the County filed a delinquent tax lawsuit (“Delinquent Tax

Suit”) against her in the Chancery Court for Hamilton County (“trial court”). In April

2013, the County mailed the summons (“first summons”) regarding the lawsuit, via

certified mail, to “09410 Dexter LN.” It was returned to the County and showed: “Return

to Sender, Not Deliverable as Addressed, Unable to Forward.” In November 2014, the

County mailed a second summons (“second summons”), via certified mail, to Ms. Owens

at “9412 Dexter LN.” The second summons was returned to the County and showed:

“Return to Sender, No Such Number.” In January 2015, Sheriff’s Deputy Gregg

Bowman attempted to personally serve Ms. Owens with the third summons at “9412

Dexter LN.” Deputy Bowman’s return stated: “not served because the defendant(s) could

not be located.” Deputy Bowman added a handwritten notation on the return, stating:

“Vacant Lot.” After the foregoing attempts at service, the County moved to serve Ms.

Owens via publication. By order of January 29, 2015, the trial court allowed service on

Ms. Owens by publication. The address for Ms. Owens listed in the publication was

“9412 Dexter LN.” Ms. Owens did not see the publication and did not answer the

lawsuit.

On March 25, 2015, the County filed a Motion for Default Judgment against Ms.

Owens. Despite being made aware that “9412 Dexter LN” was a vacant lot, the County

mailed the motion to Ms. Owens at that address. On April 13, 2015, the motion was

granted. The County also mailed a copy of the Order of Default to Ms. Owens at “9412

Dexter LN,” which order was returned to the County and showed: “Return to Sender, No

Such Number, Unable to Forward.” On May 22, 2015, the trial court entered an Order

Confirming Master’s Reports and Order to Sell Ms. Owens’s property. For purposes of

the sale, the County listed the address for Ms. Owens’s property as “9412 Dexter LN.”

The County mailed the Order Confirming Master’s Reports and Order to Sell to Ms.

Owens at “9412 Dexter LN,” which mailing was returned to the County and showed:

“Return to Sender, No Such Number, Unable to Forward.”

On June 4, 2015, the County sold Ms. Owens’s property to Mr. Kenneth Stiner, Sr.

(“Appellee”) for $42,000.00. The Order Confirming Sale was filed on June 24, 2015,

and a copy of same was mailed to Ms. Owens at “9412 Dexter LN.” The copy of the

order was returned to the County and showed: “Return to Sender, Not Deliverable as

Addressed, Unable to Forward.” Ms. Owens was not aware that Mr. Stiner purchased her

property until he arrived at her home in July 2016 to take possession.

On October 11, 2016, Ms. Owens filed suit (“Equity Suit”) in the trial court

against the County and Mr. Stiner. Ms. Owens alleged that the County violated her Due

Process rights when it failed to provide her notice of the tax sale. She requested that the

trial court set aside the sale of her property and declare her the fee simple owner. In

November 2016, both the County and Mr. Stiner filed separate answers.

On February 10, 2017, Ms. Owens filed a Motion for Judgment on the Pleadings

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requesting that the trial court declare the delinquent tax sale void and restore Ms.

Owens’s ownership. On February 24, 2017, Ms. Owens filed, inter alia, a Tennessee

Rule of Civil Procedure 60.02 Motion for Relief from Judgment and Order, and a Motion

to Consolidate the Delinquent Tax Suit and the Equity Suit. By order of March 20, 2017,

the trial court consolidated the two suits. By separate order of March 20, 2017, the trial

court merged Ms. Owens’s Rule 60.02 Motion with her Motion for Judgment on the

Pleadings. By the same order, the trial court converted Ms. Owens’s Motion for

Judgment on the Pleadings into a motion for summary judgment. On July 6, 2017, Ms.

