Petition for Writ of Certiorari — Antonio Padilla, Petitioner v. Sally Hulse, Osage County Treasurer, et al.

Supreme Court briefDec 15, 2023

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No. __________

IN THE

Supreme Court of the United States

ANTONIO PADILLA,

Petitioner,

vs.

JOYCE HATHCOAT, OSAGE

COUNTY TREASURER, GHREZA

AZADI, AND JUDY C. AZADI,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

OKLAHOMA

PETITION FOR A WRIT OF CERTIORARI

STEVEN LEE HOLCOMBE

Counsel of Record

Bar No. 320035

700 Kihekah Avenue

PO Box 1408

Pawhuska, Oklahoma 74056

(918) 287-8762 voice

steve@holcombe.legal

Counsel for Petitioner

QUESTIONS PRESENTED

QUESTION NO. 1: Did the county treasurer –

following the return of a pre-sale, tax resale notice

statutorily mailed by certified mail, and then

following up with merely a subsequent first class

mailing – fail to meet the “additional reasonable

steps” standard of Jones v. Flowers, 126 S. Ct. 1708

(2006) for providing minimum constitutional notice by

failing to post said notice to the entrance to the

premises accessible only by a readily discoverable

gate, when the treasurer testified that there were no

impediments relative to manpower or costs for posting

a notice to the gate, and when the treasurer knew, or

had reason to know, that the premises was being used

for business activities?

QUESTION NO. 2: Did the trial court fail to meet

the “additional reasonable steps” standard of Jones v.

Flowers, 126 S. Ct. 1708 (2006) for providing

minimum constitutional notice by emphatically and

insistently relying on a non-existent fact for in support

of its ruling?

QUESTION NO. 3: Did the trial court violate the

minimum constitutional notice requirements set forth

in Mullane v. Central Hanover Bank & Trust Co., 70

S.Ct. 652 (1950) by affirming service by first class mail

upon the Petitioner at an address of his ex-wife

following the return of a pre-sale, tax resale notice

statutorily mailed by certified mail?

PARTIES TO THE PROCEEDING

The parties to the proceeding are as follows:

1. Jose

Antonio

Padilla,

Personal

Representative, In the Matter of the Estate

of Antonio Padilla, Deceased PB-2021-74,

District Court of Osage County, State of

Oklahoma, Petitioner. See Letters of

Administration (App. C, infra, at 13a-13b)

2. Sally Hulse, Osage County Treasurer, State

of Oklahoma, Respondent. (Ms. Hulse is the

successor to Ms. Hathcoat.) See Ruling

(App. A, infra, at 1a).

3. Ghreza Azadi

Respondents.

and

Judy

Azadi,

RELATED PROCEEDINGS

Antonio Padilla, Plaintiff, v. Joyce Hathcoat,

Osage County Treasurer, Ghreza Azadi, and Judy c.

Azadi, Defendants, CJ-2013-151, District Court of

Osage County, State of Oklahoma (trial court

proceedings seeking to set aside tax re-sale deed

initiated by petition filed June 14, 2013).

In the Matter of the Estate of Antonio Padilla,

Deceased, PB-2021-74, District Court of Osage

County, State of Oklahoma (administration of

decedent’s estate initiated by petition filed June 15,

2021).

Antonio Padilla, Plaintiff/Appellant, v. Joyce

Hathcoat,

Osage

County

Treasurer,

Ghreza

Azadi, and Judy C. Azadi, Defendants/Appellees, No.

DF-119709, In the Supreme Court of the State of

Oklahoma (Okla. Civ. App. 2023) (unpublished)

III

Antonio Padilla, Plaintiff/Appellant, v. Joyce

Hathcoat,

Osage

County

Treasurer,

Ghreza

Azadi, and Judy C. Azadi, Defendants/Appellees, No.

DF-119709, In the Supreme Court of the State of

Oklahoma, cert. denied (Okla. Sup. Ct. 2023)

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ I

PARTIES TO THE PROCEEDING .......................... II

RELATED PROCEEDINGS...................................... II

TABLE OF CONTENTS ........................................... IV

TABLE OF AUTHORITIES ..................................... VI

DECISIONS ................................................................ 1

OTHER ESSENTIAL MATERIAL............................. 2

JURISDICTION.......................................................... 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................................... 4

STATEMENT .............................................................. 4

REASONS FOR GRANTING THE WRIT ................. 9

QUESTION NO. 1: Did the county treasurer

– following the return of a pre-sale, tax resale

notice statutorily mailed by certified mail, and

then following up with merely a subsequent first

class mailing – fail to meet the “additional

reasonable steps” standard of Jones v. Flowers, 126

S. Ct. 1708 (2006) for providing minimum

constitutional notice by failing to post said notice

to the entrance to the premises accessible only by a

readily discoverable gate, when the treasurer

testified that there were no impediments relative

to manpower or costs for posting a notice to the

gate, and when the treasurer knew, or had reason

to know, that the premises was being used for

business activities? .................................................. 9

QUESTION NO. 2: Did the trial court fail to

meet the “additional reasonable steps” standard of

Jones v. Flowers, 126 S. Ct. 1708 (2006) for

providing minimum constitutional notice by

emphatically and insistently relying on a nonexistent fact for in support of its ruling? .............. 17

QUESTION NO. 3: Did the trial court violate

the minimum constitutional notice requirements

set forth in Mullane v. Central Hanover Bank &

Trust Co., 70 S.Ct. 652 (1950) by affirming service

by first class mail upon the Petitioner at an

address of his ex-wife following the return of a presale, tax resale notice statutorily mailed by

certified mail? ........................................................ 19

CONCLUSION.......................................................... 19

Appendix A – Ruling ................................................. 1a

Appendix B – Journal Entry .................................. 11a

Appendix C – Letters of Special Administration ... 13a

Appendix D – Decision affirming trial court’s Ruling

................................................................................. 15a

Appendix E – Order Denying Rehearing ............... 24a

Appendix F – Decision denying Petitioner’s Petition

for Writ of Certiorari to the Oklahoma Supreme

Court........................................................................ 26a

Appendix G – Motion to Disqualify ........................ 27a

Appendix H – Order of Disqualification ................ 29a

Appendix I – Notice of Tax Resale ......................... 30a

TABLE OF AUTHORITIES

Cases:

Crownover v. Keel,

2015 OK 35, 357 P.3d 470

(OK 2015)....................................... 4, 5, 7, 10, 16, 18

Hall v. Geo Group, Inc.,

324 P.3d 399 (OK 2014) ........................ 7, 17, 18, 19

Jones v. Flowers,

126 S. Ct. 1708, 164 L.Ed.2d 415, 547 U.S. 220

(2006) ................................................ I, 5, 7, 9, 16, 17

Kester v. Ives, et al.,

960 P2d 865

(OK CIV APP, DIV 1, 1998) .................................. 16

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865

(1950) ...................................................... I, 4, 8, 9, 19

Shamblin v. Beasley, et al.,

967 P.2d 1200 (OK 1998) .................................... 8, 9

Walker v. City of Hutchinson,

352 U.S. 112, 115 (1956) ......................................... 4

Wells Fargo v. Ziegler,

780 P.2d 703 (OK 1989) ........................................ 16

Constitution and Statutes:

Fourteenth Amendment to the United States

Constitution ..................................................... 3, 4, 5

Title 68 O.S. Section 3127 ...................................... 4, 5

In the Supreme Court of the United States

————

NO. __________

ANTONIO PADILLA, PETITIONER,

JOYCE HATHCOAT, OSAGE COUNTY

TREASURER, GHREZA AZADI, AND JUDY C.

AZADI, RESPONDENTS

————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF OKLAHOMA

————

PETITION FOR A WRIT OF CERTIORARI

————

Antonio Padilla, by and through the personal

representative of his decedent’s estate, respectfully

petitions for a writ of certiorari to review the

proceedings of the Supreme Court of the State of

Oklahoma (including the Court of Civil Appeals of the

State of Oklahoma (Div. 1)) and the trial court in this

case.

DECISIONS

The decisions listed below are reproduced in the

appendix per Sup. Ct. R. 14.1(i) and (i) (i):

Ruling by the trial court judge filed March 21, 2019

in Antonio Padilla, Plaintiff, v. Joyce Hathcoat, Osage

County Treasurer, Ghreza Azadi, and Judy C. Azadi,

Defendants, CJ-2013-151, District Court of Osage

County, State of Oklahoma. App. A, infra, at 1a-10a.

