Sanitary & Improvement Dist. No. 424 of Douglas Cnty. v. Tristar Mgmt., LLC
| Citation | 850 N.W.2d 745,288 Neb. 425 |
| Decision Date | 27 June 2014 |
| Docket Number | No. S–13–582.,S–13–582. |
| Court | Supreme Court of Nebraska |
| Parties | Sanitary and Improvement District No. 424 of Douglas County, Nebraska, appellee, v. Tristar Management, LLC, a Nebraska limited liability company, appellant. |
OPINION TEXT STARTS HERE
Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Reversed and remanded with directions.
Christian R. Blunk, of Harris Kuhn Law Firm, L.L.P., for appellant.
Mark J. LaPuzza, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee.
1. Equity: Quiet Title. A quiet title action sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the trial court's determination.
3. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
4. Statutes: Appeal and Error. Statutory interpretation presents a question of law that an appellate court independently reviews.
Tristar Management, LLC (Tristar), appeals the order of the district court for Douglas County in which it ruled that the special assessment liens levied by Sanitary and Improvement District No. 424 of Douglas County, Nebraska (the SID), against five parcels of real estate located within the SID survived Tristar's acquisition of title to the parcels by the issuance to Tristar of treasurer tax deeds under Neb.Rev.Stat. § 77–1837 (Reissue 2009). Because we conclude that the liens were foreclosed by the issuance of the tax deeds, the district court erred as a matter of law. We reverse the order entering summary judgment in favor of the SID and denying Tristar's motion for summary judgment, and we remand the cause with directions.
This case involves five parcels of real estate that are located within the boundaries of the SID: lots 46, 53, 54, 94, and 176 (the Properties). The Properties are located in Stone Park, which is a subdivision in Douglas County. The parties stipulated to the underlying facts as follows:
1. That the special assessments on [the Properties] were levied on December 3, 1999 by the [SID] via special assessment in the amount of $8,496.57 per Lot. Interest as of 2.28.13 totals $12,576.15 for a total per Lot of $21,072.72.
2. That the [Properties] had been in a 2005 tax sale auction and were subsequently sold under Neb.Rev.Stat. § 77–190[1] et [seq]. [ (Reissue 2009) ] collection of delinquent real property taxes through district court proceedings to HBI, LLC pursuant to Douglas County District Court case CI 1082, Page 845 entitled Adair Asset Mgmt. v. East. ...
3. HBI, LLC brought Douglas County District Court matter CI 1099–167, HBI, LLC v. Sanitary ImprovementDistrict 424, against [the] SID ... seeking declaratory action. [The] SID ... answered and cross claimed the sale was improper and that [the] SID ... was not properly served....
4. Douglas County District Court matter CI 1099–167 was dismissed with prejudice....
5. A Special Warranty Deed # 2011030257 was filed [by HBI, LLC] with the Douglas County Register of Deeds office on April 5, 2011, [whereby the SID became titleholder,] along with the accompanying Real Estate Transfer Statement Form 521, designating the address of MARK LaPUZZA, Pansing Hogan Ernst & Bachman, 10250 Regency Circle, Suite 300, Omaha, NE 68114 as the place to send tax statements....
6. [At some point] TRISTAR ... became the assignee of the [2009] Tax Certificates attached to the following [Properties:]
2009–2356 Lot 94
2009–2873 Lot 176
2009–3348 Lot 53
7. TRISTAR commenced in March, 2012 under Neb.Rev.Stat. § 77–180[1] et [seq]. [ (Reissue 2009) ] the collection of property tax by sale of real property and caused the attached Notices to be delivered by certified mail, receipt requested to the SID's address of record. See attached Exhibit “6” for each Lot['s] respective Notice and green card c/o MARK LaPUZZA, 10250 Regency Circle, Suite 300, Omaha, NE 68114 which all green cards were signed for and returned.
8. TRISTAR further published the Notice on each respective Lot....
9. On various dates, TRISTAR applied for Tax Deeds on each of the respective properties....
10. On various dates, the Deeds were granted and subsequently recorded....
11. The SID ... took no action to redeem the Certificates within each respective certificate's 90–day redemption period.
12. [The SID's] chairman is Lori Bachman, 6228 North 153rd Avenue, Omaha, NE 68116. [The SID's] clerk is Tom Umthun, 6214 North 154th Street, Omaha, NE 68116.
13. The record of address of the SID for the Lots certified by the Douglas County Assessor for the period of January 1, 2012 to June 30, 2012 is c/o Mark LaPuzza, 10250 Regency Cir., Suite 300, Omaha, NE....
As reflected in the stipulated facts, the SID became the titleholder of the Properties in 2011 and, through assignment, Tristar became the holder of five 2009 tax certificates on the Properties. In March 2012, Tristar began proceedings to redeem the tax certificates under statutes in chapter 77, article 18, of the Nebraska Revised Statutes relating to the “Collection of Delinquent Real Property Taxes by Sale of Real Property.” Tristar published notices regarding its intent to redeem the tax certificates and mailed notices to the address of the SID's attorney, Mark LaPuzza, who had been designated as the place to send tax statements to be paid by the SID on the Properties. Tristar then applied for and obtained from the Douglas County treasurer the tax deeds to the Properties pursuant to § 77–1837.
