Mark BROCK and Della Brock, Appellants (Plaintiffs), v. STATE of Wyoming, EX REL., WYOMING WORKFORCE SERVICES, UNEMPLOYMENT INSURANCE DIVISION, Appellee (Defendant).
S-16-0189
Supreme Court of Wyoming.
May 3, 2017
2017 WY 47
Representing Appellee: Peter K. Michael, Attorney General; Daniel E. White, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General; Charlotte M. Powers, Assistant Attorney General. Argument by Ms. Powers.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
BURKE, Chief Justice.
[¶1] The United States District Court for the District of Wyoming certified a question to this Court concerning the relative priority of liens against real property. This question asks us to determine whether a lien created by a certificate of purchase for delinquent taxes held by Appellants, Mark and Della Brock, is superior to a lien held by the State of Wyoming, Department of Workforce Services, for unpaid contributions to the unemployment compensation fund. We answer the certifiеd question in the affirmative.
[¶2] Is a lien against real property created by a certificate of purchase for delinquent taxes pursuant to
FACTS
[¶3] The federal district court‘s certification order contains a statement of facts pertinent to the certified question. According to that order, this case concerns real estate in Uinta County and encumbrances against the property arising from the failure of Sagebrush Broadcasting Company, Inc. to satisfy various financial obligations. Claims against the property have been asserted by the Brocks, the Department of Workforce Services, the United States Internal Revenue Service, and others. The Brocks paid past due taxes оn the property in 2010 and obtained a “Certificate of Purchase of Real Estate for Taxes” relating to the property. They also paid taxes on the property through October 2014. They claim they are entitled to approximately $22,000 in satisfaction of the taxes (including interest), costs, and attorneys’ fees incurred in perfecting their title to the property.
[¶4] The Department has also filed liens against the property for delinquent unemployment insurance contributions, interest, and fees. The Department filed its first lien on August 23, 2006, and subsequently filed an additional 14 liens against the property. As of May 2016, the delinquent contributions, plus interest, totaled $19,683.47. The Internal Revenue Service filed its lien in 2009 for unpaid federal tax liabilities assessed against Sagebrush. The IRS‘s lien is in the principal amount of $74,983.24.1
[¶5] This litigation began in January 2015, when the Brocks filed suit in state district court seeking foreclosure of their lien аnd a declaration that their lien is superior to all other encumbrances against the property. The Brocks named the Department and the IRS as defendants. The IRS removed the case to federal district court and has conceded that both the Brocks’ and the Department‘s liens have priority over its federal tax liens.
[¶6] The federal district court certified the issue to this Court to determine the relative priority of the interests held by the Department and the Brocks in the Sagebrush property. We agreed to answer the certified question.2
STANDARD OF REVIEW
[¶7] The certified question presents an issue of statutory interpretation. We review questions of statutory interpretation de novo. Yager v. State, 2015 WY 139, ¶ 7, 362 P.3d 777, 779 (Wyo. 2015).
DISCUSSION
[¶8] In answering the certified question, we apply our usual rules of statutory interpretation: “Our paramount consideration is the legislature‘s intent as reflected in the plain and ordinary meaning of the words used in the statute. Initially, we determine whether the statute is clear or ambiguous.” Spreeman v. State, 2012 WY 88, ¶ 10, 278 P.3d 1159, 1162 (Wyo. 2012).
A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. Unless another meaning is clearly intended, words and phrases shall be taken in their ordinary and usual sense. Conversely, a statute is ambiguous
Jones v. State, 2011 WY 115, ¶ 11, 256 P.3d 536, 541 (Wyo. 2011).
[¶9] The Brocks claim their lien is superior to that held by the Department pursuant to
(d) Liens. The following shall apply:
(i) Taxes upon real property are a perpetual lien thereon against all persons excluding the United States and the state of Wyoming....
(ii) Any person, county, municipality or political subdivision holding a certificate of purchase or tax deed issued for delinquent taxes has a lien against the real property which is subject to thе certificate of purchase or tax deed to the extent of taxes, costs and penalties accrued plus interest, accruing penalties and the value of improvements placed on the real property by the lienholder or his assigns while lawfully in possession of the premises. The lien is superior to all other liens except those created by junior tax sales or payment of subsequent taxes by another person.
(Emphasis added.) The Brocks claim the statute unambiguously makes their lien superior to the lien held by the Department because the Department‘s lien is not a lien “created by junior tax sales or payment of subsequent taxes by another person.”
