Holland v. King

• Decision Date: 02 December 1986
• Docket Number: No. 4-385A50,4-385A50
• Citation: 500 N.E.2d 1229
• Parties: William H. HOLLAND, Appellant, v. Jeffery L. KING, Appellee, First National Bank of Richmond, Corporation, Mortgagee of The Property Claimed by Jeffery L. King, Appellee.
• Court: Indiana Appellate Court

Page 1229

500 N.E.2d 1229

William H. HOLLAND, Appellant, v. Jeffery L. KING, Appellee First National Bank of Richmond, Corporation, Mortgagee of The Property Claimed by Jeffery L. King, Appellee.

No. 4-385A50.

Court of Appeals of Indiana Fourth District.

Dec. 2, 1986.

Rehearing Denied Feb. 3, 1987.

Terry O'Maley, Richmond, for appellant.

Robert L. Hudson, Jr., Richmond, for appellee.

MILLER, Judge.

William Holland, former property owner, filed a complaint to quiet title against the tax deed of Jeffrey King and First National Bank of Richmond. The parties stipulated the facts. After a hearing, the trial court granted purchaser King's motion for summary judgment and found notice by certified mail to Holland at his last known address met the statutory notice requirements under IND.CODE 6-1.1-24-4 [notice to owner of tax sale] and IND.CODE 6-1.1-25-6 [notice to owner before issuance of tax deed] as well as constitutional due process notice requirements. Holland appeals and argues the Wayne County Auditor did not provide actual notice to him of the tax sale or the issuance of the tax deed and that notice by certified mail to the former owner's last known address is insufficient to meet both statutory and constitutional requirements when the notice was sent to an incorrect address and returned to the Auditor as unclaimed or moved-not forwardable. In addition, Holland argues summary judgment was erroneous because, although the parties stipulated the facts, the inferences arising from the facts are disputed and require trial for resolution.

We affirm.

FACTS

On March 6, 1972 Holland purchased a parcel of real estate in the City of Richmond, Wayne County, Indiana known as "50 foot lot 107 of Bickel and Law Addition" and "411 South 10th Street" (Property). Holland or his tenants retained possession and use of the property from March 6, 1972 through August 13, 1981.

In connection with the purchase, Holland informed the Wayne County Treasurer and the Wayne County Auditor his mailing address was 29 Spring Street, Dover, New Jersey 07801. Consequently, Holland received his tax statements at this address for taxes due in 1972 and payable in 1973. Holland paid these taxes.

In September 1975, Holland moved from Dover, New Jersey to 4 South 779 Pinehurst Drive, Naperville, Illinois 60540. Holland did not, at that time or any time thereafter, notify the Treasurer or the Auditor of his move and change of address in September 1975. The post office forwarded Holland's mail from his former New Jersey address to his current Illinois residence for one year after notification of Holland's new address. Holland received his tax statements for taxes due in 1973, 1974, and 1975 each payable in following year 1974, 1975, and 1976, which were sent to his New Jersey address, and paid the taxes on November 9, 1976. The U.S. Post Office forwarded the 1975 tax statement due and payable in 1976, which was mailed to 29 Spring Street, Dovie, New Jersey 07801 (Dover was misspelled), to Holland's new home in Naperville, Illinois at 4 South 779 Pinehurst Drive. The 1976 payment was receipted on a tax duplicate to William H. Holland, 29 Spring Street, Dovie, New Jersey 07801.

The post office forwarded Holland's mail until September, 1976. Wayne County mailed, but Holland did not receive, his tax statements for 1976 and 1977 taxes, payable in 1977 and 1978. Holland did not pay these taxes. The Wayne County Auditor listed the Property on July 1, 1979 as having one or more installments of property taxes delinquent for 15 months and the Property was included in the delinquency list subject to tax sale on the second Monday in August 1979. On July 3, 1979, the Auditor sent a notice of the tax sale proceedings of the Property due to real estate tax delinquencies to be held August 11, 1979 by certified mail with return receipt requested to Holland at 29 Spring Street, Dovie, New Jersey 07801. Holland did not receive the notice, and it was returned to the Auditor marked "unclaimed" by the Patterson, New Jersey 07505 postal processing center for all zip codes beginning 074, 075, and 078 including Dover, New Jersey.

On August 13, 1979 the Wayne County Treasurer sold the Property at public auction to the highest bidders, Annabell King, Fred King, and Jeffrey King for $1,000.00, which covered the delinquent taxes and produced a surplus of $421.18. The Kings were issued a Tax Sale Certificate by the Wayne County Auditor, and all later tax bills and receipts were sent to the Kings at 4732 U.S. 27 North, Richmond, Indiana 47374.

