HBI, L.L.C. v. Barnette ( 2020 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/19/2020 12:08 AM CDT
    - 457 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    HBI, L.L.C., appellee, v. Walter D.
    Barnette, appellant.
    ___ N.W.2d ___
    Filed April 10, 2020.    No. S-19-147.
    1. Constitutional Law: Statutes. The constitutionality of statutes and
    statutory interpretation present questions of law.
    2. Tax Sale: Time. Tax sale proceedings are governed by the law in effect
    at the time the tax sale certificate was sold.
    3. Tax Sale: Time: Liens. Under Neb. Rev. Stat. § 77-1801 (Reissue
    2009), properties with delinquent real estate taxes on or before the
    first Monday of March may be sold at a tax sale. The tax sale pur-
    chaser acquires a lien on the property, which is represented by a tax
    certificate.
    4. Tax Sale. A property owner may redeem a property after a tax cer-
    tificate has been issued with payment of the amount noted on the tax
    certificate, other taxes subsequently paid, and interest.
    5. Tax Sale: Time: Deeds: Foreclosure. If, after 3 years of the issuance of
    a tax certificate, a property has not been redeemed, there are two meth-
    ods by which the holder of the tax certificate may acquire a deed to the
    property: the tax deed method and judicial foreclosure.
    6. Tax Sale: Deeds: Notice. A tax deed acts to convey the property and
    may be issued by the county treasurer after proper notice is provided.
    7. Tax Sale: Foreclosure: Liens. Judicial foreclosure requires the holder
    of a tax certificate to foreclose on the lien for taxes in the district court
    of the county where the property is located.
    8. Dismissal and Nonsuit. Under Neb. Rev. Stat. §§ 25-601 and 25-602
    (Reissue 2016), a plaintiff has the right to dismiss an action without
    prejudice any time before final submission of the case, so long as no
    counterclaim or setoff has been filed by an opposing party.
    9. Tax Sale: Deeds: Dismissal and Nonsuit. The language used to dis-
    tinguish between the two methods of converting a tax certificate into a
    deed in Neun v. Ewing, 
    290 Neb. 963
    , 
    863 N.W.2d 187
    (2015), did not
    - 458 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    abrogate the tax certificate holder’s right to voluntary dismissal under
    Neb. Rev. Stat. §§ 25-601 and 25-602 (Reissue 2012).
    10.   Tax Sale: Notice. If a titled owner cannot be found upon diligent
    inquiry, Neb. Rev. Stat. § 77-1834 (Reissue 2009) permits the pur-
    chaser or his or her assignee to publish the notice in some newspaper
    published in the county and having a general circulation in the county
    or, if no newspaper is printed in the county, then in a newspaper pub-
    lished in Nebraska nearest to the county in which the real property
    is situated.
    11.   Tax Sale: Notice: Proof: Words and Phrases. The word “found” in
    Neb. Rev. Stat. § 77-1834 (Reissue 2009) means able to be served, and
    the statute authorizes the holder of a tax certificate to provide notice
    by publication if the record owner was unable to be served by certified
    mail at the address where the property tax statement was mailed, upon
    proof of compliance with Neb. Rev. Stat. § 77-1832 (Reissue 2009), if
    the owner in fact lived at such address.
    12.   Tax Sale: Statutes. Even the misidentification of the purchaser on an
    actual tax deed does not render it void. If a tax deed is in compliance
    with the statutory requirements, the misidentification would, at most,
    necessitate reformation of the tax deed.
    13.   Tax Sale: Deeds. There is no language in Neb. Rev. Stat. § 77-1831
    (Reissue 2009) requiring that the party applying for the tax deed be
    included.
    14.   Constitutional Law: Statutes: Presumptions: Proof. A statute is pre-
    sumed to be constitutional, and all reasonable doubts are resolved in
    favor of its constitutionality. The burden of establishing the unconstitu-
    tionality of a statute is on the one attacking its validity.
    15.   Constitutional Law: Statutes: Proof. The unconstitutionality of a stat-
    ute must be clearly established before it will be declared void.
    16.   Tax Sale: Notice. Neb. Rev. Stat. § 77-1832 (Reissue 2009) requires
    service at the address where the property tax statement is mailed,
    and thus, it is reasonably calculated to provide notice to the property
    owner.
    17.   ____: ____. Notice by publication under Neb. Rev. Stat. § 77-1834
    (Reissue 2009) is limited to circumstances where the record owner
    resides at the address where the property tax statement is mailed, but he
    or she is unable to be served there.
    Appeal from the District Court for Sarpy County: Stefanie
    A. Martinez, Judge. Affirmed.
    Edward F. Noethe, of McGinn, Springer & Noethe, P.L.C.,
    for appellant.
    - 459 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    Jeffrey J. Blumel and Gretchen L. McGill, of Dvorak Law
    Group, L.L.C., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    This is an appeal from an action to quiet title after issu-
    ance of a tax deed. Appellant, Walter D. Barnette, argues that
    a notice of application for a treasurer’s deed was defective
    and that the statutory scheme relating to notice requirements
    for obtaining a tax deed is unconstitutional on due process
    grounds. We affirm.
    II. BACKGROUND
    On March 5, 2013, Pontian Land Holdings LLC (Pontian)
    purchased a certificate of tax sale for real property after
    Barnette failed to pay real estate taxes on the property. The
    property was located at “Lot 2, Swaney’s Addition Replat I,
    an Addition to the City of Bellevue, as surveyed, platted and
    recorded, Sarpy County, Nebraska.” After waiting the statuto-
    rily required 3 years, Pontian initially filed a judicial foreclo-
    sure action on the property, but later dismissed the action and
    filed an application for a treasurer’s tax deed.
    As required by Neb. Rev. Stat. § 77-1831 (Reissue 2009),
    Pontian sent notice of its intent to apply for a treasurer’s deed
    for the property by certified mail, return receipt requested,
    to the address where the property tax statement was mailed.
    This address was Barnette’s residence, which was located
    in Pottawattamie County, Iowa. The notice listed Pontian as
    the purchaser of the real property, but erroneously stated that
    Guardian Tax Partners Inc. (Guardian) would apply for the
    treasurer’s tax deed. The notice also listed Guardian as the
    sender of the certified mail. Although Barnette resided at the
    address where the notice was sent, the notice was returned
    as “unclaimed.” Handwriting on the certified mail receipt
    - 460 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    indicates the post office had made three attempts to deliver the
    notice prior to returning it as unclaimed. Pontian subsequently
    published notice in a Sarpy County newspaper for 3 consecu-
    tive weeks.
    On August 29, 2016, the Sarpy County treasurer issued a
    treasurer’s tax deed in Pontian’s name. Pontian filed a com-
    plaint, seeking to quiet title on the property. Barnette filed a
    counterclaim to quiet title in his name. Pontian later trans-
    ferred the property to HBI, L.L.C., and HBI was substituted
    as plaintiff in the case. On October 31, 2017, Barnette filed a
    motion for summary judgment that was later withdrawn. On
    January 30, 2018, HBI filed a motion for summary judgment.
    On February 14, Barnette filed a second motion for summary
    judgment. Both motions were denied by the district court as
    being premature.
    On October 12, 2018, HBI filed a second motion for sum-
    mary judgment. On October 22, Barnette filed a third motion
    for summary judgment. Barnette later amended his counter-
    claim with leave from the district court. The counterclaim
    alleged Pontian’s notice was defective and challenged the
    constitutionality of the notice requirements set forth in Neb.
    Rev. Stat. §§ 77-1832 to 77-1835 (Reissue 2009) on due
    process grounds. Specifically, Barnette argued that because
    Pontian knew Barnette lived in Pottawattamie County, Iowa,
    notice by publication in Sarpy County violated his right to
    due process.
    On January 15, 2019, the district court granted HBI’s
    amended second motion for summary judgment and denied
    Barnette’s third motion for summary judgment. The district
    court quieted title in favor of HBI after finding that Barnette
    was given sufficient notice in compliance with Nebraska law
    and that the notice did not violate the due process requirements
    of the U.S. Constitution or the Nebraska Constitution.
    Barnette now appeals the district court’s order granting sum-
    mary judgment in favor of HBI and denying Barnette’s third
    motion for summary judgment.
    - 461 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    III. ASSIGNMENTS OF ERROR
    Barnette assigns that the district court erred in (1) not
    finding that Pontian’s original election of foreclosure barred
    the tax deed process, (2) finding the notice provided com-
    plied with Nebraska statutes, (3) not finding the Nebraska
    tax sale statutory scheme violated the U.S. Constitution and
    the Nebraska Constitution, (4) finding Barnette’s due proc­
    ess rights under the U.S. Constitution and the Nebraska
    Constitution were not violated, and (5) not quieting title to
    Barnette.
