Richard Warmath v. Roger Payne , 1999 Tenn. App. LEXIS 173 ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
FILED
RICHARD WARMATH and ) March 18, 1999
PATRICIA WARMATH, )
) Cecil Crowson, Jr.
Plaintiffs/Appellees, ) Tipton Chancery No. 16384 Appellate C ourt Clerk
)
VS. ) Appeal No. 02A01-9803-CH-00084
)
ROGER D. PAYNE and LAURA )
MAX RACINE in her capacity as )
Tipton County Trustee, )
)
Defendants/Appellants. )
APPEAL FROM THE CHANCERY COURT OF TIPTON COUNTY
AT COVINGTON, TENNESSEE
THE HONORABLE DEWEY C. WHITENTON, CHANCELLOR
ROGER D. PAYNE, pro se
Forrest City, Arkansas
J. HOUSTON GORDON
JASON G. WHITWORTH
Covington, Tennessee
Attorneys for Appellees
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
HOLLY KIRBY LILLARD, J.
This case arises from the filing of a complaint to set aside a tax sale. The
complaint, which was filed by Richard Warmath and Patricia Warmath against Roger
Payne and Laura Racine, the Tipton County Trustee, sought to set aside a tax sale of
property that the Warmaths had owned, but that had been sold to Roger Payne via the tax
sale. The Warmaths claimed that they had not been served with process in the underlying
suit for the collection of delinquent land taxes, and that they were not afforded any notice
of the resultant tax sale. They asserted, therefore, that the tax sale was void and should
be set aside. Motions for summary judgment were filed by both the Warmaths and Payne,
after which the trial court granted summary judgment to the Warmaths and denied Payne’s
motion for summary judgment. Based upon the following, we affirm.
Facts and Procedural History
On September 17, 1997, the Warmaths filed their Complaint, alleging that they
“were the owners of a .5 acre residential lot with improvements consisting of a house
thereon.” They asserted that a separate action had previously been commenced against
them for the collection of delinquent land taxes, that a default judgment was entered
against them on February 22, 1996, and that the property was sold via a tax sale on April
2, 1996 to Roger Payne. They claimed, however, that they had not been served with
process in the separate proceedings, and that they did not receive any notice of any of the
proceedings at any point prior to or during the statutory period of redemption.1 They
claimed that they were unaware of any of the relevant proceedings until they were served
on August 15, 1997 with a detainer warrant that had been filed by Payne. Accordingly,
they asserted that the tax sale is void and should be set aside.
On October 3, 1997, the Warmaths served a document titled Plaintiffs’ First Request
for Admissions, which was directed solely to Laura Racine.2 On December 2, 1997, the
Warmaths filed a motion for summary judgment. In a memorandum in support of their
1. Tennessee Code Annotated, title 67, chapter 5, part 27 establishes a one-year period within which a
taxpayer who owns a legal or equitable interest in property that was sold at a tax sale may redeem the
property. See Tenn. Code Ann. § 67-5-2701 et seq.
2. Plaintiffs’ First Request for Admissions begins by stating, “Come now the Plaintiffs . . . and submit their first
request for adm issions to the Def endan t, Laura M ax Ra cine in her capac ity as Tipton County Trustee . . . .”
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motion, they asserted that summary judgment was appropriate based upon the matters set
forth in their requests for admissions. 3 As additional support to their motion, they filed an
affidavit executed by Mr. Warmath. Mr. Warmath’s affidavit states, in part, the following:
3. In March 1995, at the time of the complaint for delinquent taxes
that was filed against me, my name and address were easily ascertainable
to anyone who would attempt to locate me.
4. At all relevant times, including March 1995 onward, my name and
address have been listed in the local telephone directory for Covington,
Tipton County, Tennessee.
5. I and my place of residence, are well known within the community
of Covington and are readily identifiable.
6. I have lived at my same residence, which I personally constructed,
being the same realty which is the subject of this dispute, since 1975.
7. At no time was I served with a summons or complaint pertaining
to the suit for delinquent taxes, nor did I have any notice or knowledge
whatsoever of said tax suit or foreclosure sale until a detainer warrant was
filed against me in General Sessions Court in the fall of 1997.
8. At no time have I attempted to avoid service of process of any suit
for delinquent taxes.
