Ottaco, Inc. v. Kalport Development Co., Inc.

607 N.W.2d 403 (1999) 239 Mich. App. 88

OTTACO, INC., Plaintiff-Appellee,
v.
KALPORT DEVELOPMENT COMPANY, INC. and Cherry Hill Development Company, Defendants-Appellants.

Docket No. 209243.

Court of Appeals of Michigan.

Submitted July 7, 1999, at Grand Rapids. Decided December 10, 1999, at 9:10 a.m. Released for Publication March 22, 2000.

Sotiroff & Abramczyk, P.C. (by Keith A. Sotiroff), Bingham Farms, for the plaintiff.

Miller, Johnson, Snell & Cummiskey, P.L.C. (by Craig H. Lubben and James R. Peterson), Kalamazoo, for the defendants.

Before: McDONALD, P.J., and MICHAEL J. KELLY and MARK J. CAVANAGH, JJ.

McDONALD, P.J.

Defendants Kalport Development Company, Inc., and Cherry Hill Development Company appeal as of right the circuit court's order granting summary disposition under MCR 2.116(C)(10) in favor of plaintiff Ottaco, Inc., in this action to quiet title to a vacant parcel of real property that was purchased at a tax sale. We affirm.

The property at issue in this case is located in Portage, Michigan, in Kalamazoo County. Defendant Kalport, a Delaware corporation, is wholly owned by Peter J. Gould, and maintains its principle place of business in New Jersey. Kalport purchased the property in 1983 and recorded its warranty deed to the property. The 1991 property taxes on the property were not paid.^[1]

At a 1994 tax sale, Equivest of Out State Michigan, L.C., purchased a certificate for the unpaid 1991 property taxes. See M.C.L. § 211.71; MSA 7.116. On May 23, 1995, Equivest was issued a tax deed to the property. See M.C.L. § 211.72; MSA 7.117. Equivest quitclaimed the property to plaintiff in June 1996. Plaintiff filed this action to quiet title a short time later.

This appeal involves whether Kalport received proper notice of its right to redeem its property under the General Property Tax Act (GPTA), M.C.L. § 211.1 et seq.; MSA 7.1 et seq. Section 74 of the GPTA^[2] allows property owners to redeem property lost in tax foreclosure at any time before the first Tuesday of May in the year following the tax sale. See In re Sabec, 137 B.R. 659, 665-666 (W.D.Mich., 1992). Section 73c of the GPTA^[3] requires that at least 120 days before this first redemption period expires, the county treasurer must send notice to property owners indicating when the first redemption period will expire and the consequences to the owner if they do not redeem their property within that period.^[4] We will refer to this notice as "the 120-day notice." The second and final redemption period available to property owners when a private purchaser buys property sold at a tax sale is provided for by § 141 of the GPTA.^[5] Section 141 provides a right of redemption that lasts for six months after the tax sale purchaser complies with the notice requirements of § 140 of the GPTA.^[6]Halabu v. Behnke, 213 Mich.App. 598, 602, 541 N.W.2d 285 (1995); Sabec, supra at 666. If proper notice is not served under § 140, this six-month period never begins to run and the right of redemption is not cut off. Halabu, supra at 602, 541 N.W.2d 285; Andre v. Fink, 180 Mich.App. 403, 406-408, 447 N.W.2d 808 (1989).

We address the issues in the order they are raised by defendants. Defendants first argue that Kalport was not served with proper notice under § 140. Section 140 requires that a notice be served on the last grantee in the regular chain of title^[7] of the property of the right to a reconveyance of the property within six months after return of service of the notice upon payment of all sums paid for the tax sale purchase plus an additional fifty percent and the sheriff's service fees. MCL 211.140; MSA 7.198. We will refer to this notice as "the six-month notice," as the parties have done.

The parties have stipulated the following facts relevant to this issue. A special deputy of the Kalamazoo County Sheriff's Department mailed the six-month notice by certified mail, return receipt requested, on or before October 9, 1995, to Kalport, care of Prentice-Hall Corporation, which is identified as Kalport's registered agent in the records on file for Kalport in its state of incorporation, Delaware. On or before October 9, 1995, Prentice-Hall received the six-month notice and executed the certified mail return receipt card. However, Kalport in fact never received the notice. Apparently, Prentice-Hall did not have the address of Gould, Kalport's sole shareholder. It is also important to note that on the recorded warranty deed to the property, Kalport's address is listed as 229 South State Street, Dover, Delaware, 19850. This address was Prentice-Hall's address at the time.^[8] The parties have also stipulated that on or before October 9, 1995, the special deputy noted on a return of service that he mailed the six-month notice to Kalport, care of Prentice-Hall, and that the return receipt showing postal delivery was attached to the return. On November 8, 1995, the county treasurer certified the receipt of the six-month notice and the return of service and filed the six-month notice and the return of service. Six months later, on May 8, 1996, the county treasurer noted that the six-month period had expired and the property had not been redeemed.

