Trunnell v. Summitt County

Trunnell v. Summitt County

IN THE UTAH COURT OF APPEALS

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Paul Trunnell,

Plaintiff and Appellant,

v.

Summit County, James Sorensen, and Connie Sorensen,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020876-CA
 

F I L E D
(March 4, 2004)
 

2004 UT App 45

 

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Third District, Silver Summit Department

The Honorable Robert K. Hilder

Attorneys: B. Ray Zoll and S. Dayn Kelson, Murray, for Appellant

David L. Thomas and Jami R. Brackin, Coalville, and Victoria C. Fitlow, Park City, for Appellees

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Before Judges Bench, Davis, and Jackson.

DAVIS, Judge:

Paul Trunnell appeals a trial court order granting Defendants' motions for summary judgment(1) and denying Trunnell's cross-motion for summary judgment. We affirm.

I. Summit County's Motion For Summary Judgment

Trunnell argues that the trial court erred by granting summary judgment in favor of Summit County. Specifically, Trunnell asserts that the trial court erred (A) by ruling that Summit County complied with all of the statutory provisions concerning property tax sales; (B) in its rulings concerning Trunnell's alleged oral agreement with the Summit County Auditor (Auditor); and (C) by determining that a certain five-acre parcel was not a separate parcel.

A. Statutory Compliance

Trunnell argues that Summit County failed in several respects to comply with all of the statutory provisions concerning property tax sales and, therefore, that the trial court erred by ruling that Summit County complied with such provisions.(2) "Tax sales are made exclusively under statutory power, and, unless all the necessary prerequisites of the statute are carried out, the tax sale becomes invalid. If one of the prerequisites fail, it is as fatal as if all failed." Olsen v. Bagley, 10 Utah 492, 37 P. 739, 740 (1894). "When the deed is executed and delivered by the auditor, it shall be prima facie evidence of the regularity of all proceedings subsequent to the date the taxes initially became delinquent and of the conveyance of the property to the grantee in fee simple." Utah Code Ann. § 59-2-1351.1(9)(b) (2000).

First, Trunnell argues that the signed statements for 1996 did not comply with the applicable statutory provisions and, therefore, that the property tax sale was invalid. See Utah Code Ann. § 59-2-311, -326 (2000). Trunnell asserts that the Summit County Assessor failed to complete the signed statement for the 1996 assessment book by May 22, 1996, as required by statute, because it was completed on May 24, 1996.(3) See id. § 59-2-311. Trunnell also asserts that it is unclear whether the Auditor completed the signed statement for the 1996 assessment roll by November 1, 1996, as required by statute, because, although it was completed, it was not dated. See id. § 59-2-326. Trunnell does not dispute the subject matter, accuracy, or content of either of these signed statements.(4) Instead, he inappropriately relies upon Telonis v. Staley, 104 Utah 537, 144 P.2d 513, 516-19 (1943), to argue that these minor defects in the signed statements invalidate the property tax sale. Telonis does not support this argument; rather, Telonis stands for the proposition that the absence of an auditor's signed statement can invalidate a property tax sale. See Thomas v. Heirs of Braffet, 6 Utah 2d 57, 305 P.2d 507, 509-10 (1956) ("Later cases have never wavered from this [proposition announced in Telonis], and it is now a firmly established rule of law in this jurisdiction that the absence of the auditor's [signed statement] is a fatal defect and would render void a tax sale upon which a tax deed is based." (emphasis added)), overruled on other grounds by First Equity Fed., Inc. v. Philips Dev., LC, 2002 UT 56, 52 P.3d 1137. Therefore, Trunnell's argument fails.

Second, Trunnell argues that Summit County failed to provide adequate notice of the property tax sale, as required by statute. See Utah Code Ann. § 59-2-1351(2)(a)-(c) (2000).(5) This argument is unsupported by the record, which reveals that Summit County complied in all respects with the statutory notice requirements. The plain language of section 59-2-1351(2)(a) required that Summit County's notice of the property tax sale be "sent by certified and first class mail to the last-known recorded owner, the occupant of any improved property, and all other interests of record, as of the preceding March 15, at their last-known address." Id. § 59-2-1351(2)(a). The record shows that Summit County "sent" notices to each of the appropriate parties, including Trunnell, "by certified and first class mail" to "their last-known address."(6) Id. The plain language of section 59-2-1351(2)(b) required that Summit County's notice of the property tax sale be "published four times in a newspaper published and having general circulation in the county, once in each of four successive weeks immediately preceding the date of sale." Id. § 59-2-1351(2)(b). The record shows that Summit County published the notice of the property tax sale "four times" in The Park Record, a newspaper "having general circulation in" Summit County, "once in each of four successive weeks immediately preceding the date of sale."(7) Id.