Subsequently, on January 23, 1998, the Warmaths filed an amended affidavit from Richard
Warmath that restates, verbatim, each of the above paragraphs, with the following
additional emphasized language added to paragraph 8:
8. At no time have I attempted to avoid service of process of any suit
for delinquent taxes nor have I refused to accept mail, whether certified,
return receipt requested or otherwise. I did not receive any mail giving me
notice of either the delinquent taxes owed or the complaint filed in this action.
Also, on January 23, 1998, the Warmaths filed an affidavit from Patricia Warmath that
contains the same statements, verbatim, that were set forth in paragraphs three through
eight of Richard Warmath’s amended affidavit.
On December 22, 1997, Payne also filed a motion for summary judgment. In the
memorandum that he filed in support of his motion, he argued, among other things, that
the Warmaths had received such notice as would be sufficient to support and enforce the
tax sale. Payne also filed numerous “exhibits” to support his motion for summary
3. The trial court ultimately granted summary judgment to the Warm aths, and its order granting summar y
judgment reveals th at the trial cou rt’s reaso ning was based , in part, upon matters deemed admitted from
Rac ine’s failure to timely respond. Our de novo review of the trial court’s grant o f s um m ary judgm ent,
however, will be limited to other proof presented to the trial court because such admissions bind only the
spe cific party to whom the request is directed (i.e., Racine ’s adm issions a re not bind ing agains t Payne). See
Porter v. Melton, 1992 WL 29821 (Tenn. App. 1992) (“The language of Rule 36 is clear that a party must
respond . . . , otherwise, the requests will be deemed admitted by that pa rty.”). See also 8A Charles A.
W right, et al. , Federal Practice and Procedure § 2264 at 580 (2nd ed. 1994) (analyzing federal Rule 36, which
is substantially the same as Tenne ssee Rule 36); 7 James W m. Moore, Moore’s Federal Practice § 36.03[6]
(3rd ed. 1998) (analyzing the comparable federa l Rule 36).
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judgment, though most of these “exhibits” either were simply copies of earlier filed
pleadings, which unnecessarily cluttered and expanded the breadth of the record,4 or were
unauthenticated documents that were improper for consideration as submitted.5 We note,
however, that the following documents were also included among Payne’s “exhibits:” (1)
a certified copy of the deed that originally transferred the subject property to the Warmaths
on October 15, 1974; (2) a certified copy of the order for judgment by default entered
against the Warmaths; (3) a certified copy of the clerk and master’s deed, which
transferred and conveyed the subject property to Roger Payne and which described the
conditions upon which the transfer was based; and (4) a copy of a Notice of Tax Sale,
which was printed in The Covington Leader6 on Wednesday, March 13, 1996 to give public
notice of a tax sale to be held Tuesday, April 2, 1996, which listed the Warmaths and the
subject property.
In addition to responses that were filed to the two separate motions for summary
judgment, additional affidavits were filed, including affidavits taken from Judy Barkelew and
Byron Ponder. Ms. Barkelew’s affidavit states the following:
I am the Clerk and Master of the Chancery Court of Tipton County,
Tennessee and held that position when the delinquent taxes of the Plaintiffs
were filed in Chancery Court and notices sent out on those taxes.
The procedure our office follows which was followed in this case is to
send a letter to the taxpayer at the address provided by the assessor or any
other address of which we have notice by certified mail. If the certified letter
is returned to us as unclaimed as it was in this situation, we then send
another letter to the same address that is not certified. If that letter is not
returned to us as undeliverable, we then proceed on the grounds that the
taxpayer has been given proper notice of the tax suit.
We sent a certified letter to Mr. and Mrs. Warmath which was returned
by the postal service as unclaimed and then we sent another letter that was
not certified to the same address as that shown on the certified letter. This
letter was never returned to us.
The second letter we sent after the tax sale was to the address of the
plaintiffs before their address was changed by 911. However, this letter was
not returned to us so we deemed it as having been delivered.
4. This practice of submitting copies of earlier filed plea dings as exhibits to subs equ ent p leadin gs re pea tedly
occurred to an exc ess ive ex trem e in this cas e, wh ich ha s m ade our re view o f the r eco rd un nec ess arily
b ur de ns om e and difficu lt. Accordin gly, to alleviate the a dded c osts an d difficulties associa ted w ith this
unnecessary repetition, we urge pa rties who are filing pap ers to give greater c onsider ation, in app ropriate
circumstances, to their ability to simply cite to other documents that have already been filed with the court.
See The Bluebook , A Uniform System of Citation, practitioners’ note P.7, table T.8 (16th ed. 1996).