Two years later, on July 2, 1981, the Auditor sent, by certified mail with return receipt requested, a "Notice of Tax Sale Redemption or Issuance of Deed" to Holland at 29 Spring Street, Dovie, New Jersey 07801. This notice was returned to the Auditor by the Dover post office marked "Moved-Not Forwardable." Holland did not receive this notice and had no actual knowledge of this information, except that he had not paid his taxes on the Property for the years 1976, 1977, 1978, 1979, and 1980. Holland failed to redeem his interest in the Property before August 13, 1981, within two years of the date of the tax sale. On August 14, 1981, the Auditor issued a tax deed for the Property to Annabell King, Fred King, and Jeffrey King. Jeffrey King took possession of the Property on August 14, 1981 by evicting Holland's tenants, Mr. and Mrs. Bill Henderson. Annabell King and Fred King transferred their interest in the Property by quitclaim deed to Jeffrey King, who executed a mortgage on the Property to First National Bank of Richmond, Indiana.

On August 12, 1982, Holland filed this complaint to quiet title against the tax deed of Jeffrey L. King and First National Bank. ¹ The trial court granted summary judgment and quieted title in favor of King, finding both statutory and constitutional notice requirements had been met by the Wayne County Auditor and Treasurer.

Issues

Holland raises the following issues on appeal, which have been restated:

I. Whether the trial court erred in finding the Wayne County Auditor complied with statutory notice requirements pursuant to IND.CODE 6-1.1-24-4 by sending Holland, the owner of the property, notice of the tax sale proceedings by certified mail at his last known address.

II. Whether notice to the property owner of tax sale proceedings by certified mail at his last known address pursuant to I.C. 6-1.11-24-4 meets constitutional due process requirements that notice be reasonably calculated under all the circumstances to inform the property owner of the action so that he might have reasonable opportunity to object.

III. Whether the trial court erred in finding the Wayne County Auditor complied with statutory notice requirements pursuant to I.C. 6-1.1-25-6 by sending Holland, former owner of the property, notice by certified mail at his last known address of his right to redemption and the pending issuance of a tax deed.

IV. Whether notice to the property owner by certified mail at his last known address of the right to redemption and the pending issuance of a tax deed pursuant to I.C. 6-1.1-25-6 meets constitutional due process requirements that notice be reasonably calculated under all the circumstances to inform the property owner of the action so that he might have reasonable opportunity to object.

V. Whether the trial court erred in granting summary judgment on the stipulated evidence when there remains a good faith dispute as to the inferences to be drawn from the stipulated facts.

I. Statutory Notice of Tax Sale Proceedings

Holland argues that the statutory notice of tax sale requirements pursuant to I.C. 6-1.1-24-4 were not met by the Wayne County Auditor's sending notice by certified mail, return receipt requested, to Holland's last known address because the notice was improperly addressed and sent to 29 Spring Street, Dovie, New Jersey 07801. The stipulated evidence reveals the Auditor received this notice returned "unclaimed" with receipt from Patterson, New Jersey. Holland argues Indiana law requires strict compliance with tax sale notice procedures and because there is no evidence here that the required statutory notice ever reached his last known address in Dover, New Jersey or that the Auditor made any effort to correct the improperly addressed notice, the notice was inadequate and renders the tax sale ineffectual entitling King to only a lien on the property.

King argues that the Auditor properly sent notice to Holland of the tax sale in compliance with I.C. 6-1.1-24-4. Even though the notice was addressed "Dovie" rather than "Dover", the Auditor affixed the correct state and ZIP Code (New Jersey, 07801) and the notice actually reached Dover. The notice was returned to the Auditor postmarked from Patterson, New Jersey 07505, which is the processing center for all ZIP Codes beginning with 074, 075, and 078. Patterson processes all mail incoming and outgoing for delivery to Dover, New Jersey. King argues the notice was in fact received in Dover and, upon Holland's failure to claim the notice, it was returned by the Dover post office to the Patterson post office, which returned the notice to the Auditor marked "unclaimed".

IND.CODE 6-1.1-24-4, notice to owner of tax sale proceedings, provides:

"... (a) the county auditor shall send a notice of the sale by certified mail to the owner or owners of the real property at their last known address. The county auditor shall prepare the notice in the form prescribed by the state board of accounts, and he shall mail the notice at least twenty-one (21) days before the day of sale.

(b) On or before the day of sale, the county auditor shall certify, on the tax sale record required by IC 6-1.1-25-8, that notice was given in the manner prescribed in this section."

(emphasis added).

Where statutory language is clear and unambiguous, it is the duty of this court to give effect to the plain meaning of the statute. Indiana Collectors v. Conrad (...