October 13 2009
DA 09-0033
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 330
BRADLEY J. CERTAIN,
Plaintiff and Appellee,
v.
TERRY LYNN TONN, aka TERRY LYNN CHAVEZ
and GEORGE CHAVEZ,
Defendants and Appellants.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause No. DV 07-183
Honorable Gary L. Day, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Peter T. Stanley; Attorney at Law; Billings, Montana
For Appellee:
James T. Carr; Carr Law Firm, P.C.; Miles City, Montana
Submitted on Briefs: August 5, 2009
Decided: October 13, 2009
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 George Chavez (Chavez) and Terry Lynn Chavez, aka Terry Lynn Tonn, (Terry)
appeal the judgment of the Sixteenth Judicial District Court, Custer County, granting
summary judgment to Bradley J. Certain (Certain).
¶2 Chavez and Terry present two issues on appeal. Because we reverse the District
Court’s determination that notice was not required to be given to Chavez, which is
dispositive, we will not address the second issue. Thus, we restate the issue as follows:
¶3 Did the District Court err by concluding that an occupant of the property was not
entitled to notice prior to the issuance of a tax deed?
PROCEDURAL AND FACTUAL BACKGROUND
¶4 Terry and her brother, Theodore Dana Tonn (Theodore), each took an undivided
one-half interest as tenants in common for property located on Lots 18, 19, and 20 in
Block 6 of the Leighton and Garlock’s Addition to the City of Miles City, Montana (the
Property). Both Terry and Theodore received their interests in the Property by deed of
distribution in 1985 from the personal representative of the Estate of Theodore A. Tonn.
¶5 After Terry and Theodore received the Property, various transactions occurred, but
as pertinent to this appeal, the taxes on the Property went unpaid for several years and
Certain paid the delinquent taxes on August 8, 2007, totaling $23,104.73. The Custer
County Treasurer then issued and assigned tax sale certificates to Certain. On August 23,
2007, Certain mailed notice of the pending issuance of a tax deed to all interested parties,
2
including Terry. 1 However, Certain did not send notice to Chavez, a current occupant of
the Property throughout this period.2 A tax deed was issued to Certain on October 24,
2007.
¶6 On November 1, 2007, Certain filed an action to quiet title to the Property, naming
Terry and other parties as defendants. Later, Certain learned that Chavez also occupied
the Property, and on March 28, 2008, Certain filed a motion to amend the complaint to
add Chavez, which the District Court granted.
¶7 Certain, claiming no notice of a tax deed was required for Chavez, moved for
summary judgment. The District Court granted Certain’s motion, concluding that notice
to Chavez was not required, and that this Court’s analysis to the contrary in Gentry Mont.
Enters., Inc. v. McDonald, 2004 MT 322, 324 Mont. 67, 101 P.3d 767 was in error.
¶8 Terry and Chavez appeal the District Court’s order granting summary judgment to
Certain.
STANDARD OF REVIEW
¶9 This Court reviews appeals from district court summary judgment rulings de novo.
Erler v. Creative Fin. & Invs., L.L.C., 2009 MT 36, ¶ 16, 349 Mont. 207, 203 P.3d 744
(citing May v. ERA Landmark Real Estate of Bozeman, 2009 MT 299, ¶ 17, 302 Mont.
326, 15 P.3d 1179). “We review a district court’s summary judgment to determine
1
The notice was provided pursuant to the 2005 version of § 15-18-212, MCA, which was in
effect at that time. No substantive revisions were made to this provision by the 2007 Legislature.
2
Section 15-18-111(3), MCA, defines an “interested party” as “a mortgagee, vendor of a
contract for deed or the vendor’s successor in interest, lienholder, or other person who has a
properly recorded interest in the property.” Although an occupant, Chavez does not fall within
any of these categories and is not an interested party.
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whether it was correctly decided pursuant to Rule 56, M. R. Civ. P., which provides that
summary judgment is appropriate only when there is no genuine issue of material fact,
and the moving party is entitled to judgment as a matter of law.” Erler, ¶ 16 (quoting
May, ¶ 17). When reviewing a district court’s legal conclusions, we review them for
correctness. Erler, ¶ 16 (citing Palmer v. Bahm, 2006 MT 29, ¶ 11, 331 Mont. 105, 128
P.3d 1031).
DISCUSSION
¶10 Did the District Court err by concluding that an occupant of the property was
not entitled to notice prior to the issuance of a tax deed?
