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. l-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,
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,
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.,
Flowever, 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,
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 Enters. Co. v. Campbell,
The Fourteenth Amendment of the United States Constitution provides, in part, that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const, amend. 14, § 1. In discussing due process requirements, the United States Supreme Court has stated that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co.,
Most recently in Tsann,
On appeal, this court rejected the company’s argument that had the State posted notice on the property or mailed notice to the physical address, the caretaker living there would have notified the company’s owner, and he would have paid the taxes. In so doing, this court recognized that while Tsann had an interest in the property sold, the court also had to consider the State’s interest and whether additional procedural safeguards would be unduly burdensome to the State. The court then pointed out that pursuant to Ark. Code Ann. § 26-35-705 (Repl. 1997), the taxpayer has the obligation to furnish his or her correct address.
In concluding as it did, the Tsann court relied on its previous decision in Jones,
The Jones court also pointed out that the facts before it were analogous to the facts presented to the court of appeals in Wilson v. Daniels,
In their brief to this court, the Joneses argue that our holding in Tsann,
In rejecting this argument, this court stated:
The problem with this argument is that Act 1376 of2003 does not become effective until January 1, 2004. We have stated that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant. Chapman v. Bevilacqua,344 Ark. 262 ,42 S.W.3d 378 (2001). The general rale is that one must have suffered injury or belong to that class that is prejudiced in order to have standing to challenge the validity of a law. Id. T sann Kuen cannot show that it suffered injury due to the application of the amended version of § 26-37-301 since the amended version does not become effective until January 1, 2004, and was not applied in the present case.
Id. at 122,
Nor do we agree with the Joneses’ contention that the extra safeguards sought by the property owner in Tsann were more burdensome than those sought here. Here, the Joneses argue that the Commissioner should be required to search the public records or the phone book in order to ascertain the property owner’s correct address. Again, this argument ignores the fact that section 26-35-705 requires the property owner to notify the tax collector of his correct address.
The Joneses next contend that if this court construes Tsann to be applicable in this case, it should be overruled. In support of this contention, they argue that a majority of courts have held that in order to comply with due process there must be some action taken to locate a property owner’s correct address. Ms. Flowers and the Commissioner contend that there is no reason to revisit an issue already decided by this court. We agree.
The very fallacy of the Joneses’ argument in this regard is supported by their admission in their brief to this court that due process does not require actual notice before depriving a property owner of his property. Citing to Dusenbery v. United States,
Here, there is no dispute that the State attempted to provide the Joneses with notice, both via certified mail and through publication in the newspaper. Accordingly, we cannot say the trial court erred in concluding that the State complied with the provisions of section 26-37-301 and that the tax sale was valid.
Affirmed.
Notes
Act 1376 provides, in part:
If the Commissioner of State Lands fails to receive proof that the notice sent by certified mail under this section was received by the owner of a homestead ... then the Commissioner of State Lands, or his or her designee, shall provide actual notice to the owner of a homestead ... by personal service of process at least sixty (60) days before the date of sale.