Four Seasons Racquet & Country Club Prop. Owners Ass'n, Inc. v. Butler

• Decision Date: 21 February 2018
• Docket Number: No. SD 35091,SD 35091
• Citation: 539 S.W.3d 122
• Parties: FOUR SEASONS RACQUET AND COUNTRY CLUB PROPERTY OWNERS ASSOCIATION, INC., a Missouri Non Profit Corporation, Plaintiff–Respondent, v. Carol BUTLER, and Millsap & Singer, P.C., a Missouri Professional Corporation as Trustee for Arvest Central Mortgage Company, Defendants, and Arvest Central Mortgage Company, Defendant–Appellant.
• Court: Missouri Court of Appeals

539 S.W.3d 122

FOUR SEASONS RACQUET AND COUNTRY CLUB PROPERTY OWNERS ASSOCIATION, INC., a Missouri Non Profit Corporation, Plaintiff–Respondent,

v. Carol BUTLER, and Millsap & Singer, P.C., a Missouri Professional Corporation as Trustee for Arvest Central Mortgage Company, Defendants,andArvest Central Mortgage Company,¹ Defendant–Appellant.

No. SD 35091

Missouri Court of Appeals, Southern District, Division Two.

Filed: February 21, 2018

Appellant's Attorney: Anne M. Zimmermann, of Chesterfield, Missouri

Respondent's Attorney: George W. Smits and Robert W. Pohl, of Osage Beach, Missouri

WILLIAM W. FRANCIS, JR., J.

Arvest Central Mortgage Company ("Arvest") appeals from summary judgment granted in favor of Four Seasons Racquet and Country Club Property Owners Association, Inc. ("Four Seasons"). In two points, Arvest contends the trial court erred in granting summary judgment in favor of Four Seasons because Four Seasons' "Declaration" specifically adopts Missouri's Uniform Condominium Act ("the UCA"), as amended; and because the 2014 amendment to the UCA should have applied retroactively, in that the amendment was remedial rather than substantive. Finding no merit in Arvest's points, we affirm the trial court's judgment.

Factual and Procedural Procedure

On July 6, 2000, Carol Butler ("Butler") purchased a condominium unit located in the Four Seasons Racquet and Country Club condominiums by warranty deed from Kathleen Ray.

On February 28, 2005, Four Seasons recorded its "Second Amendment and Complete Restatement of Declaration of Condominium" ("the Declaration").²

On February 12, 2009, Butler executed a promissory note and deed of trust in favor of Bank Star One. The deed of trust was recorded on February 18, 2009. On February 13, 2009, Bank Star One assigned the note and deed of trust to Arvest by deed of trust, recorded on February 20, 2009. On October 23, 2013, "Millsap & Singer, P.C.," ("Millsap") was appointed successor trustee under the deed of trust.

On January 1, 2013, Butler failed to pay Four Seasons certain assessments that were otherwise due and owing, and failed to remit payment thereafter as other assessments became due.

On October 5, 2015, Four Seasons recorded a "Notice of Delinquent Assessments and Lien" against Butler and the Property, due to Butler's failure to pay assessments for the Property due and owing on January 1, 2013, and which continued to accrue thereafter.

On December 15, 2015, Four Seasons filed a Petition to establish and foreclose its assessment lien against Butler. In a subsequent First Amended Petition, Four Seasons added Millsap as a party defendant.

On December 29, 2015, Millsap, in its capacity as successor trustee of the deed of trust, filed a "Notice of Trustee's Sale" on behalf of Arvest and caused it to be delivered to Four Seasons.

On March 24, 2016, Four Seasons filed a Second Amended Petition adding Arvest as a defendant, and requesting the court find Four Seasons' lien as priority against the Property, superior to the interest of Arvest. Four Seasons asserted it was a condominium association organized under the UCA,³ and the Property and Butler were subject to the terms and conditions of the Declaration recorded in the Camden County Recorder of Deeds.

On September 27, 2016, Arvest filed a motion for summary judgment. On October 3, 2016, Four Seasons filed its motion for summary judgment. Both parties filed responses and replies to these respective motions.

On October 4, 2016, Four Seasons filed a "Motion for Order of Interlocutory Default" against Butler, which the trial court granted on October 12, 2016.

On January 5, 2017, a hearing was held on the parties' respective motions for summary judgment. The trial court took the matter under advisement.

