Michael Jones, Personal Representative of the Estate of Hugh E. Jones v. Thomas Scott Grieg and D.C. , et al.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 98-CV-1141 M ICHAEL J ONES, P ERSONAL R EPRESENTATIVE OF THE E STATE OF H UGH E. J ONES, A PPELLANT v. T HOMAS S COTT G RIEG, A PPELLEE No. 98-CV-1391 M ICHAEL J ONES, P ERSONAL R EPRESENTATIVE OF THE E STATE OF H UGH E. J ONES, A PPELLANT v. D ISTRICT OF C OLUMBIA , et al., A PPELLEES Appeals from the Superior Court of the District of C olumbia (CA-4025-97, CA-4063-97) (Hon. Ann O Regan Keary, Trial Judge) (Argued October 26, 1999 Decided July 24, 2003) Carla M. Mathers, with whom Jame s E. M cCollu m, Jr., was on the brief, for appella nt. Brenda L. Hopkins also entered an appea rance for ap pellant. 2 Daniel S. Roth, with whom Kurt Ber lin was on the brief, for appellee Grieg. John M. Ferren, Corporatio n Coun sel at the time the briefs w ere filed, and Sheila Kaplan, Assistant Corporation Counsel, filed a statement in lieu of brief for appelle es Distr ict of Co lumb ia, et al. Before TERRY, R EID, and G LICKMAN, Associate Judges. T ERRY, Associate Judge: These consolidated appeals involve the validity of a tax sale of a piece of real property. Appellant Michael Jones is the personal representative of the Estate of Hugh E. Jones, the record owner. In response to a motion for summary judgment filed by appellee Grieg,1 Mr. Jones claimed that the tax sale was invalid because the record owner (his father) had not been prope rly notified of the expiration of his right of redemption. Although neither appellee presented any evidence to refute this assertion, the trial court granted their respective motions for summ ary judgm ent. We h old that the evidence that the post office returned the District s notice as unclaim ed raised a genuine iss ue of ma terial fact, and that summary judgment therefore should not have been granted in either case. We therefore rev erse the judg ment in b oth cases and remand for further proceedings. 1 The District of Columbia later adopted Grieg s motion. The court was apparently unaware of the adoption at the time it ruled on that motion, see pages 6-7, infra, but for the purpose of these a ppeals that does not m atter. 3 I These two appeals arise from two separate cases, one between Thomas Grieg, the tax sale purchas er, as plaintiff, and appellant Jones as defendant, and the other between Jones as plaintiff and the District of Columbia and its Mayor (collectively the District ), along with Mr. Grieg and his wife, as defendants. The cases were consolidated in the trial court, and we consolidated the appeals as well on appellant s motion. Hugh Jones died intestate on March 18, 1995. At the time of his death, he owned two pie ces of re al prop erty, on e locate d at 134 7 Som erset Pla ce, N.W ., and the other at 828 Delafield P lace, N.W . The hou se on Som erset Place is th e property at issue in this case. Mr. Jones and his wife, Mildred Jones, purchased the house on Somerset Place in July 1962. Before that date the Joneses had resided at 828 Delafield Place, but when they bought the house on Somerset Place, they moved into it and lived there for the rest of their lives.2 The purchase of the Somerset Place property was financed by a deed of trust, which conveyed the Joneses interest in the property to two trustees. Under the terms o f the deed of trust, property taxes w ere 2 Mildred Jones died on April 12, 1992, almost three years before her husband. 4 paid in installmen ts to the mortgage company along with the monthly payments, and the mortgage company in turn paid the taxes when they became due. By release dated August 3, 1987, and recorded October 19, 1987, the trust and note w ere released, and from the n on Mr. and Mrs. Jones ow ned the house free an d clear. For twenty-fiv e years, beg inning in Ju ly 1962, M r. and M rs. Jones paid their property taxes on the Somer set Place pro perty by inc luding the n ecessary su ms in their monthly payme nts to the mo rtgage c ompa ny. From the time the purchase loan was paid off in 1987, how ever, it appears that they paid no taxes on the property, so that when Mr. Jones died in 1995, the taxes were several years in arrears. The tax bills for the Somerset Place property were mailed to Mr. and Mrs. Jones at 828 Delafield Place. Ne ither Hug h Jones, M ildred Jone s, nor Mic hael Jones ever requested to have the mailing address for the tax bills changed to Somerset Place. At a tax sale on January 26, 1989, appellee Grieg made a successful bid for the Somerset Place p roperty, and a certificate of sale for taxes w as issued to Mr. and Mrs. Grieg. P ursuan t to the tax sale statu tes, a notice of the imminent expiration of the redemption period was sent b y certified m ail on Dec ember 1 4, 1990, to Hugh 5 and Mildred Jones,3 but it was returned by the post office as unclaimed. The notice was mailed to 828 Delafield Place, the address to which all previous correspondence regarding taxes on the Somerset Place property had been sent. No further attempt w as made at that time to n otify the Joneses of the expiration of the redemption period, and it expired in January 1991. More than three y ears later, on M arch 8, 199 4, the District of Colum bia Department of Financ e and Re venue ( D FR ) sen t to the Jones es ag ain at the Delafield Place address a letter informing them that th eir property h ad been s old in January 1991 and that a tax deed would be issued to the purchaser if they did not pay $8,660.59 in back taxes before April 8, 1994.4 On October 26, 1994, Mr. Grieg paid $23,707.41 for the Somerset Place property. A memorandum dated December 3 See D.C. Code §§ 47-1304 and 47-1306 (a ) (2001). The statute is supplemented by Regulation 74-3 5, 9 DC MR § 317.3 (19 98), which states in pertinent pa rt: Not less than thirty (30) days prior to the expiration date of the two (2) year redemption period, the record owner shall be notif ied, by c ertified o r register ed ma il, of the final date by which the record owner must redeem the property. 