As will be explained more fully below in our analysis, there are two processes through which a holder of tax certificates can exercise his or her rights to the property purchased at a tax sale. Under chapter 77, article 18, the holder of a tax certificate can obtain a tax deed from the county treasurer, after having given proper notice; we refer to this as the “tax deed” method. Under chapter 77, article 19, the holder of a tax certificate can foreclose upon the tax lien in a court proceeding and compel sale of the property, yielding a sheriff's deed, under Neb.Rev.Stat. § 77–1902 (Cum.Supp.2012); we refer to this as the “judicial foreclosure” method. See, generally, Knosp v. Shafer Properties, 19 Neb.App. 809, 820 N.W.2d 68 (2012).
In this case, after Tristar had obtained tax deeds for the Properties under the “tax deed” method under chapter 77, article 18, the SID filed its complaint against Tristar in the district court for Douglas County on August 21, 2012. This case gives rise to the instant appeal. The SID asserted two causes of action. “Count I” was an action to quiet title in the Properties in the SID. The SID alleged that the tax deeds held by Tristar were void due to lack of proper notice to the SID. The SID also sought orders declaring that its special assessments levied in 1999 continued to be valid liens on the Properties and that Douglas County's public tax records should reflect such special assessment liens. “Count II” was an action for foreclosure of the liens for the special assessments.
On October 11, 2012, Tristar filed a motion to dismiss count II for failure to state a claim. On January 11, 2013, the district court sustained Tristar's motion to dismiss count II of the complaint.
On February 12, 2013, Tristar filed a motion for summary judgment, and a hearing was held on the motion on March 1. The bill of exceptions from the hearing includes a set of “Stipulated Facts” and eight exhibits. At the hearing, the district court granted Tristar's motion for leave to file its answer out of time. In its answer with regard to count I, Tristar affirmatively averred that the SID had been properly notified and served under the relevant statute in chapter 77, article 18, including Neb.Rev.Stat. § 77–1832 (Reissue 2009). Tristar also affirmatively averred that “TRISTAR tax deeds are valid and have cleared the title[s] from all liens, interests, and encumbrances of record.” (Emphasis in original.) Tristar requested an order stating that the special assessments were no longer valid liens on the Properties. After the hearing on Tristar's motion for summary judgment, the SID filed its cross-motion for summary judgment, stating that its motion could be considered in connection with the evidence adduced at the hearing on Tristar's motion for summary judgment.
The district court filed its order on June 13, 2013, ruling on the parties' cross-motions for summary judgment. It is this order from which Tristar appeals. In its order, the district court stated that “[a]t issue is whether or not a tax deed issued by a county treasurer excludes any lien on real estate for special assessments levied by a sanitary improvement district.”
In making its determinations in its June 13, 2013, order, the district court relied upon § 77–1902 from the judicial foreclosure statutes. Section 77–1902 provides:
When land has been sold for delinquent taxes and a tax sale certificate or tax deed has been issued, the holder of such tax sale certificate or tax deed may, instead of demanding a deed or, if a deed has been issued, by surrendering the same in court, proceed in the district court of the county in which the land is situated to foreclose the lien for taxes represented by the tax sale certificate or tax deed and all subsequent tax liens thereon, excluding any lien on real estate for special assessments levied by any sanitary and improvement district which special assessments have not been previously...
To continue reading
Request your trial
-
Cont'l Res. v. Fair
...issued to the tax certificate purchaser, title to the property passes free and clear of any encumbrances. See SID No. 424 v. Tristar Mgmt. , 288 Neb. 425, 850 N.W.2d 745 (2014).With this statutory background established, we turn to the facts and procedural history of this case.Factual and P......
-
HBI, L.L.C. v. Barnette
...2016).3 See Neb. Rev. Stat. § 77-1818 (Reissue 2009).4 See Neb. Rev. Stat. § 77-1824 (Reissue 2009). See, also, SID No. 424 v. Tristar Mgmt. , 288 Neb. 425, 850 N.W.2d 745 (2014).5 See SID No. 424 , supra note 4.6 See § 77-1831 and Neb. Rev. Stat. § 77-1837 (Reissue 2009).7 See Neb. Rev. St......
-
deNourie & Yost Homes, LLC v. Frost
...and remanded for further proceedings.Stephan, J., not participating.1 See11 U.S.C. § 523(a)(2) (2006).2 SID No. 424 v. Tristar Mgmt., 288 Neb. 425, 850 N.W.2d 745 (2014).3 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).4 See Christiansen v. County of Douglas, 288 Neb. 564, 849 N.W.2d 4......
-
Wisner v. Vandelay Invs., L.L.C.
...25, 907 N.W.2d 263 (2018).54 Hauxwell, supra note 24.55 See Ottaco Acceptance, Inc., supra note 13.56 Id.57 SID No. 424 v. Tristar Mgmt. , 288 Neb. 425, 850 N.W.2d 745 (2014). See § 77-1842.58 § 77-1831.59 Ottaco Acceptance, Inc. v. Huntzinger , 268 Neb. 258, 682 N.W.2d 232 (2004). See § 77......