Garzee v. Sauro

• Decision Date: 12 October 1982
• Docket Number: No. 63615,No. 2,63615,2
• Citation: 639 S.W.2d 830
• Parties: Denny GARZEE, et ux., Appellants, v. John T. SAURO, et al., Respondents
• Court: Missouri Supreme Court

Page 830

639 S.W.2d 830

Denny GARZEE, et ux., Appellants, v. John T. SAURO, et al., Respondents.

No. 63615.

Supreme Court of Missouri Division No. 2.

Oct. 12, 1982.

Sloan R. Wilson, McMullin, Wilson & Schwarz, Kansas City, for appellants.

R. Jay Ingraham, County Counselor, Stephen F. Volek, Mary G. Murdock, Associate County Counselors, Aaron A. Wilson, City Atty., John F. Ingraham, Asst.City Atty., Vickie S. Jones, Felix B. Winston, Kansas City, for respondents.

Charles C. Shafer, Jr., Charles C. Shafer, III, P.C., Kansas City, amicus curiae.

ALDEN A. STOCKARD, Senior Judge.

Appellants Garzee commenced this action for declaratory judgment to set aside as null and void a sale of their real estate for nonpayment of Kansas City, Missouri, property taxes because of alleged violation of applicable constitutional and statutory notice provisions. Respondents' motion for dismissal or for summary judgment was sustained by the trial court and the order of dismissal was designated final under Rule 81.06. Appeal was timely filed, and on October 13, 1981, the Missouri Court of Appeals, Western District, transferred this case by opinion [Garzee v. Sauro, 623 S.W.2d 579 (Mo.App.1981), prematurely published prior to transfer], because the question presented involves the construction of a revenue law. Mo.Const. art. V, § 3. We treat this cause as on original appeal and, in part, borrow from the statement of facts by the court of appeals.

This action arose out of a sale of appellants' Lot 20, Block 2, Howard and Scott's Addition, Kansas City, Jackson County, Missouri, for delinquent 1972 taxes due the City. Lot 21, which adjoins Lot 20 and upon which is located a garage attached to a residence located upon Lot 20, was not affected. Appellants pleaded that they received no notice whatsoever or summons of the City's intent or suit to sell Lot 20 for 1972 delinquent property taxes. On August 7, 1978, Lot 20 was sold at the City's instance for the alleged failure to pay taxes for 1972 to defendant John T. Sauro for $700.00, after which an appraiser's report was filed which valued the property at a probable selling price of $8,500.00, and a final market value as of October 1, 1978, after deducting 30% because of the forced sale for delinquent taxes, at $5,950.00. On October 1, 1978, the court administrator made report of the tax sale, which the court found to be inadequate and determined that adequate consideration was $2,800.00. It was ordered that the court administrator execute a deed to the property under the Land Tax Collection Law, §§ 141.210-.810, RSMo 1978, to Sauro upon his payment of the $2,800.00, which was done. Appellants were subsequently evicted at Sauro's demand under a writ of possession. The petition, denominated as one for declaratory judgment, prayed, among other things, that the deed to Sauro be set aside and that appellants be restored to physical possession of the property.

To the petition, respondents filed a joint motion to dismiss or for summary judgment to which suggestions in support of the motion were attached, urging that appellants' claim could not be maintained because of governmental or sovereign immunity; that appellants' allegations of respondents' noncompliance with procedures of §§ 141.120 and 141.130, RSMo 1978, are legally insufficient because those sections are not a part of the collection law; that appellants' allegation of the absence of personal service and the asserted failure of respondents to obtain personal service as a basis for a due process challenge to the foreclosure are insufficient as a matter of law; and that "the notice given in the K-77 Delinquent Land Tax Suit and with particular reference to [the Garzees], has been specifically held to be constitutionally sufficient." Attached to the suggestions was the affidavit of Clifford B. Smith, one of the publishers of The Daily Record, setting forth that the notice of "Land Tax-K77" was published on four consecutive Wednesdays, starting August 10, 1977. A copy of the notice was attached listing, "Howard & Scott's Add. K77-0514 GARZEE, DENNY E. & VONNIE G. Lot 20 Blk 2 $75.13." Also attached to the suggestions is an "affidavit" purportedly by James P. Mitchell, Director of the Department of Revenue of Jackson County, wherein it is stated that pursuant to § 141.440, a section of the "Land Tax Collection Act," he caused to be prepared and mailed, postage prepaid, a notice in the form provided by statute of the filing of the land tax suit to the persons named in the petition as being the last known persons in whose names tax bills were last billed or charged. It also was stated some of the mailed notices were returned to (Mitchell's) office as mail being undeliverable as per the attached serial numbers. K77-0514 of appellants is not listed as returned mail. This "affidavit" is "signed" by typewriter "James P. Mitchell Director, Department of Revenue By Richard Dale Moore, Jr. (in writing)." According to the copy included in the legal file, the "affidavit" is not acknowledged before anyone...