Owens filed: (1) her supplemental motion for summary judgment with attached exhibits;

(2) her Statement of Undisputed Facts; and (3) her memorandum of law. On September

12, 2017, Mr. Stiner filed his supplemental response to Ms. Owens’s motion for summary

judgment. He did not file a separate response to her Statement of Undisputed Facts, nor

did he file any affidavits or exhibits in support of his responses. The County did not file

a supplemental response.2

By order of November 9, 2017, the trial court denied Ms. Owens’s motions and

dismissed her complaint in its entirety with prejudice. The trial court found, inter alia,

that the County was diligent in its attempts to serve Ms. Owens by mail and personal

service. Further, the trial court found that the County obtained proper constructive

service by publication. Thus, the trial court held that it acquired subject matter

jurisdiction to sell Ms. Owens’s property in satisfaction of the tax lien. Ms. Owens

appeals.

II. Issue

Ms. Owens raises four issues for review; however, we perceive that there is one

dispositive issue, i.e., whether the order affirming the sale of the property is void for lack

of adequate service of process of the delinquent tax lawsuit on Ms. Owens.

III. Standard of Review

Ms. Owens appeals the denial of summary judgment on all her claims. A trial

court’s decision to grant a motion for summary judgment presents a question of law.

Therefore, our review is de novo with no presumption of correctness afforded to the trial

court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court

must make a fresh determination that all requirements of Tennessee Rule of Civil

Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-Memphis Hosps.,

325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary judgment is made, the

moving party has the burden of showing that “there is no genuine issue of material fact

2

It was agreed by all parties that the County was a nominal party to the lawsuit.

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and the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

To the extent that the determination of the issues rests on statutory construction, they

present questions of law, which we review de novo. Riad v. Erie Ins. Exch., 436 S.W.3d

256, 272 (Tenn. Ct. App. 2013) (citing In re Estate of Tanner, 295 S.W.3d 610, 613

(Tenn. 2009) (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn.

2000)); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)).

IV. Analysis

1. Statutory Requirements

We first address whether the County complied with the statutory requirements for

notice under Tennessee Code Annotated sections 67-5-2415, 67-5-2502, and 21-1-203(a).

Tennessee Code Annotated section 67-5-2415 governed notice to property owners in

suits to enforce tax liens. At the time the County filed the Delinquent Tax Suit,3 the

statute provided, in relevant part:

(a) The defendant, when served in any manner according to the Rules of

Civil Procedure, either by mail or in person, does not have to be served

with a copy of the complaint and exhibit and instead, the clerk may issue a

notice to accompany the summons.

(b) The notice shall identify the suit mentioned in the summons sufficiently

to enable the taxpayer to know what delinquent taxes the taxpayer is being

sued for and what property is subject to the lien.

***

(d) Constructive service of process shall be made as now provided by law.

(e) In all counties, personal service of process on the defendant may be

dispensed with and the summons and notice may be sent by certified or

registered mail, return receipt requested . . . .

Tenn. Code Ann. § 67-5-2415 (a), (b), (d), (e). Tennessee Code Annotated section 67-5-

2502 also governed notice to taxpayers of suits to enforce tax liens, and, at the time the

County filed the Delinquent Tax Suit, provided, in part:4

3

This statute was amended four times after the County filed its Delinquent Tax Suit. We address

this issue using the May 2012 through May 2013 version of the statute that was in effect at the time the

County filed its lawsuit.

4

This statute was amended six times after the County filed its Delinquent Tax Suit. Therefore,

we address this issue using the version of the statute that was in effect at the time the County filed the

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(b) It is the responsibility of the property owner to register the property

owner’s name and address with the assessor of property of the county in

which the land lies.

(c) The delinquent tax attorney shall make a reasonable search of the public

records in the offices of the assessor of property, trustee, local office where

wills are recorded, and register of deeds and give notice to persons

identified by the search as having an interest in the property to be sold. The

court shall set a reasonable fee for this service.

Tenn. Code Ann. § 67-5-2502 (b), (c).

