Rupsha 2007, LLC v. Kellum

• Decision Date: 17 November 2011
• Docket Number: No. 09–CV–1330.,09–CV–1330.
• Citation: 32 A.3d 402
• Parties: RUPSHA 2007, LLC, Appellant, v. James KELLUM, et al., Appellees.
• Court: D.C. Court of Appeals

32 A.3d 402

RUPSHA 2007, LLC, Appellant,

v.James KELLUM, et al., Appellees.

No. 09–CV–1330.

District of Columbia Court of Appeals.

Argued Oct. 5, 2010.Decided Nov. 17, 2011.

Seth Slomovitz, Washington, DC, with whom Eric Sayles, was on the brief, for appellant Rupsha 2007, LLC.

Daniel S. Volchok, Washington, DC, with whom Jody Manier Kris, Christopher Herrling, Melanie D. Coates, Rawle Andrews, Jr., and Vanessa A. Buchko, were on the brief, for appellee Theresa Banks.

Mary L. Wilson, Senior Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee District of Columbia.Before WASHINGTON, Chief Judge, Blackburne–Rigsby, Associate Judge, and REID,^* Associate Judge, Retired.BLACKBURNE–RIGSBY, Associate Judge:

This appeal arises because the District of Columbia (“District”) made an administrative error that resulted in a tax sale purchaser paying for a property that should not have been offered for sale. There is no dispute that the purchaser, appellant Rupsha 2007, LLC (“Rupsha”), should be reimbursed, rather we are asked to determine who should reimburse Rupsha and the amount for which Rupsha is entitled to reimbursement. The amount for which Rupsha is entitled to be reimbursed is dictated by statute,¹ and depends on how the erroneous tax sale is retracted—whether Rupsha's Certificate of Sale for Taxes (“Tax Certificate”) should be declared void ab initio, or whether the tax sale should be cancelled. If, as the District argues, the Tax Certificate is declared void ab initio, under the statute, Rupsha forfeits all payments it made to the District.² See D.C.Code §§ 47–1355(b)(2), – 1377(b) (2001). If the sale is cancelled, Rupsha is entitled to the purchase price, as well as statutory interest, a refund of paid taxes that accrued after the sale, legal expenses, and attorney's fees. See id. §§ 47–1366, – 1348(c), –1361 and –1377(a).

When this matter was brought before the Superior Court, the trial court found that the District should not have sold the property at the tax sale because the owner paid the final payoff amount as directed in her Notice of Delinquency (“Notice”). Thus, the Superior Court determined that the owner was not obligated to redeem her property. We agree and affirm this ruling. However, the Superior Court also found that Rupsha's Tax Certificate was void ab initio. With this we cannot agree. We hold that the District should have cancelled the tax sale and thereby paid to Rupsha the purchase price, statutory interest, taxes paid on the property, legal expenses, and attorney's fees Rupsha incurred in excess of the purchase price. We further hold that because the District did not cancel the sale, the Superior Court should have set aside the sale as cancelled, rather than setting aside the sale as void ab initio. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Factual Background

In May 2007, appellee Theresa Banks (“Ms. Banks” or “owner”) ³ received a Notice from the District's Office of Tax and Revenue (“OTR”) indicating that a total of $929.78 in taxes, penalties, and interest was due and owing for her property at 5400 Drake Place, in Southeast Washington, D.C. (“Property”). Ms. Banks brought the Notice to an OTR satellite office, where an OTR representative advised her that the actual amount she owed, including penalties and interest, had risen to $1,100.47. Ms. Banks paid this amount within a few days, but was unaware that this amount only reflected a portion of the outstanding taxes she owed on the property because the OTR representative quoted her the incorrect amount.⁴ Because the date of the District's annual tax sale was quickly approaching, the OTR representative advised Ms. Banks to contact the main OTR office to request that the Property be removed from the list of those to be sold, which Ms. Banks did.

However, the Property remained on the list of properties to be sold at the District's annual tax sale on July 13, 2007. The purchaser, Mohammad Sikder, paid $1,100.47, plus a surplus ⁵ of $6,000, for the Tax Certificate for the Property. Sikder subsequently timely filed his complaint to foreclose Ms. Banks's right to redeem the Property.⁶ On December 10, 2008, appellant Rupsha replaced Sikder as plaintiff in the action to foreclose Ms. Banks's right to redeem the Property. Ms. Banks first became aware that the Property was sold and that her final payoff amount did not include all outstanding taxes when she was served with Rupsha's complaint to foreclose her right of redemption. She promptly paid all outstanding taxes, penalties, and interest due to the OTR, and the Property was not transferred to Rupsha because the court did not enter a final order foreclosing Ms. Banks's right of redemption. However, Ms. Banks did not reimburse Rupsha for its legal expenses and attorney's fees related to the action to foreclose her right of redemption, nor did the she pay any statutory interest to Rupsha, as would be required in the normal course of a redemption.⁷

