Pulaski Choice, L.L.C. v. 2735 Villa Creek, L.P., 09–331.

• Decision Date: 25 February 2010
• Docket Number: No. 09–331.,09–331.
• Parties: PULASKI CHOICE, L.L.C., Appellant, v. 2735 VILLA CREEK, L.P., Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 91

362 S.W.3d 882

PULASKI CHOICE, L.L.C., Appellant,

v.2735 VILLA CREEK, L.P., Appellee.

No. 09–331.

Supreme Court of Arkansas.

Feb. 25, 2010.

Stephen E. Whitwell, North Little Rock, for appellant.

Friday, Eldridge & Clark, LLP, Little Rock, by: Robert S. Shafer and Harry A. Light, for appellee.

PAUL E. DANIELSON, Justice.

The Arkansas Court of Appeals certified to this court questions concerning the publication requirements preceding the State's sale of tax-delinquent land under Arkansas Code Annotated section 26–37–201. The certified questions in this case originate with the failure of appellee 2735 Villa Creek L.P. (Villa Creek), a Texas limited partnership, to pay taxes for the years 2001 and 2002 on land it owned in Pulaski County. In April 2004, the land was certified to the Arkansas Commissioner of State Lands (Commissioner) as tax-delinquent. The Commissioner published notice of a public sale of the tax-delinquent land in the Arkansas Democrat Gazette on April 26, 2006. The notice incorrectly listed the parcel number for the land as “PARCEL 43N–007:02–018.00.” The correct parcel number for the land was 43N007:00–018.00. On May 24, 2006, Areit, L.L.C., purchased the land from the State at a forfeited-land sale and conveyed the land to appellant Pulaski Choice, L.L.C. (Pulaski Choice) on July 18, 2006.

Pulaski Choice initiated an action in the Pulaski County Circuit Court to quiet title to the land on July 20, 2006. The circuit court quieted title in favor of Pulaski Choice in a September 11, 2006 decree; the circuit court filed an amended decree on September 28, 2006. Relevant to the certified questions at hand, on December 18, 2007, Villa Creek filed a motion to set aside the decree and amended decree, asserting that the Commissioner failed to comply with the publication requirements of Ark.Code Ann. § 26–37–201(b)(3) by incorrectly listing the parcel number of the tax-delinquent land and by failing to provide a complete legal description of the land. After the circuit court granted its motion to set aside the decrees quieting title, Villa Creek filed a motion for summary judgment, reasserting its argument that the Commissioner failed to comply with the publication requirements of section 26–37–201(b)(3). On December 10, 2008, the circuit court entered an order granting Villa Creek's motion for summary judgment, dismissed Pulaski Choice's complaint to quiet title, and set aside the tax sale of the property at issue and subsequent deed as void, stating that it was “of the opinion that the failure to include the correct parcel number in the published notice of sale violated Ark.Code Ann. § 26–37–201(b)(3), thus rendering the sale void, and that Villa Creek is entitled to summary judgment.” This appeal followed.

The certified questions in this appeal involve issues of first impression and statutory interpretation. These questions, as raised by Pulaski Choice, are whether: (1) under section 26–37–201, the 2006 publication of a notice of sale of tax-delinquent land is required to include the parcel number, when the land was certified to the Commissioner as tax-delinquent in 2004; (2) substantial compliance with the publication requirements of section 26–37–201 is sufficient; and (3) section 26–37–201 is internally inconsistent.

An issue involving notice given to a party with an interest in tax-delinquent land is a matter of statutory interpretation, which this court will review de novo on the record. See Mays v. St. Pat Props., LLC, 357 Ark. 482, 182 S.W.3d 84 (2004). When this court construes a statute, it will first examine the plain language of the statute and give the words their plain and ordinary meaning. See Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003). If the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction. See id.

Arkansas Code Annotated section 26–37–201 (Supp.2009) (emphasis added) provides as follows:

Publication of notice—Fee

(a)(1) The Commissioner of State Lands shall publish a notice of sale of land upon which the ad valorem property taxes have not been paid in a newspaper having general circulation in the county where the land is located.

(2) The publication fee for the notice shall be the same as set forth in § 26–37–107.

(b) The notice shall:

(1) Contain the assessed value of the land;

(2) Contain the amount of taxes, interest, penalties, and other costs due on the land;

(3) (A) Contain the name of the owner, the legal description, and parcel number of the land.