    IV. STANDARD OF REVIEW
    [1] The constitutionality of statutes and statutory interpreta-
    tion present questions of law. 1
    V. ANALYSIS
    1. Original Election of
    Judicial Foreclosure
    In his first assignment of error, Barnette argues Pontian’s
    claim for a tax deed was barred by its original election to pro-
    ceed to judicial foreclosure.
    [2-7] The Legislature’s recent amendments to tax sale stat-
    utes notwithstanding, the proceedings at issue in this case are
    governed by the law in effect on December 31, 2009. 2 Under
    Neb. Rev. Stat. § 77-1801 (Reissue 2009), properties with
    delinquent real estate taxes on or before the first Monday
    of March may be sold at a tax sale. The tax sale purchaser
    acquires a lien on the property, which is represented by a tax
    certificate. 3 A property owner may redeem a property after a
    tax certificate has been issued with payment of the amount
    noted on the tax certificate, other taxes subsequently paid, and
    1
    Pfizer v. Lancaster Cty. Bd. of Equal., 
    260 Neb. 265
    , 
    616 N.W.2d 326
        (2000).
    2
    See Neb. Rev. Stat. § 77-1837.01(2) (Cum. Supp. 2016).
    3
    See Neb. Rev. Stat. § 77-1818 (Reissue 2009).
    - 462 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    interest. 4 If, after 3 years, the property has not been redeemed,
    there are two methods by which the holder of a tax certificate
    may acquire a deed to the property: the tax deed method and
    judicial foreclosure. 5 A tax deed acts to convey the property
    and may be issued by the county treasurer after proper notice
    is provided. 6 Judicial foreclosure requires the holder of a tax
    certificate to foreclose on the lien for taxes in the district court
    of the county where the property is located. 7
    Barnette relies on language in Neun v. Ewing 8 to support
    his argument that Pontian’s application for a tax deed was
    barred by its initial filing of a foreclosure action. In Neun,
    property owners attempted to redeem their property after a
    foreclosure action had been filed using the procedure set forth
    in § 77-1824, authorizing redemption from a tax sale prior to
    the issuance of a tax deed. This court held that once judicial
    foreclosure has begun, only the separate redemption procedure
    established by Neb. Rev. Stat. § 77-1917 (Reissue 2009) is
    available. 9 Recognizing that the two procedures for converting
    a tax sale certificate into a deed are not interchangeable, the
    court concluded that
    once the holder has elected to proceed under chapter 77,
    article 19, the provisions of such article govern the rights
    of the parties in relation to the tax sale certificate. In
    other words, after the election to proceed by judicial fore-
    closure has been made, both the holder and the property
    owner are bound by that election. 10
    4
    See Neb. Rev. Stat. § 77-1824 (Reissue 2009). See, also, SID No. 424 v.
    Tristar Mgmt., 
    288 Neb. 425
    , 
    850 N.W.2d 745
    (2014).
    5
    See SID No. 424, supra note 4.
    6
    See § 77-1831 and Neb. Rev. Stat. § 77-1837 (Reissue 2009).
    7
    See Neb. Rev. Stat. § 77-1902 (Reissue 2009).
    8
    Neun v. Ewing, 
    290 Neb. 963
    , 
    863 N.W.2d 187
    (2015).
    9
    See
    id. 10 Id.
    at 
    970, 863 N.W.2d at 194
    .
    - 463 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    In arriving at its holding, the court articulated: “‘Although
    the overall objective of both procedures is the recovery of
    unpaid taxes on real property, these [procedures] “are two sepa-
    rate and distinct methods for the handling of delinquent real
    estate taxes”’ which are ‘neither comparable nor fungible.’” 11
    [8] Barnette argues that this language precluded Pontian
    from applying for a tax deed because it initially filed a fore-
    closure action. Neun is distinguishable. The issue in Neun was
    the manner of redemption permitted once the holder of a tax
    sale certificate had elected to proceed with judicial forfeiture.
    Moreover, Barnette’s interpretation of Neun is inconsistent with
    a plaintiff’s statutory right to voluntary dismissal. Under Neb.
    Rev. Stat. §§ 25-601 and 25-602 (Reissue 2016), a plaintiff has
    the right to dismiss an action without prejudice any time before
    final submission of the case, so long as no counterclaim or set-
    off has been filed by an opposing party.
    [9] Here, Pontian’s foreclosure action was dismissed prior
    to a summons being issued, and no complaint was served on
    Barnette in that action. Thus, Pontian had a statutory right to
    voluntarily dismiss its initial filing without prejudice. We hold
    that Pontian’s election to initially file and dismiss the judicial
    foreclosure action did not preclude his application for a tax
    deed. In addition, we clarify that the language used to distin-
    guish between the two methods of converting a tax certificate
    into a deed in Neun did not abrogate the tax certificate holder’s
    right to voluntary dismissal under §§ 25-601 and 25-602. In
    this case, Pontian had a right to voluntary dismissal under
    §§ 25-601 and 25-602 because no counterclaim or setoff had
    been filed. 12
    11
    Id. 12 See
    id. See, also, 
    Adair Asset Mgmt. v. Terry’s Legacy, 
    293 Neb. 32
    , 
    875 N.W.2d 421
    (2016) (stating that existence of different procedures available
    to holder to convert tax sale certificate into deed does not affect meaning
    of tax sale certificate).
    - 464 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    2. Notice Under § 77-1831
    (a) Publication in Sarpy County
    In his second assignment of error, Barnette first argues that
    publication in Sarpy County was insufficient notice because
    Pontian knew Barnette lived in Pottawattamie County, Iowa.
    A tax sale purchaser is not entitled to a tax deed unless he or
    she provides sufficient notice to the property owner at least 3
    months prior to the application for the tax deed. 13 A tax deed is
    presumptive evidence that notice has been served or published
    as statutorily required. 14
    [10] Although the Legislature has since amended § 77-1832,
    the version of the statute governing the proceedings at issue
    here provided, in relevant part, that “[s]ervice of the notice
    provided by section 77-1831 shall be made by certified mail,
    return receipt requested, upon the person in whose name the
    title to the real property appears of record to the address where
    the property tax statement was mailed . . . .” If the titled owner
    could not be found upon diligent inquiry, § 77-1834 permitted
    the purchaser or his or her assignee to publish the notice “in
    some newspaper published in the county and having a general
    circulation in the county or, if no newspaper is printed in the
    county, then in a newspaper published in this state nearest to
    the county in which the real property is situated.”
    In Wisner v. Vandelay Investments, 15 this court addressed
    whether the applicable language in §§ 77-1832 and 77-1834
    permitted the holder of a tax certificate to serve a property
    owner by publication after being unable to serve her by certi-
    fied mail when the holder had actual knowledge of the prop-
    erty owner’s location. In that case, the holder had sent notice
    by certified mail, return receipt requested, but the notice
    was returned as “‘unclaimed.’” 16 This court held that the
    13
    See § 77-1831.
    14
    See Neb. Rev. Stat. § 77-1842 (Reissue 2009).
    15
    Wisner v. Vandelay Investments, 
    300 Neb. 825
    , 
    916 N.W.2d 698
    (2018).
    16
    Id. at 853,
    916 N.W.2d at 721.
    - 465 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    holder had completely complied with the notice requirements
    of § 77-1832 by proceeding to service by publication after the
    owner was unable to be served by certified mail at the address
    where the property tax statement was mailed. 17
    [11] We further held that the word “found” in § 77-1834
    meant “‘able to be served’” and that the statute authorized the
    holder of a tax certificate to provide notice by publication if
    the record owner was unable to be served by certified mail at
    the address where the property tax statement was mailed, upon
    proof of compliance with § 77-1832, if the owner in fact lived
    at such address. 18 The court warned that a contrary holding
    would permit a property owner that was already deficient in
    paying real estate taxes to force a judicial foreclosure proceed-
    ing by avoiding the notice. 19
    Here, Pontian sent notice of its application for a tax deed by
    certified mail, return receipt requested, to the address where
    the property tax statement was mailed—Barnette’s residence
    in Pottawattamie County, Iowa. Barnette had continuously
    resided at this address for 4 years and had received notices of
    taxes due on the property at this address. However, Pontian’s
    notice was returned as “unclaimed.” Pontian then published
    the notice in Sarpy County as required by § 77-1834. The
    tax deed was issued after Pontian had complied with both
    §§ 77-1832 and 77-1834. Section 77-1834 only authorized
    service by publication in the county where the property was
    located. 20 Because Pontian was not required to publish notice
    in any other county except Sarpy County, Pontian’s actual
    knowledge of Barnette’s location is irrelevant for purposes of
    this assignment of error. 21 We hold that Barnette has not met
    his burden of rebutting the statutory presumption that Pontian’s
    17
    See
    id. 18 See
      id.
