In the Missouri Court of Appeals Eastern District DIVISION ONE
3018 PERSHALL, LLC, ) No. ED113029 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County v. ) Cause No. 21SL-CC01525 ) OUTFRONT MEDIA, LLC, et al., ) Honorable Virginia Lay ) Respondents. ) Filed: May 20, 2025
Introduction
Appellant 3018 Pershall, LLC bought a commercial property containing a billboard from
its affiliate company, which had purchased that property at a tax sale. Appellant sued Respondents
LMRK Propco (“Landmark”), which owns an easement allowing it to access and lease space on
the property for the billboard, and Outfront Media LLC (“Outfront”), the lessee of space on the
property for the billboard, for declaratory judgment and to quiet title. After a bench trial, the trial
court entered judgment against Appellant, finding that Respondents held interests in the property
that survived the tax sale.
On appeal, Appellant alleges the trial court erred in entering judgment for Respondents
because Landmark’s alleged easement violates public policy and Landmark does not have a valid
easement that survived the tax sale. Appellant also argues it gave proper notice to all parties and owns the property outright because Respondents failed to raise a necessary affirmative defense to
the contrary. Finally, Appellant avers the trial court’s refusal to declare that Appellant owns the
property outright amounts to a failure by the trial court to issue a single, final judgment.
Appellant provides no Missouri authority for its claim that the easement is void for public
policy reasons, and Landmark holds a valid easement under Missouri law. The trial court did not
err in adjudicating the notice issue, as Respondents were not required to raise an affirmative
defense and otherwise rebutted Appellant’s prima facie evidence of notice. Appellant’s final point
that the trial court failed to issue a single, final judgment is unpreserved, and we decline to review
it. We affirm the trial court’s judgment.
Factual and Procedural Background
Facts
Appellant owns 3018 Pershall, a small plot of land measuring roughly 105 feet by 120 feet
located near Interstate 270 in St. Louis County. In the 1990s, National Advertising Company
leased part of the property from the owner and constructed a billboard. This billboard occupies
approximately a 30-foot by 50-foot section of the property. According to the lease, the sign was
considered the property of National Advertising Company.
In 1997, Respondent Outfront’s predecessor acquired National Advertising Company’s
lease and the billboard structure. In 1999, Outfront’s predecessor entered a new lease with the
owner of the property. Pursuant to the new lease, the lessee was required to pay as part of its rent
“any taxes . . . paid or payable by LESSEE in connection with the Sign Structure(s) other than
income taxes.”
In 2010, Joseph Afshari, the then-owner of the property, entered an “Easement and
Assignment of Lease Agreement” with LD Acquisition Company LLC. This easement was
2 transferred twice, most recently in 2017 to Respondent Landmark. The assignment of the lease
made Landmark the lessor of the space on the property containing the billboard operated and
owned by Outfront. The purported easement is made up of two parts: an exclusive easement and a
non-exclusive easement. The exclusive easement was granted “for the purpose of leasing space on
the Property to outdoor advertising tenants”; the non-exclusive easement is an access easement
“in, to, under and across the Property adequate to allow ingress and egress to the [exclusive]
Easement.” The easement and assignment of lease documents were filed with the St. Louis County
Recorder of Deeds.
Though Outfront paid its portion of the real estate taxes to Joseph Afshari from 2011
through 2018, it is undisputed that Afshari did not pay any real estate taxes on the property during
that period. February Properties, an affiliate company of Appellant 3018 Pershall, LLC, purchased
the property in a tax sale in August 2019. February Properties then applied for and received a
collector’s deed from St. Louis County on November 30, 2020. February Properties then sold the
property to Appellant.
Procedural Background
After Appellant purchased the property, it filed a lawsuit against Respondent Outfront on
April 2, 2021. After the trial court ordered necessary parties joined to the lawsuit, Appellant filed
its Amended Petition also naming Respondent Landmark and other third-party defendants. The
trial court ultimately entered default judgment in favor of Appellant and against the third-party
defendants.