Under the foregoing statutes, there are three methods for service of process in tax

lien suits: personal service, service by mail, or constructive service by publication.

Tenn. Code Ann. § 67-5-2415(a), (d), (e). Additionally, the delinquent tax attorney

attempting service “shall make a reasonable search of the public records in the offices of

the assessor of property, trustee, local office where wills are recorded, and register of

deeds and give notice to persons identified by the search as having an interest in the

property to be sold.” Tenn. Code Ann. § 67-5-2502(c). To ensure proper notice, the

property owner is responsible for registering her name and address with the assessor’s

office in the county in which her property is located. Tenn. Code Ann. § 67-5-2502(b).

The Tennessee Supreme Court explained these statutes in Wilson v. Blount

County, 207 S.W.3d 741 (Tenn. 2006). In Wilson, Blount County filed suit to enforce a

tax lien on Dennis Wilson’s properties. Id. at 744. Mr. Wilson provided the assessor’s

office a P.O. Box as his mailing address. Id. The Blount County Sheriff’s Department

received two summonses to deliver to Mr. Wilson. Id. However, instead of delivering

the summonses, Captain Randall Mercks of the Sheriff’s Department sent a letter via

regular mail to Mr. Wilson’s P.O. Box number. Id. This letter explained that Blount

County initiated legal proceedings against Mr. Wilson related to delinquent property

taxes that required Mr. Wilson to be served with a summons. Id. The letter described

that Mr. Wilson could receive a copy of the summons by visiting the sheriff’s office

within ten days; otherwise, an “officer [would] be assigned to pursue other means of

service.” Id. The letter was never returned to the sheriff’s office, and Mr. Wilson never

visited the sheriff’s office. Thereafter, Captain Mercks pursued “other means of service”

himself. Id. Captain Mercks testified that he likely searched the telephone directory for

Mr. Wilson in an attempt to locate him. Id. However, no further action was taken, and

Captain Mercks returned the summons to the clerk’s office noting, “DILIGENT

SEARCH MADE AND NOT TO BE FOUND IN MY COUNTY.” Id. at 745.

Consequently, the chancery court issued an Order of Publication, entered a Default

Judgment against Mr. Wilson, and sold his properties. Id. Mr. Wilson did not receive

lawsuit.

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notice of the tax lien suit and sale until he found a note attached to his door two years

later, notifying him that his property had been sold. Subsequently, Mr. Wilson filed suit

to void the default judgment and to set aside the tax sale. Id.

The Wilson Court found that Blount County did not satisfy the statutory

requirements for notice under Tennessee Code Annotated sections 67-5-2415 and 21-1-

203, and that Blount County’s notice did not comply with due process. The Wilson

Court explained that, because Blount County never served Mr. Wilson by mail or

personal service, the sufficiency of the notice depended on whether Blount County

complied with Tennessee Code Annotated section 21-1-203. Id. at 746. Tennessee Code

Annotated section 21-1-203(a) provides that personal service of process is dispensed with

when

(1) . . . the defendant is a nonresident of this state;

(2) . . . upon inquiry at the defendant’s usual place of abode, the defendant

cannot be found so as to be served with process, and there is just ground to

believe that the defendant is gone beyond the limits of the state;

(3) . . . the sheriff makes return upon any leading process that the defendant

is not to be found;

(4) . . . the name of the defendant is unknown and cannot be ascertained

upon diligent inquiry;

(5) . . . the residence of the defendant is unknown and cannot be ascertained

upon diligent inquiry;

(6) . . . judicial and other attachments will lie, under this code, against the

property of the defendant; and

(7) . . . a domestic corporation has ceased to do business and has no known

officers, directors, trustees or other legal representatives on whom personal

service may be had.