    19
    See 
      Wisner, supra note 15.
    20
    See
    id. 21 See
      id.
    - 466 
    -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    notice was sufficient and that his second assignment of error is
    accordingly without merit.
    (b) Misidentification of Guardian
    In his second assignment of error, Barnette further argues
    that the notice was defective because it showed Guardian,
    rather than Pontian, as the party who would apply for the deed.
    HBI maintains that the error in listing Guardian was immaterial
    and did not negate the sufficiency of the notice.
    Section 77-1831 provides:
    No purchaser at any sale for taxes or his or her assign-
    ees shall be entitled to a deed from the treasurer for
    the real property so purchased unless such purchaser or
    assignee, at least three months before applying for the
    deed, serves or causes to be served a notice stating when
    such purchaser purchased the real property, the descrip-
    tion thereof, in whose name assessed, for what year taxed
    or specially assessed, and that after the expiration of three
    months from the date of service of such notice the deed
    will be applied for.
    [12] Pontian’s notice included the information required and
    correctly listed Pontian as the party who had purchased the
    property. Further, this court has held that even the misidentifi-
    cation of the purchaser on the actual tax deed does not render
    it void. In Ottaco Acceptance, Inc. v. Larkin, 22 the purchaser
    of a tax certificate had later assigned the tax certificate to
    another entity. The assignee requested, and was issued, a tax
    deed for the property, but the tax deed incorrectly identified the
    assignee as the original purchaser of the property. 23 This court
    held that the tax deed was in compliance with the statutory
    requirements and that the misidentification would, at most,
    necessitate reformation of the tax deed. 24
    22
    Ottaco Acceptance, Inc. v. Larkin, 
    273 Neb. 765
    , 
    733 N.W.2d 539
    (2007).
    23
    See
    id. 24 See
    id.
    - 467 
    -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    [13] We hold that the inclusion of Guardian as the party that
    would apply for the tax deed does not render the notice defec-
    tive, as there is no language in § 77-1831 requiring that the
    party applying for the tax deed be included. This court will not
    read into a statute a meaning that is not there. 25
    As previously stated, Barnette’s second assignment of error
    is without merit.
    3. Constitutionality of Nebraska’s
    Tax Sale Notice Requirements and
    Barnette’s Due Process Rights
    In his third and fourth assignments of error, Barnette argues
    Nebraska’s statutory scheme for tax sales is unconstitutional on
    due process grounds. Specifically, Barnette asserts that his due
    process rights were violated when Pontian published its notice
    in Sarpy County pursuant to § 77-1834, knowing Barnette
    resides in Pottawattamie County, Iowa. The district court found
    that Pontian had complied with the statutory notice require-
    ments before applying for the tax deed and that the procedures
    used did not violate Barnette’s due process rights.
    (a) Presumption of Constitutionality
    [14,15] A statute is presumed to be constitutional, and all
    reasonable doubts are resolved in favor of its constitution-
    ality. 26 The burden of establishing the unconstitutionality of a
    statute is on the one attacking its validity. 27 The unconstitution-
    ality of a statute must be clearly established before it will be
    declared void. 28
    (b) Notice Requirement
    Before the government may deprive a person of their
    property, the government must provide “notice reasonably
    25
    See Wisner, supra note 15; State v. Gill, 
    297 Neb. 852
    , 
    901 N.W.2d 679
         (2017); State v. Mortensen, 
    287 Neb. 158
    , 
    841 N.W.2d 393
    (2014).
    26
    State ex rel. Bruning v. Gale, 
    284 Neb. 257
    , 
    817 N.W.2d 768
    (2012).
    27
    Id. 28 Id.
                                         - 468 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    calculated, under all the circumstances, to apprise interested
    parties of the pendency of the action and afford them an oppor-
    tunity to present their objections.” 29 In Mullane v. Central
    Hanover Tr. Co., 30 the U.S. Supreme Court held that when a
    recipient’s address is known, the determination of whether the
    method of notice is “reasonably calculated” is analyzed at the
    time the notice is sent. 31
    (c) Jones v. Flowers
    In his brief, Barnette cites Jones v. Flowers 32 in support of
    his argument that Nebraska’s tax deed notice requirements are
    unconstitutional. In that case, the U.S. Supreme Court held
    that the government’s attempt at providing notice of a tax sale
    was insufficient to satisfy due process when the notice was
    returned as unclaimed and that the government failed to take
    additional reasonable steps to provide notice to the property
    owner before the property was sold. 33
    In Jones, the property owner had moved from his home in
    Little Rock, Arkansas, into an apartment in Little Rock after
    he and his wife were separated. The mortgage company had
    been paying the property taxes until the mortgage was paid off,
    and then the taxes became delinquent. Three years later, the
    Commissioner of State Lands (Commissioner) sent the owner,
    by certified mail, notice of the tax delinquency and information
    about his right to redeem the property. The certified letter was
    sent to the address of the property where the owner’s wife still
    lived and was returned as “‘“unclaimed.”’” 34
    29
    Mullane v. Central Hanover Tr. Co., 
    339 U.S. 306
    , 314, 
    70 S. Ct. 652
    , 
    94 L. Ed. 865
    (1950).
    30
    
    Mullane, supra
    note 29.
    31
    Id., 339 U.S.
    at 318 (“[w]here the names and post office addresses of those
    affected by a proceeding are at hand, the reasons disappear for resort to
    means less likely than the mails to apprise them of its pendency”).
    
    32 Jones v
    . Flowers, 
    547 U.S. 220
    , 
    126 S. Ct. 1708
    , 
    164 L. Ed. 2d 415
         (2006).
    33
    Id. 34 Id.,
    547 U.S. at 224.
    - 469 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    Two years later, the Commissioner published a notice of
    public sale in the newspaper. The publication occurred a few
    weeks prior to the public sale. The Commissioner mailed a sec-
    ond certified letter after receiving a purchase offer for the home,
    warning the house would be sold if the delinquent taxes were
    not paid. Again, the letter was returned as “‘unclaimed.’” 35 The
    owner was eventually notified of the sale when the purchaser
    had an unlawful detainer notice delivered to the property, and
    the notice was served on the owner’s daughter.
    The owner in Jones filed a lawsuit against the Commissioner
    and the purchaser, alleging that the Commissioner’s failure to
    provide notice of the tax sale and the right to redeem consti-
    tuted a taking of his property without due process. The trial
    court granted summary judgment in favor of the Commissioner
    and the purchaser, and the Arkansas Supreme Court affirmed,
    holding that the Commissioner’s attempt to provide notice by
    certified mail satisfied due process. The U.S. Supreme Court
    reversed, holding 5 to 3 that under the circumstances pre-
    sented, “[t]he Commissoner’s effort to provide notice to [the
    owner] of an impending tax sale of his house was insufficient
    to satisfy due process . . . .” 36
    The Court in Jones recognized that Arkansas’ statutory
    scheme for providing notice of a tax sale likely satisfied the
    requirements for due process because sending certified mail
    to an address that the owner was required by law to keep
    updated is reasonably calculated to reach the property owner.
    However, in examining the “‘practicalities and peculiarities of
    the case,’” 37 the Court compared the Commissioner’s knowl-
    edge of ineffective service to sending notice with actual
    knowledge that the notice was unlikely to reach the recipi-
    ent because he was imprisoned or incompetent. Because the
    letter concerned the “important and irreversible” prospect
    35
    Id.
    36
    Id., 547 U.S.
    at 239.
    37
    Id., 547 U.S.
    at 230 (quoting 
    Mullane, supra
    note 29).
    - 470 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    of losing one’s home, the Court held that additional steps
    were required. 38
    (d) Constitutionality of §§ 77-1832
    and 77-1834
    In the present case, Barnette has failed to meet his burden
    of establishing Nebraska’s statutory notice requirements are
    unconstitutional. Section 77-1832 authorizes notice by certi-
    fied mail, return receipt requested, to the address where the
    property tax statement is mailed. If the record owner is unable
    to be served by certified mail, § 77-1834 authorizes notice by
    publication upon proof of compliance with § 77-1832 if the
    record owner lives at the address where the property tax state-
    ment was mailed. 39
    [16,17] Because § 77-1832 requires service at the address
    where the property tax statement is mailed, it is reasonably
    calculated to provide notice to the property owner. 40 Further,
    notice by publication under § 77-1834 is limited to circum-
    stances, such as those presented here, where the record owner
    resides at the address where the property tax statement is
    mailed, but he or she is unable to be served there. 41 For these
    reasons, we hold that the applicable notice requirements are
    constitutionally sufficient.
