JH Jordan v. Jensen

This opinion is subject to revision before final
publication in the Pacific Reporter

2017 UT 1

IN THE

SUPREME COURT OF THE STATE OF UTAH

JAMES HARVEY JORDAN,
TRUSTEE OF THE JAMES H. JORDAN REVOCABLE TRUST1,
Appellees,
v.
EDDIE R. JENSEN and LY-THI JENSEN,
Appellants.

No(s). 20150257, 20150647
Filed January 10, 2017

On Direct Appeal

Eighth District, Vernal Dep‘t
The Honorable Samuel P. Chiara
No. 130800084

Attorneys:
Clark B. Allred, Vernal, A. Erin Bradley, Salt Lake City, for appellees
James Harvey Jordan Trustee, Martha Jordan Boright, and Laura
Ward
A. John Davis III, Christopher R. Hogle, Mark L. Burghardt,
Salt Lake City, for appellee Axia Energy, LLC
Rick L. Knuth, Brady L. Rassmussen, Salt Lake City, for appellees
Stonegate Resources, LLC, and Wasatch Oil & Gas, LLC
Daniel A. Jensen, Terry E. Welch, Matthew E. Jensen, Salt Lake City,
for appellants Eddie R. Jensen and Ly-Thi Jensen
G. Wesley Quinton, Farmington, for amici Utah Petroleum
Association and Utah Mining Association

_____________________________________________________________
1Other appellees are: MARTHA JORDAN BORIGHT; LAURA WARD; AXIA
ENERGY, LLC; STONEGATE RESOURCES, LLC; and WASATCH OIL & GAS,
LLC.
 JORDAN v. JENSEN
Opinion of the Court
Sean D. Reyes, Att‘y Gen., Laron J. Lind, Ass‘t Att‘y Gen.,
Salt Lake City, for amicus Utah State Tax Commission

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUDGE MCKELVIE,
and JUDGE GARDNER joined.
Having recused themselves, JUSTICE DURHAM and JUSTICE PEARCE did
not participate herein; THIRD DISTRICT COURT JUDGES
RICHARD D. MCKELVIE and JAMES D. GARDNER sat.

CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 Here, we consider whether Utah Code section 78B-2-206
bars a challenge to a tax title based on a tax sale effected without
notice to an interested party. On May 25, 2000, Uintah County
conducted a tax sale, yet failed to provide the record mineral interest
owners notice of the sale. Now, over a decade later, the purchaser of
the tax title and the individuals who were the record owners of the
mineral interest prior to the tax sale dispute for the first time who
rightfully owns the mineral reserve. The purchasers of tax title raise
Utah Code section 78B-2-206 as a defense. That statute precludes a
party from challenging the validity of a tax title that was conveyed at
a tax sale more than four years prior to suit. The record mineral
interest owners argue that in failing to provide notice of the tax
sale—a factual point the purchaser of the tax title concedes—the
county violated their due process rights and that, therefore, the
statute of limitations does not bar their suit.
¶ 2 We agree with the record mineral interest owners. Because
Utah Code section 78B-2-206 was triggered by the county‘s tax sale—
which it conducted in violation of the Due Process Clause of the
Fourteenth Amendment—we cannot apply that limitations statute to
bar the record mineral interest owners‘ suit. And because in Utah a
failure to provide notice to an interested party of a tax sale also
serves as a jurisdictional defect, we conclude that the county failed to
obtain jurisdiction over the mineral interest at issue, thereby
preventing that property interest from passing at the tax sale.
Background
¶ 3 The facts of this case are complex, and focus primarily on
various conveyances related to the property at issue. The appellees
in this matter include the Jordans and Axia. The Jordans obtained
the property in question from certain predecessors and retained

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Opinion of the Court

ownership of the mineral interest before conveying the surface estate
to a subsequent owner. Believing they still owned the mineral
interest, the Jordans signed leases with various parties to develop
this mineral interest. One of these leases was eventually assigned to
Axia, which is also an appellee in this matter. After the Jordans
conveyed the surface estate, the subsequent owner failed to pay
taxes and Uintah County purported to sell the property at a tax sale
for unpaid taxes. The Jensens, the appellants, eventually purchased
the tax title sold by Uintah County at that tax sale. These facts are
discussed in greater detail below.
¶ 4 On October 25, 1954, Olivia Jordan, Marie Robertson, and
Caroline Kelley (the Jordans‘ predecessors in interest) acquired
surface and mineral rights to roughly forty acres of property
(Property) in Uintah County, Utah, by a warranty deed.2 Forty years
later, on February 3, 1995, Olivia Jordan, Marie Robertson, and
Caroline Kelley conveyed the surface interests of the Property to
Jonathan Anthony Andrews by a warranty deed, expressly and
intentionally reserving the Property‘s oil, gas, and mineral rights.
¶ 5 Between 1995 and 1999, Uintah County assessed annual
taxes against the Property. No other taxes were assessed against the
Property during that time. The tax notice for the 1995 property
taxes—the year the Jordans‘ predecessors in interest conveyed the
surface interests to Mr. Andrews—was mailed to Olivia Jordan c/o
Jonathan Anthony Andrews, though she never received that notice.
Thereafter, Uintah County sent all tax notices to Mr. Andrews. In
1997, Olivia Jordan conveyed by warranty deed her remaining
interest in the oil and gas mineral reserve to James Harvey Jordan,
Martha Jordan Boright, and Mary Edna Jordan (the Jordans). After
the February 1995 severance of the mineral rights, Mr. Andrews, the
new surface owner, failed to pay the property taxes for 1995,3 1998,
and 1999, leaving $167.19 in unpaid property taxes.