Tenn. Code Ann. § 21-1-203(a). When the sheriff receives a summons, it is the sheriff’s

duty to “execute and return . . . the process . . . of the courts . . . with due diligence, when

delivered to the sheriff for that purpose . . . .” ). Tenn. Code Ann. § 8-8-201(a)(1).5

Additionally, “no sheriff shall return upon any writ that the person upon whom it is to be

5

This statute was amended twice after the County filed its Delinquent Tax Suit. We address this

issue using the August 2011 through June 2013 version of the statute that was in effect at the time the

County filed the lawsuit.

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served is not to be found in the county, unless such sheriff has actually been at the place

of abode of such person.” Tenn. Code Ann. § 8-8-208 (emphasis added).

In Wilson, Blount County argued that constructive service was proper, under

Tennessee Code Annotated section 21-1-203(a)(3), because Captain Mercks returned the

summonses explaining that Mr. Wilson was not to be found. Wilson, 207 S.W.3d at 746;

Tenn. Code Ann. § 21-1-203(a)(3). The Court disagreed finding that “the Blount County

Sheriff’s Department failed to exercise due diligence before making a return that [Mr.]

Wilson was not to be found” because Captain Mercks’s additional search was merely

looking through a telephone directory. Id. at 746-47. Due diligence required Blount

County to do more. Id. at 747. The Court suggested that “Captain Mercks could have

checked the tax records for a physical address, or he could have provided service by mail

at [Mr.] Wilson’s post office address.” Id. Further, the Court explained that “[w]hen the

sheriff makes a false return stating that a person is not to be found, the return will not

support constructive service by publication.” Id. (citing Willshire v. Frees, 201 S.W.2d

675, 677 (Tenn. 1947); Carlisle v. Corran, 2 S.W. 26, 28 (Tenn. 1886) (holding that

jurisdiction cannot be obtained by a false return which is properly challenged)).

Therefore, the Court concluded that Blount County failed to comply with the statutory

requirements for notice. Wilson, 207 S.W.3d at 748.

We reach a similar conclusion here. Turning to the record, it is undisputed that

Ms. Owens never received personal service. She also never received service by mail

because both mailed summonses were returned to the County. Furthermore, neither

summons was mailed to her correct address. The address listed on the deed for Ms.

Owens’s property is “9410 Dexter Lane.” Her deed also states that tax bills shall be sent

to the same address. Additionally, the tax bill for 2011 states the “Taxpayer Mailing

Address” as “9410 Dexter LN.” Furthermore, Ms. Owens testified by affidavit that she

never contacted the assessor’s office requesting that mail be sent to any address other

than “9410 Dexter Lane.” Despite this information, the first summons was sent via

certified mail to “09410 Dexter LN” and was returned to the County as: “Not Deliverable

as Addressed, Unable to Forward.” After unsuccessful service of the first summons, the

County unilaterally changed Ms. Owens’s address to “9412 Dexter LN” and again

attempted to serve her at that address via certified mail. The second summons was

returned to the County and read: “Return to Sender, No Such Number.” In her affidavit,

Ms. Owens testified that she never received or rejected any mailings related to the

property tax lawsuit. Despite being notified by the post office that “no such number”

existed for “9412 Dexter LN,” Deputy Bowman attempted to personally serve Ms.

Owens with the third summons at “9412 Dexter LN.” Deputy Bowman indicated on his

return that he did not serve Ms. Owens and that “9412 Dexter LN” was a vacant lot. The

County never attempted service at “9410 Dexter Lane,” Ms. Owens’s actual address.

The County failed to serve Ms. Owens either personally or by mail. Therefore, the

sufficiency of the County’s notice to Ms. Owens depends on whether the County

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complied with the statute governing constructive service by publication. See Wilson, 207

S.W.3d at 746. The County argues that constructive service was proper because it

attempted to serve Ms. Owens via certified mail twice and via personal service once. Ms.