    (e) Barnette’s Right to Due Process
    Barnette has also failed to establish that issuance of the tax
    deed was in violation of his due process rights. In Dusenbery
    v. United States, 42 the U.S. Supreme Court recognized that the
    use of the postal service to send certified mail is “a method
    our cases have recognized as adequate for known addresses.” 43
    38
    Id., 547 U.S.
    at 230.
    39
    See Wisner, supra note 15.
    40
    See Jones, supra note 32.
    41
    See
    id. 42 Dusenbery
    v. United States, 
    534 U.S. 161
    , 
    122 S. Ct. 694
    , 
    151 L. Ed. 2d 597
    (2002).
    43
    Id., 534 U.S.
    at 169 (emphasis supplied).
    - 471 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    The Court confirmed that in determining whether due process
    requirements are satisfied, it is the method of notice that is
    analyzed and not the result. 44 In Jones, the Court articulated
    that “the failure of notice in a specific case does not establish
    the inadequacy of the attempted notice.” 45 And, when assessing
    the adequacy of notice, “unique information about an intended
    recipient” must be considered. 46
    The test in Jones for the constitutional sufficiency of notice
    is case specific and analyzes whether the action was some-
    thing that someone “‘desirous of actually informing’” the
    homeowner would do. 47 Because additional reasonable steps
    were available to the State, given the circumstances, the
    Commissioner’s effort to provide notice to the owner was
    insufficient to satisfy due process. What is “reasonable in
    response to new information depends upon what the new infor-
    mation reveals.” 48
    The dissent, and the authority it cites, interprets Jones as
    establishing a new rule requiring the government to make addi-
    tional attempts at providing notice each time notice is returned
    as unclaimed. However, the Jones Court explicitly stated:
    “[W]e disclaim any ‘new rule’ that is ‘contrary to Dusenbery
    and a significant departure from Mullane.’” 49
    (i) Sufficient Notice Under
    Dusenbery and Mullane
    The test in Dusenbery for the constitutional sufficiency of
    notice is whether the chosen method is “‘reasonably calcu-
    lated’ to apprise a party of the pendency of the action.” 50 As
    discussed above, both Dusenbery and Mullane recognized that
    44
    See Dusenbery, supra note 42.
    45
    Jones, supra note 
    32, 547 U.S. at 231
    .
    46
    Id., 547 U.S.
    at 230.
    47
    Id.
    48
    Id., 547 U.S.
    at 234.
    49
    Id., 547 U.S.
    at 238.
    50
    Dusenbery, supra note 
    42, 534 U.S. at 170
    .
    - 472 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    when a recipient’s address is known, sending notice by certi-
    fied mail satisfies due process. 51
    Under the circumstances presented here, Pontian’s attempt
    to provide Barnette with notice of its intent to apply for a tax
    deed failed; however, under both Dusenbery and Mullane, the
    attempted notice was adequate. Pontian had actual knowledge
    of Barnette’s address in Iowa and sent notice to that address.
    This knowledge is one of the “‘practicalities and peculiarities
    of the case’” 52 and must be taken into account when assessing
    the adequacy of notice. Because Pontian had actual knowledge
    of Barnette’s address, the method of service was reasonably
    calculated to apprise Barnette of Pontian’s intent to apply for
    a tax deed. Accordingly, we hold that the notice was constitu-
    tionally sufficient.
    The dissent contends that the focus of Jones was on the fact
    that the certified mail went unclaimed. We disagree. In Jones,
    the Court was clearly focused on two “‘practicalities and pecu-
    liarities of the case’” 53 that may vary the notice required: 54 the
    government’s knowledge and the fact that the property interest
    at stake was the owner’s home.
    (ii) “New Wrinkle” in Jones
    The “new wrinkle” presented in Jones was whether the
    government’s knowledge that notice has failed vitiates the
    reasonableness of the method used under the circumstances
    presented. This is demonstrated by the Court’s extensive reli-
    ance on two of its prior holdings: Robinson v. Hanrahan 55 and
    Covey v. Town of Somers. 56
    51
    See, Dusenbery, supra note 42; 
    Mullane, supra
    note 29.
    52
    See Jones, supra note 
    32, 547 U.S. at 230
    .
    53
    Id.
    54
    Id., 547 U.S.
    at 227 (“question presented is whether such knowledge on
    the government’s part is a ‘circumstance and condition’ that varies the
    ‘notice required’”).
    55
    Robinson v. Hanrahan, 
    409 U.S. 38
    , 
    93 S. Ct. 30
    , 
    34 L. Ed. 2d 47
    (1972).
    56
    Covey v. Town of Somers, 
    351 U.S. 141
    , 
    76 S. Ct. 724
    , 
    100 L. Ed. 1021
         (1956).
    - 473 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    Robinson involved a forfeiture proceeding where the State
    had complied with the statutory requirements for providing
    notice, but knew the owner was incarcerated at the time.
    The Court held that the State’s manner of service was not
    reasonably calculated to apprise the owner of the proceeding
    because the State knew the individual was not at the address to
    which the notice was mailed and knew that the individual was
    unable to get to that address at the time the notice was sent. 57
    Similarly, in Covey, the Court held that notice of foreclosure
    by mailing, posting, and publication did not satisfy due proc­
    ess requirements because government officials knew that the
    property owner was incompetent and that she did not have the
    protection of a guardian.
    Jones did not create a formulaic test for deciding when
    additional attempts at notice are required. The Court deter-
    mined the return of the owner’s letter as unclaimed constituted
    “new information” revealed to the government. 58 That infor-
    mation must then be taken into account as one of the “‘prac-
    ticalities and peculiarities of the case’” when determining
    whether the attempt at notice was adequate. 59 If the attempt
    was not adequate, there is an obligation to take additional
    steps that are reasonable under the circumstances, “if practi-
    cable to do so.” 60
    The new information presented in Jones was that the owner
    had either (1) moved from the address or (2) failed to retrieve
    the certified letter from the post office. Based on this conclu-
    sion, the Court provided examples of reasonable steps that
    could have been implemented after the letter’s return. In doing
    so, the Court advised: “What steps are reasonable in response
    to new information depends upon what the new informa-
    tion reveals.” 61
    57
    Robinson, supra note 55.
    58
    Jones, supra note 
    32, 547 U.S. at 234
    .
    59
    See
    id., 547 U.S.
    at 230.
    60
    See
    id., 547 U.S.
    at 234.
    61
    Id. - 474
    -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    (iii) Balancing Interests
    “‘[D]ue process is flexible and calls for such procedural
    protections as the particular situation demands.’” 62 In Mathews
    v. Eldridge, 63 the U.S. Supreme Court instructed that in deter-
    mining whether the procedures used in providing notice are
    constitutionally sufficient, the governmental and private
    interests are analyzed using three distinct factors. These fac-
    tors include:
    First, the private interest that will be affected by the offi-
    cial action; second, the risk of an erroneous deprivation of
    such interest through the procedures used, and the prob-
    able value, if any, of additional or substitute procedural
    safeguards; and finally, the Government’s interest, includ-
    ing the function involved and the fiscal and administra-
    tive burdens that the additional or substitute procedural
    requirement would entail. 64
    In Jones, the Court reaffirmed that the reasonableness of
    notice requires “[b]alancing a State’s interest in efficiently
    managing its administrative system and an individual’s interest
    in adequate notice . . . .” 65 When concluding that notice to the
    owner was inadequate, the Court gave special importance to
    the fact that the property owner was “in danger of losing his
    house.” 66 The Court stated:
    In this case, the State is exerting extraordinary power
    against a property owner—taking and selling a house he
    owns. It is not too much to insist that the State do a bit
    more to attempt to let him know about it when the notice
    letter addressed to him is returned unclaimed.” 67
    62
    Mathews v. Eldridge, 
    424 U.S. 319
    , 334, 
    96 S. Ct. 893
    , 
    47 L. Ed. 2d 18
         (1976) (quoting Morrissey v. Brewer, 
    408 U.S. 471
    , 
    92 S. Ct. 2593
    , 33 L.
    Ed. 2d 484 (1972)).
    63
    Mathews, supra note 62.
    64
    Id., 424 U.S.
    at 335.
    65
    Jones, supra note 
    32, 547 U.S. at 240
    .
    66
    Id., 547 U.S.
    at 238.
    67
    Id., 547 U.S.
    at 239 (emphasis supplied).