_____________________________________________________________
2 The Jordans‘ predecessors in interest received one hundred and
sixty acres in total, but only forty acres are at issue in this case. Those
forty acres are more precisely described as the NE¼NE¼ of Section
32, Township 7 South, Range 20 East, Salt Lake Meridian.
3The 1995 taxes were paid, in part, on November 17, 1997. The
payment did not cover the entire tax obligation, leaving $8.94
unpaid.

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Opinion of the Court
¶ 6 Utah law provides for the annual sale of real property in
May or June ―following the lapse of four years from the date the
property tax became delinquent.‖4 Before selling real property for
unpaid taxes, a county must provide notice of the tax sale, ―sent by
certified and first class mail to the last-known recorded owner . . .
and all other interests of record, as of the preceding March 15, at
their last-known address.‖5 Once the county conveys tax title to the
purchaser at the tax sale, any action to challenge the validity of the
tax title must be brought within ―four years from the date of the
sale.‖6 If an action is brought more than four years from the date of
the tax sale, it is barred by Utah Code section 78B-2-206.
¶ 7 On May 25, 2000, Uintah County seized the Property for
unpaid taxes and sold it to Quality Remediation Services (QRS) at a
tax sale for $6,000.00. The district court found that ―[n]o notice was
ever given to the Jordans,‖ who are owners of record, ―of the [tax]
assessment of 1995, the failure to pay the taxes, or the tax sale.‖ The
tax title conveyed by the county to QRS contains no reservations or
exceptions, failing to recognize the Jordans‘ severed mineral interest.
On December 13, 2000, QRS conveyed the Property to the Jensens by
a warranty deed for $5,500.00. As with the tax title conveyed to QRS,
the deed from QRS to the Jensens contains no reservation or
exceptions. In a 2001 Real Property Transfer Survey Standard Land
Questionnaire, the Jensens noted that the purchase from QRS did not
include the severed mineral interest.
¶ 8 In early 2003, the Jordans purportedly leased the mineral
interest rights in the Property to Landco Energy, Inc. (Landco). In
May 2011, the Jordans leased the Property‘s mineral rights to
Stonegate Resources, LLC (Stonegate). Three months later, on
August 1, 2011, Stonegate assigned its lease to Axia, reserving an
overriding royalty interest. Sometime thereafter, Stonegate conveyed
a portion of its royalty interest to Wasatch Oil & Gas, LLC (Wasatch).
¶ 9 On November 7, 2011, Axia entered a Surface Use
Agreement and Grant of Easement (Surface Use Agreement) with
the Jensens. The following year, Axia secured two title opinions from
two different attorneys to ensure that the Jordans owned the leased
mineral interest. Both attorneys raised concerns ―as to whether the
mineral estate . . . passed under the Tax Deed,‖ thereby making
_____________________________________________________________
4 UTAH CODE § 59-2-1346(1).
5 Id. § 59-2-1351(2)(a).
6 Id. § 78B-2-206.

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Opinion of the Court

ownership uncertain. After Axia received these title opinions casting
doubt on the Jordans‘ ownership, on March 29, 2013, the Jordans‘
counsel sent a letter to the Jensens asking them to sign a mineral
rights quitclaim deed and explaining that if the Jensens were
unwilling to sign the deed, the Jordans would be compelled to file a
quiet title action. In response, the Jensens claimed ownership over
the mineral estate for the first time.
¶ 10 The Jordans filed a complaint to quiet title on July 5, 2013.
Among other things, the complaint alleges that no notice was given
to the Jordans or their predecessors of the 1995 taxes, subsequent
delinquency, or the May 2000 tax sale as required by due process.
The Jensens filed their answer and counterclaim on August 9, 2013,
seeking a declaratory judgment to quiet title to the mineral interest
and alleging that the Jordans‘ action was barred by Utah Code
section 78B-2-206. Eventually, the Jensens amended their
counterclaim, adding a third-party complaint against Axia, which
had leased the oil, gas, and mineral rights from the Jordans. For
purposes of this appeal, we refer to the Jordans and Axia collectively
as the Appellees.
¶ 11 After concluding discovery, the parties filed motions for
summary judgment. The district court granted the Appellees‘
motions for summary judgment,7 concluding that it could not apply
section 206 because of Uintah County‘s due process violation and
that the failure to provide notice to the Jordans prevented their
property interest—the mineral reserve—from passing at the tax sale.
The Jensens appealed the district court‘s judgment, and we retained
jurisdiction to decide the issue.
Standard of Review
¶ 12 We address one issue on appeal: whether the district court
correctly determined that the failure to provide constitutionally
adequate notice to the Jordans of the May 2000 tax sale renders Utah
Code section 78B-2-2068 inapplicable, thereby allowing the Appellees