Journal Entry approved by the district court judge

filed June 18, 2021 in Antonio Padilla, Plaintiff, v.

Joyce Hathcoat, Osage County Treasurer, Ghreza

Azadi, and Judy C. Azadi, Defendants, CJ-2013-151,

District Court of Osage County, State of Oklahoma

(serving as the final appealable order per the rules of

the Oklahoma Supreme Court). App. B, infra, at 11a12a.

Letters of Special Administration issued to Jose

Antonio Padilla and filed June 15, 2021 re In the

Matter of the Estate of Antonio Padilla, Deceased, PB2021-74, District Court of Osage County, State of

Oklahoma. App. C, infra, at 13a-14a.

Decision (hereinafter COCA Opinion) affirming

trial court’s Ruling and Journal Entry of the district

court by Court of Civil Appeals of the State of

Oklahoma (Div. 1) entered November 17, 2022 (in

response to Petitioner’s Petition in Error filed with

Supreme Court of the State of Oklahoma on July 12,

2021 and assigned to the Court of Civil Appeals of the

State of Oklahoma (Div. 1)). App. D, infra, at 15a-23a.

Order Denying Rehearing by Court of Civil Appeals

of the State of Oklahoma (Div. 1) entered December

15, 2022. App. E, infra, at 24a-25a.

Summary decision entered on September 18, 2023

by Supreme Court of the State of Oklahoma denying

Petitioner’s Petition for Writ of Certiorari. App. F,

infra, at 26a.

OTHER ESSENTIAL MATERIAL

The materials listed below are believed by the

Petitioner to be essential to understand the petition

and are reproduced in the appendix per Sup. Ct. R.

14.1(i) and (i) (vi):

Petitioner’s Motion to Disqualify Justice M. John

Kane, IV. App. G, infra, at 27a-28a.

Order of Disqualification by Justice M. John Kane,

IV entered January 5, 2023. App. H, infra, at 29a.

Notice of tax resale (Exhibit O to Transcript of

Bench Trial held on November 16, 2018 before The

Honorable M. John Kane IV, District Judge (abridged

to include only pages 7-8 of 27 page exhibit)). App. I,

infra, at 30a-33a.

JURISDICTION

The Supreme Court of the State of Oklahoma

issued its final decision on September 18, 2023 when

it issued an order denying a petition for writ of

certiorari (App. F, infra, at 26a) made by the

Petitioner following an affirmation by the Court of

Civil Appeals of the State of Oklahoma (App. D, infra,

at 15a-23a) of the trial court’s Ruling (App. A, infra,

at 1a-10a) and Journal Entry (App. B, infra, at 11a12a) and an order denying rehearing (App. E, infra, at

24a-25a). This petition is timely filed pursuant to Sup.

Ct. R. 13.1, 13.3.

The Petitioner submits that this Court has

jurisdiction under the Fourteenth Amendment to the

United States Constitution because minimal

constitutional notice requirements in a tax resale

have not been met resulting in the forfeiture of the

Petitioner’s property rights. Furthermore, a “totality

of the circumstances” standard has been invoked by

the trial court, and affirmed by the state appellate

court, in form but not in substance to justify the forced

sale of the Petitioner’s lands without the actual taking

of all “additional reasonable steps”.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution prohibiting the States from "depriv[ing]

any person of life, liberty, or property, without due

process of law.”

Title 68 O.S. Section 3127. See COCA Opinion at ¶

7 (App. D, infra, at 18a-20a).

STATEMENT

Fifty-five acres of land (the “premises”) owned by

the Petitioner was sold by the Osage County

Treasurer in tax resale proceedings in June, 2012. The

Petitioner received a decree of divorce on March 9,

2012 from Carelia Padilla. Notices of tax sale were

statutorily mailed by certified mail to Petitioner

Antonio Padilla on April 2, 2012 and returned. A

subsequent first class mailing to the address of the

Petitioner’s ex-wife was made thereafter. Ruling

(App. A, infra, at 2a-3a). “The mailing was after the

certified mail was returned, but before the sale.” Id.

(App. A, infra, 2a, fn. 1).

The Petitioner filed his petition in Osage County

District Court seeking voidance of the tax resale deed

for lack of actual notice. The trial court ruled that

under a “totality of the circumstances” standard set

forth in Crownover v. Keel, 357 P.3d 470, 477 (OK

2015) (citing there to Walker v. City of Hutchinson,

352 U.S. 112, 115 (1956) and Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)),

and in consideration of “additional reasonable steps”

required by Jones v. Flowers, 547 U.S. 220, 222,

(2006), the county treasurer had satisfied the minimal

constitutional notice requirements of the Fourteenth

Amendment in attempting notification by first-class

mail to the address of the Petitioner’s former wife

following the return of a statutorily required certified

mailing.1 To this effect the trial court further entered

a significant footnote 2 at page 3 of its Ruling (App. A,

infra, 3a, fn. 2). This footnote 2 is taken from

Crownover, 357 P.3d at 476, which directly quotes

Jones, 547 U.S. at 223-224.

The premises was rural, non-residential real

estate primarily used by Petitioner to store business

equipment scaffolding and related materials, and the

Petitioner was thereby obligated to pay both personal

property taxes and ad valorem taxes. Ruling (App. A,

infra, 2a). The trial court and the Court of Civil

Appeals of the State of Oklahoma (sometimes

hereinafter referred to as “COCA”), however,

dismissed any consideration of business activities on

the premises as being a necessary part of the “totality

of the circumstances” notwithstanding that the

treasurer gave no reason – beyond that of protocol –

as to why her office should not have posted a notice to

the singularly gated entrance to the premises. Ruling

(App. A, infra, at 8a, fn. 6 and accompanying text).

COCA Opinion ¶¶ 12-14 (App. D, infra, at 22a-23a).

See also the reproduced testimonies of Treasurer Sally

Hulse, infra.

The treasurer had reason to know the premises

had been the location of business activities as late as

1 The relevant statute, Title 68 O.S. Section 3127, is set forth

in its entirety in the COCA Opinion at ¶ 7 (App. D, infra, at 18a20a).

2011 because of the unpaid assessments of 2011

Oklahoma business personal property taxes. Hulse,

Transcript of Bench Trial held on November 16, 2018

before The Honorable M. John Kane IV, District Judge

(hereinafter TT), 34:8-10. See also the tax resale

notice for unpaid personal property taxes for 2009,

2010, and 2011 (App. I, infra, at 30a-33a). The

Petitioner’s claims for relief – that is, to reverse the

forfeiture of the premises at tax resale based on lack

of signage being posted at the premises as a

“reasonable additional step” – was denied by the trial

court in its Ruling (App. A, infra, 8a, fn. 1, and

accompanying text) and by the COCA Opinion at ¶¶

12-14 (App. D, infra, 22a-23a). The Supreme Court of

the State of Oklahoma summarily denied without an

opinion as to all claims for relief sought in a petition

for writ of certiorari (App. F, infra, at 26a).2

The repeated reliance by the trial court on a nonexistent fact was also raised on appeal by the

Petitioner with the Court of Civil Appeals of the State

of Oklahoma. The non-existent fact was a finding by

the trial court that personal property taxes owed for

2011 had in fact been paid as a means of repeatedly

laying blame at the feet of the Petitioner for losing the

premises for not having paid up the ad valorem taxes

in parallel. See Ruling (App. A, infra, at 2a (“Although

the personal property taxes were kept current

[through 2011], the real estate taxes [owed on the

premises] became delinquent”)). Id. (App. A, infra, at

6a (“The Trial Court [finds] it difficult to reconcile the

2 Coincidental with the filing of a petition seeking a writ of

certiorari from the Oklahoma Supreme Court, the Petitioner

filed a Motion to Disqualify on Jan. 5, 2023 (App. G, infra, 27a28a). On that same date an Order of Disqualification was filed by

M. John Kane IV, Chief Justice (App. H, infra, at 29a).

fact that Mr. Padilla confirms that he did receive

information sufficient to pay his [2011] personal

property taxes, but not his real estate taxes.”). Id.

(App. A, infra, at 7a (“The reasonableness of the steps

[taken by the treasurer] is buttressed by the

additional fact that the personal property taxes

remained unpaid, which would lead to the natural

presumption that the property owners had simply

elected to NOT pay the real estate taxes ….”)). Id.