Respondents Outfront and Landmark filed a motion for summary judgment on the third
count of Appellant’s Amended Petition, which the trial court granted. The remaining two counts
proceeded to a one-day bench trial. Count I sought a declaratory judgment “that: (i) Plaintiff has
3 ‘free and clear ownership of the Property’; (ii) that Plaintiff ‘also now owns, free and clear, all
structures and improvements situated on the land’; and (iii) that Plaintiff owns such structures or
improvements ‘free and clear of any rights asserted by Defendants.’” Count II was an action to
quiet title seeking the same relief as Count I.
During the bench trial, Appellant presented evidence of redemption notices it had sent to
Joseph Afshari and his heirs, the Metropolitan Sewer District, SunTrust Bank, and others with
potential interests in the property before it could receive a collector’s deed. The trial court excluded
some of this evidence, specifically Exhibit 7, which contained an affidavit and documents that
Appellant submitted to St. Louis County in order to receive its collector’s deed. The trial court
excluded Exhibit 7 for lack of foundation due to the authenticating witness’s evasive testimony
and lack of personal knowledge.
The trial court held in its order and judgment that the property of Appellant 3018 Pershall,
LLC, is burdened by Respondent Landmark’s easement, which is a valid easement of record and/or
in use. The trial court also held that the billboard survived the tax sale because it was an
improvement within the scope and area of the easement.
Appellant now appeals the trial court’s order and judgment.
Discussion
Appellant raises four points on appeal. Its first two points challenge the validity of
Respondent Landmark’s easement to access and lease the billboard on Appellant’s property. In
Appellant’s first point, it argues the servitude was void ab initio because it violates public policy
by avoiding taxes. In Appellant’s second point, it argues that the servitude did not survive the tax
sale because it is not a valid easement as required by Section 140.722. 1 Appellant’s third point
1 Unless otherwise indicated, all statutory references are to RSMo (2016) as amended. 4 challenges the trial court’s refusal to determine whether Appellant owns the property outright
because it provided the requisite notice to interested parties and Respondents did not plead an
affirmative defense. Finally, Appellant’s fourth point challenges the trial court’s failure to
adjudicate Appellant’s outright ownership of the property as inconsistent with the trial court’s duty
to issue a single, final judgment.
Standard of Review
In an appeal from a court-tried civil case, this Court’s review is governed by Murphy v.
Carron. K.E.S. v. S.R.S., 700 S.W.3d 544, 551 (Mo. App. E.D. 2024); E.M.B. v. A.L., 462 S.W.3d
450, 452 (Mo. App. E.D. 2015). Murphy sets forth the following standards of review: “the decree
or judgment of the trial court will be sustained by the appellate court unless there is no substantial
evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares
the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc
1976). This Court applies de novo review to questions of law decided in court-tried cases. Pearson
v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).
Rule 84.04
Rule 84.04(d)(1) requires an appellant to “[s]tate concisely the legal reasons for the
appellant’s claim of reversible error” in its point relied on. 2 The requirements of Rule 84.04 are
mandatory. Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022). While Appellant’s points
relied on meet the requirements of the rule, they go on to add subpoints and additional legal reasons
for the claims of error. Thus, the points are multifarious in violation of Rule 84.04(d)(1), resulting
in unpreserved allegations of error. See T.G. v. D.W.H., 648 S.W.3d 42, 46, 49 (Mo. App. E.D.
2 All Rule references are to the Missouri Supreme Court Rules (2023), unless otherwise indicated. 5 2022). We nonetheless choose to review Appellant’s arguments ex gratia because they are readily
understandable. Wolk v. Grinnell Mut. Reinsurance Co., 701 S.W.3d 659, 668 (Mo. App. E.D.
2024).