_____________________________________________________________
7 Both Axia and the Jordans filed motions for summary judgment.
8 Below and on appeal the Jensens invoke both Utah Code
sections 78B-2-205 and 206 but, ―for ease of analysis,‖ they focus on
section 206 because both statutes ―are nearly identical.‖ Though the
Jensens claim that section 205 is nearly identical, whether both
statutes would yield the same outcome in a due process analysis was
not something the parties briefed or analyzed. We therefore decline
(Continued)
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Opinion of the Court
to have the 2000 tax title declared void to the extent it purports to
transfer the Jordans‘ mineral estate.9 This issue requires us to
interpret the Fourteenth Amendment to the United States
Constitution and Utah Code section 78B-2-206. The correct
interpretation of those authorities is a legal issue we review for
correctness.10 Jurisdiction over this issue is proper pursuant to Utah
Code section 78A-3-102(3)(j).
¶ 13 We note that the parties preserved four other issues for
appeal that we do not reach. The first is a challenge to the Jensens‘
first notice of appeal as premature. We decline to reach this issue as
our jurisdiction over this appeal is no longer in dispute. 11 The

to consider section 205 in this appeal because it was inadequately
briefed. State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (noting that an
issue is inadequately briefed when ―the overall analysis of the issue
is so lacking as to shift the burden of research and argument to the
reviewing court‖). We accordingly restrict our analysis to section 206
because all of the parties‘ arguments are focused on this section.
9 We note that the Jensens contend that the Appellees should
have included Uintah County in this suit because they complain of
an unconstitutional taking of their mineral interest at the May 2000
tax sale. The Jensens cite no authority that would require the
Appellees to include Uintah County in this suit, and we see no
reason for them to have done so. The Appellees raise a due process
argument not to seek damages or compensation from the county, but
to render section 206 inapplicable in a manner that will allow them
to pursue their quiet title action against the Jensens. They do not
need to include the county to maintain this suit.
10 Riggs v. Georgia-Pacific LLC, 2015 UT 17, ¶ 7, 345 P.3d 1219
(noting that the correct interpretation of statutes and the Utah
Constitution is a question of law reviewed for correctness); Pohl, Inc.
of Am. v. Webelhuth, 2008 UT 89, ¶ 8, 201 P.3d 944 (noting that
determining the due process requirements of ―the Fourteenth
Amendment of the United States Constitution is a question of law,
which we review for correctness‖).
11 When the Jensens filed their first notice of appeal on March 3,
2015 in this case, the district court had not yet ruled on Axia‘s post-
judgment motion for attorney fees filed fourteen days after it granted
the Jordans‘ motion for summary judgment on February 19, 2015.
Axia filed a motion with the court of appeals to dismiss the Jensens‘
appeal as premature. On June 12, 2015, this court deferred the
motion ―until plenary presentation on the merits.‖ We also
(Continued)
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remaining issues raised by the parties are left unaddressed in this
opinion because the due process issue decisively settles the dispute.
The first of these issues is whether the district court correctly
determined that Uintah County lacked the authority under Utah
Code sections 59-2-101, et seq., to assess the severed mineral interest.
We do not address this issue because whether or not Uintah County
was required to assess or had the authority to assess the severed
mineral interest does nothing to alter the fact that they conducted the
tax sale in violation of due process, thereby preventing the Jordans‘
severed mineral interest from passing at the tax sale.
¶ 14 The second issue—closely related to the first—is whether
the district court erred in concluding that Uintah County did not
actually assess the mineral interest because its assessment occurred
after that property interest was severed from the surface estate. We
decline to reach this issue for the same reason we declined to reach
the previous issue: whether or not Uintah County actually assessed
the mineral interest post-severance does not change the fact that the
county conducted the tax sale in violation of due process, thereby
preventing the mineral interest from passing at the tax sale.
¶ 15 The third issue appealed by the parties—unrelated to the
first two—focused on whether the term ―ore‖ in Utah‘s wrongful

―request[ed] that the parties separately address the jurisdictional
issue in their briefs on the merits.‖
Roughly three months later, the district court denied Axia‘s
attorney fees motion. The district court‘s attorney fees order states
that it ―is the final ruling and order in this case to the extent [the
summary judgment order] was rendered non-final.‖ The Jensens
timely filed a second notice of appeal on July 28, 2015. They also filed
a motion to consolidate their first and second appeals, and we
granted that motion on August 20, 2015 because the two appeals
―involve similar issues and share the same parties.‖
Even though we asked the parties to address ―the jurisdictional
issue in their briefs on the merits,‖ we do not consider the substance
of those arguments on appeal. The district court‘s denial of Axia‘s
attorney fees order encompassed the same issues as its summary
judgment order. Thus the second appeal, consolidated with the first
appeal, renders any jurisdictional controversy surrounding the
prematurity of appeal null. In short, the jurisdictional issue
presented in this case is simply no longer a live controversy. Thus,
we have jurisdiction over this case pursuant to Utah Code section
78A-3-102(3).

