Higgins v. Trauger
| Decision Date | 29 August 2001 |
| Docket Number | No. 20010073, No. 20010074. |
| Parties | Maria L. HIGGINS, Petitioner and Appellant v. Paul E. TRAUGER, County Auditor of Morton County, Respondent and Appellee. Steve Thilmony and, Garry Strandemo, Plaintiffs and Appellees v. William Higgins; Sanitary Plumbing and Heating; Dakota Northwestern Bank, National Association, n/k/a Norwest Bank Bismarck, National Association; United Accounts, Inc.; B & D Supply, Inc. and all other persons unknown claiming any estate or interest in or Lien or encumbrance upon the property described in the Complaint, Defendants. |
| Court | North Dakota Supreme Court |
Susan Schmidt (argued) and William C. Severin (on brief), Severin, Ringsak & Morrow, Bismarck, for petitioner and appellant Maria L. Higgins.
Charles S. Miller, Jr., Fleck, Mather & Strutz, Bismarck, for respondent and appellee Paul E. Trauger.
James P. Rausch, Rausch Law Office, Bismarck, for plaintiffs and appellees Steve Thilmony and Garry Strandemo.
[¶ 1] Maria L. Higgins appealed from a summary judgment quieting title to disputed Morton County property in Steve Thilmony and Gary Strandemo, and dismissing Higgins's petition for a writ of mandamus directing Morton County Auditor Paul E. Trauger to issue tax deeds for the property to her. We conclude the parties' reliance on the auditor's error in calculating the date the 90 day period of redemption would expire did not extend the statutory period an additional day to validate an untimely attempt to redeem the property. We further conclude, however, that a genuine issue of material fact exists whether Higgins purchased tax sale certificates on behalf of, or in collusion with, her husband, William Higgins, so that the purchase should be treated as a redemption made by William Higgins under former N.D.C.C. § 57-24-18. We reverse the summary judgment and remand for further proceedings.
[¶ 2] This case involves a dispute over Morton County land located on the north side of the "strip" between Bismarck and Mandan. The parties have stipulated to some facts. Morton County acquired the disputed property through involuntary tax forfeiture proceedings, and in October 1989, the County conveyed the property to William Higgins and Harry Reynolds. Although Reynolds resided on the property, William Higgins paid most of the property taxes from 1989 until 1994.
[¶ 3] The taxes became delinquent beginning in 1994, and a lis pendens was filed against the property in May 1995, giving notice of a partition action brought by William Higgins against Reynolds. The result of this lawsuit does not appear in the record. For tax years 1994 through 1997, the property was sold to the auditor in the manner provided by law for delinquent taxes. According to the auditor, William and his wife, Maria Higgins, came to his office with a Mandan attorney "to check on the procedures for obtaining title following a tax sale" and to determine "whether there was a way they could acquire the property free and clear of any interest of Harry Reynolds." On February 19, 1998, Maria Higgins paid the Morton County Treasurer $8,135.23 for the 1994 through 1997 tax sale certificates, and those certificates were assigned to her.
[¶ 4] Reynolds was served with a notice of expiration of period of redemption on December 22, 1999. The notice informed him that tax sale certificates for 1994 and 1995 had been issued to Maria Higgins, and unless redemption was made within 90 days after service of the notice, she would be issued tax deeds to the property. The auditor also sent notices to William Higgins and Norwest Bank, a lienholder with a potential interest that still appeared of record.1 The 90 day period of redemption would expire on March 21, 2000, but the auditor miscalculated and incorrectly orally advised the parties on several occasions that March 22, 2000, would be the last day to redeem.
[¶ 5] On March 22, 2000, Reynolds, with the assistance of Thilmony and Strandemo, paid the amount required to redeem to the treasurer and received a redemption receipt. Reynolds then quitclaimed his interest in the property to Thilmony and Strandemo. After March 23, 2000, Maria Higgins asked the auditor to issue her deeds to the property because Reynolds did not timely redeem. The auditor refused.
[¶ 6] Maria Higgins sued the auditor, seeking a writ of mandamus compelling him to issue her tax deeds to the property. Thilmony and Strandemo sued William Higgins and others to quiet title to the same property. The trial court consolidated the cases, and all of the parties, except the auditor, entered into a stipulation of facts and moved for summary judgment. Maria Higgins argued she is the owner of the property because it was not redeemed by March 21, 2000. The auditor, Thilmony and Strandemo argued the redemption should be upheld on equitable grounds and, in the alternative, that Maria Higgins is not entitled to a tax deed because her purchase of the tax sale certificates should be treated as a redemption by William Higgins under former N.D.C.C. § 57-24-18.
