Kornblum v. St. Louis County, Mo., 93-4111

• Decision Date: 15 February 1995
• Docket Number: No. 93-4111,93-4111
• Citation: 48 F.3d 1031
• Parties: Robert KORNBLUM, Appellant, v. ST. LOUIS COUNTY, MISSOURI, and John Doe, an unknown person and John Doe II, an unknown person, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1031

48 F.3d 1031

Robert KORNBLUM, Appellant, v. ST. LOUIS COUNTY, MISSOURI, and John Doe, an unknown person and John Doe II, an unknown person, Appellees.

No. 93-4111.

United States Court of Appeals Eighth Circuit.

Submitted June 15, 1994.

Decided Feb. 15, 1995.

Gerald M. Dunne, argued, St. Louis, MO, for appellant.

Robert E. Fox, Jr., argued (John A. Ross and Robert E. Fox, Jr., on brief), Clayton, MO, for appellee.

Before MORRIS S. ARNOLD, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and MELLOY ^*, Chief District Judge.

MELLOY, Chief District Judge.

Robert Kornblum appeals the district court's ¹ order granting Summary Judgment for the appellee on appellant's claim, brought under 42 U.S.C. Sec. 1983, for damages arising out of a violation of his Civil Rights. Mr. Kornblum contends that the district court's order was in error.

I. Background

The appellant, Robert Kornblum, purchased property located at 9766 Nolte Avenue (the "Nolte Property"), in St. Louis County, Missouri. Mr. Kornblum, a licensed Real Estate Broker, purchased the property with the intent to renovate the deteriorating single family residence located on the property, and resell it at a profit. Within three months of his purchase, the Nolte Property residence was demolished pursuant to a demolition order issued by St. Louis County. Mr. Kornblum's civil rights claims are based on an allegation that the County took his property without due process of law. The district court granted summary judgment for the County, and this appeal followed.

The Nolte Property formerly belonged to Orville and Daisy Glendinning ("Orville" and "Daisy"). Daisy, the last occupant of the Nolte Property, died intestate on October 23, 1982, and her heirs took fractional, fee simple interests in the Nolte Property pursuant to a decree, issued January 8, 1987, by St. Louis County Circuit Court, Probate Division. Mr. Kornblum purchased the property from the Glendinning heirs on February 4, 1988. Between the date of the Probate decree and Mr. Kornblum's purchase, St. Louis County began to take an active interest in the Nolte Property.

Due to its deteriorated condition, Jack O'Brien, Building Inspector for St. Louis County Public Works, declared the Nolte Property residence a public nuisance, and placed a Notice of Declaration of Nuisance on the Nolte Property on March 24, 1987. Although St. Louis County Ordinance No. 11,718 (1984) required the County to record the Declaration with the County Recorder of Deeds, the declaration was never recorded.

The day after reinspecting the property on July 9, 1987, the County sent a certified letter to notify the owners of the Declaration of Nuisance. The County sent the letter to "Daisy Glendinning c/o Pat Andrew," instead of to the Glendinning heirs, because of the property ownership reflected on a title report prepared for the County by First American Title. The report did not reveal the interests of the Glendinning heirs because they had not yet recorded the interests they took pursuant to the January 8 Probate decree. Instead, the report listed Daisy and Orville as owners, noted that Orville was deceased, and listed Orville's probate file number. Because the report did not list an address for Daisy, the letter was sent c/o Pat Andrew, who was listed in the Tax Collector's rolls as the recipient of the Nolte property real estate tax bills. The County published notice that the Nolte property was a nuisance in the Watchman's Advocate, a local newspaper, on July 20, 1987.

The County scheduled the Nolte Property public condemnation hearing for October 1, 1987. The County sent notice of the hearing to "Daisy Glendinning c/o Pat Andrew" on August 21, and published notice of the hearing in the Watchman's Advocate on August 28, 1987. No one appeared at the hearing on behalf of the property owners. The hearing officer found that the property was a public nuisance and issued an order of demolition. The County demolished the Nolte Property residence, pursuant to that order, in April, 1988, and placed a lien on the property for the cost of demolition.