4 There is no indication in the record that this letter was eve r received by appellant Jones or his father. It came to the court s attention becaus e a copy o f it was attache d, along with numerous other documents, to Mr. Grieg s motion for summ ary judgm ent. 6 9, 1994, from the Chief of the Assessment Services Division to the Director of DFR, seeking her appro val of the sale , stated: A thorough search of our records has been made to ensure that all provisions of the law regarding tax sales have been follow ed. The sale was approved by the Director, and on March 2 9, 1995, Mr. Grieg received a tax deed for the property. In 1997 Mr. Grieg filed a complaint in the Superior Court against Michael Jones, asking the court to remove a cloud on the title, and on the same day Mr. Jones filed a comp laint against the District of Columbia, the Mayor, and Mr. and Mrs. Grieg, asking the court to declare the tax deed null and void and to enjoin the Griegs from conveying the property. After the two cases were consolidated, Mr. Grieg filed a motion for summ ary judgment. Mr. Jones filed an opposition to the motion on March 13, 1998, and the District filed a Notice of Adoption of Motion for Summary Judgment on June 12, 1998. The trial court granted Grieg s motion for summary judgment on July 15, 1998. It ruled that notwithstanding the status of defendant Jones remaining claims against the District of Columbia . . . it appears clear that plaintiff [Grieg] is entitled to judgment as a matter of law against the e state of the record own ers. The court remarked that the Distric t had not filed a motion for summ ary judgm ent, but it failed 7 to note that the District had in fact filed a Notice of Adoption of Motion for Summ ary Judgment on June 12. The confusion resulted from the fact that the cou rt had issued an earlier order on April 6 granting M r. Grieg s motion, which the parties did not know about because it had never been docketed.5 In the intervening period the District had filed its notice of adoption of Grieg s motion. In response to the trial court s July 15 ruling, the District filed its own motion for summary judgment on July 21.6 That motion was granted on August 25 for the reasons se t forth in th is court s order o f July 15 , 1998. 7 Mr. Jones now appeals fro m the gra nting of the tw o motion s for summ ary judgm ent. 5 According to the July 15 order, the A pril 6 order had not been docketed and mailed to counsel at that time because of an administrative error. The July 15 order was substan tially the same as the Ap ril 6 order. 6 The District s motion simply cited the July 15 order and asserte d that it nece ssarily e ntitled th e Distric t to a sum mary judgm ent . . . . 7 In its August 25 order the court stated that the District s motion was unop posed . By the time th e Distric t filed its m otion, o f course , the court had already granted Grieg s motion, which the District had previously a dopted. In these circumsta nces, we a ttach no sign ificance to the fact that M r. Jones failed to oppose the District s motion. 8 II In order to estab lish lack of no tice, appellant Jones relied on the envelope containing the notice w hich ha d been returne d by the post off ice as u nclaim ed. Appellees did not suffic iently rebut th is evidence; in fact, they did not rebut it at all. We hold that this envelope raised a genuine issue of material fact, precluding summ ary judgm ent. A tax deed is prima facie evidence of a good and perfect title in fee simple to any property bought at a tax sale. D.C. Code § 47-1303.03 (b) (2001). In challenging the validity of a tax sale, the plaintiff bears the burden of producing evidence that the deed was improperly issued . . . [and then] the burden of production shifts to the defendant, who must demonstrate that the tax sale was valid. Keatts v. Robinson, 544 A.2d 716 , 719 (D.C. 1988 ) (citation omitted). In this case, appellant Jones produced evidence that the notice of expiration of the two-year redemption period was sent to the Delafield Place address and was returned unclaimed. He also offered his own affidavit, stating that the Somerset Place property had been sold to Mr. Grieg without . . . notice of delinquent taxes . . . and [the D istrict] failed to give n otice to my father of his right to redeem the 9 property or the expiration of the period for redeeming the pro perty. 