Point I
Appellant’s first point argues the trial court misapplied the law because the easement was
void ab initio in that the easement violated public policy by frustrating the state’s ability to collect
taxes. Appellant offers some citations to Missouri cases for its proposition that contracts violating
public policy are void ab initio, but those cases did not involve easements, were not decided on
public policy grounds, or otherwise are inapt. 3 Thus, Appellant’s Point I is bereft of any support
in Missouri caselaw for its proposition that the legal interest before us violates public policy and
is void ab initio.
Appellant defaults to the Restatement (Third) of Property, Section 3.1, which proposes a
balancing test to determine whether a contract or servitude in connection with real property violates
public policy. Restatement (Third) of Property (Servitudes) § 3.1 (Am. Law Inst. 2000). Pursuant
to that test, Appellant urges us to “assess[] the impact of the servitude, identify[] the public interests
that would be adversely affected by leaving the servitude in force, and weigh[] the predictable
harm against the interests in enforcing the servitude.” Id. § 3.1 cmt. i.
Appellant fails to acknowledge that no Missouri court has adopted the balancing test in
Section 3.1 of the Restatement (Third). We decline to do so here, leaving Appellant’s Point I
3 Appellant refers us to two cases deciding contracts were void as against public policy. Eisenminger v. Nat’l Indem. Co., 699 S.W.3d 583 (Mo. App. W.D. 2024) (citing Hays v. Mo. Highways Transp. Comm'n, 62 S.W.3d 538, 540 (Mo. App. W.D. 2001)) (assignment of personal injury claims); Hosp. Dev. Corp. v. Park Lane Land Co., 813 S.W.2d 904 (Mo. App. W.D. 1991) (practice of architecture without a license). 6 without legal support. 4 Appellant’s public policy argument is better directed to the Missouri
General Assembly.
Point I is denied.
Point II
Appellant’s second point argues the trial court misapplied the law because the easement
was extinguished by the tax sale pursuant to Section 140.722. Section 140.722 provides, “Any sale
of lands under this chapter shall be subject to valid recorded covenants running with the land and
to valid easements of record or in use.” Appellant argues Landmark’s interest is not an easement
at all, and is not a “valid easement of record or in use” under the terms of Section 140.722.
“‘Statutory interpretation is a question of law, which is reviewed de novo.’” Wolk, 701
S.W.3d at 665 (quoting Black River Motel, LLC v. Patriots Bank, 669 S.W.3d 116, 122 (Mo. banc
2023)). In interpreting a statute, this Court must “‘give effect to legislative intent as reflected in
the plain language of the statute at issue.’” Id.
Valid Easement
First, this Court must determine whether Landmark’s interest is a valid easement. Section
140.722 does not define the term “valid.” According to the dictionary definition, “valid” means
“having legal strength or force . . . .” Valid, Webster’s Third New International Dictionary (1966);
see also AAA Laundry & Linen Supply Co. v. Dir. of Revenue, 425 S.W.3d 126, 132 (Mo. banc
2014) (identifying Webster’s Third New International Dictionary as “the institutional dictionary
4 Rule 84.04(e) requires that appellants “develop an argument by citing legal authority or explaining the failure to cite such authority.” Williams v. St. Charles Auto Mart, Inc., 690 S.W.3d 495, 503 (Mo. App. E.D. 2024). “‘When an appellant fails to cite relevant law and explain how it applies to the applicable facts, we deem the point abandoned.’” Id. (quoting Murphy v. Steiner, 658 S.W.3d 588, 593 (Mo. App. W.D. 2022)). 7 of choice”). Accordingly, we inquire whether the interest before us is an easement “having legal
strength or force” to determine its validity.
The document transferring the interest at issue refers to it as an “easement.” But we do not
look solely to the terminology in the document of transfer to determine “the true nature and legal
character of the rights” transferred therein. K.C. Area Transp. Auth. v. Ashley, 485 S.W.2d 641,
644 (Mo. App. 1972).
“An easement is a non-possessory interest in the real estate of another . . . .” Suedkamp v.