(App. A, infra, at 9a (“Had Mr. Padilla been

attempting to evade the Treasurer, he hardly could

have done better.”)).

The Court of Civil Appeals of the State of

Oklahoma addressed the trial court’s reliance upon

this non-existent fact by ostensibly employing the

“totality of the circumstances” standard of Crownover

– the same rationale employed by the trial court

standing on Jones. It did so by pointing to, without

actually invoking, the Oklahoma Supreme Court

decision of Hall v. Geo Group, Inc. 324 P.3d 399, 406

(OK 2014). COCA Opinion at ¶ 13 (App. D, infra, 22a23a, fn. 2). This was done in the manner of saying that

“whatever error may have been made, it doesn’t

matter.” Yet COCA did this without establishing a

clear, appellate record of either faulty reasoning, an

erroneous finding of fact, or consideration of

immaterial issues by the trial judge.

By referencing Hall, COCA raised the specter of an

unrevealed different rationale while nonetheless

employing the same “totality of the circumstances”

rationale employed by the trial court, albeit sanitized

without explanation of the trial court’s error. By so

doing, the trial court’s repeated use of a non-existent

fact, and the placing of blame on the Petitioner for not

updating his publicly available address information is

rendered as inconsequential, if not invisible, in the

COCA Opinion.

Finally, neither the trial court nor the Supreme

Court of the State of Oklahoma (by and through

COCA) make mention of the decision in Shamblin v.

Beasley, 967 P.2d 1200 (OK 1998) which significantly

relied upon Mullane v. Central Hanover Bank & Trust

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

The Shamblin decision – and by extension Mullane3 –

was raised before trial in a Motion for Summary

Judgment filed by the Petitioner,4 and in the Brief in

Chief5 submitted to COCA. Shamblin held that under

the “totality of the circumstances” the service of

statutory pre-sale notice on one spouse was

constructive notice upon the other spouse, too. But

3 In Shamblin see footnotes 31, 32, 33, 34, and 37 and the

repeated citations therein to Mullane. “It is the totality of

circumstances – not the particular norms of statutory

requirements – that dictates the quality of service necessary to

safeguard an individual's property interest at stake.” Shamblin

at 1210 (citing to Mullane in footnote 37).

4 Shamblin – and by extension Mullane – was raised in

argument in the Petitioner’s Motion for Summary Judgment at

page 19 (“The evidence is clear that Antonio Padilla received no

actual notice whatsoever of the proceedings of the tax resale. If

there was evidence, for the sake of argument, that Carelia

Padilla received actual notice then such notice would not serve

to constructively notify Antonio Padilla as a matter of law of the

tax resale proceedings pursuant to Shamblin as Antonio

Padilla and Carelia Padilla were no longer husband and

wife”). Id.

“The Shamblin case is cited in this brief only for the

purposes of emphasizing that is not authority for any argument

that the Appellee [Petitioner] might be constructively served

with notice of tax resale proceedings served on his ex-wife.”

Appellant’s [Petitioner’s] Brief in Chief at 11, footnote 11.

under the current facts, Petitioner Antonio Padilla,

and his former wife Carelia Padilla, were in fact

legally divorced prior to any attempts made by the

treasurer to provide actual, pre-sale notice of the tax

resale proceedings. See the trial court’s table of events

confirming that the divorce occurred on 3/9/2012

before the notice of tax resale was even statutorily

mailed. Ruling (App. A, infra, at 3a). Notwithstanding

neither Shamblin – nor by extension Mullane –

appear anywhere within the Ruling (App. A, infra, at

1a-10a) or the COCA Opinion (App. D, infra, at 15a23a).

REASONS FOR GRANTING THE WRIT

1. QUESTION NO. 1: Did the county treasurer –

following the return of a pre-sale, tax resale notice

statutorily mailed by certified mail, and then

following up with merely a subsequent first class

mailing – fail to meet the “additional reasonable

steps” standard of Jones v. Flowers, 126 S. Ct. 1708

(2006) for providing minimum constitutional

notice by failing to post said notice to the entrance

to the premises accessible only by a readily

discoverable gate, when the treasurer testified

that there were no impediments relative to

manpower or costs for posting a notice to the gate,

and when the treasurer knew, or had reason to

know, that the premises was being used for

business activities?

The Petitioner submits that the answer to this

question is “yes”.

The Court of Civil Appeals of the State of

Oklahoma held that “the County took reasonable

steps to notify Appellant of the sale”. COCA Opinion

at ¶ 8 (App. D, infra, at 20a) and quoted the trial court

to that effect:

“Having considered all of the evidence in

totality, the Court agrees with Mr. Padilla that

the initial statutory certified mailing notice

failed, but the Court concurs with the Azadis

that the subsequent additional steps taken by

the Osage County Treasurer after the failed

certified mailing to attempt to provide notice

before sale were reasonable under the

circumstances of this case at the time that

notice was attempted in 2012.” Id. at ¶ 9 (App.

D, infra, at 21a).

The Court of Civil Appeals of the State of

Oklahoma ruled that “unlike Crownover, the County

took additional steps to supply Appellant [Petitioner

herein] with notice.” COCA Opinion at ¶ 13 (App. D,

infra, at 22a-23a). However, those “steps” following

the return of the certified mailing was actually only

the singular step of mailing the pre-sale, tax resale

notice by regular, first class mail. See the tax resale

notice (App. I, infra, at 30a-33a).

The Court of Civil Appeals of the State of

Oklahoma dispenses with posting signage to the

premises as unnecessary as “[i]t is the usual practice

in Osage County to post a sign on the property where

there is a homestead or structure [and the premises]

did not have a structure on it ….” COCA Opinion, pp.

¶ 13 (App. D, infra, at 22a). But Ms. Hulse, the

treasurer, testified otherwise – that her office did not

actually make it their usual practice to post signage to

houses when statutory certified mailings of the notice

of sale were returned undelivered.

(Mr. Holcombe)

Why not post on

houses, for instance, where you've -you've not received back actual

confirmation of notice of the sale [being

delivered]? Why not do that in every

instance?

(Ms. Hulse) I don't know why we don't

do that.

Hulse, TT,6 58:16-19.

The Treasurer was questioned as to the cost of

signage and posting and responded that there were no

impediments relative to manpower or costs for posting

a notice to the gate.

(Mr. Holcombe)

I would ask this, just

for -- and I won't go very far with this.

What's -- what's, generally, the -- the cost

for putting together signage and having

it posted at a location?

(Ms. Hulse) We just have a -- a piece of

paper that has the sheriff's service on

that. So we just give that to the sheriff's

deputy, and they either -- we'd have some

little sleeves, you know, waterproof

sleeves that they post on the property.

Their -- our intention is for them to hand

deliver that, but that doesn't always

work out. We're at work when they're out

delivering -- or out serving the notices.

So it can be posted to the front door of the

property. And then they usually

6 Transcript of Bench Trial held on November 16, 2018 before

The Honorable M. John Kane IV, District Judge. Hereinafter

“TT”.

document whether or not they were able

to serve the party or if it was posted.

Okay. So you prepare the notice -Yes.

-- and the sheriff may tape it with

weather protection on a gate or a door, et

cetera, is that -Yes.

-- correct?

Usually, if it's -- they -- they try to post it

to the structure.

Hulse, TT, 36:14-37:11.

(Mr. Holcombe)

Okay. So follow-up:

Is there a -- and putting aside what the

advice is that you got from Oklahoma

County, is there a cost issue that you

factored in for not doing so?

(Ms. Hulse) No.

Okay. Is there a manpower issue that

you factored in for not doing so?

No.

Okay. So those are not impediments to

doing so, that -- that you have

considered?

Yes, because we -- we pass any fees that

are incurred on the property back to the

property owner. So when the sheriff goes

out and serves a warrant, it's, you know,

a $50 charge that the sheriff would

collect after we collect the taxes, so.

Hulse, TT, 61:14-62:2.

The Treasurer was asked why neither the sheriff

nor the assessor were asked to gather more

information about the premises relative to possibly

posting a notice, and her answer was essentially that

of following the protocol of the treasurer for Oklahoma

County while otherwise acknowledging that it was

“good question” as to why her office did not do more

given that she now knew there was a gate to the

premises.

(Mr. Holcombe)

Okay. So in this

instance, my -- my question is: As a

matter of policy, why not just then take

the step of having the sheriff run out to a

location or a house and post a notice, as

you described earlier in your testimony?

Why not just have them do that as a

matter of policy?