(B) A part or abbreviated legal description shall be sufficient in the notice if the name of the owner and parcel number are listed;

(4) Contain a list of all interested parties; and

(5) Indicate that the land will be sold to the highest bidder if the bid is equal to at least the assessed value of the land as certified to the Commissioner of State Lands.

(c) The highest bidder shall pay all taxes, interest, penalties, and other costs.

(d) Failure of the notice to contain the information required in subsection (b) of this section invalidates an auction sale of the land.

(e) As used in this section, “interested party” has the same meaning as in § 26–37–301.

The General Assembly amended Ark.Code Ann. § 26–37–201(b)(3)(A) in 2005 to require that the publication of a notice of sale of tax-delinquent lands include the parcel number of the land. Act of March 24, 2005, No. 1231, § 3, 2005 Ark. Acts 3794. Although Pulaski Choice acknowledges that the Commissioner published notice of the sale of the tax-delinquent property in 2006—after the amendment requiring inclusion of the parcel number became effective—it contends that the 2005 amendment to § 26–37–201(b)(3)(A) is inapplicable to this dispute because the land was certified to the Commissioner in 2004.¹ More specifically, Pulaski Choice argues that, “There is nothing in the statutory amendment that indicates that it should be applied retroactively to property already certified to the Commissioner of State Lands.” In its reply brief, Pulaski Choice supports this assertion by stating, without citation to authority, that, “[s]ince the property becomes the property of the State of Arkansas at the time of certification, the law in effect at that time should control.” This argument is without merit.

In Jackson v. Sparks Regional Medical Center, 375 Ark. 533, 538, 294 S.W.3d 1, 3–4 (2009), this court stated that

In determining legislative intent, we have observed a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively.

The parties do not dispute the presumption that the General Assembly intended that section 26–37–201(b)(3)(A) operate prospectively; the dispute is whether the circuit court erroneously applied section 26–37–201(b)(3)(A) retroactively. A statutory provision is prospectively applied when it is applied to the operative event specified by the statute, and the event occurred after the date the statute became effective. See, e.g., Spires v. Russell, 300 Ark. 530, 780 S.W.2d 547 (1989). Here, section 26–37–201(b)(3)(A) provides that the Commissioner's published notice of a tax sale must include the parcel number. This requirement became effective on August 12, 2005. See supra, note 1. The Commissioner published notice of the tax sale on April 26, 2006—after section 26–37–201(b)(3)(A) became effective. Thus, the circuit court's application of section 26–37–201(b)(3)(A)'s publication requirements, as amended in 2005, to the 2006 notice of sale is a prospective application of the statute. The date of certification is irrelevant; it is not the operative event under section 26–37–201. See, e.g., Spires, supra.

Pulaski Choice's argument that it substantially complied with the publication requirements of section 26–37–201(b)(3)(A) is likewise without merit. Statutory publication provisions for the sale of tax-delinquent property require strict compliance. See, e.g., Sanders v. Ryles, 318 Ark. 418, 423, 885 S.W.2d 888, 891 (1994) (“In cases involving redemption of tax-delinquent lands, we have stated that strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his property.”).

Finally, Pulaski Choice contends that section 26–37–201 is internally inconsistent as amended, stating:

While subsection (b)(3)(A) states that the publication should “[c]ontain the name of the owner, the legal description, and parcel number of the land,” subsection (b)(3)(B) states that “[a] part of the abbreviated legal description shall be sufficient in the notice if the name of the owner and parcel number are listed.” This implies that a parcel number is not always required in the publication. Therefore, the mere absence of the parcel number or an error in the parcel number does not always make the publication invalid.

The plain language of section 26–37–201(b) provides that a parcel number is one of five elements that the publication “shall” contain. Although section 26–37–201(b)(3)(B) states that an “abbreviated legal description” is “sufficient if the name of the owner and parcel number are listed,” there is nothing in the plain language of the statute that provides that a parcel number may be omitted; instead, an abbreviated legal description is permitted if the notice contains both the name of the owner and the parcel number. Here, the notice did not contain the correct parcel number, and thus, the publication failed to meet the mandatory requirements of a valid notice under section 26–37–201(b)(3)(A).

Additionally, Pulaski Choice mistakenly relies on Payton v. Blake, 362 Ark. 538, 210 S.W.3d 74 (2005) to assert that the incorrect parcel number was inconsequential. In Payton, we held that an abbreviated legal...