Taylor, 578 S.W.3d 408, 414 (Mo. App. E.D. 2019). “An easement, strictly speaking, does not
carry any title to the land over which it is exercised; it is rather a right to use the land for particular
purposes.” St. Charles Cnty. v. Laclede Gas Co., 356 S.W.3d 137, 139 (Mo. banc 2011) (internal
quotations omitted); see also Burg v. Dampier, 346 S.W.3d 343, 353 (Mo. App. W.D. 2011). An
easement “is nonetheless a right that can be enforced at law or in equity.” Suedkamp, 578 S.W.3d
at 414 (citing Burg, 346 S.W.3d at 353); see also St. Charles Cnty., 356 S.W.3d at 139–40
(“Although an easement does not vest title, an easement is a form of private property . . . .”).
“Easements are either ‘appurtenant’ or ‘in gross.’” Tenampa, Inc. v. Bernard, 616 S.W.3d
327, 334 (Mo. App. W.D. 2020) (quoting Burg, 346 S.W.3d at 353) (internal quotations omitted).
Easements appurtenant require both a dominant parcel (benefitting from the easement) and a
servient parcel (which is burdened by the easement). Id. at 334. An easement in gross belongs to
the easement holder “independently of his ownership or possession of other land, and thus lacking
a dominant tenement.” Henley v. Continental Cablevision of St. Louis Cnty., Inc., 692 S.W.2d 825,
827 (Mo. App. E.D. 1985). An easement in gross conveys only a personal interest in the servient
parcel. Tenampa, 616 S.W.3d at 334.
8 In the instant case, we are presented with an easement in gross. First, it is an easement
because it is “a right to use the land for particular purposes.” St. Charles Cnty., 356 S.W.3d at 139.
The document creating the easement grants Landmark (as the successor to grantee LD Acquisition
Company LLC) a non-exclusive access easement and an exclusive easement over the space on the
property on which the billboard is situated, “for the purpose of leasing space on the Property to
outdoor advertising tenants . . . .” It is an easement in gross because there is no dominant tenant,
only a servient parcel. Tenampa, 616 S.W.3d at 334. 5
Appellant nevertheless argues the interest at issue here is not an easement, but is instead
one of two very different property rights. On one hand, Appellant claims the transfer was of title
in fee simple absolute, disguised as an easement. “A fee simple absolute includes the entire title;
it is the most extensive interest one may have in property, comprehends an absolute estate in
perpetuity, and is potentially infinite. In modern concepts these several terms, ‘fee’, ‘fee simple’,
and ‘fee simple absolute’ are substantially synon[y]mous.” Vaughan v. Compton, 235 S.W.2d 328,
331 (Mo. Div. 1 1950). Appellant argues that the easement’s substance more closely matches fee
title to the property since it “has blanket coverage of the entire landmass of the Property” and
“[i]ncludes a right to possession of the land.” Appellant claims that Respondent Landmark
effectively owns the whole property.
5 While easements in gross are typically not transferrable since they are personal to the grantee, see Tenampa, 616 S.W.3d at 334, this is not true of commercial easements in gross. See Ashley, 485 S.W.2d at 645 (citing Restatement of Property § 489 (Am. Law Inst. 1944)); see also 4 Powell, Powell on Real Property, § 34.16 (2014) (citing Ashley, 485 S.W.2d at 645) (“Easements in gross for . . . business structures have been held transferrable by American courts almost without exception.”). There is also an exception for easements in gross where there is an express intent by the parties that the interest is transferrable. Tenampa, 616 S.W.3d at 337. Both are true here because this is a commercial easement and the terms of the agreement “shall be binding upon . . . the successors and assigns of the parties to this Agreement.” 9 Appellant’s argument is not supported by the facts. The easement does not grant either
Landmark or Outfront use of the whole property, either in terms of area or the extent to which
Respondents may use the property. Neither does the billboard itself occupy the entire property.
The evidence at trial established that the billboard has two faces measuring 14 feet by 48 feet and
the dimensions of the portion of the property on which it is situated are 30 feet by 55 feet. By
comparison, the entire property’s dimensions are approximately 105 feet by 120 feet, meaning the
billboard occupies less than half the property.
