Estate of Glasoe v. Williams Cnty.
| Decision Date | 19 January 2016 |
| Docket Number | No. 20150095.,20150095. |
| Citation | 874 N.W.2d 311 |
| Parties | ESTATE OF Darwin A. GLASOE, LeAnne Glasoe, and Kris Glasoe, Plaintiffs and Appellants v. WILLIAMS COUNTY, N.D.; Bradley Parker and Brenda Parker, Husband and Wife, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the complaint, Defendants Williams County, N.D., Appellee. |
| Court | North Dakota Supreme Court |
Kevin J. Chapman, Williston, N.D., for plaintiffs and appellants.
Adam M. Olschlager, Special Assistant State's Attorney, Billings, Mont., for appellee.
[¶ 1] The Estate of Darwin Glasoe, LeAnne Glasoe, and Kris Glasoe (collectively "Glasoes") appeal from a judgment dismissing their action to recover and quiet title to property located in Williston. Because the Glasoes have failed to establish any jurisdictional defects in the tax lien foreclosure proceedings and LeAnne Glasoe's attempt to repurchase the property was too late, we affirm.
[¶ 2] Darwin Glasoe was the record title holder to a home in Williston when he died in 2003. His widow was appointed the personal representative of the estate, but she died shortly thereafter. No action was taken to further estate administration until a successor personal representative was appointed in December 2013. LeAnne Glasoe and Kris Glasoe are Darwin Glasoe's surviving children, and LeAnne Glasoe lived in the home during all pertinent times. The Williams County Auditor continued to mail its annual tax statements to the record title holder, Darwin Glasoe, after his death. Although real estate taxes were paid on the property through 2009, no taxes were paid on the property from 2010 through 2013. The County placed a tax lien on the property for delinquent taxes in May 2013. A tax deed issued to the County dated October 2, 2013, was filed on October 7, 2013. The County sold the property at public auction to Bradley and Brenda Parker on November 19, 2013. On November 21, 2013, LeAnne Glasoe attempted to repurchase the property, but the County would not allow her to do so. The County issued the Parkers a deed to the property dated November 19, 2013, and the deed was filed on December 4, 2013.
[¶ 3] The Glasoes brought this action against the County and the Parkers to recover and quiet title to the property, claiming the tax deed was invalid because the County failed to strictly comply with the proper statutory procedures. The Glasoes also claimed LeAnne Glasoe should have been allowed to repurchase the property. Following a trial, the district court rejected the Glasoes' arguments and dismissed the lawsuit.
[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. The Glasoes' appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.
[¶ 5] The Glasoes argue the district court erred in concluding the County strictly complied with the laws governing the foreclosure of tax liens under N.D.C.C. ch. 57–28.
[¶ 6] This is the first case in which we interpret the revised statutory scheme for delinquent real estate taxes enacted by the Legislature in 1999. See 1999 N.D. Sess. Laws ch. 503. "The 1999 legislation streamlined the collection process by eliminating the tax sale and replacing it with a tax lien on the property with foreclosure and issuance of a tax deed to the county if the taxes were not paid by October 1 of the fourth year following application of the tax lien." Peplinski v. County of Richland, 2000 ND 156, ¶ 2 n. 1, 615 N.W.2d 546 (). Tax deeds are addressed in N.D.C.C. § 57–28–09, which provides in part that "[a] deed issued under this section is prima facie evidence of the truth and regularity of all facts and proceedings before the execution of the deed." "Where the statute makes a tax deed prima facie evidence of the regularity of all the proceedings leading up to the execution of the deed, the burden is upon the person attacking the tax title to prove that the tax title is jurisdictionally defective." Peterson v. Reishus, 66 N.D. 436, 266 N.W. 417 Syll. 2 (1936). Under N.D.C.C. § 57–28–08(3), the failure of an owner to satisfy a tax lien before the date of foreclosure "[w]aive[s] all errors, irregularities, or omissions which do not affect the substantial rights of the parties, except jurisdictional defects." See Peplinski, at ¶ 8. Thus, there must be strict compliance with mandatory jurisdictional requirements of the tax lien foreclosure statutes, and those statutes will be strictly construed in favor of the owners whose property is being foreclosed. See Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 846 (N.D.1996).
[¶ 7] The Glasoes argue the district court erred in ruling the County complied with the service requirements under N.D.C.C. § 57–28–04.