Summit County complied with all of the statutory provisions concerning property tax sales and, therefore, we conclude that the trial court did not err by ruling that Summit County complied with such provisions.

B. Oral Agreement

Trunnell argues that the trial court erred in its rulings concerning Trunnell's alleged oral agreement with the Auditor. Although Trunnell challenges several of the trial court's alternative or collateral determinations about the alleged oral agreement, he never adequately challenges its central determination about the agreement, which states: "[E]ven accepting as true [Trunnell]'s allegations of fact as to the content of [the oral] agreement, [Trunnell]'s placing a check in the mail with only a [one-cent] stamp does not constitute 'mailing' and, therefore, . . . [Trunnell] failed to perform his end of the bargain, thereby relieving [Summit] County of any duty to perform." We conclude that this determination is entirely correct and dispositive of all issues raised by Trunnell relating to the alleged oral agreement. Because Trunnell's mailing of a check with inadequate postage did not constitute performance on his part, even if his allegations about the content of the oral agreement are accepted as true, Summit County was under no duty to perform. See Coulter & Smith, Ltd. v. Russell, 966 P.2d 852, 860 (Utah 1998) (stating that if consideration fails because one party fails to perform under a contract, the other party cannot be compelled to perform). Even if we were to agree with Trunnell's arguments regarding the trial court's collateral or alternative determinations about the alleged oral agreement, that would not affect our conclusion that the trial court's ultimate determination about the agreement is correct.(8)

C. The Five-Acre Parcel

Trunnell argues that the trial court erred by determining that a certain five-acre parcel was not a separate parcel. This argument is without merit. As we have previously noted, the record shows that the sale of Trunnell's property was based solely upon property tax delinquency for 1996. The record also shows that for the 1996 tax year, the five-acre parcel had not yet been assigned a separate tax identification number and that all of Trunnell's property was taxed as one parcel. Accordingly, the trial court did not err by determining that the five-acre parcel was not a separate parcel for purposes of the property tax sale.

Based upon the foregoing, we conclude that the trial court did not err by granting summary judgment in favor of Summit County.

II. Sorensens' Motion For Summary Judgment

Trunnell argues that the trial court erred by granting summary judgment in favor of the Sorensens. All of Trunnell's arguments on this issue are based upon the assumption that he somehow retained an interest in the property after the tax deed was issued to the Sorensens. Because we have concluded that the property tax sale was valid, Trunnell's interest in the property was extinguished upon the issuance of the tax deed. See Hanson v. Burris, 86 Utah 424, 46 P.2d 400, 406 (1935) (stating that purchasers at a tax sale "take with a 'new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and [e]ncumbrances of private persons, and all equities arising out of them'" (citations omitted)), aff'd, 297 U.S. 378, 56 S. Ct. 511 (1936); see also Utah Code Ann. § 59-2-1351.1(9)(a) (2000) (stating that tax deed conveys property to purchaser in "fee simple"). There is nothing in the record to suggest that, after issuance of the tax deed, the Sorensens' actions in relation to the property or Trunnell could be construed as anything but exercises of their rights as property owners. Therefore, Trunnell's arguments on this issue fail and we conclude that the trial court did not err by granting summary judgment in favor of the Sorensens.

We affirm the trial court's order granting Defendants' motions for summary judgment and denying Trunnell's cross-motion for summary judgment.

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James Z. Davis, Judge

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I CONCUR:

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Norman H. Jackson, Judge

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I CONCUR IN THE RESULT:

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Russell W. Bench,

Associate Presiding Judge

1. The trial court granted summary judgment in favor of Defendants in response to two separate motions. Defendant Summit County filed its motion for summary judgment on claims 1-3 of Trunnell's complaint, and Defendants James and Connie Sorensen (Sorensens) filed their motion for summary judgment on claims 4-8 of Trunnell's complaint. Although the trial court granted both of these motions, it granted each upon different grounds. As such, Trunnell presents separate arguments for each motion on appeal.

2. Trunnell presents several arguments alleging failures by Summit County to comply with the statutory provisions governing property taxes in tax years other than 1996. However, because the sale of Trunnell's property was based solely upon property tax delinquency for the 1996 tax year, we do not address his arguments based upon tax years other than 1996.

3. The penalty for an assessor's failure to complete an assessment book in a timely manner is governed by Utah Code Annotated section 59-2-314 (2000), which states:

Any assessor who fails to complete and deliver the assessment book to the county auditor within the time prescribed by law . . . shall pay a penalty of $1,000, to be recovered on the assessor's official bond, for the use of the county, or deducted from salary by the county legislative body.

