In re Foreclosure of Liens v. Housing Aut.
| Decision Date | 14 December 2004 |
| Docket Number | No. WD 61657.,No. WD 63227.,WD 61657.,WD 63227. |
| Parties | In the Matter of the FORECLOSURE OF LIENS FOR DELINQUENT LAND TAXES BY ACTION IN REM, Director of Collections for Jackson County, City of Kansas City, Missouri, Appellant-Respondent, v. The HOUSING AUTHORITY OF KANSAS CITY, MISSOURI, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Nicole Janece Rowlette, Kansas City, for Appellant.
Kevin R. Thomas, Kansas City, for Respondent.
Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
This case involves a land-tax dispute between the Housing Authority of Kansas City and the City of Kansas City. The City, pursuant to its charter, enacted an assessment on all real property abutting various boulevards and streets maintained and supervised by the Board of Park Commissioners. The City filed two separate suits seeking to collect unpaid assessments on seventeen properties owned by the Housing Authority. The City appeals from summary judgment entered in favor of the Authority in the first suit, while the Authority appeals from the judgment entered in the City's favor in the second suit. We affirm the grant of summary judgment in the first suit and reverse the judgment in the second suit.
The Missouri statutes grant cities the authority to issue special assessments. Section 88.812 authorizes third and fourth class cities and cities with constitutional charters to issue assessments to pay for certain improvements — e.g., "for constructing and repairing sidewalks and sidewalk curbing, and for sewers, and for grading, paving, excavating, macadamizing, curbing and guttering of any street alley, square, or other highway[.]" The parties agree that the City, which has a constitutional charter, is an authorized city. The statute provides that the assessments "shall be levied and collected as a special tax." The statute states that this tax bill "shall be a lien against the ... parcel of land described [therein]."
Section 88.812 sets forth terms and procedures for the issuance of assessments. The statute also affords constitutional charter cities discretion to adopt different procedures in its own charter regarding the assessments:
Notwithstanding the provisions of this section, a constitutional charter city may provide for special assessments for constructing and repairing sidewalks and sidewalk curbing, and for sewers, and for grading, paving, excavating, macadamizing, curbing and guttering of any street, avenue, alley, square or other highway, or part thereof, and repairing the same upon such terms, conditions and procedures as are set forth in its own charter or ordinances.
The City exercised this discretion in section 62 of its charter, authorizing the city council to levy by annual ordinance a "special assessment," of no more than $1 per foot, on land abutting the boulevards, parkways, roads, and other highways under the control of the Board of Park Commissioners.
Each year during the period from 1997 to 2001, the council, by way of ordinances, levied special assessments of $1 per foot pursuant to its authority under the charter. The Housing Authority owns seventeen properties within areas subject to these ordinances. The Authority received special assessments each year. However, the Authority refused to pay the assessments. Subsequently, the two suits that are the subject of this appeal were filed.
On May 31, 2000, the Director of Collections for Jackson County, on behalf of the City, filed a "Petition and List of Parcels of Land Encumbered with Delinquent Taxes" (Delinquent Land Tax Suit No. K-2000) in the Jackson County Circuit Court.1 This action was filed under the Land Tax Collection Law, RSMo. Chapter 141. The Director alleged that the Housing Authority was delinquent in the payment of taxes on its parcels of land. The Director sought to foreclose on the alleged tax liens and sought a sale of all parcels not timely redeemed.
The trial court concluded that execution and sale of a property is the only remedy to collect for taxes and special assessments under section 141.240. It also determined that the Housing Authority properties are not subject to execution and sale under section 99.200. Accordingly, the court concluded that section 141.240 provides no mechanism for the City to collect assessments owed by the Authority and entered summary judgment for the Authority.
The City appeals.
In its first point on appeal, the City argues that the court erred in entering summary judgment for the Housing Authority.