On May 4, 2017, the trial court granted summary judgment in favor of Four Seasons, finding that Four Seasons' lien for unpaid assessments and fines arose January 1, 2013,⁴ and its lien was "first, prior and paramount" to Arvest's mortgage lien. The trial court reasoned that in January 2013, the controlling version of section 448.3–116.2 gave Four Seasons a " 'super priority' lien which is superior to ALL other liens" except, as relevant here: (1) if Arvest's interest were recorded before the Declaration; (2) were for purchase of the unit; (3) were a governmental tax lien; or (4) dealt with certain specific conditions arising out of unit refinancing. The trial court found there was no genuine issue of material fact as to these issues, and none of those exceptions applied. The trial court noted that in 2014, there was an amendment to section 448.116.2 that removed Four Seasons' "super priority" status, but determined that such amendment should not be applied because it effected a "change[ ] [to] the substantive law of priority[,]" and if applied, "would take away from [Four Seasons] a vested right to priority over [Arvest's] lien." The trial court further found that the Declaration—purporting to adopt the UCA "as amended"—had no efficacy as to which version of the UCA applied.⁵

On June 22, 2017, Four Seasons filed a "Motion for Default Judgment Against Defendant Carol [Butler]," requesting the trial court enter a default judgment against Butler for the amount of the delinquent assessments, and to order foreclosure of Four Seasons' assessment lien.

On July 6, 2017, the trial court entered a final judgment against Butler⁶ and "for foreclosure of [Four Season]'s lien for delinquent assessments[.]" The trial court found that pursuant to "Four Seasons' declaration and the laws of the State of Missouri," Four Seasons was entitled to judgment against Butler in the amount of $66,553.11 for unpaid and delinquent condominium assessments, with nine percent interest, attorney fees as assessed, and costs. Four Seasons was also entitled to all assessments and fees levied or charged against the Property after the date of the judgment until the sale of the Property.

The trial court further indicated as follows:

IT IS FURTHER ORDERED ADJUDGED AND DECREED that the Judgment and lien of Plaintiff against the property described is declared to be a first, superior and paramount lien on and against the property described above as senior and superior to all rights, titles, liens or claims of any and all Defendants hereto.

IT IS FURTHER ORDERED ADJUDGED AND DECREED that Plaintiff is entitled to foreclosure of its lien and immediate sale of such real estate; that a special fieri facias execution shall issue for the sale of the premises described herein; that Plaintiff shall have the right to credit bid all or any part of its Judgment herein for such sale; and the proceeds of such sale be applied to payment of the Judgment herein.

IT IS FURTHER ORDERED ADJUDGED AND DECREED that the Defendants and all persons claiming under them are hereby forever barred and foreclosed from any equity of redemption.

IT IS FURTHER ORDERED ADJUDGED AND DECREED that the Court expressly retains jurisdiction of the property and subject matter herein pending sale of the real estate.

This appeal followed.

In two points on appeal, Arvest asserts the trial court erred in granting summary judgment in favor of Four Seasons because Four Seasons' Declaration specifically adopted the UCA "as amended and supplemented from time to time"; and erred in granting summary judgment in favor of Four Seasons because the amended version of the UCA was remedial rather than substantive, and should have applied retroactively.

Standard of Review

"Appellate review of summary judgment is de novo ." Doe Run Resources Corporation v. American Guarantee & Liability Insurance , 531 S.W.3d 508, 511 (Mo. banc 2017). "Summary judgment is appropriate when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law." Id. In the present matter, the summary judgment record demonstrates no genuine dispute of material fact; therefore, the sole question is whether Four Seasons was entitled to judgment as a matter of law.

Analysis

Four Seasons accurately observes that the "fighting issue in this [appeal] is whether retrospective application is to be given to an amendment to § 448.3–116.2 ^{[7 ]}of the [UCA,] which governs priority of the condominium association's lien for unpaid assessments."

Arvest's first argument as to this "fighting issue" is that the Declaration stated that the Four Seasons' properties were subject to "Chapter 488, Revised Statutes of Missouri (1983, as amended and supplemented from time to time), or any successor legislation to these statutes, commonly known as the Missouri Uniform Condominium Act[,]" and that application of the 2014 amendment to section 488.3–116.2 was therefore mandated.

Condominium liens are creatures of statute—namely, Missouri's UCA.⁸ "The existence of a valid statutory lien rests entirely on whether the terms of the statute creating the lien have been met."⁹ Absent express authorization in the UCA, no provision therein "may be varied by agreement, and no rights conferred ... may be waived." § 448.1–104. Declarations and bylaws cannot "add or subtract from the ... lien provision[s]" of the UCA.¹⁰ Such agreements can serve to make the authorizing "statutory provision more convenient and accessible," but agreement provisions that vary, waive, or add to the lien provisions of the UCA are "impotent" from inception.¹¹ To the extent the terms of condominium bylaws and declarations are both statutorily authorized, the declaration controls if the two conflict. § 448.2–103.¹²

Arvest suggests that the Declaration, which adopts the UCA "as amended and supplemented from time to time[,]" compels application of the 2014 amendment to section 448.3–116.2, even if application of that amendment would not otherwise follow. This argument trips over its own induction. If the Declaration would cause the law to be applied differently than the controlling provisions of the UCA (as this argument presupposes), the Declaration would be "impotent" as to that distinction. Carroll v....