Berkeley Federal Bank & Trust FSB v. Selby

1998 OK CIV APP 102, 969 P.2d 369, 69 O.B.A.J. 2806, 1998 Okla. Civ. App. LEXIS 78, 1998 WL 217866
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 5, 1998
DocketNo. 90813
StatusPublished
Cited by1 cases

This text of 1998 OK CIV APP 102 (Berkeley Federal Bank & Trust FSB v. Selby) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berkeley Federal Bank & Trust FSB v. Selby, 1998 OK CIV APP 102, 969 P.2d 369, 69 O.B.A.J. 2806, 1998 Okla. Civ. App. LEXIS 78, 1998 WL 217866 (Okla. Ct. App. 1998).

Opinion

OPINION

STUBBLEFIELD, Presiding Judge.

This is an appeal by holder of tax deed from summary judgment declaring the deed void and quieting the titles of the record owner and first mortgage holder.1 The appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 1997, ch. 15, app. 1. Based on our review of the record on appeal and applicable law, we affirm.

In October 1992, the County Treasurer of Tulsa County offered certain Tulsa real estate for sale for delinquent real property taxes. Because there were no bidders, the property was “bid off in the name of Tulsa County.” In January 1994, the County’s interest in the property was purchased by George P. Selby, in trust for Preston James Strickland. In January 1995, Selby was issued a tax deed to the property by the County Treasurer.

Berkeley Federal Bank & Trust FSB, the holder of a first mortgage to the property, for which a foreclosure had been initiated in August 1995, filed this lawsuit claiming that the tax deed was invalid. Berkeley based its [371]*371claim of invalidity upon alleged defective service/notice to the record owner of the original tax sale proceedings, and to the record owner and Berkeley, as mortgagee, of the application for issuance of tax deed. Berkeley brought the suit in its name and in the name of the record owner, 1013 Corporation (Owner), seeking to cancel the tax deed and to quiet the title of both Owner and Berkeley. In addition to deed-holder Selby, Berkeley named the County Treasurer as party defendant.2

Berkeley moved for summary judgment. It reiterated its claim of improper notice to Owner as to both the original tax sale and the application for tax deed. Although the County Treasurer claimed that proper notice was given, Berkeley’s evidentiary materials demonstrated that the County Treasurer did not have record proof of a certified mailing of notice of the tax sale to Owner. In regard to the application for deed, Berkeley claimed that notice was received at Owner’s office by someone other than “an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.... ” 12 O.S.1991 § 2004(C)(J )(e)(3). Berkeley also asserted that the notice given to it of the application for tax deed was ineffective because it was sent to the wrong location and not to its proper service agent.

Selby also moved for summary judgment. In regard to the notice of the original tax sale, he relied on the contention of the County Treasurer that proper notice was given to the property owner, notwithstanding the lack of any return receipt card. As for notice of the application for tax deed, his evidentiary materials indicated that notice had been mailed by certified mail to Owner and signed for by the person designated by its President, William Harvey, to receive mail. In her deposition, that person indicated that she signed the certified receipt for the “Notice of Application for Tax Deed” and placed it on Harvey’s desk. In his deposition testimony, Harvey stated that he had expressly authorized the person to receive and open his mail and to place the open mail on his desk. Harvey also testified that he, “in all probability,” first saw the “Notice of Application for Tax Deed” when the secretary placed it on his desk.

Selby also appended to his motion for summary judgment a copy of a certified receipt for a mailing to Berkeley of the notice of application for tax deed, sent to “515 N. Flagler, the Pavilion, 4th FL, West Palm Beach, FL 33401.” The return receipt card indicates delivery was made on October 17, 1994, and is signed with an illegible name.

In considering the motions for summary judgment, the trial court focused on one issue — -whether the statutory provision regarding issuance of tax deeds, 68 O.S.1991 § 3118, required actual service3 on the record owner or whether certified mailing was sufficient. The trial court found that the statute required an attempt at actual service on the record owner before certified mail service was allowed. Finding that Selby did not attempt such service, the trial court invalidated the tax deed. Selby appeals.

We first deal with a procedural matter. The Tulsa County Treasurer filed what it designated an amicus curiae brief. However, the brief also bears the name and is actually signed by an attorney for Selby. Rule 1.36 provides that appellate review is confined to the record actually presented to the trial court, and, unless ordered by the appellate court, no briefs are allowed on review. In that regard, no party has applied to file briefs in the appeal, and no order has been entered directing the parties to file briefs. Thus, the tendered brief is not authorized and has not been accepted for consideration on review.4

While Selby tenders five propositions of error on appeal, only three of them deal with [372]*372issues actually addressed by the lower court’s judgment. Those propositions of error may be summarized as a contention that the trial court misconstrued the requirements of 68 O.S.1991 § 3118, when read in conjunction with 12 O.S.1991 § 2004. Selby asserts that section 3118 authorizes service of the notice of application for tax deed to be initially made by certified mail. Based on our review of the pertinent statutes, we disagree.

In an instance of an appeal dealing solely with a question of law, this court has plenary, independent and nondeferential authority to examine a trial court’s legal rulings and will review by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

In pertinent part regarding notice, section 3118 provides:

(a) ... However, before any holder of a certificate of purchase issued at any tax sale of real estate shall be entitled to a deed as provided in this section, he shall cause a written notice signed by himself to be served upon the owner of the land if said owner is within the state, upon the person in possession of the said land (if the same be occupied), and upon all mortgagees of record of the said land, which notice shall recite the sale of the said lands, specifying the date of such sale and notifying such person that unless redemption is made from such sale within sixty (60) days after the date of the service of such notice, a tax deed will be demanded and will issue as provided by law.
(b) If it shall be made to appear by the return of service of such notice that the owner or any mortgagee of record of such land cannot be found in the county in which such land is situated, such holder of a certificate of purchase shall cause such notice to be mailed to the last-known address of the owner and any mortgagee of record of such land, with return receipt requested.

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1998 OK CIV APP 102, 969 P.2d 369, 69 O.B.A.J. 2806, 1998 Okla. Civ. App. LEXIS 78, 1998 WL 217866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkeley-federal-bank-trust-fsb-v-selby-oklacivapp-1998.