All the facts pertinent to the issues addressed herein are undisputed. Because the propriety of summary judgment is a question of law, our review is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record and all reasonable inferences therefrom in the light most favorable to the non-movant. Bost v. Clark, 116 S.W.3d 667, 672 (Mo.App.2003). In evaluating a grant of summary judgment, we use the same criteria employed by the ruling court. Welch v. Davis, 114 S.W.3d 285, 292 (Mo.App.2003). Summary judgment is appropriate where the movant shows that he is entitled to judgment as a matter of law and no genuine issues of material fact exist. Rule 74.04(c)(6).
The City filed its first suit against the Housing Authority under the Land Tax Collection Law, RSMo. Chapter 141. The primary purpose of the law is to provide a convenient and efficient method for collecting longstanding tax delinquencies on real estate. Buchanan v. Cabiness, 240 Mo.App. 829, 221 S.W.2d 849, 852 (1949). The method it prescribes is foreclosure. See Section 141.260.
The Housing Authorities Law, RSMo Chapter 99, authorizes the creation of a housing authority in each city and each county of Missouri. Section 99.040. A housing authority is a municipal corporation that has as its purpose the re-development of areas that contain unsanitary or unsafe housing conditions for the benefit of persons of low income. Sections 99.030 and 99.080. Any real property owned by a housing authority is exempt from foreclosure or any other judicial process, except for liens that the housing authority has itself voluntarily created:
All real property of an authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall judgment against an authority be a charge or lien upon its real property; provided, however, that the provisions of this section shall not apply to or limit the right of obligees to foreclose or otherwise enforce any mortgage of an authority or the right of obligees to pursue any remedies for the enforcement of any pledge or lien given by an authority on its rents, fees, or revenues.
In light of this exemption, the trial court concluded that the City could not levy and sell the Housing Authority properties at issue through a judgment execution pursuant to Chapter 141. Because such execution is the only remedy available under that chapter, the court granted summary judgment for the Housing Authority.
The City concedes that section 99.200 prohibits it from foreclosing upon the Housing Authority's property. Nevertheless, the City argues that it has a lien that remains with the property. The City contends that "should the ownership ever change on these properties, [it] could then execute on these liens." According to the City, it is still entitled to judgment, and the execution of that judgment should be stayed until the change in ownership takes place.
The remedy available under Chapter 141 — foreclosure — does not apply to property owned by a housing authority because section 99.200 flatly exempts such property from foreclosure except for any liens voluntarily created by the housing authority. The City fails to show any other remedy available under Chapter 141 that allows it to collect assessments from the Authority. The plain language of section 99.200 also contradicts the City's contention that it is entitled to some sort of lien on the property. The statute provides that a "judgment against an authority [shall not] be a charge or lien upon its real property." That language is plain and unambiguous in the context of the statutory purpose. The obvious purpose is to exempt housing authorities from collection remedies (for all liens except voluntary liens) affecting the property in any way.
Point denied.
In its second point, the City contends that the trial court erred in failing to decide whether the boulevard assessment is a tax or an assessment. The court declined to address this issue, granting summary judgment on the basis discussed in Point I above. In view of our ruling that the trial court did not err in granting summary judgment on this basis, Point II is moot.
The Housing Authority was entitled to judgment as a matter of law in the first suit. Thus, the trial court did not err in entering summary judgment in its favor.
On January 10, 2002, after the Director of Collections had filed the first suit but before the court had entered summary judgment for the Housing Authority in that case, the City filed a "Petition for Recovery of Personal Debt" with the Jackson County Circuit Court. The City sought to recover the unpaid assessments on seventeen Housing Authority properties, alleging that the Housing Authority was "personally liable" for a total of $18,427.42 plus a 10% late payment penalty.
The Housing Authority filed a summary judgment motion, alleging, inter alia, that section 319 of the City's charter — which purports to authorize a personal judgment against various entities for unpaid assessments — is unconstitutional to the extent that it purports to create liability for a public corporation. The trial court denied...
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