Investment Corp. of Virginias v. Acquaviva

Decision Date08 December 2009
Docket NumberNo. ED 92949.,ED 92949.
Citation302 S.W.3d 195
CourtMissouri Court of Appeals
PartiesINVESTMENT CORPORATION OF the VIRGINIAS, INC. and Woods & Streams Land Co., L.L.C., Plaintiffs/Respondents, v. Vincenzo ACQUAVIVA and Michael McGirl, Collector of Revenue of Washington County, Missouri, Defendants/Appellants. George Dillard and Laura Dillard, Intervening Plaintiffs, v. Martin Price, Third-party Defendant.

David C. Mangan, Thurman, Howald, Weber, Senkel & Norrick, L.L.C., Hillsboro, MO, for respondents.

Brad Van Zee, Potosi, MO, for appellant Vincenzo Acquaviva.

Holly D. Andrea, Asst. Prosecuting Atty., Potosi, MO, Phillip K. Gebhardt, Gebhardt Real Estate and Legal Services, LLC, DeSoto, MO, for Appellants Michael McGirl and Collector of Revenue of Washington County.

David Bender, Rosenblum, Goldenhersch, Silverstein & Zafft, Clayton, MO, for Intervening Plaintiffs.

KATHIANNE KNAUP CRANE, Presiding Judge.

Defendants, a county collector and a purchaser of three parcels of real estate at a tax sale, appeal from the trial court's entry of summary judgment quieting title in plaintiffs, the prior owners, in that real estate. The trial court found that defendants failed to give plaintiffs notice of the pending tax sale of their parcels that complied with Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), which it concluded, voided the tax sale.

On appeal, defendants assert that the trial court erred in applying Jones to pre-sale notice because (1) Missouri statutes provide for constitutionally-adequate post-sale notice of the right to redeem; (2) even if the county collector had a constitutional duty to provide prior notice of the tax sale, plaintiffs failed to present sufficient evidence of non-compliance; and (3) plaintiffs failed to adduce evidence that they are lawfully organized entities authorized to prosecute this action. We deny points one and three. The trial court did not err in concluding that the principles set out in Jones apply to a collector's duty to give landowners pre-sale due process notice of a pending tax sale under Schwartz v. Dey, 665 S.W.2d 933 (Mo. banc 1984). Defendants' challenge to plaintiffs' capacity to sue cannot be raised for the first time on appeal. However, the summary judgment record is insufficient to determine whether reasonable means were available to the collector to provide additional notice. We must reverse and remand for the parties to develop a record upon which the trial court can assess the reasonable means available to the collector to provide the former owners with a notice of taxes owed of the impending tax sale that comport with the duties imposed by due process as set out in Jones and Schwartz.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves three parcels of land located in Washington County, Missouri. In June 2006, plaintiff, Investment Corp. of the Virginias, Inc., owned a 40-acre parcel of the land, and plaintiff, Woods & Streams Land Co., LLC, owned a 40-acre parcel and a 19.93-acre parcel.

In 2008, plaintiffs filed a Petition to Cancel Tax Deeds and Quiet Title with respect to the three parcels, naming as defendants, Vincenzo Acquaviva and Michael McGirl, Collector of Revenue of Washington County, Missouri (the Collector). In their petition, plaintiffs alleged their corporate status and their ownership of the three parcels. They further alleged that Mr. Acquaviva claimed an interest to the parcels through three collector's deeds recorded in Washington County in October 2007 and January 2008, that plaintiffs did not receive notice of any kind of the proposed tax deed sale of the parcels, and that plaintiffs were ready, willing, and able to reimburse Mr. Acquaviva for the taxes paid. The petition sought a declaration that the tax deeds were null and void, and requested that title to the parcels be quieted in the plaintiffs according to each one's interest.

Subsequently, plaintiffs filed a motion for summary judgment. The undisputed facts admitted in plaintiffs' motion for summary judgment included the following: In June 2006, the Collector mailed tax sale notices to plaintiffs informing plaintiffs that they owed two years of delinquent taxes on their respective properties, and if unpaid, the properties would be sold at a tax sale on the fourth Monday in August. These tax notices were returned to the Collector undelivered. The Collector then filed the returned notices. Defendants filed a cross-motion for summary judgment. The trial court granted summary judgment in plaintiffs' favor. It found that notice pursuant to Jones was not given or attempted regarding the pending tax sale. It declared the tax sale void and it quieted fee simple title to the property in plaintiffs.1

DISCUSSION

We review the grant of summary judgment de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We take as true every fact set forth by affidavit or otherwise in support of the moving party's summary judgment motion unless the non-movant has denied it in its response. Id. We must determine whether the moving party has demonstrated an "undisputed right to judgment as a matter of law" on the basis of the facts about which there is no genuine dispute. Id. at 380.

