Boyes v. Eddie

Decision Date15 December 1998
Docket NumberNo. 97-652,97-652
Citation292 Mont. 152,970 P.2d 91
Parties, 1998 MT 311 James G. BOYES and Cheree G. Boyes, Plaintiffs and Respondents, v. Maurice L. EDDIE, et al., Defendants and Respondents. Donna Glantz, Plaintiff and Appellant, v. James G. Boyes, et al., Defendants and Respondents.
CourtMontana Supreme Court

James C. Bartlett, Kalispell, Montana, For Appellant.

Jonathan B. Smith, Deputy Flathead County Attorney, (Flathead County and Flathead County Treasurer); Randall S. Ogle, Ogle & Worm, Kalispell, Montana (Boyes), For Respondents.

NELSON, Justice.

¶1 Donna Glantz (Glantz) appeals a Decree of the District Court for the Eleventh Judicial District, Flathead County, wherein the court determined that James G. and Cheree G. Boyes (the Boyeses) are the owners in fee simple of a certain parcel of real property located in Flathead County. We affirm.

¶2 Glantz raises the following issues on appeal:

¶3 1. Whether the information set forth in a Tax Deed must be identical to the information set forth in the Notice That A Tax Deed May Be Issued.

¶4 2. Whether multiple notices may be placed in the same envelope for mailing.

¶5 3. Whether the Proof Of Notice For Issuance Of Tax Deed in this case complied with the statutory requirements.

¶6 4. Whether a description of property in a Notice That A Tax Deed May Be Issued must include the full legal description.

Factual and Procedural Background

¶7 In November 1989, Glantz purchased seven parcels of real property located in Granite View Subdivision in Flathead County. The deed transferring ownership of all seven parcels to Glantz was recorded with the Flathead County Clerk and Recorder's Office on December 1, 1989.

¶8 Over the next four years, Glantz failed to pay any taxes on the property. Consequently, on July 15, 1994, the Flathead County Clerk and Recorder, Susan Haverfield, notified Glantz that if the properties were not redeemed, a Tax Deed would be issued to Flathead County. Haverfield sent Glantz a separate Notice That A Tax Deed May Be Issued for each of the seven parcels. These notices were placed in one envelope and sent to Glantz by certified mail, return receipt requested. The tax assessor number for each parcel was written on the receipt for certified mail as each notice was placed in the envelope. Glantz signed for the envelope on July 18, 1994, as evidenced by the receipt for certified mail.

¶9 On August 16, 1994, Haverfield executed a Proof Of Notice For Issuance Of Tax Deed, which was recorded that same day. Nevertheless, Glantz failed to redeem any of the property including the parcel at issue in this case, the park in Granite View Subdivision (the park). As a result, the Flathead County Treasurer, Idella Smithers, issued a Tax Deed on December 22, 1994, conveying the park to Flathead County. This Tax Deed was filed with the County Clerk and Recorder on December 28, 1994.

¶10 In consideration of payment of the taxes, interest, penalties, and costs due on the park, the Chairman of the Board of County Commissioners of Flathead County signed a Grant Deed on April 25, 1995, conveying the park to the Boyeses. The Grant Deed was recorded the same day.

¶11 On October 2, 1996, the Boyeses filed a complaint seeking to quiet title to the park. Glantz, along with several other individuals who may have had some interest in the park, were named as defendants in the complaint. While Glantz answered the complaint, a default judgment was entered against all of the other defendants for failure to reply or otherwise respond to the complaint.

¶12 Glantz filed a complaint against the Boyeses and Flathead County on December 12, 1996, alleging defects in the tax sale proceedings. Boyeses subsequently filed a motion to consolidate the two lawsuits, and, on March 27, 1997, the District Court granted the motion to consolidate.

¶13 On March 31, 1997, the Boyeses filed a Motion for Summary Judgment which was joined in by Flathead County. Glantz opposed the motion contending that the Tax Deed was null and void because of various discrepancies in the proceedings and in the deed itself. Glantz alleged error in that, among other things, the dollar amounts listed on the Notice That A Tax Deed May Be Issued did not coincide with the dollar amounts listed on the Tax Deed itself; that it was improper to send multiple notices in one envelope; and that she did not receive the notice pertaining to the park.