The parties both argue that subsection 140(7) sets forth the applicable requirements for service on Kalport, but disagree regarding the interpretation of subsection 140(7). We review questions of statutory construction de novo. Michigan Basic Property Ins. Ass'n v. Ware, 230 Mich.App. 44, 48, 583 N.W.2d 240 (1998).

Subsection 140(7) provides, in relevant part:

A foreign corporation doing business in this state with a registered agent in this state to accept service of process as required by law is regarded, for the purposes of this act, as a resident of the county in which its registered office is located. Service on a foreign corporation may be made on the resident agent or by certified mail addressed to the corporation at its home office. [MCL 211.140(7); MSA 7.198(7) (emphasis added).]

Kalport argues that the last sentence of subsection 140(7) requires either personal service on the resident agent or service of the notice by certified mail addressed to the corporation at its home office. Kalport contends that its right of redemption remains because the method of service in this case, service of the notice by certified mail on its resident agent, did not comply with either of these alternatives. We disagree that subsection 140(7) applies to the situation presented in this case. Giving the clear language of the statute its plain meaning, Donajkowski v. Alpena Power Co., 460 Mich. 243, 248, 596 N.W.2d 574 (1999), subsection 140(7) applies to foreign corporations only when the foreign corporations have a registered agent in this state to accept service of process. While Kalport is a foreign corporation, it does not have a registered agent in this state. Accordingly, the last sentence of subsection 140(7), upon which the parties rely, does not govern whether service was proper in this case.

Instead, we must look to other provisions of § 140 to determine whether proper service was achieved in this case. Subsection 140(1)(a) provides in part that "[t]he return shall indicate that the sheriff made personal or substituted service of the notice on ... the last grantee or grantees in the regular chain of title of the property,... according to the records of the county register of deeds."^[9] Subsection 140(3) further provides in part:

If a person entitled to notice under subsection (1) is not a resident of this state, the sheriff, if the post office address of the person can be ascertained, shall send to the nonresident person a copy of the notice by certified mail, and attach the receipt indicating postal delivery of the notice to the return and file the return with the county treasurer's office. If service on the nonresident is not made by mail, the sheriff shall cause a copy of the notice to be served personally on the nonresident.... [MCL 211.140(3); MSA 7.198(3).]

These subsections are complied with by sending nonresident Kalport a copy of the six-month notice by certified mail, attaching the receipt indicating postal delivery to the return, and filing the return with the county treasurer's office. Personal service is not required if service on the nonresident is made by mail. See Weston v. Moore, 265 Mich. 165, 171-172, 251 N.W. 922 (1933). In this case, the requirements of subsection 140(3) were complied with, but the deputy sent the notice to Kalport's registered agent, Prentice-Hall, rather than to Kalport directly. We find this is sufficient because in the warranty deed it recorded for the property, Kalport listed Prentice-Hall's address as its own. See Wolf v. McDonald, 244 Mich. 59, 62, 221 N.W. 173 (1928) (holding that the statute requires service on nonresidents by registered mail if their post office addresses can be ascertained by inquiry or by reference to the last recorded deed.) Moreover, the function of a registered agent in Delaware is to accept service of process. Del. Code Ann., tit. 8, § 132(a). Any miscommunication between Prentice-Hall and Kalport regarding Kalport's forwarding address is either attributable to Prentice-Hall or Kalport, but not to plaintiff or its predecessor, Equivest. Because service of the six-month notice strictly complied with the requirements of § 140, Kalport's right to redeem was cut off six months after the return of service was filed with the county treasurer. See Andre, supra at 406, 447 N.W.2d 808. Although the trial court apparently reached this result for the wrong reason, i.e., by incorrectly applying subsection 140(7), we will not reverse on this basis. Michigan Employment Security Comm. v. Westphal, 214 Mich.App. 261, 267, 542 N.W.2d 360 (1995).

