NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

MEMORANDUM DECISION

KESSLER, Presiding Judge:

¶1 Pete Span appeals the superior court's grant of summary judgment in favor of Maricopa County holding that a tax lien purchased in 1995 on Span's property did not expire in 2005.1 We hold that the original 1995 tax lien expired in 2005. Accordingly, we reverse and remand for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 Span is the deeded owner of the subject property. Span failed to pay property taxes in 1993 and a tax lien was sold at auction in 1995. The Country Treasurer issued the buyer (the "CP holder") Certificate of Purchase number 93002715 (the "CP"). The CP holder later paid the delinquent taxes for 1994, 1995, and 1996, and those payments were added to the CP. In 2007, the CP holder initiated a foreclosure proceeding, which it dismissed when Span paid the County $102,989.94 ("redemption amount") under protest to obtain a redemption certificate.

¶3 Span filed a pro se complaint against the County contending that the CP holder's lien had expired and the County violated his statutory and constitutional rights by requiring him to pay money on an expired lien to avoid foreclosure. In addition to damages, Span sought return of the money he paid under protest to redeem the lien.2 On appeal, Span conceded the only claim in this action was one for declaratory relief as to whether the lien was still valid and recoupment of the payment he made under protest.

¶4 The County and Span filed motions for summary judgment. As it relates to this appeal, the County argued that the CP had not expired under Arizona Revised Statutes ("A.R.S.") section 42-18208 (2006) (ten-year statute of repose) because the purchase of later delinquent taxes kept the CP active and tolled the statute from running. Span argued that the lien had expired under A.R.S. § 42-18208 because the statute does not explicitly provide for tolling based upon the purchase of subsequent taxes.

¶5 The superior court granted the County's motion for summary judgment and denied Span's motion. The court held that "A.R.S. § 42-18208 when read in conjunction with A.R.S. § 42-18121 [(Supp. 2013)] and other applicable property tax and tax lien foreclosure statutes in Title 42 provides no statutory procedure for a certificate of purchase containing endorsed subtaxes newer than ten years to expire." The court denied Span's motion for new trial and Span timely appealed We have jurisdiction pursuant to A.R.S. §§ 12-120.21 (2003), -2101(A)(1), (A)(5)(a) (Supp. 2013).3

DISCUSSION

¶6 On appeal, Span argues that the superior court erred in granting summary judgment in favor of the County by finding that the statute of repose set forth in A.R.S. § 42-18208(A) is rendered inapplicable by the CP holder's payment of subsequent property taxes. The County argues that the court correctly held that the payment of subsequent taxes or "subtaxes" tolled the running of the statute, and, in any event, the County's failure to give the CP holder notice of the CP's alleged 2005 expiration also extended the validity of the lien because such notice is a prerequisite for the lien to expire.4

¶7 We review the grant of a motion for summary judgment de novo. Vig v. Nix Project II P'ship, 221 Ariz. 393, 396, ¶ 10, 212 P.3d 85, 88 (App. 2009). "We must view the evidence in the light most favorable to the party opposing the motion for summary judgment and draw all inferences fairly arising from the evidence in favor of the opposing party." Johnson v. Svidergol, 157 Ariz. 333, 335, 757 P.2d 609, 611 (App. 1988).

Koss Corp. v. American Express Co., 233 Ariz. 74, 79, ¶ 12, 309 P.3d 898, 903 (App. 2013) (citations omitted). "[A]lthough we give deference to an agency's interpretation of a statute or regulation it is charged with enforcing, it is ultimately the responsibility of the judiciary to interpret the meaning and applicability of statutory and constitutional provisions." State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 119 n.16, ¶ 57, 290 P.3d 1226, 1242 n.16 (App. 2012) (citations omitted).

I. EXPIRATION OF TAX LIENS UNDER A.R.S. § 12-18208

¶8 The only question before us is when does a property tax lien expire under A.R.S. § 42-18208(A). For the reasons that follow, we hold that such a lien expires ten years after its purchase regardless of whether a buyer later pays subsequent taxes on the same property. The effect of A.R.S. § 42-18208 on subsequent taxes paid for by the CP holder is not before us except to the extent that it does not toll the ten-year expiration on the original CP.

¶9 When a property owner is delinquent on taxes, the County secures payment by selling a tax lien at auction. See A.R.S. §§ 42-18101(A) (2006), -18112 (2006), -18114 (Supp. 2013); see also Suzico Inc. v. Maricopa County, 187 Ariz. 269, 271-72, 928 P.2d 693, 695-96 (App. 1996) (noting that tax liens are inchoate as of January 1 and perfected by operation of law). "The purchaser of a tax lien receives a certificate of purchase, known as a tax lien certificate, which . . . serves as evidence entitling the holder to a deed if certain statutory conditions are met." Daystar Invs., L.L.C. v. Maricopa Cnty. Treasurer, 207 Ariz. 569, 570, ¶ 3, 88 P.3d 1181, 1182 (App. 2004). The certificate holder has the option of paying any subsequent delinquent taxes outside of the auction process:

A.R.S. § 42-18121(A). The payment for such additional liens is added to the original certificate of purchase. A.R.S. § 42-18121(A) ("The treasurer shall enter the amount of the payment [of such additional purchases] on the certificate . . . .").

