Cook v. McCullough
| Decision Date | 16 April 1987 |
| Parties | Beverly Ann COOK, Claud Richard Doty, Wendell L. Smith, Jr., and Linda Smith West, Plaintiffs-Appellants, v. Araminta McCULLOUGH, C & N Leasing and Rental Co. Inc., Jim Ed Clary, Property Assessor of the Metropolitan Government, Bill Garrett, Metropolitan Trustee, and Multimedia, Inc., d/b/a the Nashville Record, Defendants-Appellees. NO. 86-323-II 735 S.W.2d 464 |
| Court | Tennessee Court of Appeals |
William Berry, Jr., Nashville, Douglas S. Hale, Franklin, for plaintiffs-appellants.
Allen D. Lentz, F. Clay Bailey, Jr., James L. Murphy, III, Metro Legal Dept., Joseph L. Lackey, Jr., Nashville, for defendants-appellees.
This venerable controversy is now on its second excursion through the appellate process. Since previous appellate rulings are material to the present appellate issue; a review of previous procedure is necessary.
On January 21, 1982, the plaintiffs filed this suit seeking to set aside a tax deed executed on January 25, 1979, to defendants William C. and Araminta McCullough as a result of a tax sale to satisfy delinquent taxes upon the described property. A similar suit by plaintiffs relating to the tax sale of another tract to C & N Leasing and Rental Co. was consolidated with the first mentioned suit.
On September 22, 1982, the Trial Judge entered an order dismissing both suits. Upon appeal to this Court, an opinion was filed on October 18, 1983, stating:
The appellants filed separate actions in the court below to invalidate the sale of two tracts of land sold at a tax sale on January 25, 1979. The complaint alleged that John S. Edney, the record owner of the parcels in question, died on March 14, 1969 and left all his property by will to his four sisters. The will was duly probated in Davidson County, Tennessee. The appellants take their interest in the property by will or intestate succession through one of the four sisters. Since the appellants were not served with process in the tax sale nor had any other notice of sale, they alleged that the sale was void as to them.
... The defendants filed answers or motions to dismiss and the cases were consolidated for disposition. Since the basis for the motions to dismiss was that the complaint failed to state a cause upon which relief could be granted and matters outside the pleadings were considered by the court, the motions were treated as motions for summary judgment pursuant to Rule 12.02 of the Tennessee Rules of Civil Procedure. The lower court granted the motions and dismissed the complaints. By agreement the court filed findings of fact and conclusions of law.
It is the position of the appellants that since the will of John Edney was of record in Davidson County, it was possible for the taxing authorities to ascertain the present owners of the property in order that they might be given notice of the suit to collect delinquent taxes.
The defendants all contend that the burden is on the property owner to notify the tax assessor of his or her interest in the property in order that notice may be given.
In this respect the defendants rely on T.C.A Sec. 67-2018 which deals with the question of notice to the present owner. That section provides:
In the event of a sale under a decree of the court, the property shall be advertised in one (1) sale notice, which notice shall set out the names of the owners of the different tracts of parcels of land and a concise description of the property and the amount of judgment against each defendant. Said advertisement may be by publication in a newspaper as required by law, or by printed handbills as the court may decree.
However, notice of the sale shall be sent by registered return receipt mail to the last known address of the present owner of any real property if the delinquent taxes for which the sale is to be conducted were assessed on the real property when owned by a prior owner of the real property.
The term "last known address of the present owner" shall be defined as the address of the owner of said property on record in the tax assessor's office of each county.
It shall be the responsibility of the property owner to register his name and address with the tax assessor of the county in which the land lies.
The property owner shall bear the cost of the registered return receipt mail and if the said registered mail is not claimed within twenty (20) days following mailing, the county may proceed as though the notice had been received.
It seems obvious that the above section dealing with a notice to be given in a suit for the sale of real property for taxes puts the burden on the present owner of the property to register his name with the tax assessor so that he may get notice in the event of a sale.
