Kenneth E. DAHN, Plaintiff and Appellee, v. Michael V. TROWNSELL, Defendant and Appellant, and J.M. Butler, Trustee, J.M. Butler, John Nickels, ada Nickels, Henry Nickels, Belmont V. Trownsell, Harold Trownsell, Pennington County, a political subdivision of the State of South Dakota, the Department of Revenue of the State of South Dakota, the State of South Dakota, the unknown heirs-at-law, the devisees, legatees, executors, administrators, or creditors of any or either of them, of the foregoing named persons who are deceased, along with all persons unknown who have or claim to have any interest or estate in, or lien or encumbrance upon the premises described in the Complaint herein, or any part thereof, Defendants.
Nos. 20185, 20190
Supreme Court of South Dakota.
Considered on Briefs Feb. 18, 1998. Decided April 8, 1998.
1998 SD 36; 576 N.W.2d 535
Summary judgment is an extreme remedy, not intended as a substitute for trial. It is appropriate to dispose of legal, not factual issues and, therefore, it is authorized only when the movant is entitled to judgment as a matter of law because there are no genuine issues of material fact. Continental Grain Co. v. Heritage Bank, 1996 SD 61, ¶ 17, 548 N.W.2d 507, 511 (quoting Piner v. Jensen, 519 N.W.2d 337, 339 (S.D. 1994)). A review of the record before the trial court demonstrates that Zochert moved for summary judgment but further argued that, should its motion not be granted, it was not in agreement with Company on the amount of the depreciation deduction. This establishes a genuine issue of material fact which precludes summary judgment for Company.
[¶ 13.] The order granting summary judgment is reversed and the matter remanded to the trial court to determine the appropriate depreciation cost.
[¶ 14.] MILLER, C.J., and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, JJ., participating.
Linden R. Evans of Truhe, Beardsley, Jensen, Helmere & Von Wald, Rapid City, for Plaintiff and Appellee.
Joseph M. Butler of Bangs, McCullen, Butler, Foye and Simmons, Rapid City, for Defendant and Appellant.
GILBERTSON, Justice.
[¶ 1.] Michael Trownsell (Trownsell) appeals
FACTS AND PROCEDURE
[¶ 2.] This action was brought by Dahn against Trownsell, and others, to quiet title to a section of land in Pennington County South Dakota. Trownsell appeals the grant of summary judgment in favor of Dahn and claims he was not provided adequate service of Dahn‘s NITTD, which was issued by Pennington County (County) on June 27, 1995.
[¶ 3.] We briefly summarize South Dakota‘s statutory scheme governing tax deed sales of realty to assist comprehension of the relevant facts. Each county treasurer is required to “send a written tax bill to each taxpayer against whom a property tax has been assessed.”
[¶ 4.] After completing the requirements of
[¶ 5.] Trownsell was the sole owner of the Star Lode from 1960 until Dahn initiated this quiet title action in 1996. Trownsell had a history of delinquent taxes on this and another property within County. The Star Lode was previously auctioned by County five times for failure to pay property taxes during his period of ownership. This appeal concerns the sixth auction held in December, 1990, where Dahn, the successful bidder, paid the amount of taxes Trownsell owed and was issued a certificate of tax sale.
[¶ 6.] Just prior to the 1990 sale, the County treasurer mailed a NITTD to Trownsell‘s last known address in Redondo Beach, California.
[¶ 7.] On March 31, 1995, Dahn mailed the NITTD to Trownsell at the Redondo Beach address. It was the only address Dahn was aware of, as it was the only address on file with County. The NITTD did not reach Trownsell and was returned to Dahn‘s coun-
[¶ 8.] Dahn attempted to locate Trownsell‘s current address by searching the records of the County register of deeds, director of equalization, and treasurer. Dahn could not find any address for Trownsell other than the Redondo Beach address. County had been sending annual tax assessments and notices to Trownsell‘s “last known address” at Redondo Beach for the tax years 1990 through 1995. Trownsell had not utilized the detachable change of address forms contained in the annual tax notices sent by County. Dahn also called directory assistance in California and was informed that Trownsell did not have a telephone number, listed or unlisted, within the state. Dahn then published the NITTD in three local Pennington County newspapers, once per week for two weeks.
[¶ 9.] Dahn recorded the tax deed and on February 13, 1996, Dahn brought a quiet title action. Dahn mailed the summons and complaint to Trownsell at the Redondo Beach address. The summons and complaint were “returned to sender” just as the previous NITTD had been. This time, however, the returned letter was stamped with Trownsell‘s Mojave, California, address. The summons and complaint was then sent to the Mojave address and the Mojave post office forwarded it to Trownsell in Tehachapi. At the time of mailing, neither Dahn nor County was aware that Trownsell had moved to Tehachapi.