¶11 Chavez argues the District Court erred by concluding no notice was required to be
given to him as a current occupant of the Property prior to the Custer County Treasurer’s
issuance of a tax deed. Chavez bases his argument on our holding in Gentry that a tax
deed is void unless the current occupant receives such notice.
¶12 The tax deed notice statute at issue, § 15-18-212, MCA (2005), provides:
(1) Not more than 60 days prior to and not more than 60 days following
the expiration of the redemption period provided in 15-18-111, a
notice must be given as follows:
(a) for each property for which there has been issued to the
county a tax lien sale certificate or for which the county is
otherwise listed as the purchaser or assignee, the county clerk
shall notify all persons considered interested parties in the
property and the current occupant of the property, if any, that
a tax deed may be issued to the county unless the property tax
lien is redeemed prior to the expiration date of the redemption
period; or
(b) for each property for which there has been issued a tax lien
sale certificate to a purchaser other than the county or for
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which an assignment has been made, the purchaser or
assignee, as appropriate, shall notify all persons considered
interested parties in the property, if any, that a tax deed will
be issued to the purchaser or assignee unless the property tax
lien is redeemed prior to the expiration date of the redemption
period.
(Emphasis added.) Subsection 212(1)(a), which applies when the “county” receives the
tax deed, requires notice be given to both an “interested person” and the “current
occupant.” Subsection 212(1)(b), which applies when a purchaser “other than the
county” receives a tax deed, requires notice be given only to “interested parties”—not a
current occupant.
¶13 The question is whether notice was required to be given to Chavez. Were the
above-quoted subsections the only applicable statutory language, the answer would be
simple: no notice is required to be given to a “current occupant” when the purchaser was
someone “other than the county,” as provided in subsection 212(1)(b). However, an
internal conflict in the statute is created by subsection 212(4), which requires additional
analysis. That provision states:
The notice required under subsections (1) [inclusive of 212(1)(a) and
212(1)(b)] . . . must be made by certified mail, return receipt requested, to
each interested party and the current occupant, if any, of the property. The
address to which the notice must be sent is, for each interested party, the
address disclosed by the records in the office of the county clerk and, for
the occupant, the street address or other known address of the subject
property.
Section 15-18-212(4), MCA (emphasis added). In contrast to 212(1)(b), 212(4) provides
that notice must be given to both “each interested party” and “current occupant.”
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¶14 We interpreted this statute in Gentry. Gentry Montana Enterprises, Inc. (Gentry),
purchased improvements made on United States Forest Service land. Gentry, ¶ 6. In
1998, Flathead County assessed taxes against the improvements, but the taxes went
delinquent. Gentry, ¶ 7. When no one purchased the tax lien, Flathead County purchased
the property. Gentry, ¶ 7. Flathead County assigned its interest in the property to
McDonald in April of 1998. Gentry, ¶ 7. In May of 1998, McDonald provided notice of
the pending issuance of a tax deed to interested parties, but he did not provide notice to
Gentry, the current occupant. Gentry, ¶ 8. In August of 1998, Flathead County issued a
tax deed to McDonald. Gentry, ¶ 9. McDonald sought to quiet title, and, on August 6,
1999, the district court entered a decree granting McDonald fee simple title to the
improvements. Gentry, ¶ 10. Gentry sought to void the decree because McDonald failed
to provide notice as required by § 15-18-212, MCA. Gentry, ¶ 10.
¶15 McDonald proceeded by giving notice pursuant to 212(1)(b). While analyzing
212(1)(b), we read 212(4) in conjunction with 212(1)(b), stating:
[I]nterestingly, [212(1)(b)] does not require notice to be given to current
occupants, although that language appears in subsection [212](1)(a).
However, regardless of this discrepancy, we note here that [212(4)] states
both clearly and explicitly that the notice required under subsection
[212](1) - inclusive of subsections (a) and (b) - must be made to each
interested party and the current occupant. Further, we have held that
“[e]very essential and material step required by the tax deed statues must be
strictly followed,” given that an owner risks losing his or her property for a
“mere pittance,” should these statutes not be followed strictly. Moran v.
Robbin (1993), 261 Mont. 478, 482-83, 863 P.2d 395, 397-98. To that end,
we conclude that McDonald was mandated by statute to give Gentry notice.
Gentry, ¶ 25 (emphasis in original).
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¶16 Here, the District Court concluded that our analysis in Gentry was incorrect,
reasoning that subsection 212(4) prescribes only the form of the required notice, whereas
subsections 212(1)(a) and 212(1)(b) designate and control to whom notice must be
provided. Although we believe the District Court provided an alternatively viable
interpretation of the statute, we stand behind the interpretation we reached in Gentry.