Owens argues that constructive service was improper because the County never

attempted service at her correct address and did not act diligently to find her. The trial

court found, in part:

[Ms. Owens] argues that the [C]ounty did not exercise diligent

inquiry as to her residence because her warranty deed states to send Tax

Bills to 9410 Dexter Lane. T.C.A. § 21-1-203[(a)](5). This [c]ourt

disagrees. Attempting personal service or certified mail service to the 9410

Dexter Lane address was one option for the [C]ounty to give notice but not

the only method of notification reasonably calculated to provide notice.

The [c]ourt determines the [C]ounty exercised diligent inquiry by mailing

the summons by certified mail to 9412 Dexter Lane and by attempting

personal service to 9412 Dexter Lane, because it was the address on record

in the assessor’s office. T.C.A. § 67-5-2415, 67-5-2502(a)(3). Further, in

compliance with T.C.A. § 21-1-203(a)(3), the sheriff made return upon

leading process that [Ms. Owens] could not be located at the [p]roperty

address on record at the assessor’s office.

Respectfully, we disagree with the trial court. First, we conclude that the County

did not make a reasonable effort to provide Ms. Owens with notice of the proceedings.

Tenn. Code Ann. § 67-5-2502(c). The County never attempted service on Ms. Owens at

“9410 Dexter Lane,” the address listed on her deed and the address listed on her 2011 tax

bill. Instead, the County attempted service, via certified mail, at “09410 Dexter Lane.”

The trial court conceded that “09410 Dexter Lane” is not the same mailing address as

“9410 Dexter Lane.” When the first summons was returned, instead of attempting

service at “9410 Dexter Lane,” the County unilaterally changed Ms. Owens’s address in

its system to “9412 Dexter Lane” and attempted service via certified mail at that address.

When the second summons was returned to the County, despite having information that

“no such number” existed for “9412 Dexter LN,” Deputy Bowman attempted personal

service at “9412 Dexter Lane.” Upon discovering that “9412 Dexter Lane” was a vacant

lot, the County ended its search and sought to serve Ms. Owens via publication. None of

the methods employed by the County were reasonably calculated to provide Ms. Owens

notice because the County never attempted service at her correct address.6

6

Interestingly, the County changed Ms. Owens’s address in its system back to “9410 Dexter

Lane” after selling her property to Mr. Stiner. In its answer to Ms. Owens’s interrogatories, the County

states that “9410 Dexter Lane” is the “address of the [p]roperty as currently maintained in the County’s

records.” Furthermore, the Hamilton County Unofficial Property Card, filed as an exhibit to Ms. Owens’s

Statement of Undisputed Facts, states that Mr. Stiner owns the property located at “9410 Dexter Lane,”

and that Ms. Owens was the grantor/seller of that property.

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We also conclude that the trial court erred in finding that the County complied

with Tennessee Code Annotated section 21-1-203(a). The trial court found that “the

sheriff made return upon leading process that [Ms. Owens] could not be located at the

[p]roperty address on record at the assessor’s office.” As discussed, supra, Deputy

Bowman attempted to personally serve Ms. Owens at a vacant lot and made no further

attempts to contact her after discovering the lot was vacant. In this regard, Deputy

Bowman did not satisfy the due diligence requirement of Tennessee Code Annotated

section 8-8-201(a)(1). Furthermore, having never visited Ms. Owens’s “place of abode,”

Deputy Bowman executed a false return when he returned the summons stating that Ms.

Owens could not be located. Tenn. Code Ann. § 8-8-208. “When the sheriff makes a

false return stating that a person is not to be found, the return will not support

constructive service by publication.” Wilson, 207 S.W.3d at 747 (citing Willshire, 201

S.W.2d at 677; Carlisle, 2 S.W. at 28 (holding that jurisdiction cannot be obtained by a

false return which is properly challenged)).

The trial court also concluded that the County was diligent in its attempts at

service because “9412 Dexter Lane” was the address on record in the assessor’s office.

We disagree. “9412 Dexter Lane” was the address on file with the assessor’s office

because the assessor’s office unilaterally changed Ms. Owens’s address in its system.

