Jones v. Double D Properties, Inc.

• Decision Date: 20 February 2003
• Docket Number: No. 02-717.,02-717.
• Citation: 98 S.W.3d 405
• Parties: Robbie R. JONES v. DOUBLE "D" PROPERTIES, INC. an Arkansas Corporation. and Charlie Daniels, Commissioner of State Lands, State of Arkansas, v. Buck D. Jones.
• Court: Arkansas Supreme Court

98 S.W.3d 405

Robbie R. JONES v. DOUBLE "D" PROPERTIES, INC. an Arkansas Corporation. and Charlie Daniels, Commissioner of State Lands, State of Arkansas, v. Buck D. Jones.

No. 02-717.

Supreme Court of Arkansas.

February 20, 2003.

James R. Filyaw, Fort Smith, for appellant Robbie Jones.

Oscar Stilley, Fort Smith, for appellant Buck Jones.

David Charles Gean, Fort Smith, for appellee Double "D" Properties.

Mark Pryor, Att'y Gen., by: Anthony W. Black and Carol A. Lincoln, Ass't Att'ys Gen., for appellee Charlie Daniels.

TOM GLAZE, Justice.

This case involves a married couple, Robbie and Buck Jones, who reside in Ft. Smith. Robbie Jones was the record owner of their resident property since 1963, and, over the ensuing years, she handled the payment of the couple's taxes and bills. However, beginning in 1996, Mrs. Jones stopped paying her real estate taxes. As a result, she became delinquent on her real property taxes, which led to the sale of the land to Double "D" Properties, Inc. After the sale and the State Land Commissioner's issuance of a limited warranty deed to Double "D", Mrs. Jones brought suit against Double "D" and the Commissioner. She alleged the Commissioner had failed to comply with the notice provisions of Act 626 of 1983, as amended, and, therefore, the sale was void and the Commissioner's deed should be cancelled. Double "D" and the Land Commissioner answered, denying Mrs. Jones's allegation, and, in addition, Double "D" counterclaimed, seeking an order directing Mrs. Jones to vacate. Double "D" subsequently filed a third-party complaint against Buck Jones, seeking the same relief as previously requested against Robbie. Robbie's attorney filed an answer on Mr. Jones's behalf, reasserting the Joneses' claims that the sale of their residence was not in compliance with Act 626.

This dispute was tried on November 2, 2001. The trial judge, by letter opinion entered on January 2, 2002, held that the Commissioner's sale of the Joneses' delinquent property complied with Act 626, and the Commissioner's deed issued to Double "D" was valid. Following the judge's ruling, Buck Jones's new attorney filed a counterclaim, alleging that the Joneses' property had been illegally assessed, that an unlawful, unconstitutional amount of taxes had been imposed, and, therefore, the Commissioner's deed should be set aside. In addition, Mrs. Jones tried to question Act 626's notice requirements as being unconstitutional and depriving the Joneses of their rights of due process. The trial court considered these new arguments at a hearing on March 1, 2001, and it entered two orders on April 12, 2002, holding again that the Commissioner had strictly complied with the notice of provisions of Act 626, and further deciding that the Joneses had failed to raise their constitutional arguments in a timely manner. The Joneses challenge the trial court's decisions in this appeal.

We first address whether the State Land Commissioner complied with the notice requirements of Act 626. The pertinent provision is codified at Ark.Code Ann. § 26-37-301 (Repl.1997), which provides as follows:

(a)(1) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner's last known address, by certified mail, of the owner's right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.

(2) All interested parties known to the Commissioner of State Lands shall receive notice of the sale from the Commissioner of State Lands in the same manner.

(b) The notice to the owner or interested party shall also indicate that the tax-delinquent land will be sold if not redeemed prior to the date of sale. The notice shall also indicate the sale date, and that date shall be no earlier than two (2) years after the land is certified to the Commissioner of State Lands.

In cases involving redemption of tax-delinquent lands, this court has stated that strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his or her property. Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d 662 (1993); Trustees of First Baptist Church v. Ward, 286 Ark. 238, 691 S.W.2d 151 (1985).

