Castillo v. Libert Land Holdings 4 LLC

1

316 Neb. 287

Eduardo Castillo, appellee, v. Libert Land Holdings 4 LLC, appellant, and Guardian Tax Partners, Inc., appellee.

No. S-23-360

Supreme Court of Nebraska

April 5, 2024

1. Declaratory Judgments. An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

2. Equity: Quiet Title. A quiet title action sounds in equity.

3. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

5. Title: Deeds: Tax Sale. Actions challenging title obtained via a tax deed are governed by statute.

6. Title: Deeds: Tax Sale: Jurisdiction Notice. Neb. Rev. Stat. § 77-1843 (Reissue 2018) has a jurisdictional component that renders a tax deed void when the tax deed holder failed to comply with the statutory notice requirements prior to acquiring the deed.

7. Title: Deeds. Even if title under a tax deed is void or voidable, the conditions precedent set forth in Neb. Rev. Stat. §§ 77-1843 and 77-1844 (Reissue 2018) must be met in order to first question and then defeat title.

8. Title: Deeds: Tax Sale: Words and Phrases. The word "paid" in Neb. Rev. Stat. § 77-1844 (Reissue 2018) includes tendering payment.

9. Title: Deeds: Tax Sale: Notice: Service of Process: Proof. A strict compliance by the tax sale purchaser with the statutes, not only as to the service of the notice, but also as to the proof of such service, must be reflected by the record before the county treasurer is clothed with authority to issue a tax deed.

10. Tax Sale: Notice: Service of Process: Words and Phrases. In Neb. Rev. Stat. § 77-1832(1)(a) (Cum. Supp. 2022), personal service means service made by leaving the notice with the individual to be served and residence service means service made by leaving the notice at the usual place of residence of the individual to be served with some person of suitable age and discretion residing therein.

11. Tax Sale: Legislature: Intent: Notice: Service of Process. Under Neb. Rev. Stat. §§ 77-1831, 77-1832, and 77-1834 (Cum. Supp. 2022), the Legislature intended that notice of intent to apply for a treasurer's tax deed be given by personal or residence service both upon a person in actual possession or occupancy of the real property and upon the person in whose name the title to the real property appears of record who can be found in this state.

12. Tax Sale: Notice: Service of Process: Words and Phrases. The word "found" in Neb. Rev Stat. § 77-1834 (Cum. Supp. 2022) means able to be served.

13. Statutes: Legislature: Presumptions. It is to be presumed that the Legislature, in using language in a statute, gave to it the significance that had been previously accorded to it by the pronouncements of this court unless a different meaning has been provided by the context of the statute.

14. Tax Sale: Notice: Service of Process: Proof Affidavits. Under Neb. Rev. Stat. § 77-1833 (Cum. Supp. 2022), to provide proof of notice by another method, proof of attempted personal or residence service must be established by affidavit.

15. Title: Deeds: Tax Sale: Proof: Presumptions: Evidence. A county treasurer's tax deed is presumptive evidence that the procedures required by law to make a good and valid tax sale and vest title in the purchaser were done. The presumption is not conclusive and may be rebutted, but the burden is upon the party attacking the validity of such a deed to show by competent evidence some jurisdictional defect voiding the deed.

16. Affidavits. It is the general rule that an affidavit should be made by one having actual knowledge of the facts, and its allegations should be of the pertinent facts and circumstances, rather than conclusions, and should be full, certain, and exact.

17. ___. Statements in affidavits as to opinion, belief, or conclusions of law are of no effect.

18. Deeds: Tax Sale: Proof: Notice: Service of Process: Affidavits. Proof of service of notice under Neb. Rev. Stat. § 77-1833 (Cum. Supp. 2022) must be made by affidavit and filed with the application for a treasurer's tax deed; it cannot be cured or supplemented by evidence presented at trial.