¶10 Prior to 2002, "there [was] no time limit for a tax lien holder to redeem the certificate of purchase or foreclose on the property." Ariz. S. Fact Sheet, 2002 Reg. Sess. S.B. 1041 (May 14, 2002).

A.R.S. § 42-18201 (2001). This resulted in an upsurge of old tax liens on county treasurer tax rolls and issues with income tax filings. Ariz. S. Fact Sheet, 2002 Reg. Sess. S.B. 1041 ("This has resulted in a number of old tax liens compounding on the county treasurers' tax rolls. In addition, while the certificates of purchase are outstanding, the holder of the tax lien is unable to provide documentation to support a business loss deduction on federal and state income tax filings.").

¶11 Consequently, in 2002, the Arizona Legislature amended A.R.S. § 42-18201 to include a ten-year statutory lifetime for tax liens purchased at auction pursuant to A.R.S. § 42-18114 from and after the date of the act. See Ariz. S. Fact Sheet, 2002 Reg. Sess. S.B. 1041; County Treasurers, 2002 Ariz. Legis. Serv. Ch. 193 (S.B. 1041); see also A.R.S. § 42-18114 ("A real property tax lien shall be sold pursuant to this article to the person who pays the whole amount of delinquent taxes, interest, penalties and charges due on the property, and who in addition offers to accept the lowest rate of interest on the amount so paid to redeem the property from the sale. . . .").

¶12 In 2003, the Legislature extended the ten-year expiration date to liens purchased prior to 2002 by enacting A.R.S. § 42-18208. Ariz. S. Fact Sheet, 2003 Reg. Sess. S.B. 1069 (Feb. 10, 2003). In 2005, the statute was amended to apply only to liens purchased at auction pursuant to A.R.S. § 42-18114. See Ariz. H.B. Summary, 2005 Reg. Sess. H.B. 2252 (Jan. 20, 2005) ("HB 2252 proposes several changes to county treasurer's procedure and policies specifically, the bill allows tax liens that are assigned to the state to not have an expiration date of ten years . . . ."). Section 42-18208 now provides:

¶13 This ten-year limitations period is reiterated in A.R.S. § 42-18127 (Supp. 2013), which was also enacted in 2002:

2002 Ariz. Legis. Serv. Ch. 193 (S.B. 1041).

¶14 It is clear from the plain language and history of A.R.S. § 42-18127, -18201, and -18208 that the Legislature intended certificates of purchase to expire after ten years unless the purchaser begins a foreclosure action on the right of redemption before that time. Thus, any lien purchased through auction expires ten years from the date of purchase absent a timely foreclosure action. The statute does not provide that paying subsequent taxes tolls or extends this ten-year period.6

¶15 Here, the CP holder purchased the original lien in 1995 and paid the property's subtaxes for three additional years. The CP holder did not commence a foreclosure action until 2007, and dismissed it when Span, under protest, paid the amount the County claimed was due under the lien. By 2005, the original lien evidenced by the CP had expired.

II. NOTICE

¶16 To support its claim that the CP was still valid, the County also claims that the notice provision required by A.R.S. § 42-18208(B) is a prerequisite to expiration. It argues that "[b]ecause the notice mandated by A.R.S. § 42-18208(B) was not sent, the certificate did not expire."

¶17 The statute's notice provision provides that the County is required to notify purchasers of the upcoming expiration of their lien. See A.R.S. § 42-18208(B). The statute requires this notice to be given at least six months prior to the expiration date, id., which is ten years after the date the lien was purchased. A.R.S. § 42-18208(A). However, nothing in the statute indicates that the expiration date hinges on completion of the notice requirement.7 Although we give great weight to an agency's interpretation of the statute, the court ultimately determines the meaning of the statutory language. Mathis, 231 Ariz. at 119 n.16, ¶ 57, 290 P.3d at 1242 n.16. Nothing in A.R.S. § 42-18208(B) provides that a county's failure to give notice extends the lien and the right to foreclose on redemption. Indeed, by the County's argument, if a county failed to ever give such notices, the liens would never expire.8

III. ATTORNEYS' FEES AND COSTS

¶18 In his opening brief, Span requests an award of attorneys' fees on appeal by construing his complaint as one seeking a declaratory judgment on the validity of a rule. See A.R.S. § 41-1034 (2013) (permitting an action for declaratory relief challenging the validity of a rule). Not only does that section not provide for an award of attorneys' fees, but it applies only to challenges to an agency's rules, and the County is not an agency for the purposes of that statute. A.R.S. § 41-1001(1), (18) (2013) (defining rule as an agency statement of general applicability that interprets or prescribes law or policy, and explaining that an agency "does not include a political subdivision of this state or any of the administrative units of a political subdivision"). Although in his reply brief Span also asks for fees pursuant to A.R.S. § 12-348(B)(1) (Supp. 2013) (providing for an award of reasonable attorneys' fees to a prevailing party in an action against a county challenging the assessment or collection of taxes), we will not consider that request because it was only made in the reply brief. Robert Schalkenbach Found., 208 Ariz. at 180, ¶ 17, 91 P.3d at 1023.

CONCLUSION

¶19 For the foregoing reasons, we reverse and remand for further proceedings consistent with this decision. We deny Span's request for attorneys' fees on appeal, but we will award him his costs on appeal upon timely compliance with Arizona Rule of Civil Appellate Procedure 21.