Defendants also argue that mailing the six-month notice to Kalport's registered agent in this case did not comport with the Due Process Clause, citing Dow v. Michigan, 396 Mich. 192, 240 N.W.2d 450 (1976). Defendants claim that both Equivest and the county treasurer had Kalport's business address in New Jersey when the six-month notice was delivered to the sheriff because Kalport's sole shareholder, Gould, had corresponded with Equivest and the county treasurer from that address before the six-month notice was sent to Kalport. Defendants state in their brief that "[t]he holding in Dow suggests that when a superior and more reliable method (or address) is readily known, it should always be used over an inferior and less reliable method." We disagree.

Defendants' reliance on Dow is misplaced. In Dow, supra at 196, 240 N.W.2d 450, the Court held:

[T]he Due Process Clause requires that an owner of a significant interest in property be given proper notice and an opportunity for a hearing at which he or she may contest the state's claim that it may take the property for nonpayment of taxes and that newspaper publication is not constitutionally adequate notice of such right. [Id. at 196, 240 N.W.2d 450.]

However, the property in Dow was bid off to the state, not purchased by a private tax sale purchaser. Id. at 197, 240 N.W.2d 450. In fact, the Court recognized that mailing notices to property owners would not impose too great of a burden on the state because the statute already required private tax sale purchasers to do so. Id. at 197, 208, 240 N.W.2d 450. Accordingly, we find Dow does not apply to the case at bar. Additional support for this conclusion is that after the Court decided Dow, the Legislature enacted § 131e of the General Property Tax Act,^[10] which requires a hearing before the Department of Treasury in cases where the property is bid off to the state. Detroit v. Adamo, 234 Mich.App. 235, 237, 593 N.W.2d 646 (1999), lv. pending; Brandon Twp. v. Tomkow, 211 Mich.App. 275, 282, 535 N.W.2d 268 (1995). Moreover, we would find no due process violation in this case even considering the broader implications of the Court's holding in Dow, supra at 206, 240 N.W.2d 450, that notice be "`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.'" (Citation omitted.) Notice mailed to a corporation's designated registered agent certainly complies with this standard, especially in this case where Kalport listed Prentice-Hall's address as its own on the warranty deed to the property it recorded.

Finally, we address defendants' argument that the 120-day notice required by § 73c did not comply with due process in this case because it was sent by ordinary mail rather than certified mail. Again defendants rely on Dow to support their argument. As we have already explained, Dow is not applicable here because the property in this case was not bid off to the state. We are not persuaded by defendants that this distinction is unimportant.

We do not address defendants' claim that the presale notice did not comply with M.C.L. § 211.61; MSA 7.105. Review of this issue would be inappropriate because it is not raised in the statement of questions presented. Marx v. Dep't of Commerce, 220 Mich.App. 66, 81, 558 N.W.2d 460 (1996).

Affirmed.

NOTES

[1] It appears that property taxes in other years were also not paid, but only the 1991 taxes are at issue in this appeal.

[2] MCL 211.74; MSA 7.120.

[3] MCL 211.73c; MSA 7.119(2).

[4] If, as in this case, a private purchaser bought the property at the tax sale, a tax deed is issued to the purchaser by the state that entitles the purchaser to collect all taxes paid plus a fifty percent penalty and other fees. See M.C.L. § 211.73c(4); MSA 7.119(2)(4), M.C.L. § 211.141(1); MSA 7.199(1).

[5] MCL 211.141; MSA 7.199.

[6] MCL 211.140; MSA 7.198.

[7] The statute also requires that the six-month notice be served on persons who were, as of the date the notice was delivered to the sheriff for service, mortgagees named in undischarged recorded mortgages. MCL 211.140(1)(d); MSA 7.198(1)(d). The parties have stipulated that the date the notice was delivered to the sheriff in this case was either August 23, 1995, or August 28, 1995. The parties have also stipulated that defendant Cherry Hill Development Company's mortgage on the property was not recorded until December 5, 1995. Because Cherry Hill's mortgage was not recorded at the time the six-month notice was delivered to the sheriff, it was not entitled to notice under § 140. MCL 211.140(1)(d); MSA 7.198(1)(d).

[8] The six-month notice was sent to an updated address of Prentice-Hall, which was obtained by the county treasurer after the 1991 delinquent tax bills were returned by the post office as undeliverable.

[9] MCL 211.140(1)(a); MSA 7.198(1)(a).

[10] MCL 211.131e; MSA 7.190(3).