8 Appellees not only failed to prese nt any evid ence to m eet this claim of lack of notice; they did not even attempt to respond to, or to rebut, Mr. Jones argument. We hold that the envelope returned as unclaimed, coupled with the fact that the District did nothing thereafter to notify the record owners of the imminent expiration of the redemption period, raised a genuine issue of material fact on the question of notice. The power to convey p roperty for nonpay ment of ta xes can b e validly exercised only by stric t complian ce with the relevant statutes an d regul ations. Malone v. Robinson, 614 A.2d 33, 36 (D.C. 1992) (citations omitted). If the District does not strictly comply with the relevan t statutes and re gulations, th e sale is invalid and must be set aside. Id. (citations om itted). In particula r, the District is required to send a notice of the expiration of the right of redem ption to the record owner or owners [n]ot less than thirty (30) days prior to the expiration date. Id. (quoting Regu lation 74 -35, supra note 3). Ac tual notice of the expiration of the redemption period is not mandated by the statutes or regulation s; notice by mail to the record owne r gener ally satisf ies due proces s com mand s. Id. (citations omitted). 8 For present purposes, we assign no evidentiary value to Mr. Jon es affidavit, which was largely conclusory and does not appear to have been based on his own personal knowledge. 10 However, if the District of Columbia d oes send notice to the reco rd owner b y registered or certified m ail in compliance with the statute, and the notice is returned unclaimed, the District is then required to take some additional step to notify the record owne r. Id. We specifically held in Malone that the return of the notice as unclaimed should be a red flag for some further action. Id. at 38. When a notice of expiring redemption period informing the record ow ner that he c ould shortly lose his interest in his property is returned as unclaimed, the District knows that, as to that particular notice, the record owner may be no bette r off than if the n otice had n ever been sent. An elementary and fundamental requirement of due process in any pro ceeding w hich is to be a ccorded fin ality is notice reasonab ly calculated , under all the circumsta nces, to apprise interested parties of the pendency of the action and afford th em an oppor tunity to presen t their ob jections . Id. at 36-37 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). After the District received the returned notice marked unclaim ed, it did nothing further, and the redemption deadline passed. It was not until March 8, 1994, more than three years later, that the District sent a letter to the record owners at the same address stating that a tax deed was going to be issu ed unless th ey paid $8,660.59 in back taxes before April 8. The issue we must decide here is whether the second lette r qualifies as the sort of add itional step required under Malone. 11 We conclude that it does not. Specifically, w e hold that w hen a notic e that a redemption period is about to expire is returned by the post office as unclaimed, and the District ma kes no attem pt thereafter to ensure that the record owner receives some kind of notice of the imminent expiration, it has not complied with the additional step requirem ent that arises under Malone and Regulation 74-35.9 In Malone this court held, as we hold again in the case at bar, that the District did not take the necessary additional step when there was no evidence that the District did an ything bey ond send ing the notic e of expiratio n. 614 A .2d at 35. By contrast, in Watson v. Scheve, 424 A.2d 1089, 1091 (D.C. 1980), we held that the District had complied with its statutory responsibilities when it sent two additional notices by mail after the initial notice was returned unclaimed. In fact, the owner actually received the third notice, albeit on the last day of the redemption period. 9 In these circumstances, the letter that the District sent in March 1994, more than three years later, stating that a tax deed w ould soon be issued, fell far short of meeting this due process requirement of notice. Given the facts before us, we need not decide whether due process would be satisfied if the District gave initial notice to the record ow ner early enough to e nsure that sufficient time is left for it to take Malone s additional step within the redemption period, or some reasonably brief time thereafter, should that become necessary. At a min imum , the regulatory scheme cannot tole rate the three-year delay revealed by the present record. 12 The court in Malone stated that Watson and Malone were consisten t and that in Watson the District took the kind of reasonable additional steps that it was require d to take . Malone, 614 A.2d at 40. In Moore v. District of C olumbia , 332 A.2d 749, 751 n.7 (D.C. 1975), we concluded that the District had complied with due process by sending the required notice of expiration of the redem ption period and on e subsequent notice. H owever, we later pointed out in Malone that Moore was decided before Regulation 74-35 was adopted, and that the question of whether additional steps were required was expressly reserved in Boddie v . Robinson, 430 A.2d 519 , 522 n.4 (D.C. 198 1). Therefore, we he ld, Moore does not c ontrol the disp osition of an issue that this court, subseque nt to Moore, recognized was open for resolution. Malone, 614 A.2d at 40. Thus Malone, not Moore, dictates the result in this case. The unclaimed letter squarely raised the issue of whether the District took the additional steps required by Malone. Appellees did not present any evidence on this issue. Because they failed to show that the District took any such additional steps (inde ed, the availa ble eviden ce in the reco rd show s that it did not), appellees 13 were not entitled to summary judgment. The judgment is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded.
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