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Hull v. D'Arcy

March 5, 2009

ROSE M. HULL, APPELLANT (PLAINTIFF),
v.
MICHAEL D'ARCY, DEBRA ANN D'ARCY, AND JACK DALTON, APPELLEES (DEFENDANTS).



Appeal from the District Court of Platte County The Honorable David B. Park, Judge.

The opinion of the court was delivered by: Burke, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] This appeal concerns the validity of a tax deed. Rose Hull, the former owner, contends that the tax deed is invalid because she did not receive the statutorily required notice prior to issuance of the deed. The district court granted summary judgment in favor of the tax deed grantee, Jack Dalton, and the current owners of the property, Michael and Debra D'Arcy. Ms. Hull challenges that decision. We find that genuine issues of material fact exist that preclude summary judgment. Accordingly, we reverse.

ISSUE

[¶2] Did the tax purchaser comply with the notice requirements set forth in Wyo. Stat. Ann. § 39-13-108(e) (LexisNexis 2007) prior to obtaining the tax deed?

FACTS

[¶3] Ms. Hull and her husband, Warren Hull, owned a residential property in Guernsey, Wyoming. The Hulls did not pay the property taxes for 1999 and on July 24, 2000, the Platte County Treasurer conducted a tax sale of the property. Mr. Dalton paid the delinquent taxes and obtained a certificate of purchase to the property. In January 2006, Mr. Dalton applied for, and received, a tax deed. He subsequently conveyed the property to the D'Arcys. They are the current owners of the property and have made improvements to the property since obtaining ownership.

[¶4] On February 2, 2007, Ms. Hull commenced this action against Mr. Dalton and the D'Arcys alleging that the tax deed is invalid because she did not receive the statutorily required notice. The defendants generally denied the allegations. They contended that proper notice was given and that the deed was valid. The defendants also asserted affirmative defenses and filed counterclaims alleging that the D'Arcys were entitled to reimbursement, pursuant to Wyo. Stat. Ann. § 39-13-108(e)(viii), for taxes they have paid, and pursuant to Wyo. Stat. Ann. § 1-32-207 et seq., for improvements they have made to the property.*fn1 Ms. Hull concedes that, if the deed is invalid, she is liable to the D'Arcys for the value of improvements they have made to the property.*fn2

[¶5] The parties submitted cross motions for summary judgment. The defendants supported their motion with Mr. Dalton's affidavit and accompanying exhibits. Ms. Hull responded with an affidavit of her own, as well as excerpts from Mr. Dalton's deposition. The parties also submitted legal memoranda in support of their positions. After hearing argument, the district court determined that summary judgment should be awarded in favor of Mr. Dalton and the D'Arcys. Ms. Hull appeals that decision.

STANDARD OF REVIEW

[¶6] "Because summary judgment involves a purely legal determination, we undertake de novo review of a trial court's summary judgment decision." Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., 2008 WY 101, ¶ 8, 191 P.3d 125, 129 (Wyo. 2008).

DISCUSSION

[¶7] Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c). Accord, e.g., Jacobs Ranch Coal Co., ¶ 8, 191 P.3d at 128; Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055 (Wyo. 2002). "A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted." Id. We view the record in the light most favorable to the party opposing summary judgment and give that party the benefit of all favorable inferences that may be fairly drawn from the record. E.g., Stevens v. Elk Run Homeowners' Ass'n, Inc., 2004 WY 63, ¶ 11, 90 P.3d 1162, 1165 (Wyo. 2004).

[¶8] Wyo. Stat. Ann. § 39-13-108(e)(v) sets forth certain requirements for issuance of a tax deed. That provision states, in pertinent part:

(A) The county treasurer shall accept applications and issue tax deeds for unredeemed real property subject to a certificate of purchase not less than four (4) nor more than six (6) years from the date of the original sale for taxes to the person in whose name the certificate of purchase was delivered or his assigns upon proper application, return of the certificate of purchase, payment of fees and proof of compliance with the notice requirements of this section to consist of the fact of personal service and the contents of the notice served in cases where personal service is made, or, in the case of service by publication, a sworn statement attached to a copy of the notice indicating the time of service by the publisher, manager or editor of the newspaper in which publication of notice was made; (B)Holders of certificates of purchase of real property sold for delinquent taxes, including a holder's or county's assigns, upon application for a tax deed therefor shall furnish proof to the county treasurer:

(I) That at least three (3) months prior to the application a written or printed notice was served on each person in actual possession or occupancy of the real property and the person in whose name the property was taxed or assessed if upon diligent inquiry the persons can be found in the county; or

(II) If no person is in actual possession or occupancy of the property and if the person in whose name the property was taxed or assessed cannot be found in the county, that notice was published in a newspaper printed in the county, or if no newspaper is printed in the county, then in a newspaper printed in Wyoming nearest to the county seat of the county in which the property is located. The notice shall be published once a week for three (3) weeks, the first ...


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