Mr. Kornblum filed a four count complaint against St. Louis County. ² The first count is a federal claim under 42 U.S.C. Sec. 1983, alleging a deprivation of his civil rights; specifically, that insufficient notice, prior to demolition of the building on the Nolte Property and placing the lien on the Nolte Property, deprived him of property without the due process of law. ³ The complaint included three pendant state law claims, alleging trespass, abuse of process and slander of title. The district court granted summary judgment for the County, holding that Mr. Kornblum was not entitled to notice because he did not have an interest in the property at the time of the nuisance hearing and dismissed the three pendant claims for lack of jurisdiction.

II. Standard of Review

This is an appeal of the district court's grant of summary judgment for the appellee, St. Louis County. 835 F.Supp. 1127. Summary Judgment is appropriate when "there is no genuine issue as to any material fact" and the moving party "is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); First Security Savings v. Kansas Bankers Surety Co., 849 F.2d 345, 349 (8th Cir.1988). This court must view the evidence in the light most favorable to the non-moving party, and the non-moving party must receive the benefit of all reasonable inferences to be drawn from the underlying facts. Holloway v. Lockhart, 813 F.2d 874, 876 (8th Cir.1987). The burden of proof is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain recovery under any circumstances. Foster v. Johns-Manville Sales Corp., 787 F.2d 390, 392 (8th Cir.1986). The court below granted summary judgment for the defendant on his Sec. 1983 claim because the plaintiff did not have any property interest in the Nolte property at the commencement of the nuisance proceedings, and consequently, there was no constitutional requirement that he be afforded notice of the nuisance proceedings.

III. Issues on Appeal

Mr. Kornblum raises three issues on appeal; one issue of substantive law, and two procedural issues:

1. He challenges the district court's finding that there was no constitutional requirement that he be afforded notice of the nuisance proceedings;

2. He claims that the County waived its right to assert the defense of "failure to state a claim upon which relief can be granted" by failing to raise it in the pleadings; and

3. He claims that the court erred in relying on certain "uncertified and unverified" documents in violation of Fed.R.Civ.P. Rule 56.

IV. Constitutionally Adequate Notice

Mr. Kornblum's Sec. 1983 claim asserts that St. Louis County deprived him of property without due process of law by demolishing the Nolte Property residence without sufficient notice to him. He challenges the District Court's holding that there was "no constitutional requirement that he be afforded notice of the nuisance proceedings" because "[h]e had no interest in the property at the commencement of the nuisance proceedings." Kornblum v. St. Louis County, 835 F.Supp. 1127, 1129 (E.D.Mo.1993). Mr. Kornblum claims that summary judgment was inappropriate, in part, because his claim alleges a violation of the St. Louis ordinance 11,718 (1984). However, a violation of state law does not, per se, give rise to a claim under Sec. 1983. Rubek v. Barnhart, 814 F.2d 1283, 1285 (8th Cir.1987). To state a claim under Sec. 1983, Mr. Kornblum must show that the County violated the Constitution, not its own ordinance.

The Due Process Clause of the Fourteenth Amendment requires that a State, prior to an action affecting an interest in property, provide notice that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Muhammed v. Routh Wrecker Service, 14 F.3d 24, 25 (8th Cir.1994); Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180 (1983); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). "Actual receipt of notice is not constitutionally required." Sheiner v. City of New York, 611 F.Supp. 172, 176 (E.D.N.Y.1985). In other words, the test is whether notice, when given, was reasonably calculated to notify the interested party, not whether in retrospect, notice in fact reached the interested party. Mr. Kornblum makes, essentially, two distinct substantive arguments in support of his appeal from the district court's grant of summary judgment for the defendant.

A. Notice to the Glendinning Heirs

The plaintiff's first argument is a third-party assertion of the heirs' due process rights, based on his status as successor in interest to the Nolte Property. Mr. Kornblum claims that "there was no way for [him] to discover the existence of the demolition order because the persons who sold the property to [him] had never been properly notified." Brief for Appellant at 25. Ordinarily, one may not claim standing to vindicate the constitutional rights of a third party. Irving v. Clark, 758 F.2d 1260, 1267 (8th Cir.1985) (citing Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953)). However, there are certain, limited exceptions to the general rule; litigants may bring actions on behalf of third parties, provided that: (1) the litigant has suffered an injury in fact, (2) the litigant has a close relation to the third party, and (3) there is some hindrance to the third party's ability to protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1990). Assuming, arguendo, that Mr. Kornblum has standing to assert the heirs' rights,...