    - 475 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    And, “when a letter is returned by the post office, the sender
    will ordinarily attempt to resend it, if it is practicable to do
    so. . . . This is especially true when . . . the subject matter of
    the letter concerns such an important and irreversible pros-
    pect as the loss of a house.” 68 The Court emphasized: “We do
    not think that a person who actually desired to inform a real
    property owner of an impending tax sale of a house he owns
    would do nothing when a certified letter sent to the owner is
    returned unclaimed.” 69
    While the property at issue is one factor to be considered,
    we do not, as the dissent suggests, limit Jones to cases involv-
    ing houses. The fact that Jones involved an occupied house
    was information that must be considered when determining
    whether the notice was adequate. “[A]ssessing the adequacy of
    a particular form of notice requires balancing the ‘interest of
    the State’ against ‘the individual interest sought to be protected
    by the Fourteenth Amendment.’” 70
    In Jones, the Court was balancing the government’s interest
    against the owner’s interest in an occupied home, and evidence
    was presented to show that Arkansas’ statutes already required
    a homeowner to be served by personal service if certified mail
    is returned. Here, Barnette is attacking the constitutionality of
    the tax deed issued to Pontian. There is a presumption of con-
    stitutionality, and Barnette has the burden of establishing that
    his due process rights were violated. 71
    68
    Id., 547 U.S.
    at 230 (emphasis supplied).
    69
    Id., 547 U.S.
    at 229 (emphasis supplied). See, also,
    id., 547 U.S.
    at 229
    (“we evaluate the adequacy of notice prior to the State extinguishing a
    property owner’s interest in a home”) (emphasis supplied);
    id., 547 U.S.
    at
    238 (“at the end of the day, that someone who actually wanted to alert [the
    owner] that he was in danger of losing his house would do more when the
    attempted notice letter was returned unclaimed, and there was more that
    reasonably could be done”) (emphasis supplied).
    70
    Id., 547 U.S.
    at 229 (quoting 
    Mullane, supra
    note 29).
    71
    See Stenger v. Department of Motor Vehicles, 
    274 Neb. 819
    , 
    743 N.W.2d 758
    (2008).
    - 476 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    Because the particular situation dictates what procedural
    due process protections are required, 72 it is Barnette’s bur-
    den to demonstrate that he is entitled to the same procedural
    safeguards as those required in Jones. Yet, the record is void
    of any evidence regarding the burden on the government, and
    Barnette has presented no evidence demonstrating his property
    was anything more than a vacant lot.
    (iv) Reasonable Steps
    Based on the specific facts presented in Jones, the Court sug-
    gested sending a letter by regular mail so that a signature was
    not required, posting notice on the front door of the property,
    or addressing mail to “occupant” would be reasonable. These
    additional steps were deemed reasonable because Arkansas’
    statutes already required a homeowner to be served by personal
    service if certified mail is returned. And, the property at issue
    was an occupied home.
    Balancing the State’s interest in efficiency against the own-
    er’s property interest in his home, the Court in Jones rejected
    as unreasonable the suggestion that the government should
    conduct a search for the owner’s new address in the local
    phonebook and government records. The Court determined
    the government was not required to go that far because such a
    requirement would impose too great a burden. The Court also
    noted that “‘[i]t is not [the Court’s] responsibility to prescribe
    the form of service that the [government] should adopt.’” 73
    (v) Desirous of Actually Informing
    In Jones, the Court explained that “‘when notice is a per-
    son’s due . . . [t]he means employed must be such as one
    desirous of actually informing the absentee might reasonably
    adopt to accomplish it.’” 74 Thus, if the return of the notice
    72
    See Mathews, supra note 62.
    73
    Jones, supra note 
    32, 547 U.S. at 238
    (quoting Greene v. Lindsey, 
    456 U.S. 444
    , 
    102 S. Ct. 1874
    , 
    72 L. Ed. 2d 249
    (1982)).
    74
    Id. (quoting Mullane,
    supra note 29).
    - 477 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    as unclaimed is new knowledge indicating the chosen method
    of service is not “desirous of actually informing,” additional
    reasonable steps are required—but only if such steps are
    practicable. 75
    In the present case, Pontian’s knowledge that the certified
    letter had been returned as unclaimed did not indicate that
    its method of service was not desirous of actually informing
    Barnette. Pontian sent notice to Barnette by certified mail,
    return receipt requested, to the address where the property
    tax statement was mailed, as required by § 77-1832. Prior to
    returning the notice as unclaimed, the post office had made
    three attempts to deliver the notice. After it was returned as
    unclaimed, Pontian proceeded to notice by publication in a
    Sarpy County newspaper, as permitted by § 77-1834.
    (vi) Practicalities and
    Peculiarities of Case
    Jones does not preclude the conclusion we reach today. This
    case involves substantially different facts and circumstances
    from those presented in Jones. Other states have rejected the
    argument that additional steps are required after notice sent to
    a property owner’s last known and actual address was returned
    as unclaimed or where property owners have failed to present
    evidence that they were either not home or not available to
    claim the notice.
    The North Carolina Court of Appeals rejected a property
    owner’s argument that Jones required additional steps after a
    notice was returned as unclaimed and held that the notice sent
    to the property owner’s last known and actual address complied
    with due process requirements. 76 The Supreme Court of New
    York, Appellate Division, recognized that when mailings had
    been sent to the property owners’ current and correct addresses
    but returned as unclaimed, the lack of evidence indicating
    75
    Id. 76 St.
    Regis of Onslow County v. Johnson, 
    191 N.C. App. 516
    , 
    663 S.E.2d 908
    (2008).
    - 478 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    property owners were not home or legitimately unavailable
    to sign for the letter was “‘unique information about [the]
    intended recipient[s]’” to be taken into account when determin-
    ing whether notice was reasonable. 77
    Addressing the sufficiency of notice in a breach of contract
    action, the Pennsylvania Court of Common Pleas has also held
    that “[w]hen a letter is returned as ‘refused’ or ‘unclaimed,’ the
    notice is sufficient if it is apparent that the address was valid
    and could be located by the postal office.” 78 In Mikhaylov v.
    U.S., 79 the U.S. District Court for the Eastern District of New
    York similarly recognized that in the context of asset forfei-
    ture, “[a] written notice sent, via certified mail, to any known
    addresses, combined with published notices, ordinarily satisfies
    the Mullane standard.” The court stated:
    The only arguable exceptions are: where the gov-
    ernment knows or should know that the written notice
    will not reach the intended recipient (e.g., the written
    notice is returned as undeliverable), and it can obtain the
    recipient’s correct address internally (e.g., the recipient
    is already in the government’s custody). . . . Or, where
    the government knows or should know that the intended
    recipient will not understand the written notice (e.g., the
    recipient lacks the mental capacity). 80
    Here, Barnette’s actual address was known and the notice
    was correctly sent to that address. In contrast to Jones, 81
    the property at issue in this case was not Barnette’s home.
    Barnette’s home is in Council Bluffs, Iowa, where he has
    77
    Temple Bnai Shalom of Great Neck v. Village of Great Neck Estates, 
    32 A.D.3d 391
    , 393, 
    820 N.Y.S.2d 104
    , 106 (2006) (quoting Jones, supra
    note 32).
    78
    Masergy Communications, Inc. v. Atris, Inc., No. 06-24948, 
    2007 WL 5479856
    (Pa. Com. Pl. Oct. 4, 2007).
    79
    Mikhaylov v. U.S., 
    29 F. Supp. 3d 260
    , 267 (E.D.N.Y. 2014).
    80
    Id. at 267-68.
    81
    Jones, supra note 32.
    - 479 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    continuously resided throughout the entire tax sale process and
    admits to having received tax notices for the property at issue
    there. Because Pontian’s notice was sent to Barnette’s actual
    address, the only new information revealed by the return of the
    letter was that either (1) Barnette had not been home during the
    attempts at delivery, and then failed to retrieve the letter from
    the post office, or (2) Barnette had been avoiding service.
    The dissent cites two cases in support of its position.
    However, there is a distinct difference between the factual cir-
    cumstances in those cases and the one before us today. In each
    case, the property owner had denied having actual notice of the
    pending proceedings. Moreover, in Schlereth v. Hardy, 82 the
    court found that the property owner “was not offered a certi-
    fied letter by the postal worker that she refused to accept—she
    simply failed to retrieve a letter, the substance of which was
    unknown to her.”