On January 2, 2009, Rupsha received a letter from the OTR stating that because the Property “was not eligible to be sold pursuant to applicable provisions of the D.C. Code, the ... [t]ax [s]ale ... was void ab initio.” ⁸ The OTR refunded only the purchase price of the property to Rupsha on February 20, 2009. The parties then appeared at a hearing before Judge Alfred Irving to determine the validity of Rupsha's Tax Certificate. Judge Irving found that “the tax sale should not have occurred” and thus the Tax Certificate was “void ab initio.” Rupsha subsequently filed a motion to alter the trial court's ruling pursuant to Super. Ct. Civ. R. 59(e), which the trial court denied. The court relied upon D.C.Code § 47–1341,⁹ which outlines the requirements that the District must follow with respect to providing notice of a property tax delinquency. Judge Irving concluded that D.C.Code § 47–1341(b) had to be read in conjunction with D.C.Code § 47–1341(c), which states: “Payment of the total amount stated in the notice of delinquency and as directed in the notice shall preclude the real property from being offered at the tax sale to which the notice corresponds.” The language on the Notice states: “Notice is given to you that unless all taxes in arrears and appearing on this Notice are paid within 30 days from the date of this notice, the Mayor will proceed to sell the above real property.” Judge Irving found that “[t]he conjunction ‘and’ indicates that the amount contained in the notice, which too is an amount in arrears, is the amount the taxpayer must remit in order to avoid sale of the property at the tax sale.” Judge Irving therefore concluded that the language of the notice was “clear and unambiguous: [t]he statute requires that property not be sold if the tax amount set forth within the notice [is] paid. Accordingly, the [c]ourt must set aside the tax sale because it is void ab initio.” Rupsha timely filed its notice of appeal.

II. Discussion

We review the trial court's construction of the tax sale provisions of the D.C. Code de novo. Carter v. State Farm Mut. Auto. Ins. Co., 808 A.2d 466, 470 (D.C.2002). We begin our process of statutory interpretation by looking at the statute on its face, and if the meaning is clear from the face of the statute, we must give effect to that plain meaning. See BSA 77 P St., LLC v. Hawkins, 983 A.2d 988, 995 (D.C.2009). “[I]ndividual words of a statute are to be read in the light of the statute taken as a whole, and where possible, courts should avoid constructions at variance with the policy of the legislation as a whole.” District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 171 (D.C.2008) (internal citations and quotation marks omitted); see also Sch. St. Assocs. Ltd. P'ship v. District of Columbia, 764 A.2d 798, 805–06 (D.C.2001) (en banc). Furthermore, each provision of the statute should be construed to give effect to all of the statute's provisions, not rendering any provision superfluous. See Thomas v. District of Columbia Dep't of Emp't Servs., 547 A.2d 1034, 1037 (D.C.1988).

A. Ms. Banks Paid the Delinquent Tax Amount as Directed in Her Notice and Is Not Required to Exercise Her Right of Redemption

Rupsha argues that the Property was properly sold because Ms. Banks still owed taxes on the Property, irrespective of whether she paid the amount listed on her Notice. Therefore, appellant contends, Ms. Banks should have redeemed the Property, which would have entitled Rupsha to reimbursement for the purchase price, statutory interest, legal expenses, and attorney's fees. See D.C.Code §§ 47–1360, –1361, –1377. However, the Property was not properly sold. Under the statute, “the Mayor shall sell all real property on which the tax is in arrears unless otherwise provided by law.” Id. § 47–1332(a) (emphasis added). Another statutory provision specifically precludes the Mayor from offering a property at a tax sale if the owner pays “the total amount stated in the notice of delinquency and as directed in the notice [.]” Id. § 47–1341(c). Ms. Banks paid the amount in the Notice, as well as the amount “directed in the notice” because she went to the OTR office to obtain her final payoff amount, and paid that amount. Taxes remained in arrears because of the OTR's failure to provide Ms. Banks with the correct payoff amount. Ms. Banks performed what she was required to do under the statute to prevent the sale of the Property. Thus, the Mayor was not authorized to sell the Property.

Despite this, the District sold the Property. Rupsha contends that once the Property was sold, the sale remained valid, and Rupsha could foreclose on Ms. Banks's right to redeem the Property, unless Ms. Banks exercised her right to redeem by paying the outstanding taxes and other costs...