I. Duty to Provide Pre-sale Notice

The essence of defendants' first point is that the trial court erred in concluding that the Collector's failure to provide or failure to attempt to provide additional notice other than by publication prior to the tax sale was a violation of due process under Jones. Defendants argue that Missouri statutes do not require a county collector to provide a delinquent taxpayer with notice that meets due process standards prior to a tax sale by a county collector. They point out that section 140.170 RSMo (Cum.Supp.2008)2 only requires a collector to publish notice of the tax sale and that section 140.405 requires only that a purchaser provide a delinquent taxpayer with notice of his or her right to redeem his or her property after the tax sale has taken place.

We first consider the Jones decision. In Jones, Gary Jones owned a home that he no longer occupied, and the property taxes went unpaid after the mortgage was paid off. The Arkansas Commissioner of State Lands (the commissioner) sent a letter by certified mail to Mr. Jones at the home address to inform him of the tax delinquency, a pre-sale right to redeem, and the date of the tax sale if there was no pre-sale redemption. The letter was returned unclaimed. Two years later, the commissioner published a notice of the impending tax sale and subsequently received a purchase offer from Linda Flowers. The commissioner then sent a certified letter to Mr. Jones at the home to notify him the home would be sold if the taxes were not paid. This letter was also returned as unclaimed. The commissioner subsequently sold the home to Ms. Flowers, who had a notice of unlawful detainer delivered to the property. It was served on Jones's daughter, who occupied the home. Mr. Jones filed a lawsuit against the commissioner asserting that the notice provided by the state in connection with the tax sale violated his due process rights. When the case reached the United States Supreme Court, the Court ruled in Jones's favor. It held that "when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practical to do so." Jones, 547 U.S. at 225, 126 S.Ct. 1708. It held that under the circumstances, additional reasonable steps were available to the commissioner. Id.

The Jones decision added to the Supreme Court's prior holding in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 94 L.Ed. 865 (1950). There, the Court had held whenever a person's property interest is at stake, due process requires the person be provided with "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314, 70 S.Ct. 652. In Jones, the Court recognized that it had previously "deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent." Jones, 547 U.S. at 226, 126 S.Ct. 1708 (emphasis added). However, it stated it had not addressed whether due process required more if the government discovers "prior to the taking" that its attempt at notice has failed. Id. at 227, 126 S.Ct. 1708. The Court held that the state is obligated to take steps that would "increase the likelihood that an owner would be notified that he was about to lose his property, given the failure of a letter deliverable only to the owner in person." Id. at 235, 126 S.Ct. 1708. It indicated that the commissioner could have sent the notice by regular mail, posted the notice on the property, or sent the notice addressed to "Occupant." Id.

In Schlereth v. Hardy, 280 S.W.3d 47 (Mo. banc 2009), the Missouri Supreme Court applied Jones to evaluate the sufficiency of notice of a post-sale right of redemption. There, the purchaser of property sold at a tax sale sent a notice of redemption rights by certified mail to the tax-delinquent former owner. It was returned as unclaimed. The purchaser did not use any other method of notice. When the property was not redeemed during the statutory period, the purchaser obtained and recorded a collector's deed and filed a quiet title action. The trial court entered summary judgment in favor of the original owner. On appeal, the Missouri Supreme Court affirmed. It held that although the purchaser gave notice in precise compliance with the mandates of section 140.405, that notice must also meet constitutional standards, and, under Jo...

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3 cases
  • United Asset Mgmt. Trust Co. v. Clark
    • United States
    • Missouri Court of Appeals
    • 30 November 2010
    ...11 Id. Upon similar facts, the Eastern District of this Court recently reached a similar result. In Investment Corp. of Virginias, Inc. v. Acquaviva, 302 S.W.3d 195, 200 (Mo.App. E.D.2009), the court stated: Schwartz constitutes the controlling Missouri Supreme Court opinion on a collector'......
  • Ndegwa v. KSSO, LLC
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    • Missouri Court of Appeals
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    ...Id.at 935; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also Investment Corp. of Virginias, Inc. v. Acquaviva, 302 S.W.3d 195, 200 (Mo.App. E.D. 2009). "While what constitutes sufficient notice may vary ... 'notice must be reasonably calculated to inform partie......
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    ... ... Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993) ... ...

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