    Again, it is Barnette’s burden to establish issuance of the
    tax deed was unconstitutional. 83 However, he has not offered
    any evidence to show that the notice was not reasonably cal-
    culated to apprise him of Pontian’s intent to apply for a tax
    deed. During oral argument, Barnette’s counsel admitted there
    was no evidence in the record regarding why Barnette had
    not accepted the letter. Barnette has not alleged that he was
    unaware of the attempts at service or that he was unavailable
    to claim the letter. Barnette has also not alleged a lack of actual
    knowledge of Pontian’s intent to apply for a tax deed. This dif-
    fers from the property owner in Jones who had demonstrated
    that he had only learned of the pendency of the proceedings
    after his home had already been sold. 84
    Sending notice to Barnette at his actual residence demon-
    strates Pontian was desirous of actually informing Barnette of
    its intention to apply for a tax deed. Accordingly, we hold that
    82
    Schlereth v. Hardy, 
    280 S.W.3d 47
    , 52 n.4 (Mo. 2009).
    83
    See Stenger, supra note 71.
    84
    See Jones, supra note 32.
    - 480 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    the notice was constitutionally sufficient under the standard
    articulated in Jones.
    The dissent correctly asserts that sending Barnette notice
    by regular mail would have imposed little burden on Pontian.
    However, regardless of the level of burden imposed, Pontian
    was not obligated to do so. The Court of Appeals of New York
    rejected a similar argument when holding that the government
    was not required to take additional steps under Jones after
    tax bills and a notice of foreclosure proceeding were sent by
    regular mail, but returned as undeliverable because the own-
    ers had not shown that there were any steps that would have
    yielded the owners’ new address. 85 Here, the burden lies on
    Barnette, and he has presented no evidence to show that there
    were additional reasonable steps and that these additional steps
    would be practicable.
    Even assuming the dissent’s interpretation of Jones is cor-
    rect, and the return of notice as unclaimed independently
    triggers an obligation to take additional reasonable steps
    when notice is sent to the property owner’s actual residence,
    these steps are still not constitutionally required unless it
    is “practicable to do so.” 86 The Oxford English Dictionary
    defines “practicable” as “[a]ble to be done or put into prac-
    tice successfully; feasible; able to be used; useful, practical,
    effective.” 87
    The U.S. Court of Appeals for the Seventh Circuit has
    recognized: “The Constitution does not require that an effort
    to give notice succeed. . . . If it did, then people could evade
    knowledge, and avoid responsibility for their conduct, by burn-
    ing notices on receipt—or just leaving them unopened . . . .” 88
    85
    Mac Naughton v. Warren County, 
    20 N.Y.3d 252
    , 
    982 N.E.2d 1237
    , 
    959 N.Y.S.2d 104
    (2012).
    86
    See Jones, supra note 
    32, 547 U.S. at 234
    .
    87
    “Practicable,” Oxford English Dictionary Online, http://www.oed.com/
    view/Entry/149217 (last visited Apr. 4, 2020).
    88
    Ho v. Donovan, 
    569 F.3d 677
    , 680 (7th Cir. 2009) (citing Dusenbery,
    supra note 42).
    - 481 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    In this case, regular mail (or mail addressed to “occupant”)
    would not likely have been useful or effective, especially
    given the fact Barnette has not alleged that he was unaware
    of the delivery attempts or that he was unavailable to claim
    the letter.
    To the extent the dissent discusses Neb. Rev. Stat. § 25-520.01
    (Reissue 2016) and its requirement that along with publication,
    parties must mail a copy of the published notice to all parties
    having a direct legal interest in the action when the party’s
    name and address are known, the Legislature has not included
    the same requirement when publishing under § 77-1834. While
    the inclusion of such a requirement may be appropriate, its
    absence does not affect the constitutionality of the notice pro-
    vided in the case before us.
    Under the totality of circumstances presented, Pontian’s
    attempt at notice was “‘desirous of actually informing’”
    Barnette of its intent to apply for a tax deed. 89 Pontian com-
    plied with §§ 77-1832 and 77-1834 and was not required to
    publish notice anywhere other than Sarpy County. Accordingly,
    we hold that the notice was constitutionally sufficient.
    There is no merit to Barnette’s third and fourth assignments
    of error.
    4. Action to Quiet Title
    In his fifth assignment of error, Barnette reasserts his claims
    of defective notice and service and argues the statutory time
    period for obtaining a deed to the property has expired. As set
    forth above, Pontian’s notice of its intent to apply for a tax
    deed was not defective. This argument is meritless.
    VI. CONCLUSION
    Pontian complied with the statutory notice requirements for
    obtaining a tax deed. Because the requirements are reason-
    ably calculated to apprise a property owner of a tax certificate
    holder’s intent to apply for a tax deed, they are constitutionally
    89
    See Jones, supra note 
    32, 547 U.S. at 230
    .
    - 482 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    sufficient. Barnette has failed to meet his burden of establish-
    ing the tax deed is invalid. The judgment of the district court
    is affirmed.
    Affirmed.
    Cassel, J., concurring.
    I agree with the court that HBI correctly followed Neb. Rev.
    Stat. § 77-1831 (Reissue 2009) regarding notice that must be
    given upon tax deed issuance. And I agree that under the cir-
    cumstances here, there was no due process violation.
    But I write separately to suggest that the Legislature may
    wish to follow the example of Neb. Rev. Stat. § 25-520.01
    (Reissue 2016), which was adopted in response to Mullane v.
    Central Hanover Tr. Co. 1 The Legislature may find it prudent
    to amend Neb. Rev. Stat. § 77-1835 (Supp. 2019) to provide
    that where notice by publication is given, the party giving such
    notice shall send by U.S. mail a copy of the first such pub-
    lished notice to the record owner of the property.
    1
    Mullane v. Central Hanover Tr. Co., 
    339 U.S. 306
    , 
    70 S. Ct. 652
    , 
    94 L. Ed. 865
    (1950).
    Papik, J., dissenting.
    “Before a State may take property and sell it for unpaid
    taxes, the Due Process Clause of the Fourteenth Amendment
    requires the government to provide the owner ‘notice and
    opportunity for hearing appropriate to the nature of the case.’”
    Jones v. Flowers, 
    547 U.S. 220
    , 223, 
    126 S. Ct. 1708
    , 
    164 L. Ed. 2d 415
    (2006), quoting Mullane v. Central Hanover
    Tr. Co., 
    339 U.S. 306
    , 
    70 S. Ct. 652
    , 
    94 L. Ed. 865
    (1950).
    I believe that under the U.S. Supreme Court’s opinion in
    Jones, Pontian provided constitutionally inadequate notice of
    its intent to apply for a treasurer’s deed for Barnette’s property.
    While the majority finds this case distinguishable from Jones,
    I do not.
    In this dissent, I will first explain how I read Jones and how
    I understand it to apply here. I will then address the majority’s
    position that my reading of Jones is incorrect.
    - 483 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    Jones v. Flowers and Unclaimed
    Certified Mail.
    As the majority explains, Jones involved a fact pattern simi-
    lar to the one before us. After the longtime owner of a house
    separated from his wife and moved out, taxes on the house
    were not paid. A government official later sent notice of the
    delinquency and information about how to redeem the property
    by certified mail to the address where the owner no longer
    lived. It was returned unclaimed. Two years later, the govern-
    ment official published a notice of public sale of the house in
    a local newspaper. When a purchase offer was received for
    the home, the government official sent another certified letter,
    warning that the house would be sold if the delinquent taxes
    were not paid. Once again, the certified mail was returned
    unclaimed. The owner did not learn of the sale until the pur-
    chaser had an unlawful detainer notice sent to the property,
    which was served on the owner’s daughter.
    The owner’s lawsuit alleging that his house was being taken
    without due process eventually reached the U.S. Supreme
    Court. In an opinion authored by Chief Justice Roberts, the
    Court first acknowledged that due process does not require
    actual notice before the government may take property and that
    in prior cases, it had deemed notice constitutionally adequate
    if it was reasonably calculated to reach the intended recipi-
    ent when sent. The Court also noted its precedent, including
    Dusenbery v. United States, 
    534 U.S. 161
    , 
    122 S. Ct. 694
    , 
    151 L. Ed. 2d 597
    (2002), and 
    Mullane, supra
    , generally permitting
    service by mail.
    The Court explained, however, that Jones presented a
    “new wrinkle”: whether due process requires additional steps
    “when the government becomes aware prior to the taking that
    its attempt at notice has 
    failed.” 547 U.S. at 227
    . The Court
    concluded that reasonable followup measures are required
    in such circumstances, reasoning that no one who “actually
    desired to inform a real property owner of an impending tax
    sale of a house he owns would do nothing when a certified
    - 484 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    letter sent to the owner is returned unclaimed.” Jones v.
    Flowers, 
    547 U.S. 220
    , 229, 
    126 S. Ct. 1708
    , 
    164 L. Ed. 2d 415
    (2006).