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Opinion of the Court
removal of ores statute, Utah Code section 40-1-12, encompasses ―oil
and gas‖ for purposes of treble damages. Because we ultimately
conclude that the May 2000 tax sale did not convey the severed
mineral interest, this issue is moot because it now amounts to an
attempt by the Jensens to claim treble damages for oil and gas
deposits that they never owned.
Analysis
¶ 16 The sole issue we address on appeal is whether Utah Code
section 78B-2-206 can apply to bar the Appellees‘ challenge to the
validity of the Jensens‘ tax title even though Uintah County failed to
provide the Jordans with notice of the tax sale as required by the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution. To avoid unnecessary confusion, we clarify at
the outset that the issue is not whether Uintah County violated the
Jordans‘ due process rights in failing to provide them with any
notice of the May 2000 tax sale. The Jensens concede that the county
failed to provide the Jordans with constitutionally adequate notice of
the tax sale, and the record supports this concession. 12 Instead, the
issue on appeal is whether we should nevertheless apply section 206
to bar the Appellees‘ challenge to the validity of the tax title despite
the fact that title was conveyed without due process of law.
¶ 17 The district court concluded that section 206 ―does not apply
to bar the [Appellees‘] challenge to the tax sale,‖ because ―[t]he sale,
if intended to convey the severed mineral interest, was without due
process of law, and resulted in an unconstitutional taking.‖ The
Jensens argue that the district court erred in this conclusion because
our precedent establishes that Uintah County‘s failure to provide
constitutionally adequate notice did not render section 206
inapplicable, but merely made the tax title voidable during section
206‘s limitations period. In response, the Appellees argue that
section 206 is not applicable because it was triggered by Uintah
County‘s due process violation, and that therefore the tax title is void
to the extent that it purports to convey the severed mineral interest.
¶ 18 As discussed below, we agree with the Appellees. Though
in the past we have stated that section 206 can apply even where a
due process violation is alleged, this is inconsistent with subsequent
_____________________________________________________________
12 The undisputed facts show that the Jordans recorded a
reserved mineral interest on the deed to the property. And even
though the Jordans were interested parties of record, Uintah County
did not attempt to contact the Jordans about the May 2000 tax sale.

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due process jurisprudence, which stands for the proposition that
when state action conducted without due process of law triggers a
limitations period, the statute cannot run against the aggrieved
party. Because section 206 was triggered by Uintah County‘s tax sale,
which was conducted in violation of the Jordans‘ due process rights,
we cannot apply it. And because in Utah a failure to provide notice
of a tax sale to an interested party also prevents a taxing authority
from obtaining jurisdiction over the interested party‘s property, we
conclude that the county failed to obtain jurisdiction over the
Jordans‘ mineral interest, thereby rendering the tax title void to the
extent it purported to convey that property interest. We now further
discuss each issue in turn.
I. Our Prior Caselaw Held that Section 206 Bars Challenge to Tax
Title Even Where the Tax Sale Violated Due Process
¶ 19 Section 206 is ―a special statute of limitations applicable to
tax titles‖13 that prevents a party from seeking to quiet tax title four
years after a tax sale. The statute provides, in relevant part, that
[a]n action or defense to recover, take possession of,
quiet title to, or determine the ownership of real
property may not be commenced against the holder of
a tax title after the expiration of four years from the
date of the sale, conveyance, or transfer of the tax title
to any county, or directly to any other purchaser at any
public or private tax sale.14
The purpose of this statute is to bring ―increased stability to tax
titles‖ by preventing untimely challenge to such instruments,
―thereby augment[ing] the revenues of state and local
governments.‖15 In this case, it is undisputed that the Jensens are
holders of tax title to the property at issue and that more than four
years have elapsed since the May 2000 tax sale.16 So if section 206
_____________________________________________________________
13 Frederiksen v. LaFleur, 632 P.2d 827, 828 (Utah 1981).
14 UTAH CODE § 78B-2-206.
15 Frederiksen, 632 P.2d at 828.
16Section 206 provides an exception that potentially applies to the
Jordans: ―This section may not bar any action or defense by the
owner of the legal title to the property [in this case the Jordans]
which he or his predecessor actually occupied or possessed within
four years from the commencement of an action or defense.‖ UTAH
CODE § 78B-2-206. In dicta, the district court found that the Jordans
(Continued)
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Opinion of the Court
applies, it will bar the Appellees‘ challenge to the validity of the tax
title. The Appellees, as noted above, argue that applying section 206
in this case will violate due process.
¶ 20 Due process prevents the state from extinguishing a citizen‘s
property rights without notice and an opportunity to be heard.17
Notice ―is a minimum constitutional precondition to a proceeding
which will adversely affect the liberty or property interests of any
party.‖18 Consequently, notice of a tax sale must be given to satisfy
due process.19 Constitutionally adequate notice 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.‖20 When an interested party‘s ―name and

as ―owners of the legal title to the unproductive mineral estate‖
satisfied this exception by ―exercis[ing] as much possession or
control of the mineral estate as possible, by periodically leasing the
minerals over the many years following the tax sale.‖ Because the
Jordans did not argue on appeal that they could satisfy this
exception, we do not consider the merits of such an argument.
17 U.S. CONST. amend. XIV, § 1; UTAH CONST., art. I, § 7.
18 Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983); see
also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950) (―[T]here can be no doubt that at a minimum [the Due Process
Clause] require[s] that deprivation of life, liberty or property by
adjudication be preceded by notice and opportunity for hearing[.]‖);
Worrall v. Ogden City Fire Dep’t, 616 P.2d 598, 601 (Utah 1980)
(―[E]very significant deprivation, whether permanent or temporary,
of an interest, which is qualified as ‗property‘ under the due process
clause must be preceded by notice and opportunity for hearing
appropriate to the nature of [the] case. . . .‖).
19 Jones v. Flowers, 547 U.S. 220, 223 (2006) (―Before a State may
take property and sell it for unpaid taxes, the Due Process Clause of
the Fourteenth Amendment requires the government to provide the
owner ‗notice and opportunity for hearing appropriate to the nature
of the case.‘‖ (citation omitted)).
20 Mullane, 339 U.S. at 314; see also id. at 315 (―The means
employed [to provide notice] must be such as one desirous of
actually informing the absentee might reasonably adopt to
accomplish it.‖).

