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The Estate of Wynn v. Tulsa County Treasurer

Court of Appeals of Oklahoma, Division I

December 21, 2018

THE ESTATE OF MAY GREGORY WYNN, MELISSA WYNN, an individual, and GREGORY WYNN, an individual, Plaintiffs/Appellants,
v.
TULSA COUNTY TREASURER, J. DENNIS SEMLER, in his official capacity, Defendant/Appellee, and CHARLES PATTERSON and TRACIE PATTERSON, Intervening Defendants/Counter-Claimants/Third-Party Plaintiffs/Appellees,
v.
THE ESTATE OF GLYNN EHRHARDT WYNN, Third-Party Defendant.

          Mandate Issued: 10/30/2019

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE MARY FITZGERALD, JUDGE

          James C. Thomas, William D. Thomas, Tulsa, Oklahoma, for Appellants

          Kim M. Hall, Tulsa, Oklahoma, for Appellee

          Thomas M. Askew, Sharon K. Weaver, Tulsa, Oklahoma, for Third-Party Plaintiffs/Appellees.

          LARRY JOPLIN, JUDGE.

         ¶1 The Plaintiffs/Appellants, The Estate of May G. Wynn, Melissa Wynn, and Gregory Wynn, seek review of the August 1, 2017 summary judgment order granting the summary judgment motion of the Tulsa County Treasurer, as well as the grant of partial summary judgment in favor of Charles and Tracie Patterson and the denial of Appellants' motion for summary judgment.

         ¶2 This case arises from the tax sale of property in Tulsa County, once owned by Glynn and May Wynn. [1] The property was sold at the Tulsa County Treasurer's tax resale auction on June 13, 2016 for delinquent and unpaid 2012 taxes, pursuant to 68 O.S. Supp.2008 §3105 and §3125. [2] Glynn and May Wynn owned the property in joint tenancy with right of survivorship. Glynn Wynn passed away in 2013, after which time the property belonged to May Wynn as a result of the joint tenancy ownership. Their daughter, Melissa Wynn, was named personal representative of Glynn Wynn's estate. Gregory Wynn is the son of Glynn and May Wynn.

         ¶3 There were two tax sale notifications, listed as "Early Notification of 2016 Tax Resale Auction" dated July 9, 2015 and November 12, 2015. [3] These notices were sent to "Glenn" and May Wynn at their Tulsa, Oklahoma address. Both notices listed an amount due if paid by a certain date. Neither resulted in payment by then owner, May Wynn. A posted notice was posted to the property on March 2, 2016, listing the legal description, contact information for the treasurer's office and notice the property would be sold at the tax resale auction on June 13, 2016 unless the "unpaid taxes and/or special assessments" were paid. A certified mail, final notice was sent to May Wynn on March 8, 2016, with a certified mail return receipt signed by May Wynn dated March 17, 2016. 68 O.S. Supp.2010 §3127. [4] In addition, a final notice was sent via certified mail to Appellant/Melissa Wynn's attorney, William D. Thomas, who was listed as the attorney of record with respect to Glynn Wynn's estate. The March 8, 2016 certified mail was signed for by Michael Thomas and the return receipt was dated March 18, 2016. Also on March 8, 2016, a notice was mailed to Melissa Wynn at an address on 21st Street in Tulsa Oklahoma; this notice was returned to the County Treasurer's office, stating "unable to forward." The auction of the subject property was also published in the Tulsa Beacon on May 19 and 26, 2016 and June 2 and 9, 2016. May Wynn testified she was aware of the tax sale.

         ¶4 Oakley Properties, L.L.C. was the successful bidder for the property at the June 13, 2016 auction and Oakley obtained the County Treasurer's Resale Deed the next day, June 14, 2016. The deed was recorded on June 14, 2016 as well.

         ¶5 The Pattersons are part of these proceedings due to their purchase agreement for $125, 000 with Doug Thomas, attorney of Melissa Wynn, personal representative of the estate of Glynn Wynn, for purchase of the subject property. The Pattersons learned the property was purchased at auction by Oakley and they arranged to purchase the property directly from Oakley, bypassing the estate and Melissa Wynn's attorney. The Pattersons intervened in this cause of action to assert their claims against the estate, from which they had initially tried to purchase the property; they sought a judgment to confirm the validity of the tax sale and their purchase from Oakley; they sought to rescind the purchase contract with the Wynn estate and to quiet title.