Id. Private citizens do not have the legal right to bring an action to enforce this penalty. See Stromquist v. Cokayne, 646 P.2d 746, 748 (Utah 1982) (holding, under former section, that private party did not have legal right to bring an action to enforce penalty).

4. This position was confirmed by Trunnell's counsel at oral argument.

5. Utah Code Annotated section 59-2-1351(2) (2000) provides:
Notice of the tax sale shall be provided as follows:
(a) sent by certified and first class mail to the last-known recorded owner, the occupant of any improved property, and all other interests of record, as of the preceding March 15, at their last-known address; and
(b) published four times in a newspaper published and having general circulation in the county, once in each of four successive weeks immediately preceding the date of sale; or
(c) if no newspaper is published in the county, posted in five public places in the county, as determined by the auditor, at least 25 but no more than 30 days prior to the date of sale.

Id. § 59-2-1351(2)(a)-(c).

6. Although Trunnell argues that the notices sent by Summit County are inadequate, he does not demonstrate how the notices are inadequate under the plain language of section 59-2-1351(2)(a). Instead, his argument attempts to add additional requirements to section 59-2-1351(2)(a) or impose additional duties for notice upon Summit County.

7. Trunnell argues that under Home Owners' Loan Corp. v. Stevens, 98 Utah 126, 97 P.2d 744, 745-47 (1940), the requirement of notice by publication "once in each of four successive weeks immediately preceding the date of sale," Utah Code Ann. § 59-2-1351(2)(b), requires notice by publication for twenty-eight days. See Stevens, 97 P.2d at 747 (construing predecessor to section 59-2-1351, which required published notice for four consecutive weeks, to require notice for total number of days in four consecutive weeks, or twenty-eight days). We are unpersuaded by Trunnell's argument.

The Stevens court was required to construe the predecessor to section 59-2-1351 because, although the statute clearly stated the number of publications required for notice by publication, it was ambiguous regarding the required notice period for notice by posting. See Stevens, 97 P.2d at 745-47. As a result of this ambiguity, the Stevens court concluded that the notice period for notice by publication also applied to notice by posting. See id. at 746-47. However, the court observed that because the notice period for notice by publication denoted the number of publications, "once a week for four consecutive weeks," id. at 745 (quotations and citation omitted), it could not be easily applied to notice by posting. See id. at 746-47. As a result, the court concluded that, in order for the notice period to be applicable to both types of notice, it must be viewed as a

reference to duration of notice both in case of publication and of posting, since the statute clearly does not contemplate that a notice be posted four times during the period. Doubtless the legislature might prescribe the number of newspaper publications which would suffice as a prerequisite to holding a sale and duration of time of notice if made by posting, but as used in the section under examination it indicated no such distinction.

Id. at 746.

The language of section 59-2-1351 is different from that of its predecessor, and the distinction described in Stevens is now present in section 59-2-1351. Section 59-2-1351 now clearly "prescribe[s] the number of newspaper publications which . . . suffice as a prerequisite to holding a sale and duration of time of notice if made by posting." Stevens, 97 P.2d at 746; see Utah Code Ann. § 59-2-1351(2)(b)-(c) (stating that notice be published "once in each of four successive weeks immediately preceding the date of sale" or posted "at least 25 but no more than 30 days prior to the date of sale"). As such, the ambiguity that existed in its predecessor no longer exists in section 59-2-1351. Therefore, we conclude that the holding of Stevens is inapplicable to section 59-2-1351.

Accordingly, in determining the required notice period for notice by publication, if any, we look to the plain language of section 59-2-1351(2)(b). See In re Estate of Flake, 2003 UT 17,¶25, 71 P.3d 589 (stating that in statutory construction, we look first to the plain language of a statute and go beyond the plain language only if an ambiguity exists). Section 59-2-1351(2)(b) does not contain a required notice period for notice by publication, but instead requires that the notice be "published four times . . . , once in each of four successive weeks immediately preceding the date of sale." Utah Code Ann. § 59-2-1351(2)(b).

8. Trunnell also presents a promissory estoppel argument. One of the required elements for a promissory estoppel claim is that the "[promissee] acted with prudence and in reasonable reliance on a promise made by the [promisor]." J.R. Simplot Co. v. Sales King Int'l, Inc., 2000 UT 92,¶29, 17 P.3d 1100 (alterations in original) (emphasis added) (quotations and citations omitted). Although Trunnell may have reasonably relied upon the alleged promise by the Auditor, Trunnell clearly did not act with prudence by attaching only a one-cent stamp when mailing his check to the Auditor. Because this element is not satisfied, Trunnell's promissory estoppel argument fails.