5. The particular unauthenticated documents to which we refer were neither self-authenticating nor supported
by any ev idenc e, by a ffida vit or otherw ise, purpo rting to identify or esta blish the au thenticity of the d ocum ent.
6. See Tenn. R. Evid. 902(6).
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The procedures we followed in this particular case are the same that
we follow in every case.
Mr. Ponder’s affidavit states that he is the postmaster of the Covington, Tipton County Post
Office, and that he has knowledge that the county had a substantial problem in 1993 and
1994 in mailing tax notices due to a new “911 addressing system” that was placed into
effect in February 1993. He explained that a great number of tax notices were “returned
to sender” in these years.
On January 30, 1998, Payne filed and served upon the Warmaths requests for the
production of documents. He concurrently filed a document titled Motion to Postpone
Hearing for Summary Judgment Until Plaintiffs Have Provided Documents Requested by
Defendant Under Discovery. On February 23, 1998, the Warmaths filed and served
responses to the requests for documents.
The motions for summary judgment were heard by the trial court on February 24,
1998. Thereafter, on May 11, 1998, the trial court entered an order that granted summary
judgment to the Warmaths and denied Payne’s motion for summary judgment. By the
terms of this order, the sale of the Warmaths’ property to Payne was set aside and
declared null and void. Payne appealed.
On appeal, Payne sets forth numerous “issues” in his statement of the issues. He
has failed, however, to comply with Tennessee Rule of Appellate Procedure 27(a)(7), 7
Tennessee Rule of the Court of Appeals 6(a), 8 and/or Tennessee Rule of the Court of
7. Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure requires the appellant to provide in his brief
an argument setting forth his contentions with respect to each issue presented, with citations to authority and
approp riate refere nces to the reco rd. See Tenn. R. App. P. 27(a)(7).
8. Rule 6(a) of the Tennessee Rules of the Court of Appeals establishes the following:
(a) Written argument in regard to each issue on appeal shall contain:
1. A st atem ent b y the a ppe llant of the alleged erroneous action of the trial court which
raises the issue and a statement by the appellee of any action of the trial court which is relied
upon to correct the alleged error, with citation to the record where the erroneous or corrective
action is recorded.
2. A statement showing how such alleged error was seasonably called to the attention of the trial
judge with citation to that part of the record where appellant’s ch alleng e of th e alleg ed er ror is
recorded.
3. A statement reciting wherein appellant was prejudiced by such alleged error, with
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Appeals 6(b)9 with respect to the majority of these issues, and we deem such issues to be
waived. In the exercise of our discretion, however, we choose to address the first issue
stated below, which Payne has addressed in his argument, though without any citation to
authority or references to the record. Accordingly, the following issues remain before this
Court:
I. Whether the trial court abused its discretion by failing to continue this matter
before hearing the motions for summary judgment, in order to afford Payne
additional opportunity to conduct discovery.
II. Whether the trial court erred in vacating the tax sale by concluding, as a matter
of law, that the Warmaths had not been afforded adequate notice of the tax sale.
Analysis
Payne asserts that he should have been granted a continuance to postpone any
hearing of the summary judgment motions in order to afford him additional opportunity to
conduct discovery. While it is true that, on January 30, 1998, Payne filed and served
requests for the production of documents and his Motion to Postpone Hearing for
Summary Judgment Until Plaintiffs Have Provided Documents Requested by Defendant
Under Discovery, no notice of any hearing upon this motion for continuance appears within
the record. Furthermore, nothing within the record suggests that this motion for
continuance was otherwise set for hearing or brought to the trial judge’s attention.
Moreover, we note that the specific relief sought by Payne’s motion for continuance was
“that no hearing or preceding [sic] occur until Plaintiffs’ [sic] provided all documentation
citations to the record showing where the resultant prejudice is recorded.
4. A statement of each determinative fact relied upon with citation to the record where
evidence of each such fact may be found.
Tenn. R. Ct. App. 6(a). This Court has not previously required any structured form ality in com plying w ith Ru le
6(a), nor a re we sugg estin g tha t any s uch form ality w as ne ces sary in the ins tant c ase . It is ne ces sary,
however, for parties to include the substance of Rule 6(a) within the argument of their briefs with respe ct to
each issue.
9. Rule 6(b) of the Tennessee Rules of the Court of Appeals provides:
No complaint of or reliance upon action by the trial court will be considered on appeal unless
the argument thereon contains a specific reference to the page or pages of the record where
such action is recorded. No assertion of fact will be considered on appeal unless the
argument upon such assertion contains a referen ce to the page or pages of the reco rd where
evidence of such fact is recorded.