¶14 After a hearing, the District Court issued its Order and Rationale granting the Motion for Summary Judgment. The court determined that there were no genuine issues of material fact and that Flathead County had followed the statutory requirements in issuing the Tax Deed and in conveying the park to the Boyeses by way of a Grant Deed. Thus, on October 8, 1997, the court entered a Decree quieting title to the Boyeses. Glantz appeals.

Standard of Review

¶15 Our standard of review in appeals from summary judgment rulings is de novo. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156 (citing Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we held that

[the party moving for summary judgment] must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

¶16 We have previously stated that the purpose of summary judgment is to dispose of those actions which do not raise genuine issues of material fact and to eliminate the expense and burden of unnecessary trials. Kane v. Miller (1993), 258 Mont. 182, 186, 852 P.2d 130, 133 (citations omitted). However, we have also stated that summary judgment is an extreme remedy and should never be substituted for a trial if a material factual controversy exists. Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 436, 901 P.2d 116, 118 (citations omitted).

Issue 1.

¶17 Whether the information set forth in a Tax Deed must be identical to the information set forth in the Notice That A Tax Deed May Be Issued.

¶18 The Notice That A Tax Deed May Be Issued recited a total tax for tax year 1990 of $42.71, along with a penalty of $.84, interest of $14.59, and nothing for costs. In contrast, the Tax Deed recited costs for tax year 1990 of $100 and interest of $1.59. Furthermore, the Notice That A Tax Deed May Be Issued recited that $362.51 in taxes, penalties, and interest was due by July 31, 1994, whereas the Tax Deed recited that the park was granted to Flathead County on December 22, 1994, in consideration of the sum of $653.99.

¶19 Glantz contends that the Tax Deed should be declared null and void because of the discrepancies between the amounts listed in the Tax Deed and the amounts listed in the Notice That A Tax Deed May Be Issued. While Glantz concedes that the November 1994 taxes would have become due and payable between the time the notice was issued and the Tax Deed was granted, she contends that there is no correlation between the amount of the November taxes and the difference in the amounts listed on the notice and on the Tax Deed.

¶20 Glantz relies on Tax Lien Services v. Hall (1996), 277 Mont. 126, 919 P.2d 396, for the idea that any inaccuracies in the Notice That A Tax Deed May Be Issued, renders the Tax Deed null and void. While this is an accurate reading of our holding in Hall, that case is distinguishable from the facts in the case before us. In Hall, there were clear and admitted discrepancies and inaccuracies within the notice itself. In the case sub judice, Glantz has not shown that the amounts listed in the Notice That A Tax Deed May Be Issued are inaccurate. Rather, she only points to the fact that the amounts in the notice differ from the amounts in the Tax Deed.

¶21 This Court has firmly maintained the position that, because a property owner's fundamental interests are at stake in tax deed proceedings, such proceedings "demand punctilious compliance with all statutory and procedural requirements." Isern v. Summerfield, 1998 MT 45, p 10, 287 Mont. 461, p 10, 956 P.2d 28, p 10, 55 St.Rep. 177, p 10 (citations omitted). However, there is no statutory requirement that the taxes, penalties, interest and costs set forth in the Notice That A Tax Deed May Be Issued be identical to those in the Tax Deed. See §§ 15-18-212 and 213, MCA. In fact, since a Tax Deed cannot be issued less than 60 days after the Notice That A Tax Deed May Be Issued, the interest and costs set forth in the Tax Deed will inevitably differ from those in the notice. Additional interest and costs will accrue between the date of issuance of the notice and the date of issuance of the Tax Deed.

¶22 Furthermore, § 15-18-212, MCA, the statute that sets forth the requirements for issuance of a Notice That A Tax Deed May Be Issued, provides that the notice must contain:

the amount of taxes due, including penalties, interest, and costs, as of the date of the notice of pending tax deed issuance, which amount must include a separate listing of the delinquent taxes, penalties, interest, and costs that must be paid for the property tax lien to be liquidated....

Section 15-18-212(6)(e), MCA (emphasis added). In contrast, the statutory form of a Tax Deed, as set forth in § 15-18-213(1), MCA, includes the phrase "in consideration of the sum of...

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