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address are reasonably ascertainable,‖ the state must provide notice
by ―means as certain to ensure actual notice.‖21
¶ 21 Here, the Jensens concede that Uintah County failed to
provide the Jordans with constitutionally adequate notice of the tax
sale.22 But they argue that the county‘s failure to provide notice
merely rendered the tax title voidable within section 206‘s four-year
limitations period. To support this argument, the Jensens rely on
Hansen v. Morris.23 In that case, we rejected an argument that a
failure to provide statutorily required notice would prevent the
predecessor to section 206 from applying.24 We also rejected a due
process challenge to the application of section 206, concluding that
the ―defendants‘ assertion that such statute deprives them of
property without due process of law[] cannot be sustained under the
authorities applicable to limitations statutes generally.‖25
¶ 22 In rejecting these arguments, we noted that the purpose of
section 206 was to validate tax titles.26 With this purpose in mind, we
ultimately held that section 206 applies to tax deeds ―valid on their
face . . . and executed by the same authority that could have passed
good title if each and every statutory step . . . had been followed,
without the aid of a limitations statute.‖27 Accordingly, as the
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21 Mennonite Bd. of Missions, 462 U.S. at 800 (emphasis added).
22 Utah Code section 59-2-1351(2)(a) requires the county to
provide ―[n]otice of the tax sale . . . [to] all other interests of record . .
. at their last-known address.‖ The Jordans were owners of record,
having reserved ownership of the property‘s mineral estate. Yet it is
undisputed that the county did not attempt to send the Jordans any
notice of the tax sale.
23 283 P.2d 884 (Utah 1955).
24 Id. at 886 (―In holding [the predecessor to section 206] valid, we
can see no merit in any argument to the effect that if any of the
statutory steps necessary to perfect a tax title have not been taken,
such as failure to give notice of sale, . . . [then] title remains in the
record owner, hence no title passes, hence any claim by the county
and/or its grantee by tax deed is invalid, hence the statute of
limitations does not apply.‖ (emphasis added)).
25 Id. at 887.
26 Id. at 885.
27 Id. at 887.

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Opinion of the Court
Jensens correctly argue, this court stated in Hansen that a failure to
provide notice or a due process violation does not prevent section
206 from applying to ―validate tax titles.‖28 The Jensens argue that
this case settles the issue before us. Yet, because of subsequent
Supreme Court caselaw interpreting the Due Process Clause, Hansen
is no longer good law on this point.
II. Subsequent Due Process Jurisprudence Makes Clear that a
Limitations Period—Like Section 206—Cannot Apply When It Is
Triggered by State Action
¶ 23 The Appellees argue that Hansen v. Morris29 is inconsistent
with subsequent United States Supreme Court decisions regarding
the requirements of due process. Specifically, they claim that, inter
alia, Mennonite Board of Missions v. Adams,30 Schroeder v. City of New
York,31 and Tulsa Professional Collection Services, Inc. v. Pope,32
involved limitations periods that did not apply because the state
failed to provide constitutionally required notice. The Jensens seek to
distinguish each of these cases, arguing that none of them dealt with
whether a generally applicable statute of limitations can bar
challenge to an unconstitutional taking. We agree with the
Appellees. These Supreme Court cases stand for the proposition that
a statute providing a limitations period will not apply when it is
triggered by constitutionally defective state action.
A. Mennonite Board of Missions v. Adams
¶ 24 In Mennonite, a county tax sale triggered a two-year
redemption period.33 A mortgagee did not receive notice of the tax
sale or of the conveyance of the property at the end of the two-year
statutory redemption period.34 The Court declined to decide whether
the mortgagee was constitutionally entitled to notice at the end of
the redemption period ―[b]ecause [it] conclude[d] that the failure to
give adequate notice of the tax sale proceeding deprived [the

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28 Id. at 885.
29 283 P.2d 884 (Utah 1955).
30 462 U.S. 791 (1983).
31 371 U.S. 208 (1962).
32 485 U.S. 478 (1988).
33 462 U.S. at 793.
34 Id. at 794.

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mortgagee] of due process of law.‖35 In other words, the Court
would not consider whether a redemption period could still apply
with constitutionally sufficient notice because of the prior due
process violation at the tax sale that triggered the redemption period.
¶ 25 The Jensens seek to distinguish this case from the facts now
before us, arguing that Mennonite ―addresses the quality of notice
required to satisfy due process in the first instance, not whether a
statute of limitations can bar a due process claim once notice fails to
comply with [the requirements of due process].‖ This distinction
does not adequately address the Court‘s opinion in Mennonite. As
noted above, the Court refused to consider whether the mortgagee
was entitled to notice at the end of a redemption period because ―the
failure to give adequate notice of the tax sale proceeding [which
triggered the redemption period] deprived [the mortgagee] of due
process of law.‖36 If the Jensens‘ distinction is correct, surely the
Court would have considered whether the mortgagee, with adequate
notice, would have been barred from challenging the tax sale at the
expiration of the redemption period. The Court‘s failure to do so
strongly suggests that application of a limitations period is
inappropriate when that period is triggered by a due process
violation. The Court‘s refusal to apply a limitations period that is
triggered by a due process violation can similarly be seen in
Schroeder.
B. Schroeder v. City of New York
¶ 26 In Schroeder, a limitation statute in the New York City Water
Supply Act prevented a party from pursuing damages more than
three years after the city diverted water.37 Yet, because the city failed
to provide constitutionally adequate notice to an owner of a
diversion that occurred more than three years previous to suit, 38 the
Supreme Court remanded to allow the owner to seek damages for
the diversion.39 The three-year limitation period for seeking