19. Appeal and Error. Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error.

20. ___. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

21. Equity. The relief ordinarily granted in equity is such as the nature of the case, the law, and the facts demand.

22. Equity: Quiet Title. In quiet title actions, one who seeks equity must do equity.

23. Judgments. A judgment for money must specify with definiteness and certainty the amount for which it is rendered.

Appeal from the District Court for Douglas County: Marlon A. Polk, Judge.

Marc Odgaard for appellant Libert Land Holdings 4 LLC and appellee Guardian Tax Partners, Inc.

Alton E. Mitchell Attorney at Law, L.L.C., for appellee Eduardo Castillo.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Libert Land Holdings 4 LLC (LLH4) appeals from the district court's judgment declaring that its treasurer's tax deed was void for failure to comply with notice and proof requirements under the statutes governing collection of delinquent real estate taxes by sale of real property.^[1] We conclude that LLH4's application for the tax deed was deficient and that the deficiencies could not be cured by evidence adduced at trial. Thus, we agree that the tax deed was void. Because we note plain error in another respect, we remand the cause to the district court with directions, and otherwise affirm the judgment.

II. BACKGROUND

1. Propert y According to county assessor records received in evidence, the property at dispute in this appeal is legally described as "Lot 21, Block 10, Clifton Hill, an Addition to the City of Omaha in Douglas County, Nebraska." A street address appears in the evidentiary record. Eduardo Castillo is the record owner of the property.

2. Treasurer's Tax Sale and Deed In March 2019, LLH4 purchased a tax certificate for $740.81 after Castillo failed to pay delinquent taxes levied upon the property. The tax certificate provided for issuance of a tax deed 3 years thereafter "unless redemption is made" and "on surrender of this Certificate and Compliance with the provisions of the Revenue Law." There is no dispute that Castillo did not redeem the property as allowed by law.

In October 2022, LLH4 filed an application for a treasurer's tax deed after publishing notice in a Douglas County, Nebraska, newspaper for 3 consecutive weeks. We will discuss the application in more detail later in the opinion. The Douglas County treasurer issued a treasurer's tax deed in LLH4's name.

3. Subsequent Attempt to Redeem Property Shortly after the treasurer's tax deed was issued, Castillo became aware of it and attempted to redeem the property. The record contains a receipt from the Douglas County treasurer, issued in October 2022, showing that Castillo tendered payment of $3,814.26. Apparently, the treasurer initially accepted the payment but then refunded it, because the tax deed had already been issued.

4. Lawsuit

A few days later, Castillo filed this declaratory judgment action. The suit named both LLH4 and an apparently related party, Guardian Tax Partners, Inc. (Guardian). Guardian is not participating in this appeal. The complaint alleged that the treas urer's tax deed was void due to a failure to comply with statutory notice requirements and sought to quiet title to the property in Castillo's name. LLH4 and Guardian filed an amended answer, affirmative defenses, and a counterclaim, which are not at issue on appeal.

The district court held a bench trial, during which it received evidence and heard the parties' arguments. The evidence included LLH4's application for the treasurer's tax deed, other exhibits, and witnesses' testimony. The testimonial evidence will largely be irrelevant to our disposition.

Following trial, the district court entered a judgment, styled as an order, finding that Castillo had met his burden of proof on his complaint. Without explicitly addressing the claim for quiet title, the court broadly entered judgment in Castillo's favor. It declared the tax deed void due to "[LLH4 and Guardian's] failure to comply with the notice requirements under section 77-1801 et seq. of the Nebraska Revised Statutes" and ordered Castillo to pay taxes on the property and interest. The court also entered judgment for Castillo on the counterclaim.

Regarding Castillo's payment, the judgment required Castillo to pay to LLH4 and Guardian, within 21 days of the date of the judgment, "the amount of any and all the taxes paid for the Treasurer's Tax Deed by [them], with interest thereon at the rate of 14% per annum, together with all other taxes subsequently paid at the same rate." The judgment did not specify a precise amount.

At oral argument, counsel for LLH4 stated that both p...