Ms. Owens never changed her address with the assessor’s office. Mailing and attempting

personal service at a vacant lot, which is not the address the defendant provided to the

assessor’s office, is not a method of notification that is reasonably calculated to provide

notice. The County and Deputy Bowman’s searches were neither reasonable nor diligent;

therefore, the constructive service by publication was ineffective to bring Ms. Owens

before the trial court. For these reasons, we conclude that the County failed to comply

with the statutory requirements for notice in a tax lien suit under Tennessee Code

Annotated sections 67-5-2415, 67-5-2502 and 21-1-203(a).

2. Due Process Requirements

Ms. Owens also brought suit under the Due Process Clause of the United States

Constitution and the Tennessee Constitution. Therefore, we must determine whether her

procedural due process rights were violated. In Wilson, the Tennessee Supreme Court

explained that

[t]he Due Process Clause of the Fourteenth Amendment of the United

States Constitution requires that “deprivation of life, liberty or property by

adjudication be preceded by notice and opportunity for hearing.” Mullane

v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); see also

Martin v. Sizemore, 78 S.W.3d 249, 262 (Tenn. Ct. App. 2001) (“The Due

Process Clause . . . and Tenn. Const. art. I, § 8 provide similar procedural

protections and guarantees.”). The notice required by the Due Process

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Clause is that which is “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.” Mullane, 339 U.S. at 314. To

effectuate the required notice, “[t]he means employed must be such as one

desirous of actually informing the absentee might reasonably adopt to

accomplish it.” Id. at 315. Significantly, “[w]here the names and post-

office addresses of those affected by a proceeding are at hand, the reasons

disappear for resort to means less likely than the mails to apprise them of its

pendency.” Id. at 318.

Wilson, 207 S.W.3d at 748. Furthermore, in Mennonite Board of Missions v. Adams,

462 U.S. 791 (1983), the United States Supreme Court explained that “[n]otice 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 . . .

if its name and address are reasonably ascertainable.” Id. at 800.

The United States Supreme Court more recently addressed proper notice and due

process requirements in Jones v. Flowers, 547 U.S. 220 (2006). In Jones, the plaintiff,

Gary Jones, owned a house on North Bryan Street in Little Rock, Arkansas, where he

lived with his wife until their divorce. Id. at 223. After their divorce, Mr. Jones moved

into an apartment, but his ex-wife remained in the house. Id. Mr. Jones continued

making mortgage payments. Id. After Mr. Jones paid off the mortgage, the property

taxes went unpaid. Id. The Commissioner of State Lands (“Commissioner”) mailed a

certified letter to Mr. Jones at the North Bryan Street address notifying him of his tax

delinquency, and his right to redeem the property. Id. Mr. Jones did not receive this

letter. The post office returned the unopened letter to the Commissioner, and it was

marked “unclaimed.” Id. at 224. Two years later, and a few weeks before the public sale

of Mr. Jones’s house, the Commissioner published a notice of public sale in the

newspaper. Id. No bids were submitted, and the Commissioner negotiated a private sale

of Mr. Jones’s property with Linda Flowers. Id. Again, the Commissioner sent a letter to

Mr. Jones, via certified mail, notifying him that his house would be sold if he did not pay

his taxes. Id. This letter also went “unclaimed.” Id. Flowers purchased the house and

delivered an unlawful detainer notice to the property, which was served on Mr. Jones’s

daughter, who then notified Jones of the tax sale. Id.