[¶ 7] The trial court ruled that, although Trauger had miscalculated the final date to redeem, the erroneous redemption date "was communicated to all of the parties," and should be binding to extend the statutory redemption period. The court reasoned:
Redemption laws are generally construed in a manner favorable to the owner of property, subject to delinquent taxes, rather than to the holder of a tax sale certificate. This Court believes that the principles of equity discussed at 72 Am.Jur.2d[ ] State and Local Taxation [] §[§ ] 941, 1027, as well as Robinson v. District of Columbia[,] 372 A[.]2d 1005 ([D.C.]Ct.App.1977), cited by counsel for the Auditor, mitigate in favor of Mr. Reynolds. He had a right to rely on the representations being made by the County Auditor, and should not lose his interest in the property because he abided by the information provided to him, albeit waiting until the last possible day. Likewise, Maria Higgins cannot now complain, inasmuch as she was advised accordingly and was seemingly operating on the same assumption and belief as Mr. Reynolds and his successors.
[¶ 8] The trial court quieted title to the property in Thilmony and Strandemo, and dismissed Maria Higgins's petition for a writ of mandamus. Maria Higgins appealed.
[¶ 9] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Overboe v. Farm Credit Serv., 2001 ND 58, ¶ 5, 623 N.W.2d 372. A party seeking summary judgment has the burden of clearly demonstrating there is no genuine issue of material fact. Egeland v. Continental Res., Inc., 2000 ND 169, ¶ 8, 616 N.W.2d 861.
[¶ 10] Maria Higgins argues the auditor should be required to issue tax deeds to her because the property was not redeemed within 90 days from the date of service.
[¶ 11] Under the former statutory scheme,2 the sale of land for delinquent taxes and redemptions from real estate tax sales were governed by N.D.C.C. chs. 57-24, 57-26, and 57-27. See Peplinski v. County of Richland, 2000 ND 156, ¶¶ 6-8, 615 N.W.2d 546,
and Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 845-46 (N.D.1996), for general discussions of the process. The dispute in this case focuses on the redemption procedure.
[¶ 12] Maria Higgins acquired the tax sale certificates on February 19, 1998, and presented the certificates for 1994 and 1995 to the auditor for service of notice of expiration of the period of redemption in accordance with N.D.C.C. § 57-27-02(1). Under N.D.C.C. § 57-27-02(1)(f), the notice must be directed to the persons in whose name the property described in the certificate is assessed, to all lienholders of record and mortgagees or assignees of mortgages holding unsatisfied recorded mortgages, and must include "[t]he time when the redemption period will expire." Tax sale certificates may be redeemed "at any time on or prior to the date on which the period of redemption expires, and within ninety days after notice of the expiration of such period is given as required by law." N.D.C.C. § 57-26-01. The notice of expiration of the period of redemption must be served personally upon any person actually residing on the property covered by a tax sale certificate. See N.D.C.C. § 57-27-02(4). Reynolds was served with a notice of expiration of period of redemption on December 22, 1999, informing him "unless redemption is made from each of said tax sale certificates ninety (90) days after the date of service, tax deeds will be issued to Maria L. Higgins,..."
[¶ 13] This Court has said "[s]tatutes relating to the redemption of property from tax sales are liberally construed in favor of the parties entitled to redeem," Lower Yellowstone Irrigation Dist. No. 2 v. Tollefson, 68 N.D. 39, 43, 276 N.W. 254, 256 (1937), and "tax titles can be acquired only after full compliance with all the provisions of law intended for the protection of those having the right to redeem." State ex rel. State Bank v. Weiler, 67 N.D. 593, 601, 275 N.W. 67, 70 (1937). The statute requiring notice of the expiration of the period of redemption must be strictly complied with to terminate the owner's right to redeem. Wittrock v. Weisz, 73 N.W.2d 355, 358 (N.D.1955). If a valid notice of expiration of period of redemption has been issued and served in accordance with the statutes, and no redemption is made within the time prescribed by the statute and the notice, the right of redemption terminates and title passes to the owner of the tax sale certificate. See Knowlton v. Coye, 76 N.D. 478, 488, 37 N.W.2d 343, 350 (1949); N.D.C.C. § 57-27-05. Thus, while a notice that incorrectly states...
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