         ¶6 In their motion for summary judgment, Appellants assert due process was not satisfied in this case, specifically with respect to Melissa Wynn. Appellants argue Melissa Wynn "held a legitimate claim of entitlement to the property" and "constitutional due process entitlement is not limited to the legal owner of the real property," citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (regarding claims to due process made by a non-tenured professor when his contract was not renewed, the employment contract at issue did not involve delinquent taxes or issues of notice such as those presented in this case). Melissa Wynn claimed entitlement to due process as a "prospective heir" of May Wynn's estate, citing Kaylor v. Kaylor, 1935 OK 530, 45 P.2d 743, 744 (regarding unrecorded mortgage as binding between assignor and assignee, Kaylor did not address notice required by state actor for delinquent tax sale with respect to prospective heirs) and Davis v. Morgan, 1939 OK 468, 95 P.2d 856, 857 (involved an heir in possession of real estate in which he owned an undivided interest, the decision explicitly expresses no opinion regarding an heir not in possession and does not speak to the position of a "prospective" heir who does not currently own an interest in the property at issue).

         ¶7 Melissa Wynn argues she was entitled to notice as an owner of the real estate and the notice sent to her was returned as undeliverable. [5] However, Melissa Wynn's argument ignores the numerous notices sent to the record owner, May Wynn, the notice sent to Melissa Wynn's attorney of record and signed for at the attorney's office, and notices posted on the property itself, in addition to the publication notices.

         ¶8 Appellants' argument does not demonstrate what statutory provision entitles Melissa Wynn to notice of the tax sale. Melissa Wynn was not the record owner of the delinquent property and any interest she had was, by Wynn's own admission, that of a "prospective heir," which is not a status provided for in the notice provisions at 68 O.S. Supp.2010 §3127. Appellants have provided no explanation of other legal authority upon which a "prospective heir" might rely to assert a right to notice from the county treasurer for tax sale purposes. In addition, this property did not become part of Glynn Wynn's estate due to the provisions in the deed and instead became May Wynn's property upon her husband's death. As a result, Melissa Wynn's role as the representative of her father's estate did not entitle her to notice of the tax sale under the terms of the statute. 68 O.S. Supp.2010 §3127.

         ¶9 Upon the record provided, the notices to the record owners, "Glenn" and May Wynn, the posted notices and the certified mailings to the record owners and the publication notices comply with the notice requirements outlined in the statute. We do not find Melissa Wynn was deprived of required due process notice as she has alleged.

         ¶10 Appellants next assert their right to redeem the property was constitutionally infirm and the tax deed is void as a result. Appellants assert the County Treasurer's practice which resulted in the tax sale to Oakley on June 13, 2016, followed by issuance of the tax deed on June 14th, and filing of the tax deed later that same day, effectively nullified the redemption statute, 68 O.S. Supp.2009 §3113. [6] Appellants argue the abbreviated time-line after the sale meant there was no window of opportunity in which to be heard and no opportunity to redeem their property, effectively depriving them of due process with respect to the right of redemption. Appellants argue both 68 O.S. §3113 and §3131 require the County Treasurer to allow a reasonable time for the delinquent taxpayer to redeem the property. [7]

         ¶11 Neither 68 O.S. §3113 nor §3131 use the word "reasonable," nor does either statute provide a time frame within which the delinquent taxpayer's sold property is to be held in limbo prior to the issuance and filing of the tax deed. While we agree the sale and deed filing in this case was conducted in a seemingly abbreviated time frame, Appellants have provided no Oklahoma legal authority to demonstrate the quick turnaround from sale to filing the deed is prohibited. We find no relief is warranted on this proposition of error.

         ¶12 Appellants also argue they were entitled to notice of the sale in order to be able to effectively exercise their right to redeem the property. Based on the nature of this argument, it appears Appellants' argument here is that they were entitled to notice the property actually sold at auction, in addition to asserting a right to notice of the auction itself. Under a previous format, a county treasurer would "bid off" real estate in the name of the county and record the county's bid and purchase, and then essentially hold the real estate with the county until the time to conduct a resale auction came after a two year redemption period. Michie v. Haas, 1928 OK 53, 272 P. 883. If that property so purchased by the county remained unredeemed for a period of two years, the county treasurer was then permitted to "proceed to advertise and sell such real estate at public auction[.]" Id. This pre-purchase of real estate by the county treasurer is no longer the format used to address delinquent taxes and the two year redemption period which existed under the previous format is no longer at issue. Instead, the county treasurer places the delinquent real estate at auction after a period of three or more years has passed, under the terms of 68 O.S. Supp.2008 §3105, and does not purchase the property on behalf of the county prior to the auction itself. As a result, the redemption period may be quite abbreviated on the post-auction side of the process, as it was in this case, but provides a greater opportunity to redeem the delinquent property prior to the auction itself. See 68 O.S. Supp.2009 §3113.

         ¶13 We agree with Appellants the delinquent owner has a right to the notice of the sale and the remittance of excess funds as per the terms of 68 O.S. Supp.2009 §3131 (C), but Appellants have not cited any current Oklahoma authority entitling them to notice of the sold status of their property for purposes of providing a time limit within which to redeem the ...


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