(Ms. Hulse) Well, I -- I had talked with

the Oklahoma County Treasurer to see

how they did things, and they don't post

anything. And I think the law states now

that -- I don't think posting is part of the

law. So we felt like we were going above

and beyond to post when there was a

structure. Now, like, this was a 55-acre

tract. I don't know where my -- and I -- I

realize now that there was a gate. But at

the time, we had no idea of what the

property was, if it was landlocked or if

there was access to that. So I guess we'd

be, like, sending our sheriff deputy out to

post on a tree or -- you know, because we

wouldn't know what was on the property.

Well, and that's -- and so as a follow-up

question, then, my question would be:

Well, what about just asking the

assessor's office or someone with the

sheriff's office to just specially go and

look and see if there is a gate where

that's the only way that you can access

the 55-acre lot, for instance, to gather

more information? Why not ask either

one of those entities to have someone go

out and gather more information for you

in the event that you still don't have

actual, you know, information in your file

of actual notice being given? Why not?

I -- that's a good question.

Hulse, TT, 59:8-60:11.

The trial court affirmatively attempts to diminish

the foregoing testimony of the treasurer by finding

that “…the Treasurer conceded in her testimony that,

given unlimited resources, she is certain that

better notice in many cases could be obtained.” Ruling

(App. A, infra, at 8a (emphasis added)). But that is not

what the record clearly reflects.

Nor, again, does the record reflect that the 2011

personal property taxes had been paid. Contrary to

the trial court’s finding of the non-existent fact that

2011 personal property taxes had been paid, these

taxes – which were assessed as a result of commercial

activities on the premises – were indeed owed and

collected during the 2012 resale tax proceedings, and

this was clearly confirmed by the treasurer’s tax

resale notice. See, again, tax resale notice (App. I,

infra, at 30a-33a). This was indicative of access

continuing to be made of the premises by the

Petitioner for commercial activities notwithstanding

there being no residential structure.

The notice attempted to be mailed (whether by

certified mail or regular mail) to each of the Padillas

was comprised of two sheets. First, a cover letter

identifying a printed Tax ID #27954-1-20-11 for

unpaid ad valorem taxes (and a handwritten entry of

a Tax ID #76781-20-1-108 for unpaid personal

property taxes as was entered into evidence at trial).

Second, an enclosed Statement of Taxes Due itemizing

$711.74 in delinquent ad valorem taxes (unpaid for

2008, 2009, 2010, and 2011, including interest and

costs) and delinquent personal property taxes (unpaid

for 2009, 2010, and 2011). Hulse, TT, 30:14-31:2,

41:10-42:9. The two-page tax resale notice (admitted

as Exhibit O to the trial transcript) reflects that

personal property taxes for 2009, 2010, and 2011 are

owed as of April 30, 2012 in the amounts, respectively,

of $197.94. $172.49, and $48.87. Contrary to the nonexistent findings of the trial court, there was no

evidence provided at all that the 2009, 2010 and 2011

personal property taxes were paid at any time before

the tax resale.

The treasurer knew, or had reason to know, in the

year 2012 that the premises might reasonably remain

commercially active because of the unpaid 2011

business taxes related thereto. The “totality of the

circumstances” dictated the posting of a pre-sale

notice to the premises’ entrance on a metal gate which

both the Court of Civil Appeals of the State of

Oklahoma (COCA Opinion ¶¶ 12-14 (App. D, infra, at

22a-23a)) and the trial court (Ruling (App. A, infra, at

8a, fn. 6 and accompanying text)) chose to dismiss for

not having structural integrity, if not a reasonable

next step to meet minimal constitutional notice

requirements.

Ironically, Mr. Azadi testified that following the

tax resale in June 2012 he painted his name,

identifying himself as the new owner, along with his

phone number, on a pipe at the gate entrance to the

premises. Mr. Azadi, TT, 114:6-115:15. The trial court

references this, too. Ruling (App. A, infra, at 5a-6a).

The Appellant apparently rather quickly got the

message after the fact of the tax resale in June 2012

after it had happened. A “[f]riend of mine call (sic) me.

I was in Arkansas when he call (sic) me. He said

somebody posted -- post his phone number at the gate.

And that's when I come from Arkansas. And that's

when I find out everything was sold.” Padilla, TT,

75:13-23. The trial court even confirms this. Ruling

(App. A, infra, at 5a-6a (“Mr. Padilla testified that he

spoke with the buyer in June of 2012, and

immediately stopped using the property thereafter.”)).

Finally, the Petitioner further raised in his Motion

for Summary Judgment (denied by the trial judge) the

decision of Kester v. Ives, et al., 960 P.2d 865 (OK Civ.

App., Div. 1 (1998)). Kester goes uncited by either the

trial court or the Court of Civil Appeals of the State of

Oklahoma. Kester at 868 relied upon Wells Fargo v.

Ziegler, 780 P.2d 703 (OK 1989) in ruling that “[w]hile

we decline to hold that actual notice is required in “all

cases” [footnote omitted], it is evidence that

Oklahoma’s statutes and principles of due

process [generally] require actual notice.” Id.

(emphasis added). The Oklahoma Supreme Court in

Crownover, 357 P.3d at 478, and this Court in Jones,

547 U.S. at 227, have, similarly to Kester, favorably

cited to the Wells Fargo decision.

2. QUESTION NO. 2: Did the trial court fail to meet

the “additional reasonable steps” standard of Jones

v. Flowers, 126 S. Ct. 1708 (2006) for providing

minimum constitutional notice by emphatically

and insistently relying on a non-existent fact for in

support of its ruling?

The Petitioner submits that the answer to this

question is “yes”.

The most significant “fact” relied upon by the trial

court – for the repetitiveness of the reference made –

was not a fact at all. Much of this has already been

covered, supra, in the Petitioner’s Statement to this

petition. But it is worth noting that the Court of Civil

Appeals of the State of Oklahoma does not deny that

the trial court may have misfired in relying on a nonexistent fact within the “totality of the

circumstances”. The appellate court actually

acknowledges that “taxes were current through 2007”

only. COCA Opinion at ¶ 2 (App. D, infra, at 16a).

Again, the appellate court cites the Oklahoma

decision of Hall v. Geo Grp., Inc., 324 P.3d 399 (OK

2014) in support of its suggestion that it might

otherwise affirm on a different rationale or legal

theory. The COCA Opinion reads:

“Appellant claims the trial court relied on facts

that are not supported by the evidence to

determine Appellant received notice. However,

as shown above, the trial court's ultimate

decision was based on the additional steps

taken by the County. That finding was proper.

Even if we agreed with Appellant, this Court

can affirm the trial court based on a different

legal rationale. Hall v. Geo Group, Inc., 2014

OK 22, ¶ 17, 324 P.3d 399, 406.”

COCA Opinion at ¶ 13 fn. 2 (App. D, infra, at

23a, fn. 2).

Similar to the relief sought by the Petitioner, the

aggrieved party in Hall sought relief under rights of

due process. The Hall court ultimately ruled against

the sought-for relief on statutory notification grounds.

Hall at 406.

The end result of the COCA Opinion is that the

Court of Civil Appeals of the State of Oklahoma stays

on course with the trial court’s rationale – not a

separate legal theory notwithstanding a passing

reference to Hall – in relying on Crownover’s “totality

of the circumstances” without making a clear

record as to why the repeatedly relied upon

erroneous finding of a non-existent fact by the trial

judge may be ignored.

There is another finding of fact by the trial court

that is worthy of note:

“[The Petitioner took] no steps to notify the

County Clerk, the County Assessor, The

County Treasurer, and even the Department of

Public Safety of his whereabouts …. The Court

finds that the failures of [the Petitioner] to

update his information in multiple government

offices were a contributing factor in the degree

of difficult (sic) encountered by the Treasurer in

attempting to locate him. Had [the Petitioner]

been attempting to evade the Treasurer, he

hardly could have done better.” Ruling (App. A,

infra, at 8a-9a).

This Court in Crownover firmly rejected any

arguments that a property owner’s own failures in

keeping publicly available addresses updated were to

be factored in, even if required by statute, to justify a

property forfeiture. Id. at 475-476 (citing and quoting

Mullane at 315). Coincidental to the Court of Civil

Appeals of the State of Oklahoma’s invoking of Hall to

ignore the reliance by the trial court in its Ruling on

a non-existent fact, the trial court’s faulting of the

Petitioner is also rendered invisible in the COCA

Opinion.