In Wilson v. Daniels, 64 Ark.App. 181, 980 S.W.2d 274 (1998), a case much like the one before us, our court of appeals construed § 26-37-301. There, appellant lived in El Dorado Hills, California, but owned property in Pine Bluff. Taxes on the Pine Bluff property had not been paid since 1990, and the property was certified delinquent in July of 1994. On September 15, 1994, the Land Commissioner mailed a certified letter to Wilson's last known address in the tax records notifying her that the taxes on the Pine Bluff property were delinquent, that she could redeem the property, and that the property would be offered for sale on September 17, 1996. The letter was addressed to Wilson in Folsom, California; it was returned marked "attempted not known." Upon learning of Wilson's correct address, a second certified letter was mailed to her on June 25, 1996, in El Dorado Hills, California, notifying her that the property was delinquent, that she could redeem the property, and that the property would be offered for sale on September 17, 1996. This letter was returned "unclaimed or refused."

Wilson denied ever receiving either of the letters mailed by the Land Commissioner, and she testified that she had called the county and state offices to inquire why she had not received her tax statements; she also gave that office her correct address. The trial court found that there was a problem with the address and tax billings from the tax office; however, the court concluded that the first notice that was mailed to the wrong address was cured by the second letter that was mailed to the correct address. The court ruled that the Commissioner had fully complied with the applicable statutes.

On appeal, the Wilson court affirmed, stating that Ark.Code Ann. § 26-37-301 "provides that after receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner of his/her right to redeem, notify that the land will be sold, and notify the owner of the sale date." Wilson, 64 Ark.App. at 184, 980 S.W.2d 274. The court continued as follows:

Under this section, the Commissioner is required to notify the owner, at the owner's last known address, by certified mail. After reviewing the evidence, it is clear that the Commissioner, subsequent to receiving the tax-delinquent land, sent certified notice to [Wilson's] last known address. Even though the first notice mailed by the Commissioner was mailed to the wrong address, the Commissioner sent a second notice to the correct address of [Wilson] where she had resided since 1980. We cannot say that the chancellor's decision that the second notice satisfied the statutory requirement was clearly erroneous.

Id.

The Wilson case is factually analogous to the present case. In both instances, the certified letter was returned marked "unclaimed." Nevertheless, in Wilson, the court of appeals held that the Commissioner had complied with the requirements of the statute. In the instant case, the testimony was undisputed that the Commissioner mailed a certified letter, as required, and that the post office made the appropriate attempts to deliver it. The statute does not require the Land Commissioner to take every step possible to see that the letter arrives in the property owner's hand; it only requires that the Commissioner "shall notify the owner, at the owner's last known address, by certified mail, of the owner's right to redeem [the property.]"

Jones concedes that this case is factually similar to Wilson, but asserts that the court of appeals nevertheless "expressed reservations about deficiencies in the notice." The "reservations," however, consisted of the court's concern about the timing of the notice — i.e., that it could be sent relatively close in time to the time of the sale. That precise question was never an issue in this case, as it was undisputed that the notice was sent a full two years before the scheduled sale date.

Further, Jones argues in her brief that strict compliance with the statute is required, and that, because the Legislature required the notice to be sent via certified mail, that was a clear indication that the legislature intended that the taxpayer be given actual notice of the jeopardy to his property. However, in construing a statute, it is the court's duty to construe it just as it reads. St. Paul Fire & Marine Ins. v. Griffin Const., 338 Ark. 289, 993 S.W.2d 485 (1999); Heard v. Payne, 281 Ark. 485, 665 S.W.2d 865 (1984); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). When we construe a statute, we look first at the plain language of the statute and give the words their plain and ordinary meaning. See ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Griffin Constr., supra. Here, the statute requires notice "by certified mail." The Land Commissioner sent notice to Jones by certified mail. Therefore, the trial court did not err in concluding that the Commissioner had strictly complied with the statute.

Next, the Joneses argues that the trial court erred in concluding that Mrs. Jones's constitutional arguments were not timely. In its April 12, 2002, order, dealing with the issues raised in Mrs. Jones's "post trial brief," the trial court noted first that the matter was tried to the court on November 2, 2001. After receiving post-trial briefs, the court entered a letter opinion on January 2, 2002, and requested that counsel for Double "D" prepare a precedent and present copies to the other attorneys; if no objections were received within five days, the precedent would...