The appellants contend that since the will of John Edney was of record, the plaintiffs became the "record owners" and were entitled to notice without more. We cannot accept that interpretation of the statute. We think the statute says the opposite: The owner is required to register his name and address with the tax assessor rather than the taxing authorities being required to search the records for evidence of ownership. This result is consistent with the recent case of Morris v. Beard, Tenn.App. (Filed in Knoxville February 12, 1982).
The action to sell real estate for delinquent taxes is an action in rem. T.C.A. Sec. 67-1804. Although persons having an interest in property which is the subject of an in rem proceeding are entitled to notice, the notice required is "the best notice possible under the circumstances." Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Baggett v. Baggett, 541 S.W.2d 407 (Tenn. 1976). In this case, since the appellants' interest was not on record in the tax assessor's office as required by the statute, they were not entitled to any more notice than that given them by publication in the newspaper.
For all of these reasons the decree of the Chancellor is affirmed.
Upon application for permission to appeal, on October 18, 1983, the Supreme Court entered the following order:
On considering the application for permission to appeal and briefs filed in this case and the entire record, the application of Beverly Ann Cook, et al, is granted for consideration of appellants' contention that the chancellor erred in holding that the publication of notice of tax sale in the Nashville Record was adequate notice to the appellants without any evidence in the record on that issue and without permitting the introduction of such evidence in a trial on the merits.
Upon considering said limited appeal, on November, 19, 1984, the Supreme Court filed an opinion which stated:
In his amended findings of fact and conclusions of law, the Chancellor held that "Publication in the Nashville Record constitutes adequate notice to all parties." The record contains no evidence on the issue of adequacy of notice and no proof was presented on the issue by either side. The Chancellor cited no authority for his position. We are of the opinion that the Chancellor should have permitted proof on this issue and summary judgment was therefore inappropriate.
We agree with the decision of the Court of Appeals on the issues that were addressed in its opinion. However, the issue of the adequacy of notice was not addressed, although it had been brought to the attention of the Court of Appeals in Plaintiff's brief and in Plaintiff's petition to rehear. We therefore remand the case to the trial court for further proceedings relative to the notice issue. Costs of this appeal shall be taxed to the Defendants.
The judgment of the Supreme Court entered the same date stated:
This cause coming on to heard upon the entire record from the Court of Appeals, Middle Section at Nashville, a limited application for permission to appeal having heretofore been granted to consider whether the Chancellor erred in holding that the publication of notice of tax sale in the Nashville Record was adequate notice to Plaintiffs when there was no evidence in the record on that issue and without permitting the introduction of such evidence in a trial on the merits; and upon consideration thereof, this Court is of opinion that the case should be remanded for further proceedings relative to the notice issue.
In accordance with the opinion filed herein, it is, therefore ordered and decreed by this Court that the case is remanded to the Chancery Court of Davidson County for further proceedings relative to the notice issue, and for the collection of costs accrued below.
Costs of appeal will be paid by Araminta McCullough, C & N Leasing & Rental Co., Inc., Jim Ed Clary, Property Assessor of the Metropolitan Government, and Bill Garrett, Trustee of Davidson County, for which execution may issue if necessary. 1/19/84.
Upon remand, an agreed order was entered permitting Multimedia, Inc., d/b/a The Nashville Record to intervene as a party defendant.
On February 28, 1986, plaintiffs filed the following motion in the Trial Court:
Pursuant to Rule 15 of the Tennessee Rules of Civil Procedure, Plaintiffs respectfully move the Court to permit them to amend their Complaints in these consolidated actions in the following respects:
1. Each Complaint is amended by adding the following additional paragraphs to the allegations:
17. Plaintiffs further allege that the statutes governing delinquent taxpayers actions, including T.C.A. Sec. 67-5-2424, 67-5-2415, 67-5-2501, and 67-5-2502, formerly Sec. 67-2012 and 67-2018, have been interpreted to permit the filing of actions to sell Plaintiffs' Properties (as defined in paragraph 4 of each Complaint), the prosecution of such actions, the entry of decrees ordering the sale for delinquent taxes, the publication of tax sale notices, and the sale of the Properties, all without any...
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