[¶ 8] Sufficiency of service of process is a question of fact that will not be reversed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). See McComb v. Aboelessad, 535 N.W.2d 744, 747 (N.D.1995). In Knorr v. Norberg, 2015 ND 284, ¶ 7, 872 N.W.2d 323, we explained:
A district court's finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire record, a reviewing court is left with a definite and firm conviction a mistake has been made. Syversen [v. Hess, 2003 ND 118,] ¶ 9 (citing Webster v. Regan, 2000 ND 89, ¶ 14, 609 N.W.2d 733 ). In reviewing findings of fact, we view the evidence in the light most favorable to the findings and will not reverse the district court's findings simply because we may view the evidence differently. Prairie Supply, Inc. v. Apple Elec., Inc., 2015 ND 190, ¶ 11, 867 N.W.2d 335. "In a bench trial, the district court determines the credibility of witnesses, and we do not second-guess those credibility determinations." Danuser v. IDA Marketing Corp., 2013 ND 196, ¶ 31, 838 N.W.2d 488.
[¶ 9] Under N.D.C.C. § 57–28–04(1), the county auditor was required to give the notice of foreclosure of tax lien to the sheriff for personal service on the owner if known to be a state resident, and if not a state resident, the auditor was required to serve notice "by certified mail addressed to the owner at the owner's last-known post-office address and determine whether personal service upon any person is required under subsection 3." Under N.D.C.C. § 57–28–04(3), the notice must also be "served personally upon any person actually residing upon the property subject to tax lien and upon any tenant or other person entitled to the possession of the property as may appear from the records of the recorder."
[¶ 10] Here, a notice was sent by certified mail on May 15, 2013, to Darwin Glasoe, the owner of record, a deceased non-resident, at his last known address, which was the home subject to the tax lien. The record further reflects that on May 21, 2013, the notice, addressed to Darwin Glasoe, was personally served by a deputy sheriff upon LeAnne Glasoe, the person actually residing on the property, at a "hair salon" in Williston where she worked. The County also published a notice of foreclosure of tax lien in July 2013, in accordance with N.D.C.C. § 57–28–06.
[¶ 11] The Glasoes' argument that the County failed to comply with N.D.C.C. § 57–28–04(1) because LeAnne Glasoe, Kris Glasoe, and the Estate were not served by certified mail is incorrect because that statutory provision requires only an examination of what "current assessment records show." Here, the assessment records showed Darwin Glasoe as the record owner, and the notice was mailed to his last known address. This statute did not require the auditor to investigate further. See Van Raden Homes, Inc., 546 N.W.2d at 849, and cases collected therein; Cota v. McDermott, 73 N.D. 459, 466, 16 N.W.2d 54, 57 (1944).
[¶ 12] The Glasoes contend there was no valid personal service on LeAnne Glasoe under N.D.C.C. § 57–28–04(3), because the envelope was addressed to Darwin Glasoe rather than to LeAnne Glasoe. The sheriff's return states that the deputy served "DARWIN GLASOE, by leaving with LEANNE GLASOE" the sealed envelope. The deputy testified that when he gave the envelope to LeAnne Glasoe he told her "it was very important that she pay attention to the contents because it was a Foreclosure Notice." LeAnne Glasoe testified, "I didn't even open it, I went right back to work." Although the envelope was not addressed to LeAnne Glasoe, she had been living in the home and receiving her deceased father's correspondence from the auditor for almost a decade, and the real estate taxes had been paid during most of that period. Even if the notice should have been addressed to LeAnne Glasoe rather than to her deceased father, this irregularity did not affect her substantial rights and was not a jurisdictional defect. We conclude the district court's finding that on "May 21, 2013, Williams County Sheriff personally served the Notice of Tax Lien Foreclosure on LeAnne Glasoe" is not clearly erroneous.
[¶ 13] The Glasoes also argue the County failed to comply with N.D.C.C. § 57–28–04(4), which provides:
The county auditor shall serve the notice of foreclosure of tax lien upon each mortgagee, lienholder, and other person with an interest in the property except a person whose only interest is in a mineral interest that was severed from the surface estate before the filing of any unsatisfied lien or mortgage or before January first of the year following the year for which the taxes were levied and to which the notice of foreclosure of tax lien relates, and upon whom personal service is not required by this section, as shown by the records of the recorder or the clerk of the district court of the county. The notice must be served by certified mail.
(Emphasis added.)
[¶ 14] The Glasoes argue the auditor had a statutory duty to investigate other...
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