¶17 Statutes sometimes fall short of providing clear and consistent direction, and
“[w]here there are several provisions or particulars, such construction is, if possible, to be
adopted as will give effect to all.” Section 1-2-101, MCA. Here, subsection 212(4)
undoubtedly prescribes the form of the required notice, but it also provides additional
language addressing the persons to whom notice must be provided. The Legislature
could have crafted subsection 212(4) to state that “[t]he notice required under subsections
(1) and (2) must be made by certified mail, return receipt requested” and ended the
sentence there. However, it continued, and by adding “to each interested party and the
current occupant” at the end of the sentence, the Legislature effectively inserted into
subsection 212(1)(b) a requirement that notice be given to an occupant of the property.
In Gentry, we harmonized these provisions by giving effect to this additional language in
subsection 212(1)(b), which required notice to be given to the occupant. Gentry, ¶ 25.
¶18 Since Gentry was decided in 2004, the Legislature has not revised this statute in
response to this Court’s interpretation. The Legislature is presumed to know this Court’s
interpretations of its statutes. Sampson v. Natl. Farmers Union Prop. and Cas. Co., 2006
MT 241, ¶ 20, 333 Mont. 541, 144 P.3d 797 (citing Baitis v. Dept. of Revenue of St., 2004
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MT 17, ¶ 24, 319 Mont. 292, 83 P.3d 1278). If the Legislature had disagreed with this
Court’s interpretation, the Legislature could have revised the statute. See St. v. Kirkbride,
2008 MT 178, ¶ 21, 343 Mont. 409, 185 P.3d 340. We presume the Legislature approved
of our decision in Gentry because it did not amend the statute in response to our
interpretation. Kirkbride, ¶ 21; Sampson, ¶ 20.
¶19 As we have explained about the cardinal doctrine of stare decisis:
[P]rinciples of law should be positively and definitely settled in order that
courts[,] lawyers, and, above all, citizens may have some assurance that
important legal principles involving their highest interests shall not be
changed from day to day, with the resultant disorders that of necessity must
accrue from such changes.
St. ex rel. Sparling v. Hitsman, 99 Mont. 521, 525, 44 P.2d 747, 749 (1935). Although
stare decisis is not a rigid doctrine that forecloses the reexamination of cases when
necessary, “weighty considerations underlie the principle that courts should not lightly
overrule past decisions.” Allstate Ins. Co. v. Wagner-Ellsworth, 2008 MT 240, ¶ 39, 344
Mont. 445, 188 P.3d 1042 (quoting Moragne v. Sts. Marine Lines, Inc., 398 U.S. 375,
403, 90 S. Ct. 1772, 1789 (1970)). Faced with viable alternatives, stare decisis provides
the “preferred course.” Kirkbride, ¶ 13 (quoting Payne v. Tenn., 501 U.S. 808, 827, 111
S. Ct. 2597, 2609 (1991)).
¶20 Finally, as we noted in Gentry, Montana follows the policy that “[e]very essential
and material step” within “the tax deed statutes must be strictly followed.” Gentry, ¶ 25
(quoting Moran, 261 Mont. at 482-83, 863 P.2d at 397-98). If a mistake is made, then
the tax deed is void. Gentry, ¶ 34 (citing Moran, 261 Mont. at 483, 863 P.2d at 398);
8
Spain-Morrow Ranch, Inc. v. West, 264 Mont. 441, 447, 872 P.2d 330, 334 (1994);
Sanders v. Yellowstone Co., 276 Mont. 116, 121-22, 915 P.2d 196, 199 (1996) (citing
Moran, 261 Mont. at 483, 863 P.2d at 400).
¶21 Certain argues that Gentry is distinguishable because Gentry had a right of
redemption, while Chavez does not. However, § 15-18-111(1), MCA, provides that
“redemption of a property tax lien acquired at a tax lien sale or otherwise may be made
by the owner, the holder of an unrecorded or improperly recorded interest, the occupant
of the property, or any interested party . . . .” (Emphasis added.) Thus, as an occupant of
the property, Chavez had the same right of redemption as Gentry.
¶22 We hold that notice of issuance of a tax deed is required for both an “interested
party” and a “current occupant” under subsection 212(4). Failure to provide such notice
to Chavez renders the tax deed issued by Custer County void. We reverse and remand
this matter to the District Court for further proceedings consistent herewith.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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