[¶ 10.] Dahn was only able to later obtain Trownsell‘s Tehachapi address in March, 1996, through a fortuitous chain of events, nearly one year after he initially mailed the notice. Dahn had originally named and mailed a summons and complaint to all prior record holders of the Star Lode. One of these prior owners was Belmont Trownsell, Trownsell‘s mother, who had obtained title to the property in 1957. Upon receiving the summons and complaint, Belmont contacted Trownsell‘s brother Robert about the matter. Robert then called Dahn‘s counsel‘s office and sent Trownsell‘s current Tehachapi address. Dahn then mailed a copy of the summons and complaint to Trownsell‘s Tehachapi address. Trownsell refused to admit service by mail and was personally served on May 14, 1996.
[¶ 11.] On November 1, 1996, Dahn‘s motion for summary judgment was denied by the circuit court after it concluded that, since Dahn mailed the summons and complaint to the Redondo Beach address with the knowledge that it was not current, his attempt at notification was not reasonably calculated to apprise Trownsell of the proceedings. The circuit court believed that, upon receipt of the returned notice, Dahn should have contacted the Redondo Beach post office to determine Trownsell‘s current address.
[¶ 12.] On March 27, 1997, Dahn renewed his motion for summary judgment and provided additional facts for the circuit court‘s consideration. Dahn alleged, among other things, that Trownsell‘s history of delinquent property tax payments established that he purposely avoided service of the notice and that the circuit court should focus on the attempted service of the NITTD rather than the initial summons and complaint. The circuit court agreed and granted Dahn‘s motion for summary judgment. Trownsell appeals raising the following issue for our review: Whether notice by mail sent to property owner‘s “last known address” provides adequate notice of a proceeding to sell property for nonpayment of taxes.
STANDARD OF REVIEW
[¶ 13.] Our standard of review for summary judgment in this context is well settled. This appeal requires us to examine the statutes governing the method of serving notice upon property owners before their rights may be extinguished through a tax sale. Questions of statutory interpretation require de novo review. Farm Credit Serv. of Mid. v. First State Bank, 1998 SD 13, ¶ 6, 575 N.W.2d 250 (citing Maynard v. Heeren, 1997 SD 60, ¶ 15, 563 N.W.2d 830, 833). Since there are “no factual issues in this case, summary judgment will be affirmed if the trial court correctly decided the legal issue presented.” Id. (citing Weiss v. Van Norman, 1997 SD 40, ¶ 9, 562 N.W.2d 113, 115 (citations omitted)); Boever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 749 (S.D. 1995) (when there are no genuine issues of material fact in reviewing summary judgment motion we are only faced with legal questions which are freely reviewable).
[¶ 14.] The rules of statutory construction are well settled:
Questions of law such as statutory interpretation are reviewed by the Court de novo. . . . The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court‘s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.
Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citing U.S. West Communications, Inc. v. Public Utilities Comm‘n, 505 N.W.2d 115, 122-23 (S.D. 1993) (citations omitted)).
ANALYSIS AND DECISION
[¶ 16.] The only aspect of the tax deed procedure challenged by Trownsell is the notice provision contained in
Personal service of the notice in the manner provided by law for the service of summons shall be made upon the persons mentioned in §§ 10-25-3 and 10-25-4 as reside within the state. However, if any of the persons are nonresidents of the state, the notice may be served upon the nonresidents by publishing the notice once a week for at least two successive weeks in some newspaper printed in the county where the real property is situated[.] In addition to the service by publication the holder of the certificate shall cause to be sent to the persons so served a true copy of such notice through the United States mails, properly addressed, to the last known address of each of the persons[.] (Emphasis added.)
[¶ 17.] We are called upon to interpret the meaning of “last known address” to determine whether Dahn has complied with the requirements of
[P]rior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide “notice reasonably calculated, under all circumstances, to apprise interest parties of the pendency of the action and afford them an opportunity to present their objections.”
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180, 185 (1983) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (emphasis added)).
[¶ 18.] There is no checklist nor bright-line test to determine if a particular statutory notice provision, such as
[¶ 19.] The Supreme Court in Mennonite held that notice by publication was constitutionally inadequate to inform a mortgagee that it was entitled to redeem the property before a tax deed was issued.
Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.