3. QUESTION NO. 3: Did the trial court violate the

minimum constitutional notice requirements set

forth in Mullane v. Central Hanover Bank & Trust

Co., 70 S.Ct. 652 (1950) by affirming service by

first class mail upon the Petitioner at an address

of his ex-wife following the return of a pre-sale, tax

resale notice statutorily mailed by certified mail?

The Petitioner submits that the answer to this

question is “yes”. The Petitioner restates the final

paragraph to the Petitioner’s Statement, supra, in

support.

CONCLUSION

The Petitioner prays that the petition for a writ of

certiorari should be granted such that the tax resale

deed issued by the county treasurer is voided and the

Petitioner is returned to ownership of the premises.

Respectfully submitted,

STEVEN LEE HOLCOMBE

Counsel of Record

Bar No. 320035

700 Kihekah Avenue

PO Box 1408

Pawhuska, Oklahoma 74056

(918) 287-8762 voice

steve@holcombe.legal

APPENDIX

Appendix A – Ruling

IN THE DISTRICT COURT OF OSAGE

COUNTY, OKLAHOMA

ANTONIO PADILLA,

Plaintiff,

-vs-

JOYCE HATHCOAT, Osage County Treasurer,

GHREZZA AZADI, and JUDY AZADI,

Defendants.

CJ-13-151

Judge: M. John Kane

For use by Court Clerk:

District Court of Osage County, Okla.

FILED

MAR 21 2019

Jennifer Burd, Court Clerk

RULING

This matter was presented for trial previously, and

the Court resolved to independently research the legal

issues presented, ponder the facts, and thereafter

issue a ruling. At trial, stipulations were entered, and

the following witnesses testified: Treasurer Sally

Hulse, Antonio Padilla, Ghreza “Mike” Azadi. The

Court commends counsel for both sides for a thorough

and scholarly collection and presentation of the facts

and law.

Plaintiff Antonio Padilla, along with his then-wife

purchased the subject property in 2002. The property

was rural non-residential real estate that was used

primarily by Mr. Padilla to store business equipment

(scaffolding and related materials). Although the

personal property taxes were kept current, the real

estate taxes became delinquent. At the same time, Mr.

and Mrs. Padilla experienced marital difficulty, and

they sought and obtained a divorce in Tulsa County,

Oklahoma in 2012. The property was awarded to Mr.

Padilla in the divorce case.

When the notices of tax sale were certified mailed

to the Tulsa Post Office Box address supplied by the

Padillas, they were returned "Return to Sender,

Insufficient Address, Unable to Forward". The

Treasurer thus conducted internet research, found an

alternate address, and first-class mailed notices to a

hoped-for better address: 12303 E. 16th Street, Tulsa,

OK 74128 ("The 16th Street address").1 These mailing

were never returned. The tax sale proceeded, with the

Azadis

being

the

successful

purchasers.

Approximately a year later, Mr. Padilla recorded his

Decree of Divorce in the local Osage County land

records (Osage County Clerk's office), and came

forward and objected to the sale.

The Court notes the following time line of events,

and finds same to be the facts of the case:

1 The mailing was after the certified mail was returned, but

before the sale. The precise date was not put into evidence.

Date

Event

4/1/02

Deed to Mr. and Mrs. Padilla

4/9/02

Deed recorded

3/9/12

Padilla Divorce in Tulsa County, OK

4/2/12

Notices of Tax Sale Cert. Mailed to

Padilla PO Box in Tulsa- Returned.

5/9/12

?/??/12

6/11/12

5/17/13

First Tax Sale Publication notice

First class mail to 16th St address some

time after cert. failed

Tax Sale to Defendant Azadi

Padilla Decree of Divorce filed in Osage

County

Plaintiff's prior Motion for Summary Judgment

had been denied, upon a finding that a material issue

in this litigation was whether or not, after the certified

mail was unclaimed, the Treasurer took reasonable

additional steps to notify the property owners of the

sales proceedings.2

2 "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

At trial, Treasurer Hulse (successor to former

Treasurer Joyce Hathcoat) testified that she had been

the elected official in that office for approximately 5.5

years, but that she had thirty (30) years total

experience. Treasurer Hulse testified to her

understanding of the tax sale process (including the

effect of a 2006 change to the law), and thereafter

explained what the Treasurer's office had caused to be

done in this matter to comply with the law. She

referenced the "notice" statutes, and further advised

that she made use of the Assessor's office for contact

information. The Court finds that the Treasurer was

on neither actual nor record notice of the fact that Mr.

Padilla had become the sole owner of the property by

virtue of his divorce.

The Court finds that the publication notice was

statutorily proper, and that but-for failure to deliver,

the certified mail would have been sufficient.

However, the address upon the certified mail (given

by the Padillas) was no longer current, which then

cast upon the government the burden of additional

reasonable steps to attempt to provide notice to the

property owner before selling his property, if

practicable to do so. Crownover, supra.

Although Mr. and Mrs. Padilla had gotten divorced

in another County prior to the tax sale, the record

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

Jones, 547 U.S. at 225, 126 S.Ct. 1708. 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, 126 S.Ct.

1708." (Emphasis added)

Crownover v. Keel, 2015 OK 35, ¶19

established, and the Court finds that neither the

Treasurer not (sic) the Assessor were notified of this

change in marital status prior to the tax sale. In fact,

the Osage County Clerk was not notified of the divorce

and resulting change in property title status until the

filing of the decree in the land records, almost a year

after the sale.3

Furthermore, the record suggests and the Court

finds that Mr. Padilla did not notify either the Osage

County Assessor or the Osage County Treasurer of his

change of address prior to the tax sale. The records

available to the Treasurer, via the Assessor, were at a

minimum, two changes out-of-date. At the time of the

sale, the PO Box was not receiving mail, and the 16 th

Street address had been vacated by Mr. Padilla

(according to his testimony) when the divorce was

granted in March of 2012. Even when Mr. Padilla

presented himself to the Treasurer a year after the

sale to collect the approximately $13,000 due him

under the sale, the Driver's License provided by Mr.

Padilla (to confirm his identity to collect the money)

showed the same 16th Street address in Tulsa to which

the Treasurer had sent the first-class mailed (sic)

prior to the sale ("12303 E. 16th Street", Tulsa OK).

Mr. Padilla's pleadings and Summary Judgment

affidavit suggested that he was wholly unaware of the

tax sale until almost a year later, but the evidence at

trial supported the conclusion, and the Court finds

that Mr. Padilla actually received the notice of the sale

no later than June of 2012. Mr. Padilla testified that

he spoke with the buyer in June of 2012, and

3 The Court finds that the record title to the property was in

Joint Tenancy at the time of the sale, and the Joint Tenant did

not file in this action.

immediately stopped using the property thereafter. In

addition, Mr. Azadi testified that he put his status as

buyer on a gate pipe to the property with paint,

immediately after he obtained the deed. The Court

found it difficult to reconcile the fact that Mr. Padilla

confirms that he did receive information sufficient to

pay his personal property taxes, but not his real estate

taxes. However, even if Mr. Padilla had neither formal

nor actual notice of the tax sale proceedings, the Court

finds that the notice met Constitutional muster under

Crownover, as will be discussed herein.

Crownover teaches that if the government's

certified mail notice fails, then (sic) are expected to do

'something more', if practicable. The precise nature

and degree of that 'something more' is not defined by

the Court, so the analysis conducted must therefore be

fact-specific to each case. In this case, the Treasurer

testified that the additional step was to conduct an

internet search using the tools then available, and

first-class mailing to the address located.

The Court finds that the first-class mailings to

12303 E. 16th Street was received by Mr. Padilla's exwife, and later given to him.4 The Court finds that the

Osage County Treasurer took reasonable steps to

notify the record owners of the subject property of the

impending tax sale upon learning that the certified

mailing had been unsuccessful, to wit:

4 Mr. Padilla's Summary Affidavit conceded that his ex-wife

received the notices and hand delivered them to him in 2013. On

cross examination at trial, Mr. Padilla conceded that he had no

reason to suspect that she did not receive the notice prior to sale.

The former Mrs. Padilla did not testify.

•

She employed the services of

Abstract to do a records search,

•

She employed the assistance of a deputy

Sheriff to access the 'Accurint.com' skip trace

web service to search out the taxpayers on

the internet;5

•

She mailed first-class notice to the address

disclosed therein;

•

She confirmed that the mailing was not

returned.