[¶10] The Department claims a lien against the property under
§ 27-3-512. Priority over other claims under receivership.
If an employer‘s assets are distributed by court order under receivership, assignment, adjudicated insolvency or other proceeding, сontributions under this act [§§ 27-3-101 through 27-3-704] shall have priority over all claims except taxes and claims for wages of not more than two hundred fifty dollars ($250.00) per claimant and earned within six (6) months before the proceeding. Priority of contributions in cases adjudicated under 11 U.S.C. § 101 et seq. shall be as provided by 11 U.S.C. § 507(a).
(Emphasis added.)3 Relying on the priority language in the statute, the Department asserts that the Brocks’ lien is not a claim for “taxes” under
[T]he Brocks do not have a lien for taxes. Instead, the Brocks have, by virtue of their “certificate of purchase,” a “lien against the real property ... to the extent of taxes, costs, and penalties accrued plus ... the value of improvements placed on the real property by the lienholder.”
Wyo. Stat. Ann. § 39-13-108(d)(iii) . The Brocks’ proposed construction fails and does not solve the ambiguity between the two statutes when they are construed together.
The Department claims that the ambiguity should be resolved in its favor, and that its lien should be found to have priority over the Brocks’ lien. We do not agree.
[¶11] We rejected a similar argument in Barlow v. Lonabaugh, 61 Wyo. 118, 156 P.2d 289 (1945). In that case, the owners of property in Sheridan County failed to pay the assessed property taxes. The property was subsequently sold to the county. When the owners failed tо redeem, the county treasurer issued a tax deed to the county for the property. Id., 61 Wyo. at 125, 156 P.2d at 291. The county subsequently sold the property to a private purchaser. The litigation was initiated by the holder of special assessment bonds issued for a paving assessment that were in default. Id., 61 Wyo. at 124, 156 P.2d at 290. The bondholders claimed that their interest in the property was superior to the rights of the current owners because the tax lien had been extinguished when the сurrent owner purchased the property from the county. The position espoused by the bondholders in Barlow was similar to the one taken by the Department here:
defendants do not have nor assert a tax lien, and are not attempting to foreclose one. They merely have a quit claim deed from the county, and the county in turn acquired its title by deed from the owner and not through a completed tax sale.... In purchasing a quit claim of the property from the county, the county‘s claim or lien for general county and state taxes was discharged. From then on the defendants had the property as any private purchaser. When the county‘s prior lien for general taxes was paid and satisfied, the county no longer had a lien, and there was no question remaining as to priorities of liens as only one lien remained, namely the special assessment liens.
Id., 61 Wyo. at 127, 156 P.2d at 291-92. We rejected that contention and, in doing so, noted our аgreement with other jurisdictions that had considered the issue:
The case of White v. Thomas, 91 Minn. 395, 98 N.W. 101, dealt with this situation. The court said:
“It is further claimed by respondent that the lien of the state for general taxes, after it has become the subject of private ownership, is subordinate to the liens of the city for local assessments. If this means, as we understand that it does, that the purchaser of the lien of the state takes it subject to all then existing liens of the city for local assessments, the claim is clearly wrong. Such a rule would practically emasculate the law giving to the state a paramount lien, for the only way the state can realize on its lien is to sell, subject to redemption, the land upon which the lien rests, to private parties. Now, if the state could not on such a sale vest in the purchaser its priority of lien over then existing local assessments, it would be of little practical value to the state, for, in cases where the аmount of the local assessment liens approximately equaled the value of the land on which they rested, no one would buy the state‘s claim. We hold, then, that a purchaser of the lien of the state takes it with its right of priority over all the then existing liens of the city for local assessments, without refer-
ence to the time when the state lien attached.”
Id., 61 Wyo. at 128, 156 P.2d at 292.
[¶12] In Barlow, we recognized that our decision was dependent upon the absence of specific statutory language establishing the priority of special assessments: “We held in Board of County Commissioners v. Bench Canal Drainage District, 56 Wyo. 260, 108 P.2d 590 [(1940)], where the question was discussed at length, that a lien for general taxes is superior to the lien of a special assessment unless the statute specifically provides [to] the contrary.” Id., 61 Wyo. at 126, 156 P.2d at 291. Indeed, in Bench Canal, 56 Wyo. at 272-73, 108 P.2d at 593-94, we stated:
[I]t is a general rule, supported, it seems, by the great weight of authority, that a lien for general taxes is superior to the lien of a special assessment, such as, or similar to that involved in the case at bar, unless the statute specifically provides [to] the contrary....