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35 Id. at 800 n.6.
36 Id.
37 371 U.S. at 210. The Act required citizens affected by a
diversion to bring ―all claims for damages resulting from the city‘s
acquisition [within] three years [after the acquisition].‖ Id.
38 Id.
39 Id. at 214.

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Opinion of the Court
damages, which was triggered by the city‘s diversion of the river,
did not apply.40
¶ 27 The Jensens attempt to distinguish Schroeder from the
current case by observing that the Court never addressed whether
―the three-year deadline for seeking damages‖ was ―a generally
applicable statute of limitations.‖ The Jensens conclude that the
lesson to be drawn from Schroeder is that ―a complete failure of
meaningful notice can toll application of such a [statutory damages]
deadline.‖ We first note that the Jensens fail to make any argument
about why the distinction between a generally applicable statute of
limitations, on the one hand, and a deadline for seeking damages, on
the other, is significant. We find the distinction unconvincing.
Whether the damage limitation statute was a generally applicable
statute of limitations is inapposite. The Court concluded that the
state condemned the property owner‘s water interests without
notice. This made the limitation period inapplicable. The
unpersuasive effect of this distinction can better be seen in Tulsa.
C. Tulsa Professional Collection Services, Inc. v. Pope
¶ 28 In Tulsa, Oklahoma‘s probate laws required an executor or
executrix—not state actors but private persons—to provide notice by
publication to creditors of an estate.41 The creditors then had two
months to present their claims to the executor or executrix or their
claims would be barred by Oklahoma‘s ―nonclaim statute.‖42 The
executrix in Tulsa complied with these requirements, ―publish[ing]
notice in the Tulsa Daily Legal News for two consecutive weeks.‖43
A hospital that provided palliative care to the executrix‘s husband
did not file a claim within the two-month statutory ―nonclaim‖
period.44 On appeal before the Oklahoma Court of Appeals, the
hospital first argued that the notice was constitutionally deficient
under Mullane.45 That court and the Oklahoma Supreme Court
rejected this argument, specifically concluding, inter alia, that
―nonclaim statutes were self-executing statutes of limitations,

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40 Id.
41 485 U.S. at 481.
42 Id. at 481.
43 Id. at 482.
44 Id.
45 Id. at 483.

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because they ‗ac[t] to cut off potential claims against the decedent‘s
estate by the passage of time,‘ and accordingly do not require actual
notice.‖46
¶ 29 The Supreme Court reversed. It first noted that due process
protects a property interest ―only from a deprivation by state
action.‖47 The Court went on to note that
[p]rivate use of state-sanctioned private remedies or
procedures does not rise to the level of state action. Nor
is the State‘s involvement in the mere running of a
general statute of limitations generally sufficient to
implicate due process. But when private parties make
use of state procedures with the overt, significant
assistance of state officials, state action may be found.48
The Court then framed the issue as ―whether the State‘s involvement
with the nonclaim statute [was] substantial enough to implicate the
Due Process Clause.‖49 It found that ―[t]he probate court is
intimately involved throughout, and without that involvement the
time bar is never activated.‖50 It noted that the probate court
appoints the executrix, directs the executrix ―immediately after
appointment‖ to provide the statutorily required notice to creditors,
and requires the executrix to file copies of the notices with the
court.51
¶ 30 This pervasive involvement led the Supreme Court to
conclude that the nonclaim statute was not self-executing and that
applying the statute violated the hospital‘s due process rights.52
Accordingly, the Court‘s conclusion ―that the Oklahoma nonclaim
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46 Id. (alteration in original) (citation omitted).
47 Id. at 485.
48 Id. at 485–86 (citations omitted).
49 Id. at 486.
50 Id. at 487.
51 Id. at 481.
52Id. at 487 (―Where the legal proceedings themselves trigger the
time bar, even if those proceedings do not necessarily resolve the
claim on its merits, the time bar lacks the self-executing feature that
[Texaco, Inc. v.] Short indicated was necessary to remove any due
process problem.‖).