Buffalo

The reasonableness of these steps is buttressed by

the additional fact that the personal property taxes

remained paid, which would lead to the natural

presumption that the property owners had simply

elected to NOT pay the real estate taxes, for whatever

reason.

The Court admires the resourcefulness and

tenacity of counsel for Mr. Padilla in asserting several

viable ways that would have allowed the Treasurer to

locate and potentially notify Mr. Padilla; for example:

•

Searching the Tulsa County divorce records

on OSCN.NET (but see footnote 4)

5 In her testimony, the Treasurer reminded the Court that

this search was done at the time of the sale in 2012, and she

testified that the access to information and (sic) that time was

less powerful than is currently available. The Court takes

judicial notice of the fact that the oscn.net network and kelpro

networks were not yet consolidated and enabled for Statewide

court record searches in 2012.

•

Posting a notice on the property6

•

Searching the records of the Bureau of

Indian Affairs for potential oil lessee

information that could lead to a property

owner

•

Obtaining owner information off an oil lease

sign on the property7

In fact, the Treasurer conceded in her testimony

that, given unlimited resources, she is certain that

better notice in many cases could be obtained.

However, once the Treasurer has complied with the

statutory notice, supplemented by additional

reasonable efforts, Due Process has been met.

Crownover, supra. The Court finds that the hindsight

suggestions presented by Plaintiff for ways that he

might have been located were possible, but not

practicable in 2012 for a public office administering

thousands of properties per year.

The fact that Mr. Padilla could have been located

is not the same as a finding that Mr. Padilla should

have been located. Given that Mr. Padilla had taken

no steps to notify the County Clerk, the County

Assessor, the County Treasurer, and even the

Department of Public Safety8 of his whereabouts, the

Treasurer (who had no reason at the time to suspect

6 The Treasurer testified that, like Oklahoma County, this is

not the custom here, but that in any event, there was no

structure upon which to post in this particular case.

7 Although, the Court finds that the sign was located behind

a locked gate, and would not have been visible to the Treasurer

without trespassing.

8 Address changes required within ten days, per 47 O.S. §6-

116.

that a divorce had occurred) performed entirely

reasonably under the circumstances at that time, in

getting the notices sent to an address we now are told

belongs to Mr. Padilla's ex-wife.

The Court is not suggesting that the neglect of Mr.

Padilla to update his address (as required by statute)

and marital status, and property title status, acted as

a forfeiture of his property right. However, the Court

does note that the failures of Mr. Padilla to update his

information in multiple government offices were a

contributing factor in the degree of difficult (sic)

encountered by the Treasurer in attempting to locate

him. Had Mr. Padilla been attempting to evade the

Treasurer, he hardly could have done better.

Having considered all of the evidence in totality,

the Court agrees with Mr. Padilla that the initial

statutory certified mailing notice failed, but the Court

concurs with the Azadis that the subsequent

additional steps taken by the Osage County Treasurer

after the failed certified mailing to attempt to provide

notice before sale were reasonable under the

circumstances of this case at the time that notice was

attempted in 2012.

The Court finds that Plaintiff has not met his

burden of proof to set aside the tax re-sale deed and/or

quiet title in his name, and the Court thus finds for

the Defendants. The bifurcated proceeding is hence

rendered moot.

Journal Entry of Judgment to be prepared by

counsel for Defendants, to be approved as to form only,

by opposing counsel.

SO ORDERED.

10a

s/ M. John Kane

JUDGE OF THE DISTRICT COURT

11a

Appendix B – Journal Entry

IN THE DISTRICT COURT IN AND FOR

OSAGE COUNTY

STATE OF OKLAHOMA

ANTONIO PADILLA

OCCUPANTS OF THE

JOYCE

HATHCOAT,

Treasurer,

GHREZA AZADI AND

Husband and Wife,

PREMISES, and

Osage

County

JUDY

AZADI,

Defendants.

Case No. CJ-2013-151

District Court of Osage County, Okla.

FILED

JUN 18 2021

Jennifer Burd, Court Clerk

JOURNAL ENTRY

This matter comes before the Court for trial on

November 18, 2018. Plaintiff is present and

represented by his attorney of record, Steve

Holcombe, the Defendants are present and

represented by their attorney of record, Max C. Myers.

The Court having heard testimony from the

12a

witnesses, reviewed the evidence and considered the

briefs of the parties finds as follows:

That the attempted notice on the Plaintiff was

reasonable. That the Plaintiff has not met his burden

of proof to set aside the tax re-sale deed and or quiet

title in his name. Title to the property known as:

SW NE, NW SE NE & N2 NE SE NE OF Section

one (1) township twenty (20) north, range

eleven (11) east of the Indian Meridian, Osage

County

is quieted in the name of the Defendants.

ITS

(sic)

THEREFORE

ORDERED,

ADJUDGED AND DECREED THAT all interest in

the property described as follows:

SW NE, NW SE NE & N2 NE SE NE OF Section

one (1) township twenty (20) north, range

eleven (11) east of the Indian Meridian, Osage

County

is vested in the Defendants.

s/ Burl O. Estes for Stuart Tate

DISTRICT JUDGE, STUART TATE

13a

Appendix C – Letters of Special Administration

IN THE DISTRICT COURT OF OSAGE

COUNTY, STATE OF OKLAHOMA

IN THE MATTER OF THE ESTATE OF

ANTONIO PADILLA, Deceased

Case No. PB-2021-74

District Court of Osage County, Okla.

FILED

JUN 15 2021

Jennifer Burd, Court Clerk

LETTERS OF SPECIAL ADMINISTRATION

Jose Antonio Padilla is hereby appointed Special

Administrator of the Estate of Antonio Padilla,

Deceased to serve without bond for the following,

limited purposes:

(1) for continuing the intents and purposes of a

written engagement agreement between the

Decedent, while living, and the Office of Steven L.

Holcombe, Attorney, Pawhuska, Oklahoma under

which legal representation was and has been provided

in Antonio Padilla v. Joyce Hathcoat, Osage County,

et al., CJ-2013-151, District Court of Osage County,

Oklahoma, and

(2) for authorizing an appeal from a final decision

as may be rendered in CJ-2013-151.

WITNESS the undersigned Judge of the District

Court of Osage County, Oklahoma this 15th day of

June, 2021.

14a

s/ Stuart Tate

Stuart Tate

Judge of the District Court

STATE OF OKLAHOMA, COUNTY OF OSAGE

SS.

)

I, Jose Antonio Padilla, do solemnly swear that I

will perform, according to law, the duties of

Administrator of the Estate of Antonio Padilla,

Deceased. So help me God.

s/ Jose Antonio Padilla

Jose Antonio Padilla

SUBSCRIBED AND SWORN to before me this 15th

day of June, 2021.

s/ Dhruti Patel

Notary Public

Dhruti Patel

Notary Public – State of Oklahoma

Commission No 19005516

Expires May 31, 2023

15a

Appendix D – Decision affirming trial court’s

Ruling

NOT FOR OFFICIAL PUBLICATION

IN THE COURT OF CIVIL APPEALS OF THE

STATE OF OKLAHOMA

DIVISION I

ANTONIO PADILLA,

Plaintiff/Appellant,

vs.

OCCUPANTS OF THE PREMISES, and JOYCE

HATHCOAT, OSAGE COUNTY TREASURER,

GHREZA AZADI and JUDY C. AZADI, Husband

and Wife,

Defendants/Appellees.

Case No. 119,709

FILED

COURT OF CIVIL APPEALS

STATE OF OKLAHOMA

NOV 17 2022

JOHN D. HADDEN

CLERK

APPEAL FROM THE DISTRICT COURT OF

OSAGE COUNTY, OKLAHOMA

16a

HONORABLE STUART TATE, TRIAL JUDGE

AFFIRMED

Steven L. Holcombe,

Pawhuska, Oklahoma,

For Plaintiff/Appellant

Ashley J. Kane,

ASSISTANT DISTRICT ATTORNEY,

Pawhuska, Oklahoma,

For Defendant/Appellee,

Osage County Treasurer,

Max C. Myers,

MYERS KALKA LAW FIRM, PLLC,

Yale, Oklahoma,

For Defendants/Appellees,

Ghreza and Judy C. Azadi

OPINION BY TIMOTHY J. DOWNING, JUDGE:

¶1

Plaintiff/Appellant, Antonio Padilla, appeals

from the trial court's denial to set aside the tax re-sale

deed and/or quiet title in his name. Appellant filed

suit below against Defendants/Appellees alleging that

irregularities in the notification process failed to meet

the statutory requirements for notice. The trial court

found Appellant failed to satisfy the burden of proof to

set aside the tax re-sale deed and/or quiet title in his

name. Upon review, we affirm.

