Harpagon Mo Llc v. Clay County Collector

• Decision Date: 15 March 2011
• Docket Number: No. WD 72006.,WD 72006.
• Citation: 335 S.W.3d 99
• Parties: HARPAGON MO, LLC, Appellant,v.CLAY COUNTY COLLECTOR, Respondent,Citifinancial Services, Inc., Respondent.
• Court: Missouri Court of Appeals

335 S.W.3d 99

HARPAGON MO, LLC, Appellant,

v.CLAY COUNTY COLLECTOR, Respondent,Citifinancial Services, Inc., Respondent.

No. WD 72006.

Missouri Court of Appeals, Western District.

March 15, 2011.

Eugene J. Feldhausen, Kansas City, MO, for Appellant.Patricia L. Hughes, Liberty, MO, for Respondent Clay County Collector.Before Division One: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.JOSEPH M. ELLIS, Judge.

Harpagon Mo LLC appeals from a judgment entered in the Circuit Court of Clay County granting summary judgment in favor of Citifinancial Services, Inc. in an action filed by Harpagon to quiet title in a piece of real property purchased by Sunrise Atlantic, LLC at a tax sale and later assigned to Harpagon.

After the owner of a piece of property located at 5121 North Elmwood Avenue in Kansas City, Missouri, failed to pay the property taxes on that property for several years, the Clay County Collector listed the property for sale in the county's annual tax sale. On August 28, 2006, Sunrise Atlantic purchased that property and was issued a Certificate of Purchase. The property owner was notified that he had one year from the date of sale to redeem the property pursuant to § 140.420.¹

A title search by Sunrise Atlantic revealed a deed of trust in favor of Citifinancial. On July 16, 2007, Sunrise Atlantic sent notice of the tax sale to Citifinancial, informing Citifinancial of its right to redeem the property under § 140.405 and that such right would expire on October 16, 2007. That notice was sent by certified mail to the address listed for Citifinancial on the front page of the deed of trust; to the address of its principal place of business and corporate headquarters in Baltimore, Maryland; and to Citifinancial's registered agent in Missouri. Sunrise Atlantic received return receipts from the notices sent to Citifinancial's corporate headquarters and to Citifinancial's registered agent.

After the property was not redeemed within the time allowed by the statutes, the Collector issued a Collector's Deed for Taxes to Sunrise Atlantic on October 25, 2007. Sunrise Atlantic recorded that deed on October 31, 2007. Sunrise Atlantic subsequently assigned its interest in the property to Harpagon.

On March 21, 2008, Harpagon filed a petition to quiet title to the property in the circuit court, naming the former property owner and Citifinancial as defendants. On August 6, 2008, default judgment was entered against the former property owner. Both Harpagon and Citifinancial filed motions for summary judgment. The circuit court eventually granted Citifinancial's motion and denied Harpagon's motion, entering judgment in favor of Citifinancial. Harpagon brings six points on appeal from that judgment.²

Where, as here, the circuit court does not specify its rationale for granting a motion for summary judgment, “the trial court is presumed to base its decision on the grounds specified in the motion.” Grisamore v. State Farm Mut. Auto. Ins. Co., 306 S.W.3d 570, 573 (Mo.App. W.D.2010) (internal quotation omitted). In its motion for summary judgment, Citifinancial asserted that Harpagon had failed to comply with the notice requirements of § 140.405 and had, therefore, lost all interest in the property. In this regard, Citifinancial argued that Harpagon sent the notice of the tax sale to the wrong address, that the notice misstated the period of redemption, and that Harpagon had failed to file an affidavit with the Collector stating that the required notice had been sent out to Citifinancial. The trial court, having failed to state a reason for granting summary judgment, is presumed to have done so for one or more of these reasons. Id.

Because the trial court makes its decision to grant summary judgment based upon the record submitted and the law, this court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. Crow v. Kansas City Power & Light Co., 174 S.W.3d 523, 533 (Mo.App. W.D.2005). In so doing, we apply the same criteria as the trial court in determining whether summary judgment was properly entered. Bauer v. Farmers Ins. Co., 270 S.W.3d 491, 494 (Mo.App. W.D.2008). Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. Where a defending party has filed the motion, it may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the plaintiff's case; (2) that the plaintiff, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of facts to find the existence of any one of the elements of the plaintiff's case; or (3) that there is no genuine dispute as to the existence of the facts necessary to support a properly pleaded affirmative defense. Division Cavalry Brigade v. St. Louis Cnty., 269 S.W.3d 512, 516 (Mo.App. E.D.2008). In determining whether the defendant has met this burden:

[t]he record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion.

Hammack v. Coffelt Land Title, Inc., 284 S.W.3d 175, 177–78 (Mo.App. W.D.2009) (internal quotations and citations omitted).

In its first point, Harpagon contends that the trial court erred in granting summary judgment because Citifinancial's reasons for challenging the validity of the collector's deed were not based upon any of the grounds provided for in § 140.610. That statute provides:

In all suits and controversies involving the title of land claimed and held by virtue of the deed executed by the county collector for nonpayment of taxes thereon, under this tax law, the person claiming by adverse title to such deed shall be required to prove, in order to defeat the title conveyed by such deed, either that the land described therein was not subject to taxation at the date of assessment of the tax for which it was sold, or that the taxes for nonpayment of which the land was sold were paid to the proper officer within the time limited by law therefore, or that the same had not been assessed for the taxes for the nonpayment of which it was sold, or that the same had been redeemed pursuant to law, or that a certificate in proper form had been given by the proper officer, within the time limited by law for paying taxes or for redeeming from sales made for the nonpayment thereof, stating no taxes were due at the time such sale was made, or that at the date of the deed the redemption period had not expired.

§ 140.610. Harpagon argues that § 140.610 sets forth the exclusive grounds on which a collector's deed may be challenged and that the challenges to the deed contained in Citifinancial's motion for summary judgment did not raise any of the six grounds allowed by the statute.

Section 140.405 provides, however, that “[a] delinquent tax sale purchaser's failure to comply with any of the ... notice requirements will result in its losing all interest in the real estate as a matter of law.” Crossland v. Thompson, 317 S.W.3d 635, 642 (Mo.App. S.D.2010) (emphasis added). “If proper notice is not given, then the collector's deed is void.” Id. (citing Schlereth v. Hardy, 280 S.W.3d 47, 53 (Mo. banc 2009)).

Moreover, Citifinancial's claim of insufficient notice was, of its nature, a due process claim. “[D]ue process requires that known parties whose rights would be affected by a tax sale be afforded notice reasonably calculated under all of the circumstances to apprise them of the pendency of the action.” Schwartz v. Dey, 665 S.W.2d 933, 935 (Mo. banc 1984).

Harpagon has not cited, nor has our research uncovered, any case in which § 140.460 has barred a party from asserting that the notice requirements of § 140.405 were not satisfied or that the notice provided was otherwise insufficient to satisfy due process. On the other hand, the courts of this State have consistently addressed the merits of a challenge to the sufficiency of notice, thereby implicitly recognizing the viability of such claims. See, e.g., Schlereth, 280 S.W.3d at 50–51; Keylien Corp. v. Johnson, 284 S.W.3d 606, 609 (Mo.App. E.D.2009); Valli v. Glasgow Enters. Inc., 204 S.W.3d 273, 273–75 (Mo.App. E.D.2006); Glasgow Enters. Inc. v. Brooks, 234 S.W.3d 407, 410–11 (Mo.App. E.D.2007); CedarBridge, LLC v. Eason, 293 S.W.3d 462,...