Mr. Jones sued the Commissioner and Flowers for failure to provide notice of the

tax sale and his right to redeem, which resulted in the taking of his property without due

process. Id. Similar to our case, the Commissioner argued that the two unclaimed letters

were constitutionally adequate attempts at notice. Id. In Jones, the issue before the

Supreme Court was “whether the Due Process Clause requires the government to take

additional reasonable steps to notify a property owner when notice of a tax sale is

returned undelivered.” Id. at 225. The Court held “that when mailed notice of a tax sale

is returned unclaimed, the State must take additional reasonable steps to attempt to

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provide notice to the property owner before selling his property, if it is practicable to do

so.” Id. The Court explained that “a person who actually desired to inform a real

property owner of an impending tax sale of a house he owns would [take additional steps]

when a certified letter sent to the owner is returned unclaimed.” Id. at 229; see also

Mullane, 339 U.S. at 315. The Court explained that even though the Commissioner may

have made reasonable calculations to apprise Mr. Jones of the action and afford him the

opportunity to present his objections, it had no good reason to suspect that Mr. Jones had

received the notice. Jones, 547 U.S. at 230 (internal citation omitted); see also Mullane,

339 U.S. at 314.

The Supreme Court concluded that the Commissioner should have taken

additional reasonable steps to notify Mr. Jones of the proceedings once it became aware

that the notice went undelivered. Jones, 547 U.S. at 234. The Court listed additional

reasonable steps the Commissioner should have taken to give Mr. Jones notice, among

them: (1) sending a letter via regular mail; and (2) posting notice on the front door of the

property. The Court reasoned that regular mail stood a better chance of reaching Mr.

Jones than certified mail because it did not require a signature. Id. at 234. Furthermore,

regular mail could be left at the property, unlike certified mail, which, if not received at

the property, must be retrieved from the post office. Id. at 234-35. Additionally, the

Court suggested posting a notice on the front door of the property as it “would increase

the likelihood that the owner would be notified that he was about to lose his property.”

Id. at 235. While these additional steps might place an added burden on the

governmental agency, the Supreme Court concluded that “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.” Id. at 239.

Similarly, in Wilson, the Tennessee Supreme Court concluded that Blount

County’s mailing of a letter was “defective in providing notice because it was not

reasonably calculated to apprise Wilson of the tax lien suit and to give him an

opportunity to present his objections.” Wilson, 207 S.W.3d at 749 (citing Mullane, 339

U.S. at 315). The Court added that Blount County’s constructive service was also

inadequate because “[a]lthough Blount County had Wilson’s post office address, it never

attempted to send either [s]ummons [or] [n]otice through the mail.” Wilson, 207 S.W.3d

at 749.

Jones, Mennonite and Wilson support our holding that the County’s attempts to

notify Ms. Owens of the Delinquent Tax Suit were constitutionally inadequate. We

acknowledge that the County attempted to serve Ms. Owens via certified mail twice;

however, neither attempt was mailed to Ms. Owens’s actual address. Furthermore, both

summonses were returned to the County, which put the County on notice that Ms. Owens

did not receive them. Additionally, Deputy Bowman’s attempt at personal service failed

because he did not visit Ms. Owens’s actual address. Instead, he visited a vacant lot.

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Thus, the two mailing attempts and the one attempt at personal service were defective in

providing notice because none were reasonably calculated to apprise Ms. Owens of the

tax lien suit and to give her an opportunity to present her objections. See Wilson, 207

S.W.3d at 749 (citing Mullane, 339 U.S. at 315). Both the Jones Court and the Wilson

Court explained that when the government is aware that notice to a defendant in a tax lien

suit has gone undelivered, the government is required to take additional reasonable steps

to serve process. Jones, 547 U.S. at 225; Wilson, 207 S.W.3d at 749. Here, the County

was notified that both attempts at certified mail went undelivered. Furthermore, the

County was on notice that “9412 Dexter Lane” was a vacant lot; yet the County did not

take the necessary additional steps to serve Ms. Owens beyond constructive notice. The

County did not put forth effort “such as one desirous of actually informing the absentee”

of the lawsuit. Mullane, 339 U.S. at 315. As discussed, supra, Deputy Bowman and the

County could have and should have taken further steps to locate Ms. Owens once they

discovered that the address on file was a vacant lot. The County could have sent a letter

via both certified and regular mail to Ms. Owens’s correct address, “9410 Dexter Lane.”