BACKGROUND

¶2

Appellant and his then wife, Carelia Padilla,

acquired approximately fifty-five acres of real estate

in Osage County in April of 2002. Tax payments were

current through 2007. After a year of unpaid taxes,

Appellant and Mrs. Padilla were notified by certified

mail by the Osage County Treasurer of the

17a

delinquency. The certified letter informs that if the

property taxes are not paid within three years, the

property will be sold. According to the Assessor's

records, Appellant and Mrs. Padilla turned in

personal information that indicated their address

changed in 2006 from that originally recorded on the

property deed in question. The notification was mailed

to that address, which was also consistent with the

address on the 2008 tax roll. The notice was

unclaimed. The normal practice at that time was to

resend by regular mail.

¶3

On April 2, 2012, the Osage County Treasurer

again notified both Appellant and Mrs. Padilla, by

certified mail, about the delinquent taxes. This time,

each were sent separate notices by certified mail,

again to the address given by the Padillas in 2006 and

listed on the tax rolls. Both certified letters were

returned, noting that the address was insufficient and

unable to forward. The treasurer's office requested an

abstractor from Buffalo Land and Title to assist in the

search for any other lienholders on the property. The

treasurer's office also received the assistance of a local

Sheriff’s Deputy who used the Sheriff’s Office account

to search for a more current address. This search

yielded the result of Appellant's and Mrs. Padilla's

marital home address in Tulsa. The notices were

mailed, this time by first-class, separately to

Appellant and Mrs. Padilla on April 26, 2012, to their

marital home. These mailings were not returned.

¶4 On May 9th, 16th, 23rd, and 30th of 2012, Notice

of Resale Taxes was published in the Pawhuska

Journal-Capital. This Notice included Appellant's

and Mrs. Padilla's fifty-five acres. On June 11, 2012,

Ghreza and Judy Azadi purchased the fifty-five acres

at the tax sale for $14,025.00.

18a

STANDARD OF REVIEW

¶5

Actions to quiet title are equitable proceedings

and the trial court's judgment will be affirmed unless

it is against the clear weight of the evidence. Manar v.

Wesson, 2016 OK CIV APP 29, 6, 371 P.3d 1165,

1167-1168.

ANALYSIS

¶6

Appellant raises the following allegations of

error:

Did the notifications to the landowner

satisfy due process;

ii)

Was the Osage County Treasurer an

indispensable party;

iii)

Did Appellant fail to state a claim for

which relief could be granted against

Osage County Treasurer; and

iv)

Was Appellant required to first file a

claim pursuant to the Governmental

Tort Claims Act in order to make the

Osage County Treasurer a proper party.

¶7

Notice to a landowner that his property will be

sold in a tax sale is governed by 68 O.S. § 3127. Section

3127 is as follows:

The county treasurer, according to the law, shall

give notice of the resale of such real estate by

publication of said notice once a week for four (4)

consecutive weeks preceding such sale, in some

newspaper, having been continuously published

one hundred four (104) consecutive weeks with

admission to the United States mails as secondclass mail matter, with paid circulation and

19a

published in the county where delivered to the

mails, to be designated by the county treasurer;

and if there be no paper published in the county, or

publication is refused, the county treasurer shall

give notice by written or printed notice posted on

the door of the courthouse. Such notice shall

contain a description of the real estate to be sold,

the name of the record owner of said real estate as

of the preceding December 31 or later as shown 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, the

time and place of sale, a statement of the date on

which said real estate taxes first became due and

payable as provided for in Section 2913 of this title,

the year or years for which taxes have been

assessed but remain unpaid and a statement that

the same has not been redeemed, the total amount

of all delinquent taxes, costs, penalties and

interest accrued, due and unpaid on the same, and

a statement that such real estate will be sold to the

highest bidder for cash. It shall not be necessary to

set forth the amount of taxes, penalties, interest

and costs accrued each year separately, but it shall

be sufficient to publish the total amount of all due

and unpaid taxes, penalties, interest and costs.

The county treasurer shall, at least thirty (30) days

prior to such resale of real estate, give notice by

certified mail, by mailing to the record owner of

said real estate, as shown by the records in the

county assessor's office, which records shall be

updated based on real property conveyed after

October 1 each year, and to all mortgagees of

record of said real estate a notice stating the time

and place of said resale and showing the legal

description of the real property to be sold. If the

20a

county treasurer does not know and cannot, by the

exercise of reasonable diligence, ascertain the

address of any mortgagee of record, then the

county treasurer shall cause an affidavit to be filed

with the county clerk, on a form approved by the

State Auditor and Inspector, stating such fact,

which affidavit shall suffice, along with

publication as provided for by this section, to give

any mortgagee of record notice of such resale.

Neither failure to send notice to any mortgagee of

record of said real estate nor failure to receive

notice as provided for by this section shall

invalidate the resale, but the resale tax deed shall

be ineffective to extinguish any mortgage on said

real estate of a mortgagee to whom no notice was

sent. Beginning on April 24, 2008, no

encumbrancer of real property in this state shall

be permitted to file any instrument purporting to

encumber real property in any county of the state

with any county clerk unless the instrument states

on its face the mailing address of such

encumbrancer.

68 O.S. § 3127.

¶8

It is undisputed that Appellant failed to timely

pay taxes on the fifty-five acres. It is also undisputed

that the County fulfilled the notice requirements set

forth in Section 3127 above. Instead, the issue on

appeal is whether reasonable steps were taken to

notify Appellant once the County learned the certified

mailing made pursuant to the statute was

undelivered. As shown below, we hold the County took

reasonable steps to notify Appellant of the sale.

21a

¶9

The trial court's Ruling was filed on March 21,

2019. The trial court thoroughly outlined the

evidence adduced at trial. Appellant argues the trial

court relied on facts not supported by the record and

put the burden on Appellant to keep the County

updated on his whereabouts. We are not persuaded by

this argument. After outlining the evidence, the trial

court found as follows:

Having considered all of the evidence in totality,

the Court agrees with Mr. Padilla that the initial

statutory certified mailing notice failed, but the

Court concurs with the Azadis that the subsequent

additional steps taken by the Osage County

Treasurer after the failed certified mailing to

attempt to provide notice before sale were

reasonable under the circumstances of this case at

the time that notice was attempted in 2012.

¶10 Appellant cites to Crownover v. Keel, 2015 OK

35, 357 P.3d 470 in support of his arguments. In

Crownover, the Supreme Court held that "[t]he 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."

Crownover, 2015 OK at ¶19. Unlike Crownover, here

further action was taken.

¶11 In Crownover, like this case, there was no

dispute that the County satisfied the statutory notice

requirements "by sending notice via certified mail to

the address it had been given". Id. at ¶27. In

Crownover, the certified mail was also returned as not

1 The Journal Entry was not filed until June 18, 2021. In

that, the trial court held that the attempted notice on Plaintiff

was reasonable and quieted title in the name of the Azadi

Defendants.

22a

deliverable and unable to forward. Id. at ¶28. The

Crownover Court held that the County was required

to take additional steps to supply Crownover with

notice. "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." Id. at

¶29.

¶12 When discussing what additional steps should

be taken, the Crownover Court looked to the United

States Supreme Court's holding in Jones v. Flowers,

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

stating the Supreme Court "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." Id. at

¶21. The Crownover Court referenced the Jones

Court's suggestion about reasonable measures, "such

as posting notice on the property door, or even sending

notice by regular mail." Id.

¶13 It is the usual practice in Osage County to post

a sign on the property where there is a homestead or

structure. However, here, evidence established the

fifty-five acres did not have a structure on it and was

not used as residential property. Instead, the County

took the additional steps to locate Appellant and

mailed the notice not only to Appellant, but also to

Mrs. Padilla, at their marital home. That is the very

step that the Supreme Court held would unduly

burden the state. Id. at ¶21 (citing Jones, 547 U.S. at

236, 126 S.Ct. 1708). Yet the County elicited help from

both an abstractor and the Sheriff’s Office to search

records to find a more current address. Thus, unlike

23a

Crownover, the County here took additional steps to

supply Appellant with notice.2

¶14 We have also reviewed Appellant's additional

issues raised in his allegations of error two through

four, and find they do not warrant relief as this Court's

holding on Appellant's first issue is dispositive of this

appeal.

