- 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 purchaser 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 certificate 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 methods 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 distinguish 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/01/2020 01:07 AM CDT
- 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 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 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 presumed to be constitutional, and all reasonable doubts are resolved in 

favor of its constitutionality. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity.

15. Constitutional Law: Statutes: Proof. The unconstitutionality of a statute 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 issuance 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 statutorily required 3 years, Pontian initially filed a judicial foreclosure 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 consecutive weeks.

On August 29, 2016, the Sarpy County treasurer issued a 

treasurer’s tax deed in Pontian’s name. Pontian filed a complaint, seeking to quiet title on the property. Barnette filed a 

counterclaim to quiet title in his name. Pontian later transferred 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 summary judgment. On October 22, Barnette filed a third motion 

for summary judgment. Barnette later amended his counterclaim 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 summary 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 complied 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 process 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 interpretation 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 proceed to judicial foreclosure.

[2-7] The Legislature’s recent amendments to tax sale statutes 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 foreclosure 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 separate 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 foreclosure 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 setoff 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 distinguish 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 certified mail when the holder had actual knowledge of the property 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 proceeding 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 assignees 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 description 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 misidentification 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 defective, 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 requirements 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 constitutionality. 26 The burden of establishing the unconstitutionality of a 

statute is on the one attacking its validity. 27 The unconstitutionality 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 opportunity 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 second 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 constituted 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 presented, “[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 knowledge of ineffective service to sending notice with actual 

knowledge that the notice was unlikely to reach the recipient 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 certified 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 statement 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 circumstances, 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 something 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 information reveals.” 48

The dissent, and the authority it cites, interprets Jones as 

establishing a new rule requiring the government to make additional 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 calculated’ 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 certified 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 constitutionally 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 peculiarities 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 reliance 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 process 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 determined the return of the owner’s letter as unclaimed constituted 

“new information” revealed to the government. 58 That information must then be taken into account as one of the “‘practicalities 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 practicable 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 conclusion, 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 information 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 determining whether the procedures used in providing notice are 

constitutionally sufficient, the governmental and private 

interests are analyzed using three distinct factors. These factors include:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of 

such interest through the procedures used, and the probable value, if any, of additional or substitute procedural 

safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative 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 prospect 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 involving 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 constitutionality, 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 burden 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 suggested 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 owner’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 person’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 determining 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 forfeiture, “[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 government 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 circumstances 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 certified 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 calculated 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 differs 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 demonstrates 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 owners 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 correct, 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 practice 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 burning 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 provided 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 complied 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 reasonably 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 establishing 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 circumstances 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 published 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 similar 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 government 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 purchaser 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 recipient 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 publication 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, reasonable 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, reasonable 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 publication, 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, however, 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 process notwithstanding Jones. As I understand the majority opinion, 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 determination 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 emphasize 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 reasonable steps to provide notice before taking the owner’s property.” 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 reasonable 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 property, 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) (emphasis 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 interest in a house he or she owns, I do not see how such an interest 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 argument 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 compelling 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 opinion 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 property 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 informing” Barnette of its intent to apply for a tax deed. The majority 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 certified 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 provided notice to the property owner in the case before it. It concluded 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 majority 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, combined with published notices, ordinarily satisfies the Mullane

standard.” Mikhaylov, 29 F. Supp. 3d at 267 (emphasis supplied). In the next sentence of the majority opinion, the majority 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 ordinarily 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 concluded 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 reasonable steps at service, if practicable, even though the certified 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 decision 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.