While he was at the vacant lot, Deputy Bowman could have easily gone to neighboring

properties to inquire about Ms. Owens’s address. He could have visited “9410 Dexter

Lane” to see if that was Ms. Owens’s correct address and could have posted a notice on

the front door of the property. While the County may argue that these additional steps

are a burden, “[a]gainst this interest of the [County] we must balance the individual

interest sought to be protected by the Fourteenth Amendment.” Mullane, 339 U.S. at

314. Therefore, we conclude that the County’s attempts to serve Ms. Owens did not

satisfy the notice requirement of the Due Process Clause. Service by publication also

failed to satisfy the minimum due process requirements because the County did not

provide “notice by mail or other means to ensure actual notice” when the County had

both the name and post office address for Ms. Owens. Wilson, 207 S.W.3d at 749

(internal citations omitted).7

We are aware that Ms. Owens need not receive actual notice for due process to be

satisfied. Id. However, our “proper inquiry is whether the [C]ounty took such actions to

notify [Ms. Owens] as [were] ‘reasonably calculated to apprise [her]’ of the proceeding.”

Id. at 750 (citing Mullane, 339 U.S. at 314). Here, the County had access to Ms.

Owens’s correct mailing address because it was listed on the deed to her property. To

comply with the due process requirements, the County should have, at the very least,

mailed a summons to her correct address. Additionally, Deputy Bowman and the County

should have taken additional reasonable steps to find Ms. Owens and to notify her of the

proceeding once they discovered that “9412 Dexter Lane” was a vacant lot.

7

We note that the Jones Court observed that “‘chance alone’ brings a person’s attention to ‘an

advertisement in small type inserted in the back pages of a newspaper . . . and that notice by publication is

adequate only where ‘it is not reasonably possible or practicable to give more adequate warning.’” Jones,

547 U.S. at 237 (citing Mullane, 339 U.S. at 315, 317).

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In Wilson, the Tennessee Supreme Court explained that “[w]hen notice is due,

‘process which is a mere gesture is not due process.’” Id. (quoting Mullane, 339 U.S. at

315. The notice given in this case did not comply with Tennessee Code Annotated

sections 67-5-2415, 67-5-2502, or 21-1-203 because the County did not exercise due

diligence in attempting to reach Ms. Owens. Additionally, the notice did not comply

with due process because it was not reasonably calculated to apprise Ms. Owens of the

tax lien suit. For these reasons, we conclude that the County’s notice to Ms. Owens was

inadequate.

In Rast v. Terry, 532 S.W.2d 552 (Tenn. 1976), the Tennessee Supreme Court

explained that

[i]t is fundamental that suits to collect delinquent taxes are proceedings in

rem; however, it is basic to their validity and vitality that the taxpayer be

before the court by actual or constructive service of process. Naylor v.

Billington, 378 S.W.2d 737, 740-41 (Tenn. 1964). These suits have as

their objective the enforcement of tax liens, but not by confiscation. Where

the taxpayer is not properly before the court the resulting decree and sale is

a nullity as to him and may be assailed at any time. Tennessee Marble &

Brick Co. v. Young, 163 S.W.2d 71 (Tenn. 1942). See also, Naylor, supra.

Rast, 532 S.W.2d at 555. Because the notice to Ms. Owens was inadequate the County

never obtained service of process on her. Therefore, Ms. Owens was not properly before

the trial court, and the order selling her property to Mr. Stiner and the resulting deed are

both null and void ab initio. All other issues are pretermitted.

V. Conclusion

For the foregoing reasons, we reverse the trial court’s order. The case is remanded

with instructions to the trial court to set aside the sale of Ms. Owens’s property and

declare her the fee simple owner, and for such further proceedings as may be necessary

and are consistent with this opinion. Costs of the appeal are assessed against the

Appellee, Kenneth Stiner, Sr., for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

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