Tenn. R. Ct. App. 6(b).
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requested by Defense.” This specific relief that was sought had, in fact, been satisfied
based upon the Warmaths’ timely responses to Payne’s requests for production,10 which
were provided to Payne prior to the commencement of the summary judgment hearing.
Last, we note that nothing in the record suggests that Payne contested the sufficiency of
the Warmaths’ responses prior to the summary judgment hearing, whether by a motion to
compel or otherwise. Accordingly, because these matters were not properly raised before
the trial court, they cannot now be raised for the first time on appeal, and we find no basis
for appellate relief on these grounds. Simpson v. Frontier Community Credit Union, 810
S.W.2d 147, 153 (Tenn. 1991); Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983).
Payne also asserts that the trial court erred in vacating the tax sale by concluding,
as a matter of law, that the Warmaths had not been afforded proper notice. At this
juncture, we find it appropriate to reiterate a few pertinent facts. The affidavits of Richard
and Patricia Warmath state that they “did not have any notice or knowledge whatsoever
of [the] tax suit or foreclosure sale until a detainer warrant was filed.” The Tipton County
Clerk and Master’s affidavit, however, states that, at some point prior to the tax sale and
after notice via certified mail was returned as “unclaimed,”11 notice was sent “not certified.”
Payne contends that this proof establishes that the Warmaths received actual notice.
While it is true that a rebuttable presumption of fact that mail was received may arise under
Tennessee law, Ms. Barkelew’s affidavit did not set forth the essential and necessary
elements required to raise this presumption. See U.S. Life Title Ins. Co. v. Department of
Commerce and Ins., 770 S.W.2d 537, 542 (Tenn. App. 1988). Such a presumption arises
only upon proof that the item was duly mailed, which “requires evidence that the letter was
properly addressed, properly stamped, and duly deposited with the post office.” Id.
(citations omitted). See also 29 Am. Jur. 2d, Evidence §§ 262-64 (1994). Because Ms.
Barkelew’s statement was insufficient to raise a rebuttable presumption of receipt, the
Warmaths’ contention, that they did not receive any actual notice of the tax suit or
10. The W arm aths prov ided t heir re spo nse s with in 30 d ays in a cco rdan ce w ith Ru le 34.02 of the Tennessee
Rules of Civil Procedure.
11. Payne asserts that “unclaimed” amounts to a refusal of delivery, but we decline to accept such a strained
construction of this term.
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foreclosure sale, is not disputed by any other competent proof.
Payne also contends that the Warmaths received constructive notice from the
Notice of Tax Sale that was printed in the Covington Leader. This Court has previously
recognized, however, that where constructive service or notice is resorted to, constitutional
due process requirements must be satisfied. Freeman v. City of Kingsport, 926 S.W.2d
247, 249 (Tenn. App. 1996). These due process considerations “require that an interested
party receive actual notice of a proceeding in rem which affects their interest in property
if the interested party’s name and address are reasonably ascertainable.” Morrow v.
Bobbitt, 943 S.W.2d 384, 391 (Tenn. App. 1996). See also Mennonite Bd. of Missions v.
Adams, 462 U.S. 791, 799-800 (1983). In this case, the only proof that was presented to
the trial court regarding whether the Warmaths’ names and address were reasonably
ascertainable established that the W armaths’ names were known and that their address
was easily ascertainable.12 Accordingly, as a matter of law, constructive notice did not
satisfy constitutional due process requirements, and actual notice was required. Moreover,
because actual notice was not provided, as explained earlier, the tax sale violated the
Warmaths’ due process rights. See Sunburst Bank v. Patterson, 971 S.W.2d 1, 5 (Tenn.
App. 1997).
Conclusion
Based upon the foregoing, we affirm the trial court’s grant of summary judgment to
the Warmaths and its denial of summary judgment to Payne. Costs of this appeal are
taxed to Payne, for which execution may issue if necessary.
HIGHERS, J.
12. Judy Barkelew’s and Byron Ponder’s affidavits suggest that the Warmaths’ address had changed as a
resu lt of a new “911 addressing system.” The Warmaths’ affidavits, however, state that they not only lived
in (i.e., were in possession of) the subject property, but that their correct address was listed in the local
telep hon e dire ctory a nd th at the resid enc e wa s we ll kno wn a nd re adily ide ntifiab le with in the com mu nity.
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CONCUR:
FARMER, J.
LILLARD, J.
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