CONCLUSION

¶15 Upon review of the record, this Court concludes

the trial court's decision does not go against the clear

weight of the evidence.

¶16

The order appealed is hereby AFFIRMED.

BELL, P.J., and GOREE, J. concur.

2 Appellant claims the trial court relied on facts that are not

supported by the evidence to determine Appellant received

notice. However, as shown above, the trial court's ultimate

decision was based on the additional steps taken by the County.

That finding was proper. Even if we agreed with Appellant, this

Court can affirm the trial court based on a different legal

rationale. Hall v. GEO Group, Inc., 2014 OK 22, ¶17, 324 P.3d

399,406.

24a

Appendix E – Order Denying Rehearing

IN THE COURT OF CIVIL APPEALS OF THE

STATE OF OKLAHOMA

DIVISION I

ANTONIO PADILLA,

Plaintiff/Appellant,

vs.

OCCUPANTS OF THE PREMISES, and JOYCE

HATHCOAT, OSAGE COUNTY TREASURER,

GHREZA AZADI and JUDY C. AZADI, Husband

and Wife,

Defendants/Appellees.

Case No. 119,709

FILED

COURT OF CIVIL APPEALS

STATE OF OKLAHOMA

DEC 15 2022

JOHN D. HADDEN

CLERK

ORDER DENYING REHEARING

Appellant's Petition for Rehearing and Brief in

Support, filed December 7th, 2022, is DENIED.

25a

DONE BY ORDER OF THE COURT OF CIVIL

APPEALS this 13th day of December, 2022.

s/ Robert D. Bell

ROBERT D. BELL

Presiding Judge

26a

Appendix F – Decision denying Petitioner’s

Petition for Writ of Certiorari to the

Oklahoma Supreme Court

IN THE SUPREME COURT OF THE STATE OF

OKLAHOMA

MONDAY, SEPTEMBER 18, 2023

FILED

SUPREME COURT

STATE OF OKLAHOMA

SEP 18 2023

JOHN D. HADDEN

CLERK

THE CLERK IS DIRECTED TO ENTER THE

FOLLOWING ORDERS OF THE COURT:

119,709

Antonio Padilla v. Occupants of the

Premises and Joyce Hathcoat, Osage

County Treasurer, Ghreza Azadi and

Judy

Azadi

Petition for certiorari is denied.

CONCUR: Rowe,

V.C.J.,

Kauger,

Winchester,

Edmondson,

Combs,

Gurich, Darby and Kuehn, JJ.

DISQUALIFIED: Kane, C.J.

[REDACTED as to other cases]

s/ Dustin Rowe

Acting CHIEF JUSTICE

27a

Appendix G – Motion to Disqualify

IN THE SUPREME COURT OF THE STATE OF

OKLAHOMA

ANTONIO PADILLA,

Plaintiff/Appellant,

vs.

JOYCE

HATHCOAT,

OSAGE

COUNTY

TREASURER, GHREZA AZADI AND JUDY C.

AZADI,

Defendants/Appellees.

District Ct. No. CJ-13-151

Supreme Ct. No. 119,709

FILED

SUPREME COURT

STATE OF OKLAHOMA

JAN -5 2023

JOHN D. HADDEN

CLERK

MOTION TO DISQUALIFY

COMES NOW the Appellant Antonio Padilla, by

and through his attorney, Steven L. Holcombe,

Pawhuska, Oklahoma, and pursuant to Rule 1.175 of

the Oklahoma Supreme Court Rules, and Title 20 O.S.

28a

Section 1402, respectfully moves and requests that

Justice M. John Kane IV be disqualified from

participating in any decisions relative to the above

captioned matter. For cause, the Appellant states that

Justice Kane was the judge presiding at the trial of

such cause in Osage County District Court.

WHEREFORE, PREMISES CONSIDERED, the

Appellant prays that Justice Kane certify to his own

disqualification, or that he be otherwise disqualified.

Dated this 3rd day of January, 2023.

ATTORNEY FOR APPELLANT

s/ Steven L. Holcombe

Verified by Steven L. Holcombe

Steven L. Holcombe, Attorney at Law

Firm

700 Kihekah Ave.

PO Box 1408

Pawhuska, OK 74056

Address

918-287-8762

Telephone

29a

Appendix H – Order of Disqualification

IN THE SUPREME COURT OF THE STATE OF

OKLAHOMA

ANTONIO PADILLA,

Plaintiff/Appellant,

JOYCE

HATHCOAT,

OSAGE

COUNTY

TREASURER, GHREZA AZADI AND JUDY C.

AZADI,

Defendants/Appellees.

Case No. 119,709

FILED

SUPREME COURT

STATE OF OKLAHOMA

JAN -5 2023

JOHN D. HADDEN

CLERK

ORDER OF DISQUALIFICATION

The undersigned is disqualified from the above

styled and numbered cause.

s/ M. John Kane IV

M. JOHN KANE IV

CHIEF JUSTICE

30a

Appendix I – Notice of Tax Resale

OFFICE OF

JOYCE HATHCOAT - COUNTY TREASURER

OSAGE COUNTY

P.O. BOX 1569 PAWHUSKA, OKLAHOMA ZIP

CODE 74056

Property owner: PADILLA, ANTONIO & CARELIA

H/W

Property ID # 27954-1-20-11 [&] 76781-20-1-108

LEGAL 1-20-11 SW NE, NW SE NE, N/2 NE SE NE

Dear Taxpayer:

Notice is hereby given that under the authority and

mandatory requirement of O.S. 1991, Sections 3125

and 3127, the above described real estate situated in

Osage County, State of Oklahoma, will be sold at

public auction to the highest competitive bidder for

cash; said sale to held at the office of the County

Treasurer in the Osage County Courthouse Annex,

Pawhuska, Oklahoma, beginning on June 11, 2012,

between the hours of 9:00 A.M. and 4:00 P.M. and

continuing from day to day thereafter between the

same hours until said sale has been completed

according to law.

A statement setting forth the amount of taxes, costs

and interest is enclosed. If all taxes, costs,

assessments and interest are paid prior to the sale,

such property will be removed from the sale.

The property will be advertised on May 9, May 16,

May 23 and May 30, 2012 in the Pawhuska Journal

31a

Capital. After April 30, 2012, there will be

additional interest and advertising charges due.

Please call our office after April 30, 2012 for the

correct amount due if paying after that date.

PLEASE REMIT WITH MONEY ORDER OR

CASHIER'S CHECK. PERSONAL CHECKS OR

BUSINESS CHECKS CAN NOT BE ACCEPTED

ON PROPERTY THAT IS TO BE IN THE SALE.

If you have any questions, please call (918) 287-3101

or 287-1011.

Sincerely

Joyce Hathcoat

Osage County Treasurer

32a

STATEMENT OF TAXES DUE

OSAGE COUNTY TREASURER

OSAGE COUNTY, OKLAHOMA

Real Estate

27954-1-20-11

Description

SW NE, NW SE NE, N/2 NE SE NE

ROLL #

YEAR

TAXES

INTEREST

FEES

(LIEN

SALE)

CERT

LETTERS

SHERIFF

SERVICE

TOTAL

23932

2008

19.60

11.76

40.54

23807

2009

19.76

8.30

35.00

23724

2010

19.56

4.69

35.00

23691

2011

20.50

1.23

63.06

59.25

21.73

55.00

21.50

148.40

Personal

76781-20-1-108

ROLL #

YEAR

TAXES

11966

2009

197.94

11380

2010

172.49

3734

2011

48.87

TOTAL DUE BY APRIL 30, 2012

PLEASE NOTE:

THE TOTAL DUE MUST BE IN OUR OFFICE

BY APRIL 30, 2012.

33a

TOTAL DUE

711.74

YOU MUST RETURN THIS NOTICE WITH YOUR

REMITTANCE.

NO PERSONAL OR BUSINESS CHECKS WILL BE

ACCEPTED.

PLEASE PAY WITH CASH, CASHIERS CHECK OR

MONEY ORDER.

THANK YOU

JOYCE HATHCOAT

OSAGE COUNTY TREASURER

PO BOX 1569

PAWHUSKA, OK 74056

(918) 287-3101 OR 287-1011

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.