Collector of Revenue of The City of St. Louis v. Parcels of Land Encumbered With Delinquent Tax Liens

• Decision Date: 20 September 2011
• Docket Number: No. ED 95312.,ED 95312.
• Parties: COLLECTOR OF REVENUE OF The CITY OF ST. LOUIS, Respondent,v.PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS, Defendant.andRobert L. Kennedy, Appellant.
• Court: Missouri Court of Appeals

350 S.W.3d 840

COLLECTOR OF REVENUE OF The CITY OF ST. LOUIS, Respondent,

v.PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS, Defendant.andRobert L. Kennedy, Appellant.

No. ED 95312.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 20, 2011.

Francis X. Duda, Mariano V. Favazza, St. Louis, MO, for appellant Robert Kennedy.Stephen J. Kovac, St. Louis, MO, for respondent, Collector or Revenue.Donald G. Dylewski, St. Louis, MO, for defendant, Land Reutilization Authority of the City of STL.Gordon D. Schweitzer, Jr., St. Louis, MO, for defendant, City of St. Louis Sheriff's Department.KENNETH M. ROMINES, J.

This case is about the dismissal of a Rule 74.06 motion to set aside a foreclosure judgment on a parcel of land formerly owned by Appellant. It is decided on a procedural issue.

Background and Procedural History

Prior to 2008, Robert Kennedy (Appellant) and his wife were the fee simple owners of the property at 4217 Russell Boulevard, St. Louis (the parcel). In October 2008 notice of a foreclosure action involving the parcel was published four times in the St. Louis Post Dispatch. A copy of the notice was also mailed to Appellant at the address listed with the City of St. Louis Assessor's Office. On 11 December 2008 a Judgment of Foreclosure was entered on the parcel. On 28 August 2009 the Collector of Revenue for the City of St. Louis filed a pleading with the circuit court listing the parcel as encumbered with delinquent special taxes and for sale by the sheriff. On 20 October 2009 an auction was held and the parcel was sold to the Land Reutilization Authority.

Subsequently, on 18 November 2009, Appellant filed a Rule 74.06 motion to set aside the foreclosure judgment on the parcel. On 10 March 2010 the motion court denied the motion. The motion court cited two reasons for denying Appellant's motion. First, it found that it had no jurisdiction to entertain the motion because it was not filed within a reasonable time after the judgment of foreclosure—it was filed more than eleven months after that judgment. Second, it found that the motion lacked merit because the foreclosure judgment was proper as Appellant had received notice of the code violations, the City had incurred expenses correcting those violations, a tax bill had been properly assessed against the parcel as a result of those expenses, Appellant had received notice of the foreclosure action, and the foreclosure judgment had properly affixed the time for the foreclosure sale.

On 20 May 2010 the circuit court entered a judgment approving the sheriff's sale of the parcel.

Appellant challenges the motion court's denial of his motion to set aside.

Standard of Review

The motion court is afforded broad discretion when acting on a Rule 74.06 motion, and an appellate court should not interfere unless the record demonstrates an abuse of the motion court's discretion. Judicial discretion is abused only when that ruling was clearly against the logic of the circumstances then before the trial court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.First Bank of The Lake v. White, 302 S.W.3d 161, 165 (Mo.App. S.D.2009) (internal citations omitted).

Discussion

Appellant claims the motion court erred in denying his Rule 74.06 motion to set aside the foreclosure judgment on the parcel. Appellant cites two errors in the motion court's judgment. First, as to the motion court's jurisdiction, Appellant claims his motion was timely per se as it was filed within one year of the foreclosure judgment. Second, as to the merits of the motion, Appellant claims the foreclosure judgment was void and should be set aside because there were no outstanding taxes on the property at the time of the judgment.

As a preliminary matter, this Court must consider the timeliness of Appellant's appeal. “In every case before considering claims raised on appeal, this Court has a duty to sua sponte determine whether we have authority to decide the appeal.” Parker v. American Publishing Co., 314 S.W.3d 798, 800–01 (Mo.App. E.D.2010). If an appeal is not timely, this Court...