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Bembery v. District of Columbia

June 10, 2004

ROBERT BEMBERY, APPELLANT,
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CA-7878-00) (Hon. Stephanie Duncan-Peters, Trial Judge)

Before Steadman and Ruiz, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Belson, Senior Judge

Argued February 4, 2004

Appellant Robert Bembery, as trustee of JayTee Realty Trust, was the high bidder at the tax auction sale of certain real property located in the District of Columbia, and accordingly received from the District, rather than a deed to the property, a tax lien certificate that set forth the name of the record owner and the amount of the lien. Subsequently, the District permitted appellees Charles E. Bailey and Denise Gibson-Bailey ("the Baileys"), who had purchased the realty in question from the co-conservator of the record owner at the time of the tax auction sale, to redeem the property by paying the delinquent taxes. Bembery sued the District and the Baileys, seeking not monetary damages, but orders compelling the District to issue him a tax deed for the property and declaring void the deed that transferred title from the previous owners to the Baileys. Bembery now appeals the trial court's orders granting summary judgment against him in favor of the District and the Baileys. He argues that we should reconsider our holding in Stuart v. District of Columbia, 694 A.2d 49, 51 (D.C. 1997), that a tax certificate holder cannot successfully sue the District for specific performance on the ground that the District had permitted an untimely redemption. As to the Baileys, he argues that a disputed issue of material fact regarding allegedly destroyed documents precluded summary judgment in their favor. We affirm.

I.

The property at issue is located at 1815 Beach Drive, N.W. Due to delinquent real estate taxes owed by previous owner Marianna Beck Sewell for 1997 in the amount of $3,476.68, the District sold the property to appellant in an auction in July 1998. Bembery received a tax lien certificate, pursuant to D.C. Code § 47-1304 (1997 Repl.).*fn1 In February 1999, Bembery requested a tax deed for the property on the ground that the redemption period had expired in January 1999, six months after the tax sale, pursuant to D.C. Code §§ 47-1304, -1306 (1997 Repl.). A co-trustee of JayTee Realty Trust, Marie Dias, stated in an affidavit that she was informed by employees of the "Department of Tax and Revenue" that the notice of expiration letter had been mailed to the wrong address in December 1998, and was later told that another such letter was mailed on March 24, 1999. The District's records do not reflect either of those notices of expiration.

On April 15, 1999, the Baileys acquired the property by deed from the co-conservator for the estate of Sewell. The deed was recorded on April 16, 1999. On behalf of the Baileys, their title company paid the District upon closing partial taxes in the amount of $1431.54 for the 1998 and 1999 tax years, but failed to pay the overdue 1997 taxes. The Baileys represent that they did not know that taxes were owed for 1997.

On May 13, 1999, the District's Office of Tax and Revenue sent a letter to "Wilbur W & WB Sewell," former record owners of the property, notifying them that if they did not pay the delinquent 1997 taxes on or before June 14, 1999, "a tax deed may be issued to the successful bidder." This letter regarding redemption was not sent to the Baileys, who at the time were shown by the records of the Recorder of Deeds to be the actual record holders of title to the property.

On September 10, 1999, the District's Office of Tax and Revenue sent a letter to the Baileys*fn2 stating that "according to our records, you are listed as the owner" of the property in question, and informing them of their right to redeem the property. The letter extended the deadline for redemption to October 11, 1999. That office sent a similar letter to the Sewells on that date. On September 13, 1999, the District cancelled the tax sale and sent a cancellation notice to Bembery. On October 7, 1999, the outstanding 1997 taxes were paid in full on behalf of the estate of Sewell. The District issued a refund check to Bembery, which he has refused to negotiate. Bembery filed a complaint in Superior Court to compel the District to issue a tax deed to him and void Sewell's estate's transfer of the property to the Baileys.

The District moved for summary judgment, arguing that Bembery has no right to specific performance and was entitled only to a refund plus interest. The trial court agreed and granted summary judgment in favor of the District. The Baileys also moved for summary judgment, arguing that they effected a proper redemption within their notice period. The trial court initially denied the Baileys' motion for summary judgment, but ultimately granted summary judgment in favor of them as well, rejecting Bembery's argument that there was a genuine issue of material fact as to whether relevant letters of notice to the record owner had been destroyed.

II.

We review an order granting summary judgment de novo. Lee v. Jones, 632 A.2d 113, 115 (D.C. 1993). Summary judgment will be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. District of Columbia v. Cato Inst., 829 A.2d 237, 245 (D.C. 2003). The movant has the burden of showing the absence of dispute as to any material fact. Abdullah v. Roach, 668 A.2d 801, 804 (D.C. 1995); Holland v. Hannan, 456 A.2d 807, 815 (D.C. 1983). After the movant makes this showing, the burden of defeating the motion shifts to the non-moving party to show there is a genuine issue of material fact. See Super. Ct. Civ. R. 56 (e); Ferguson v. District of Columbia, 629 A.2d 15, 16 (D.C. 1993). The non-moving party must establish the existence of a dispute of material fact with more than a scintilla of evidence, and must adduce evidence from which the jury could reasonably find in its favor. Brown v. Consolidated Rail Corp., 717 A.2d 309, 311 (D.C. 1998).

The District is required by statute to sell at auction any property upon which taxes are delinquent. D.C. Code § 47-1303 (a) (1997 Repl.). After a tax sale, the purchaser receives a tax lien certificate evidencing the sale, and if the property is not redeemed by the owner within six months, then the Mayor is to issue the purchaser a deed. D.C. Code §§ 47-1304, -1306 (1997 Repl.). The District must give the "record owner" notice by registered or certified mail at least thirty days before the expiration of the redemption period. See 9 DCMR § 317.3 (1998) (repealed 2001). Due process requires "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." Malone v. Robinson, 614 A.2d 33, 37 (D.C. 1992) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). If the Mayor discovers that the sale was invalid and ineffectual to give title to the property sold, he shall cancel the sale and issue a refund to the tax sale purchaser. D.C. Code § 47-1308 (1997 Repl.).

The "law requires strict compliance with the statutes and regulations governing tax sales of real property." Gore v. Newsome, 614 A.2d 40, 42 (D.C. 1992). The applicable statute required that "[a]ll parties with an interest in a particular real property . . . shall notify the Recorder of Deeds in writing in the event of a name change or address change." D.C. Code ยง 45-801.4 (a) (1997 Supp.). ...


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