....
We must test the statute in question in the light of the foregoing rule, which seems to have a sound basis, and no good reason has been pointed out why we should not adhere to it. It will be noted at once, that if the legislature intended to place a lien for drainage assessments and the lien for general taxes on an equal footing, it did not use very happy language. It would have been easy to have stated that they should be of equal dignity. In Walton v. City of Portales, 42 N.M. 433, 81 P.2d 58, it appears that the statute of New Mexico provides that a special improvement lien “shall be on a parity with the tax lien of general taxes, and no sale of such property to enforce any general tax or other lien shall extinguish the perpetual lien of such assessment.” Here we find clear and expliсit language, and the court held, of course, that the liens were on a parity. Counsel for the drainage district want us to construe the statute involved in the case at bar, as the New Mexico court construed its statute, though the difference is that between day and night.
Since the decisions in Barlow and Bench Canal, our statutes have been amended and now provide that “The holder of the certificate of purchase takes subject to any special assessments for locаl or public improvements.” 1981 Wyo. Sess. Laws ch. 160, § 1 (now codified at
[¶13] In this case, the Brocks are the holders of a certificate of purchase on the property. They obtained that certificate of purchase by purchasing the property for the delinquent taxes assessed against the property. No statute similar to
[¶15] On appeal, this Court held that the bonds had priority over the county‘s certificate of purchase for taxes. In analyzing the relative priority of the liens, the Court turned to two statutes: Section 115-2303, Rev. St. 1931 and the “Legislative Act of 1935,” 1935 Wyo. Sess. Laws ch. 84, § 1. The 1931 law provided, similar to
We shall not, in our conclusions herein, go further than necessary. The contention made herein by the Drainage District is that the lien of the State under its bonds is superior to the lien of the general taxes. With that contention we agree. We do so upon the theory that the State is not mentioned in the Legislative Act of 1935, as amended, nor does that Act contain any provision which, under the rule of law heretofore stated, includes the state by necessary implication. The paramount lien of the state above mentioned is, accordingly, unaffected by the statute of 1935 as amended and that superiority must be given effect in a foreclosure proceeding.
Id., 60 Wyo. at 200, 148 P.2d at 238. The Court, howevеr, stopped short of deciding that the 1935 Act, was wholly inapplicable to the state:
It is not necessary herein to hold that the Legislative Act of 1935 as amended is wholly ineffectual so far as the state is concerned. No such contention is made herein. The policy of the State is, and should be, to place the land which for so many years has paid neither the general taxes nor the drainage taxes, again upon the tax rоll. Ledegar v. Bockoven, 77 Okla. 58, 185 P. 1097, 1100 [(1919)]. See Brewer v. Feigenbaum, 47 Cal.App.2d 171, 117 P.2d 737 [-(1941)-]; South San Joaquin Irr. Dist. v. Hornbeck, 2 Cal.2d 485, 490, 42 P.2d 64, 66 [-(1935)-]. In fact it has been held that the economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts. Keefe v. Drain Com‘r., 306 Mich. 503, 11 N.W.2d 220 [(1943)], and cases cited; 16 C.J.S. 702, note. Whether the Legislative Act of 1935, as amended, should, under the proper facts, not in the record before us now, be held to be wholly
inapplicable to the State need not now be decided, though it might be well for all interеsted parties to re-examine the statute in the light of all the various facts which might arise, and take such steps as may be deemed proper or necessary, if any. We need go no further in this case than to hold that under the fact[s], or lack of facts, as disclosed in the record, and under the constitutional and statutory provisions applicable, the State‘s lien heretofore mentioned is paramount to the lien of plaintiff, and the judgment of the trial court should be modified accordingly. It is so ordered.
Id., 60 Wyo. at 200-01, 148 P.2d at 238.
[¶16] Alamo is distinguishable from the present case. In this case, there is no concern for appropriation of the permanent school fund and, further, no potential conflict between the relevant statutes and the Wyoming Constitution. Additionally, when considering liens of the state for delinquent unemployment compensation contributions, there is a specific statute,
CONCLUSION
[¶17] For the foregoing reasons, we answer the certified question in the affirmative: A lien against real property created by a certificate of purchase for delinquent taxes pursuant to