Jones v. Flowers

• Decision Date: 18 November 2004
• Docket Number: No. 04-449.,04-449.
• Citation: 198 S.W.3d 520
• Parties: Gary Kent JONES and Jean L. Jones, Appellants, v. Linda K. FLOWERS and Mark Wilcox, Commissioner, Appellees.
• Court: Arkansas Supreme Court

198 S.W.3d 520

Gary Kent JONES and Jean L. Jones, Appellants, v. Linda K. FLOWERS and Mark Wilcox, Commissioner, Appellees.

No. 04-449.

Supreme Court of Arkansas.

November 18, 2004.

Paul Johnson, Little Rock, for appellants.

Carol L. Lincoln, Little Rock, for appellee Mark Wilcox.

Kelly Law Firm, PLC, by: A.J. Kelly, Little Rock, for appellee Linda K. Flowers.

DONALD L. CORBIN, Justice.

Appellants Gary Kent Jones and Jean L. Jones appeal the order of the Pulaski County Circuit Court granting summary judgment to Appellees Linda K. Flowers and Mark Wilcox, as Commissioner of State Lands ("Commissioner"). The Joneses raise the following arguments on appeal: (1) the trial court erred in ruling that Ark.Code Ann. § 26-37-202(e) (Repl. 1997) is constitutional; and, (2) the trial court erred in ruling that the State was not required to locate Mr. Jones's correct address. As this case implicates a constitutional challenge to a statute, it was certified to us from the Arkansas Court of Appeals. Our jurisdiction is thus pursuant to Ark. Sup.Ct. R. 1-2(b)(6). We find no error and affirm.

In 1967, Mr. Jones purchased real property located at 717 North Bryan Street in Little Rock, Arkansas. He lived there with his wife until 1993, at which time he moved out of the home and into an apartment. After moving, Mr. Jones failed to notify the tax collector of his new address. Mrs. Jones continued to live in the home after her husband moved out. Mr. Jones failed to pay his real property taxes for the years 1997, 1998, 1999, and 2000. Mr. Jones's real property was subsequently certified to the Commissioner as delinquent on February 24, 2000. The Commissioner then sent notice, via certified mail, to Mr. Jones of the delinquency and his right to redeem. The notice also stated that the real property would be subject to a public sale on April 17, 2002. This notification was returned to the Commissioner as "unclaimed." On April 1, 2002, a notice of the public sale was published in the Arkansas Democrat Gazette.

No bids were made on the real property at the public sale, but on February 5, 2003, Ms. Flowers submitted an offer to purchase the real property. On February 19, 2003, the State sent, via certified mail, a notice of the proposed tax sale to Mr. Jones at the Bryan Street address. According to the notice, the real property would be sold on March 21, 2003, if the delinquent taxes and penalties were not paid. This notice was also returned to the State as unclaimed. Ms. Flowers subsequently purchased the home through a negotiated sale on May 28, 2003. The purchase price was $21,042.15. On or about July 2, 2003, an unlawful detainer notice was posted on the door of Mr. Jones's property.

Mr. Jones filed a complaint on July 28, 2003, alleging that the sale of his home was invalid because he never received actual notice of the tax sale or of his right to redeem. According to his complaint, the tax sale resulted in an unlawful taking of his property without due process. Ms. Flowers filed a counterclaim for unlawful detainer on August 20, 2003. In his answer to the counterclaim, Mr. Jones admitted that he received actual notice of Ms. Flowers's notice to vacate, posted on the property on July 2. Mr. Jones then filed an amended complaint on September 17, 2003, adding his wife as a plaintiff, as she was the person living in the home at the time of the tax sale. Ms. Flowers filed a motion for summary judgment on October 2, 2003, arguing that the notices sent by the State complied with procedural due process. Thus, according to Ms. Flowers's motion, no fact issues remained to be determined. A similar motion for summary judgment was filed by the Commissioner on November 17, 2003.

On November 24, 2003, the Joneses filed a motion for summary judgment, arguing that the Commissioner admitted that it had no knowledge of their receiving notice of the forfeiture and subsequent sale. According to their motion, the Joneses claimed that there were no issues of fact to be resolved and, thus, summary judgment in their favor was appropriate. Attached to the motions were affidavits by Mr. Jones and Mrs. Jones averring that they never received notice of their right to redeem the property after the tax sale.

On January 14, 2004, the trial court entered an order finding that Ark.Code Ann. § 26-37-301 (Repl.1997) complied with the constitutional requirements of due process. The trial court then granted Ms. Flowers's and the Commissioner's motions for summary judgment and denied the Joneses' motion. The trial court also granted Ms. Flowers's counterclaim for unlawful detainer and ordered that she was entitled to immediate possession of the real property. This appeal followed.

For their first argument on appeal, the Joneses aver that section 26-37-202(e) is unconstitutional because it does not require notice of the property owner's right to redeem after the tax sale. Thus, according to their argument, the sale of the property is void, and they are now entitled to redeem the property. Ms. Flowers and the Commissioner contend that the Joneses' argument on this point is without merit.

We will not address the merits of this argument because the trial court did not rule on the issue of whether section 26-37-202(e) is unconstitutional for failing to include a notice requirement. We have repeatedly stated that a party's failure to obtain a ruling is a procedural bar to consideration of the issue on appeal. Rigsby v. Rigsby, 356 Ark. 311, 149 S.W.3d 318 (2004); Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002). Moreover, in Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003), this court held that constitutional arguments must be raised and fully developed in the trial court. It is also well settled that the burden of providing a record sufficient to demonstrate error is upon the appellant. Id.

The record in the instant case reveals that this issue was raised for the first time in a "Brief In Support of Motion for Summary Judgment" filed by the Joneses on November 24, 2003. In that brief, they argued that Act 626 of 1983 was constitutionally defective because it did not require notification of the "second redemption period." This issue was further raised by the Joneses in "Plaintiffs' Memorandum to Defendants' Response to Motion for Summary Judgment." The trial court's order, however, does not address this issue. Moreover, it would have been inappropriate for the trial court to consider the issue as it was raised only in the Joneses' briefs and not in their motion for summary judgment. This court has held that it would be error for a trial court on motion for summary judgment to consider any issues raised for the first time in a party's briefs or exhibits. Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989); see also City of Barling v. Fort Chaffee Redev. Auth., 347 Ark. 105, 60 S.W.3d 443 (2001). Accordingly, the Joneses' argument regarding the constitutionality of section 26-37-202(e) is not preserved for our review.

As their second point on appeal, the Joneses argue that the trial court erred in ruling that the State was not required to locate Mr. Jones's correct address after the tax-sale notices were returned to the State unclaimed. In other words, they argue that the trial court erred in ruling that the State's sale of his property was constitutional under section 26-37-301. They further argue that due process required the State to conduct a reasonable search of public records in an attempt to ascertain Mr. Jones's correct address before selling his property. Ms. Flowers and the Commissioner counter that an attempt to provide actual notice is all that is required in order to comply with the requirements of due process. We agree.

As a general rule, in reviewing the grant of a motion for summary judgment, this court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000). This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

However, in the instant case, the granting of the motion for summary judgment was based upon the trial court's interpretation of a statutory provision. We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court's decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001).

We begin our analysis by reviewing the language of section 26-37-301, which provides in relevant part:

(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.

This court has repeatedly held that in cases involving redemption of tax-delinquent lands 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. Tsann Kuen...