    The Court went on to conclude that there were reasonable,
    additional steps the government official could have taken,
    including resending the notice by regular mail or posting notice
    on the front door. The Court explained that such steps would
    increase the likelihood of a property owner receiving actual
    notice. Finally, the Court concluded that following up by pub-
    lication was constitutionally inadequate.
    I agree with Barnette that under Jones, the notice here was
    constitutionally inadequate. The notice sent by certified mail
    was returned unclaimed. I read Jones to tell us rather plainly
    that in that circumstance, the State must take additional, rea-
    sonable steps to provide notice if it is practicable to do 
    so. 547 U.S. at 225
    (“[w]e hold that when mailed notice of a tax sale is
    returned unclaimed, the State must take additional reasonable
    steps to attempt to provide notice to the property owner before
    selling his property, if it is practicable to do so”).
    Because I believe this case is controlled by Jones, I would
    go on to consider, as the Court did in Jones, whether Pontian
    took additional, reasonable measures to notify Barnette after
    the certified mail went unclaimed. It quickly becomes clear to
    me it did not.
    As noted above, Jones concluded there were other, rea-
    sonable steps that could have been taken after the attempt to
    provide notice by certified mail failed. The Court mentioned
    resending the notice by regular mail or posting notice on the
    front door. The Court explained that such steps would increase
    the likelihood of the property owner receiving actual notice
    whether the property owner had moved or had simply not
    retrieved the certified mail.
    I see no reason why those reasonable, additional steps
    could not have been taken here. Pontian, for example, could
    have followed the normal practice in Nebraska of sending the
    published notice to those with an interest in a proceeding by
    - 485 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    regular mail at the same time the notice was published. In most
    instances in which a party is allowed to provide notice by pub-
    lication, Nebraska law requires that, along with publication, the
    party mail a copy of the published notice to “each and every
    party appearing to have a direct legal interest in such action or
    proceeding whose name and post office address are known to
    him.” Neb. Rev. Stat. § 25-520.01 (Reissue 2016). A mailing
    of published notice does not appear to have been statutorily
    required in this unique context, see Neb. Rev. Stat. § 25-520.02
    (Reissue 2016), but sending the published notice by regular
    mail would have required little more of Pontian and would
    have eliminated any argument that it provided constitutionally
    inadequate notice under Jones. As the majority acknowledges,
    sending Barnette notice by regular mail after the certified mail
    went unclaimed would have imposed little burden on Pontian.
    Pontian, however, did nothing except publish notice after the
    certified mail was returned unclaimed. In Jones, publication
    was deemed to be inadequate. See Jones v. Flowers, 
    547 U.S. 220
    , 
    126 S. Ct. 1708
    , 
    164 L. Ed. 2d 415
    (2006).
    Because Pontian did not, after the certified mail was returned
    unclaimed, take reasonable, additional steps to attempt to notify
    Barnette when it was practicable to do so, I do not believe it
    provided constitutionally adequate notice. The majority, how-
    ever, finds the notice was adequate based on a different reading
    of Jones. I explain why I disagree with that reading below.
    Majority’s Understanding of Jones.
    The majority concludes that the notice sent by certified mail
    that was returned unclaimed was sufficient to satisfy due proc­
    ess notwithstanding Jones. As I understand the majority opin-
    ion, it concludes that Jones does not apply in this circumstance
    because it is not clear that the piece of property being taken
    and sold by the government includes a house, because the
    certified mail that went unclaimed was addressed to the place
    where Barnette lived, and because it finds that the additional
    steps discussed in Jones likely would have failed.
    - 486 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    I do not read the application of Jones to turn on the facts
    identified by the majority. Take first, the majority’s determina-
    tion that Jones has no bearing here because Jones involved
    the taking of a house and, as the majority puts it, nothing in
    the record demonstrates the property being taken here “was
    anything more than a vacant lot.” The majority identifies a
    number of occasions in which the U.S. Supreme Court in Jones
    referred to the fact that the property being sold was a house
    and that such an action is an important and extraordinary act.
    For multiple reasons, I understand these references to empha-
    size the significance and irreversibility of the government’s
    taking property from its owner and selling it, not to, in the
    majority’s words, attribute “special importance” to the fact that
    the property being sold was a house.
    Not only is that, in my view, a more natural reading, in
    many other places in Jones, the U.S. Supreme Court frames
    its analysis in terms of the taking of property in general. The
    Court stated that it granted certiorari “to determine whether,
    when notice of a tax sale is mailed to the owner and returned
    undelivered, the government must take additional reason-
    able steps to provide notice before taking the owner’s prop-
    erty.” 
    Jones, 547 U.S. at 223
    (emphasis supplied). It further
    explained that it took the case “to resolve a conflict among the
    Circuits and State Supreme Courts concerning whether the Due
    Process Clause requires the government to take additional rea-
    sonable steps to notify a property owner when notice of a tax
    sale is returned undelivered.”
    Id., 547 U.S.
    at 225 (emphasis
    supplied). And in stating its holding, the Court said, “We hold
    that when mailed notice of a tax sale is returned unclaimed,
    the State must take additional reasonable steps to attempt to
    provide notice to the property owner before selling his prop-
    erty, if it is practicable to do so.” Jones v. Flowers, 
    547 U.S. 220
    , 225, 
    126 S. Ct. 1708
    , 
    164 L. Ed. 2d 415
    (2006) (empha-
    sis supplied).
    I would also note that I find the conclusions the majority
    draws from a house being at issue in Jones difficult to square
    - 487 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    with the facts of Jones itself. As the majority emphasizes, the
    property owner in Jones did not actually reside at the house
    that was being taken and sold by the government. The interest
    of the property owner in Jones was thus not that of someone
    whose residence was being sold out from under him. And
    while a nonresident owner undoubtedly has a significant inter-
    est in a house he or she owns, I do not see how such an inter-
    est would, for due process purposes, be more significant than a
    property owner’s interest in, say, a building used for business
    purposes, farmland, or any other piece of real property, even “a
    vacant lot.”
    Neither am I persuaded by the majority’s conclusion that
    Jones does not apply when, as here, the unclaimed certified
    mail was sent to the address at which the property owner lives.
    I concede that, at least at first blush, this distinction identified
    by the majority seems meaningful. A compelling argument can
    certainly be made that a person like the homeowner in Jones
    who never has the opportunity to accept certified mail is more
    deserving of additional attempts at notice than Barnette who,
    for reasons that are not clear, did not sign for certified mail
    sent to the home where he resides. One might add to that argu-
    ment that a finding that Barnette was provided with inadequate
    notice could create an incentive for delinquent taxpayers to
    evade certified mail. See 
    Jones, 547 U.S. at 248
    (Thomas, J.,
    dissenting) (“[t]he meaning of the Constitution should not turn
    on the antics of tax evaders and scofflaws”). But as compel-
    ling as I might find the policy arguments for the majority’s
    position, I do not believe that Jones can fairly be read to allow
    for it.
    In holding that knowledge that notice has been returned
    unclaimed requires the State to consider additional action,
    Jones does not focus on the reason that the certified mail went
    unclaimed. Its focus is instead on the fact that the certified
    mail went unclaimed. The Court concluded that because the
    certified mail went unclaimed, the government official knew
    the attempt to actually notify the homeowner had failed and
    - 488 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    therefore, if practicable, additional steps were required. See
    id., 547 U.S.
    at 225 (“when mailed notice of a tax sale is
    returned unclaimed, the State must take additional reasonable
    steps to attempt to provide notice . . . if it is practicable to
    do so”).
    But not only does Jones not focus on the owner’s living
    somewhere other than the address where the certified mail
    was sent, it explicitly discusses the possibility that certified
    mail might go unclaimed by a person residing at the address
    where the certified mail is 
    sent. 547 U.S. at 234
    (“[t]he return
    of the certified letter marked ‘unclaimed’ meant either that
    [the owner] still lived at [the address where the certified mail
    was sent], but was not home when the postman called and did
    not retrieve the letter at the post office, or that [the owner] no
    longer resided at that address”) (emphasis supplied). The opin-
    ion does not, however, conclude that a person who does not
    retrieve certified mail sent to his or her residence has received
    constitutionally adequate notice. To the contrary, it discusses
    how the required additional attempts at providing notice such
    as resending the notice by regular mail or posting notice on
    the front door would address both the possibility that the
    homeowner no longer lived at the address but also that he “had
    simply not retrieved the certified letter.” Jones v. Flowers, 
    547 U.S. 220
    , 235, 
    126 S. Ct. 1708
    , 
    164 L. Ed. 2d 415
    (2006). For
    better or for worse, Jones treats alike property owners who do
    not claim certified mail because they have moved and prop-
    erty owners who simply fail to retrieve certified mail—neither
    receive notice when certified mail goes unclaimed and the
    additional steps are aimed at providing notice to both types
    of parties.