Mennonite, 462 U.S. at 800, 103 S.Ct. at 2712, 77 L.Ed.2d at 188. Since the publicly recorded mortgage identified and provided the mortgagee‘s last known address, actual service by mail or in person was required.2 Id.; see also Lesmeister v. Dewey County, 75 S.D. 137, 60 N.W.2d 216 (1953) (recognizing that holder of tax sale certificate in tax deed proceedings is required to utilize county records to determine “last known address” of persons entitled to notice).3
[¶ 21.] Dahn‘s mailing of the NITTD to Trownsell‘s “last known address” as required by
Furthermore, we rejected the record owner‘s contention that the treasurer had a duty to locate his correct address. Id. Trownsell argues that, in light of Mennonite, supra, Plocek is no longer good law. Plocek is of such factual brevity that we are unable to determine what, if any other reasonable steps, were available to the county treasurer in that case. As Plocek was decided solely on statutory, rather than constitutional grounds, its current viability is irrelevant to the Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 854 (N.D. 1996).4 “Where the [person] charged with the duty of giving notice of expiration of the period of redemption to delinquent taxpayers follows the letter of the statute in so doing, . . . the requirement as to service of notice is satisfied although the taxpayer does not receive such notice.” Mund v. Rambough, 432 N.W.2d 50, 54 (N.D. 1988) (citation omitted).
[¶ 22.] Dahn complied with the statutory scheme for providing notice to Trownsell by mailing the NITTD to Trownsell‘s last known address.
It is the general rule that where the service of notice by mail or registered mail is expressly required or authorized by statute in tax proceedings, and the conditions precedent to mailing, such as determination of sendees, proper addressing, and the timeliness have been fulfilled, the service is complete and constitutes a legal service when the notice is mailed, or registered and mailed, according to the United States postal laws and regulations, by depositing it in a place of mailing, and that actual receipt thereof is not essential.
Id. (emphasis added).
[¶ 23.] Whether the notice procedures contained in
given the lengthy time periods and multiple notices throughout the statutory procedure for collection of taxes, leading up to tax sale, redemption period, and issuance of tax deed, we find the balance weighs in favor of the state. Notice to a property owner of a pending tax sale by certified mail at his last known address is a means of notice reasonably calculated . . . to apprise the owner of the pending tax sale and afford him an opportunity to present his objections.
Id. (emphasis added) (relying upon Mennonite, supra). After consideration of the outcome of the balance between the “interest of the state” and “the individual interest sought to be protected by the Fourteenth Amendment” we hold that mailing the NITTD to Trownsell‘s last known address was reasonable.5 Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873.
[¶ 24.] Dahn had the duty to comply with the statutory scheme detailing the procedures for obtaining a tax deed.
[¶ 25.] We hold that Dahn fully complied with
[¶ 26.] Affirmed.
[¶ 27.] MILLER, C. J., and AMUNDSON and KONENKAMP, JJ., concur.
[¶ 28.] SABERS, J., concurs in result.
SABERS, Justice (concurring in result).
[¶ 29.] Although I concur based on Trownsell‘s conduct,6 I submit that Plocek v. Simpson, 75 S.D. 258, 63 N.W.2d 262 (1954), is neither good law nor merely “irrelevant” in light of Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).
[¶ 30.] Mennonite requires “[n]otice by mail or other means as certain to ensure actual notice . . . if [party‘s] name and address are reasonably ascertainable.” Mennonite, 462 U.S. at 800, 103 S.Ct. at 2712, 77 L.Ed.2d at 188. A party‘s name and address may be “reasonably ascertainable” from sources other than the “last known address” known by the county treasurer. Therefore, Plocek‘s holding that the treasurer is not obligated to look beyond the “last known address” when notice is returned to the sender cannot stand. Cf. Olivo v. United States, No. 96 Civ. 2620, 1997 WL 23181, at *4 (S.D.N.Y. Jan. 22, 1997):
Moreover, courts have not hesitated to find that where the first attempted notice is unsuccessful, but a person‘s correct address can be obtained by the government through minimal effort, the failure to attempt a second notice violates due process.
See Aero-Medical, Inc. v. United States, 23 F.3d 328, 331 (10th Cir. 1994); Montgomery v. Scott, 802 F.Supp. 930, 936-37 (W.D.N.Y. 1992); 1 David B. Smith, Prosecution and Defense of Forfeiture Cases ¶ 9.03 (1996) (“In general, the courts have required seizing agencies and prosecutors to take reasonable steps to locate the owner of the property and where their first attempt at personal notice does not succeed, to try again.“).