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Opinion of the Court
statute is not a self-executing statute of limitations ma[de] it
unnecessary to consider the appellant‘s argument that a 2-month
period is somehow unconstitutionally short.‖53 ―If [the creditor‘s]
identity was known or ‗reasonably ascertainable,‘ then termination
of [the creditor‘s] claim without actual notice violated due process.‖54
In summary, the hospital should have received actual notice before
its claim against the estate was extinguished,55 and a limitation
period could not operate to bar that claim.56
¶ 31 The relevant distinction to be drawn from Schroeder and
Tulsa, therefore, is not between a generally applicable statute of
limitations and a special damages or creditors‘ limitations period.
Instead, it is between those limitations statutes triggered by state
action and those not so triggered. In Schroeder, the three-year
limitations period for damages was triggered when the city diverted
the river. In Tulsa, the two-month nonclaim statute was triggered
when the executrix—with court involvement—published notice.
This distinction comes into sharper focus when Schroeder and Tulsa
are contrasted with Texaco, Inc. v. Short,57 wherein the Court dealt
with a generally applicable statute of limitations that was not
triggered by state action.
D. Texaco, Inc. v. Short
¶ 32 In Short, an Indiana statute provided that ―a severed mineral
interest that is not used for a period of 20 years automatically lapses
and reverts to the current surface owner of the property, unless the
mineral owner files a statement of claim in the local county
recorder‘s office.‖58 The statute also provided ―a 2-year grace period
in which owners of mineral interests that were then unused and
subject to lapse could preserve those interests by filing a claim in the
recorder‘s office.‖59 The mineral owners in Short had not used their

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53 Id. at 488.
54 Id. at 491 (emphasis added).
55 Id. at 487.
56 Id. at 491
57 454 U.S. 516 (1982).
58 Id. at 518.
59 Id. 518–19.

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mineral interests for twenty years and had failed to file a claim
within the two-year grace period.60
¶ 33 On appeal before the Supreme Court, the mineral owners
argued that the mineral lapse statute was unconstitutional because it
―takes private property without just compensation in violation of the
Fourteenth Amendment.‖61 The Court rejected this argument, noting
that a mineral interest lapsed due to the owner‘s inactivity and
abandonment of the property, not due to state action.62 ―It is the
owner‘s failure to make any use of the property—and not the action
of the State—that causes the lapse of the property right; there is no
‗taking‘ that requires compensation.‖63
III. Because Uintah County‘s Tax Sale Triggered Section 206,
Applying It Here to Deprive the Jordans of Their Mineral Interest
Would ―Exceed the Limits of . . . Constitutional Permissibility‖
¶ 34 These cases lead us to conclude that section 206 is not a
―self-executing time bar,‖ but is a limitations period that is and was
triggered by state action. Like the statutes in Mennonite Board of
Missions v. Adams,64 Schroeder v. City of New York,65 and Tulsa
Professional Collection Services, Inc. v. Pope,66 section 206 does not
begin to run until the state—in this case Uintah County—undertakes
adversarial action against a person‘s property interest. And unlike
the reversion statute in Short that ran against all mineral owners who
failed to make use of their property interests, section 206 does not
come into operation until the state sells a person‘s property at a tax
sale.67 The statute bars a challenge to ―tax title after the expiration of

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60 Id. at 521.
61 Id. at 530.
62 Id.
63 Id.
64 462 U.S. 791 (1983).
65 371 U.S. 208 (1962).
66 485 U.S. 478 (1988).
67 The Jensens argue that section 206 does not actually come into
operation until a property owner is delinquent in his or her taxes.
This argument is unpersuasive. Tax delinquency is necessary to
trigger section 206 but not sufficient. The State must still act to sell
property at a tax sale to recoup delinquent taxes. This is in stark
(Continued)
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Opinion of the Court
four years from the date of the sale.‖68 Because the statute was
triggered by the tax sale—which was conducted in violation of the
Jordans‘ due process rights—it ―lacks the self-executing feature . . .
necessary to remove any due process problem,‖69 and we cannot
apply it.
¶ 35 The Jensens resist this conclusion by providing one final
distinction between this case and prior due process jurisprudence. In
particular, they argue that no prior due process case has dealt with
whether a limitations period would apply when the property owner
had constructive notice of the tax sale. This is significant because in
this case, the Jensens argue that the recording of the tax title gave the
Jordans constructive notice of the tax sale during section 206‘s four-
year limitations period and that this ―constructive notice is sufficient
to trigger section 206‖ without violating due process.
¶ 36 The case most supportive of the Jensens‘ position in this
regard is Schroeder. In that case, the Supreme Court noted that the
New York Court of Appeals below assumed that the appearance of
the diverted river provided the property owner with constructive
notice that someone had interfered with her water rights.70 With
such notice, the court of appeals concluded, the owner should have
pursued damages within the three-year limitations period.71 The
Supreme Court rejected this argument,72 concluding that
―knowledge of a change in the appearance of the river is far short of
notice that the city had diverted it and that the appellant had a right
to be heard on a claim for compensation for damages resulting from
the diversion.‖73 From this dicta, it could be inferred that where
individuals have constructive notice within a limitations period
sufficient to inform them of their right to pursue a cause of action
against the state for an unconstitutional taking, applying that
limitations period to bar suit would not violate due process.

contrast to Short where the indolence of the property owner was
both necessary and sufficient.
68 UTAH CODE § 78B-2-206.
69 Tulsa Prof’l Collection Servs., Inc., 485 U.S. at 487.
70 See 371 U.S. at 213–14.
71 See id. at 214.
72 Id.
73 Id. at 214.