    For this reason, I cannot agree with the majority that
    Pontian’s attempt at notice was “desirous of actually inform-
    ing” Barnette of its intent to apply for a tax deed. The major-
    ity focuses exclusively on whether Pontian’s attempt to notify
    Barnette of an impending tax sale was “desirous of actually
    informing” when the certified mail was sent. Under Jones,
    - 489 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    however, that is not the end of the inquiry, at least when
    certified mail is returned unclaimed. Under Jones, once cer-
    tified mail is returned unclaimed, it is not enough that the
    notice by certified mail was “desirous of actually informing”
    when sent.
    I also do not believe the majority is correct to conclude
    that even if Jones applies, Pontian was not required to take
    additional steps after the certified mail went unclaimed. The
    majority concludes Pontian was not required to do so because,
    it says, any additional steps would not likely have succeeded
    because there is nothing in the record that indicates why
    the certified mail went unclaimed in the first place. I do not
    believe that is relevant. When Jones concluded that additional
    steps such as sending the notice by regular mail or posting the
    notice on the front door were reasonable and available, it did
    not do so by considering whether those steps would have pro-
    vided notice to the property owner in the case before it. It con-
    cluded that such steps were “practicable” because they would
    “increase the chances of actual notice” whether the property
    owner had moved or had simply not retrieved the certified mail
    sent to his home.
    Id., 547 U.S.
    at 234, 235. I do not believe we
    can second-guess that determination here.
    Other Authority.
    The majority also relies on a number of cases in support of
    its more limited understanding of Jones. Just as I disagree with
    the majority’s understanding of Jones, I am not persuaded by
    its reliance on other cases.
    In my view, many of the cases cited by the majority do not
    even speak to the issues at hand. For example, the majority
    notes that in St. Regis of Onslow County v. Johnson, 191 N.C.
    App. 516, 
    663 S.E.2d 908
    (2008), the North Carolina Court
    of Appeals rejected a property owner’s argument that Jones
    required additional steps after a notice was returned unclaimed.
    That is true enough, but the court did not do so for any of the
    reasons the majority relies on here. The court concluded that
    - 490 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    notice was sufficient because in that case the notices were
    returned unclaimed after the property had been sold and thus
    the obligation to take additional steps to effect notice was
    never triggered.
    The majority also cites language from a Pennsylvania
    trial court decision to the effect that even if letters are
    returned unclaimed, the notice is sufficient if sent to a valid
    address. See Masergy Communications, Inc. v. Atris, Inc., No.
    06-24948, 
    2007 WL 5479856
    (Pa. Com. Pl. Oct. 4, 2007). In
    support of that proposition, however, the court cited cases that
    predated Jones. The court only mentioned Jones in a footnote,
    also distinguishing it on grounds not relied on by the major-
    ity here.
    I also cannot agree that Mikhaylov v. U.S., 
    29 F. Supp. 3d
    260 (E.D.N.Y. 2014), supports the majority’s position. At
    issue in that case was whether the government provided notice
    consistent with due process before seizing property in a drug
    forfeiture case. The government sent notice of the forfeiture to
    the property owner’s last known address by certified mail. The
    property owner had moved away, but someone else signed for
    it. The property owner argued that he was entitled to actual
    notice, and the court disagreed. Because the notice was not
    returned unclaimed, the court’s opinion, unsurprisingly, does
    not discuss Jones.
    Despite the absence of any mention of Jones in Mikhaylov,
    the majority splices together two quotes from the opinion and
    appears to suggest those quotes support its position. The first
    quote is a recitation of a principle of blackletter law with
    which neither I nor anyone else could quibble: “A written
    notice sent, via certified mail, to any known addresses, com-
    bined with published notices, ordinarily satisfies the Mullane
    standard.” Mikhaylov, 
    29 F. Supp. 3d
    at 267 (emphasis sup-
    plied). In the next sentence of the majority opinion, the major-
    ity quotes from language appearing two paragraphs later in
    Mikhaylov discussing “[t]he only arguable exceptions.”
    Id. To the
    extent the majority intends to suggest that Mikhaylov
    - 491 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    was articulating “[t]he only arguable exceptions” to its earlier
    statement that certified mail sent to a known address ordinar-
    ily satisfies Mullane, it is mistaken. The two paragraphs in
    between the portions quoted by the majority make clear that
    the court was discussing “arguable exceptions” to the rule that
    actual notice is not required to satisfy due process. Mikhaylov,
    
    29 F. Supp. 3d
    at 267. Jones did not require actual notice, and
    no one is suggesting that actual notice is required here.
    The majority does cite two cases, Temple Bnai Shalom
    of Great Neck v. Village of Great Neck Estates, 
    32 A.D.3d 391
    , 
    820 N.Y.S.2d 104
    (2006), and Mac Naughton v. Warren
    County, 
    20 N.Y.3d 252
    , 
    982 N.E.2d 1237
    , 
    959 N.Y.S.2d 104
    (2012), that appear to align with the majority’s understanding
    of Jones to some degree. But Temple Bnai Shalom of Great
    Neck declined to apply Jones based, in part, upon the reason
    certified mail went unclaimed and Mac Naughton declined to
    do so based upon a determination that additional efforts would
    not have resulted in notifying the owners in the case before it.
    As I have already explained, I do not believe either approach is
    consistent with Jones.
    While on the subject of authority, I note that others have
    read Jones as I do. In Schlereth v. Hardy, 
    280 S.W.3d 47
    (Mo.
    2009), the Missouri Supreme Court confronted a case like
    ours. In that case, certified mail was sent to the delinquent
    taxpayer’s residence; the taxpayer received notifications of
    the attempt to deliver, but she failed to pick it up; and it was
    returned unclaimed. The person seeking to buy the delinquent
    taxpayer’s home did not provide additional forms of notice.
    The Missouri Supreme Court unanimously held that, under
    Jones, the notice did not comply with due process. It con-
    cluded that after the certified mail was returned unclaimed, the
    sender was required to take reasonable, additional measures as
    articulated in Jones. With respect to the fact that the delinquent
    taxpayer received notification of the certified mail and failed
    to retrieve it, the court stated: “Jones did not concern itself
    with why the addressee failed to claim the certified letter. In
    - 492 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    HBI, L.L.C. v. BARNETTE
    Cite as 
    305 Neb. 457
    fact, the Supreme Court allowed for the possibility that the
    addressee, like [the delinquent taxpayer] simply would ignore
    the requests to pick up the certified letter.” 
    Schlereth, 280 S.W.3d at 51
    .
    Similarly, in VanHorn v. Florida, 
    677 F. Supp. 2d 1288
    (M.D. Fla. 2009), a federal district court concluded that, under
    Jones, the government was required to attempt additional rea-
    sonable steps at service, if practicable, even though the certi-
    fied mail that went unclaimed was sent to the address where
    the property owner resided. The court pointed to the language
    in Jones discussed above that the government was required
    to “account not only for the possibility that (as in [Jones])
    an unclaimed letter was delivered to an address at which the
    property owner did not reside but also ‘that he had simply not
    retrieved the certified letter.’” 
    VanHorn, 677 F. Supp. 2d at 1297
    , quoting Jones v. Flowers, 
    547 U.S. 220
    , 
    126 S. Ct. 1708
    ,
    
    164 L. Ed. 2d 415
    (2006).
    Conclusion.
    In closing, I respond to the majority’s assertion that I read
    Jones to create a new rule when the Jones Court disavowed
    doing so. In fact, Jones did not altogether disavow the creation
    of a new rule; the Court said it was not creating a rule that
    “is contrary to Dusenbery and a significant departure from
    
    Mullane.” 547 U.S. at 238
    . The dissent in Jones felt that this
    was not an accurate account of the 
    opinion. 547 U.S. at 244
    (Thomas, J., dissenting) (“[t]he majority’s new rule is contrary
    to Dusenbery and a significant departure from Mullane”). And,
    as a matter of description, perhaps that is debatable.
    But regardless of how Jones characterized its holding, we
    are bound to follow it. See, e.g., State v. Thieszen, 
    295 Neb. 293
    , 297, 
    887 N.W.2d 871
    , 875 (2016) (“[u]pon questions
    involving the interpretation of the U.S. Constitution, the deci-
    sion of the U.S. Supreme Court is the supreme law, by which
    state courts are bound”). Respectfully, I do not believe the
    majority opinion does. For that reason, I dissent.