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¶ 37 Though the Supreme Court has not directly addressed this
issue of constructive notice, it is our view that constructive notice
after an unconstitutional taking is insufficient to permit application
of a limitations period when the ―name and address‖ of a party
adversely affected by the state proceeding ―are reasonably
ascertainable.‖74 The Supreme Court has stated repeatedly that
―[n]otice by mail or other means as certain to ensure actual notice is
a minimum constitutional precondition to a proceeding which will
adversely affect the liberty or property interests of any party . . . if its
name and address are reasonably ascertainable.‖75 Record notice
following a tax sale falls far short of this standard.
¶ 38 In this case, the Jordans were owners of record. When they
conveyed the surface estate to Mr. Anderson, they reserved a
mineral interest in the estate and noted this interest on the deed.
When Uintah County subjected Mr. Anderson‘s property to the May
2000 tax sale for unpaid taxes, it could have easily ascertained the
Jordans‘ mineral interest in the Property. So the Jordans were parties
of record whose names and addresses were reasonably ascertainable
and known to the county. Even if they received constructive notice
after the tax sale when QRS recorded the tax title, this would not
excuse Uintah County‘s violation of their due process rights. Due
process requires that parties like the Jordans be given ―[n]otice by
mail or other means as certain to ensure actual notice.‖76 And
because section 206 was triggered by the county‘s unconstitutional
conduct in failing to provide the Jordans with constitutionally
adequate notice of the tax sale, it would be repugnant to due process
to apply that statute to bar the Appellees‘ challenge now. Thus,

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74 Mennonite Bd. of Missions, 462 U.S. at 800.
75 Id.; see also id. at 798 (―When the mortgagee is identified in a
mortgage that is publicly recorded, constructive notice by
publication must be supplemented by notice mailed to the
mortgagee‘s last known available address, or by personal service.
But unless the mortgagee is not reasonably identifiable, constructive
notice alone does not satisfy the mandate of Mullane.‖); Tulsa Prof’l
Collection Servs., Inc., 485 U.S. at 485 (―[B]ecause the mortgagee [in
Mennonite] could have been identified through ‗reasonably diligent
efforts,‘ the Court concluded that due process required that the
mortgagee be given actual notice.‖ (citation omitted)).
76 Mennonite Bd. of Missions, 462 U.S. at 800.

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Opinion of the Court
contrary to the Jensens‘ argument, ―constructive notice is [not]
sufficient to trigger section 206.‖
¶ 39 In sum, the Jensens correctly observe that in Hansen v.
Morris77 we concluded that a failure to provide statutory notice
would not prevent the predecessor to section 206 from operating to
bar a challenge to a tax title.78 They also correctly observe that in
Hansen—which was decided five years after Mullane—we saw no
merit in a due process challenge to the application of section 206.79
But much Supreme Court caselaw has emerged since 1955. Schroeder,
Tulsa, and Short all suggest that when state action occuring without
due process of law triggers a statute that limits a party‘s ability to
obtain relief, a due process violation prevents that statute from
running against the aggrieved party.
¶ 40 In Frederiksen v. LaFleur,80 we noted in dicta that ―[w]e
expressly reserve opinion on whether [section 206] could protect a
tax title acquired by means repugnant to fundamental fairness or
whether such an application of the statute would exceed the limits of
. . . constitutional permissibility.‖81 In this case, we have established
the outer limits beyond which section 206 cannot constitutionally
apply. To the extent Hansen states that section 206 can apply where a
state or county fails to provide constitutionally adequate notice to an
interested party of a tax sale, we overrule it. The state or a county
must provide constitutionally adequate notice in order to have
section 206 run, and constructive notice is inadequate.
¶ 41 Because Uintah County failed to notify the Jordans of the tax
sale, and because this constitutional defect renders section 206
inapplicable, the Appellees can challenge the validity of the tax title.
And since in Utah a county lacks jurisdiction to sell property when it
fails to provide interested parties with notice of a tax sale,82 the

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77 283 P.2d 884 (Utah 1955).
78 Id. at 886.
79 Id. at 887.
80 632 P.2d 827 (Utah 1981).
81 Id. at 831 n.14.
82Home Owners’ Loan Corp. v. Stevens, 97 P.2d 744, 747 (Utah 1940)
(―The failure of the county to publish the notice of said sale
prescribed by [statute] rendered such sale void. It being void, the
subsequent acts of the county officials with respect to the realty
(Continued)
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district court correctly concluded that Uintah County lacked
jurisdiction over the Jordans‘ mineral interest and therefore did not
convey that property to the Jensens. We therefore affirm.
Conclusion
¶ 42 Because section 206‘s limitations period was triggered by
Uintah County‘s tax sale—a tax sale it conducted in violation of the
Jordans‘ due process rights—it would violate due process to apply
the statute and bar the Appellees‘ suit. And because the statute does
not apply, permitting the Appellees to challenge the validity of the
Jensens‘ tax title, we conclude that the county‘s failure to provide
notice prevented the Jordans‘ mineral interest from passing at the tax
sale. Accordingly, the Jensens‘ tax title is void to the extent that it
purports to convey the Jordans‘ mineral interest. We affirm.

stand on the same footing as though no May sale were had or
attempted.‖ (citations omitted)); Tintic Undine Mining Co. v.
Ercanbrack, 74 P.2d 1184, 1189 (Utah 1938) (―Any advertisement for
delinquency, and on the sale of the property, in the name of a
different owner, or of property of a different description than that
assessed, has no foundation and is therefore void.‖); see also UTAH
CODE § 59-2-1351(2)(a) (―Notice of the tax sale shall be provided . . .
[to] all other interests of record . . . at their last-known address.‖
(emphasis added)).

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