The recorded easement also offers some insight into its limited area. The exclusive
easement “for leasing space on the Property to outdoor advertising tenants” clearly refers to the
limited space pertaining to the billboard. The non-exclusive access easement is limited to access
“in, to, under and across the Property adequate to allow ingress and egress to the Easement.”
Further, Landmark is limited in its use of the property. The easement is expressly limited
to the purposes to “lease space to Tenants in the billboard and telecommunications businesses”
and “to allow ingress and egress to the Easement.” These explicit restrictions obviously do not
amount to a fee simple estate in the property, pursuant to which the owner may “do with it what
he desires.” Id. at 331.
Contrary to Appellant’s position, that Landmark may use its exclusive easement over a
portion of the property to lease to Outfront, which owns and operates the billboard, does not
transform Landmark’s interest into fee title to the property. This Court in Henley, 692 S.W.2d at
826–27, 829, concluded that a telephone company could allow a cable company to place its cable
on telephone poles that the telephone company had constructed on the property by virtue of an
easement. The telephone company, the owner of the easement, could grant the cable company the
10 use of its telephone poles because the owner of an exclusive easement in gross can apportion its
right. Id. at 827.
Appellant points out that, here, we deal not with a telephone pole, but a billboard that takes
up a much larger share of the property. Still, Landmark’s role as lessor is expressly part of the
“intended and authorized use” of the easement granted “for the purpose of leasing space on the
Property to outdoor advertising tenants . . . .” If adding a coaxial cable to existing telephone poles
did not burden the property beyond the scope of the telephone line easement, Henley, 692 S.W.2d
at 828, then a fortiori operating and changing advertisements on the existing billboard does not
burden the property beyond the scope of the easement created precisely for those purposes. 6
On the other hand, Appellant suggests that perhaps the interest at issue here is not an
easement or fee simple, but a profit a prendre because Respondent Landmark may profit from the
proceeds generated by the billboard. Appellant misconstrues “profit” in this context.
The term “profit a prendre” was dropped from the Restatement of Property as long ago as
1944, see Harrison v. State Highways and Transp. Comm’n, 732 S.W.2d 214, 220 n.3 (Mo. App.
S.D. 1987) (citing Restatement, Property, § 450, Special Note (1944)), and merged into its
definition of “easement,” see Restatement, Property § 450, Special Note (1944) (“In this
Restatement the term ‘easement’ is so used as to include within its meaning the special meaning
commonly expressed by the term ‘profit.’”). Appellant’s attempted distinction of a profit a prendre
from an easement appears to be a distinction without a difference.
6 If Respondents were to exceed the bounds of the easement, Appellant could seek redress in trespass. See Reinbott v. Tidwell, 191 S.W.3d 102, 109 (Mo. App. S.D. 2006) (“If an easement holder, while lawfully on the servient land, exceeds his rights under the easement in either the manner or extent of his use, he becomes a trespasser to the extent of the unauthorized use.” (internal quotations omitted)). 11 Even if Missouri continued to recognize a profit as a distinct legal interest, Landmark’s
interest would remain an easement. Though Landmark may profit from the billboard, that fact does
not render its interest a profit a prendre and not an easement. A profit a prendre generally was
understood to refer to a “legal right to take a profit from something yielded or produced by land.”
Profit a Prendre, Webster’s Third New International Dictionary (1966); see also Profit a Prendre,
Black’s Law Dictionary (9th ed. 2009) (“A right or privilege to go on another’s land and take away
something of value from its soil or from the products of its soil (as by mining, logging or
hunting).”). Suffice to say any profits Landmark gains from the billboard are not akin to profits
produced from the land itself, such as “mining, logging or hunting.” As confirmation of that point,
plenty of Missouri cases reference easements that yield profits to their holders. See, e.g., Ashley,
485 S.W.2d at 645 (“[U]nder the modern rule easements in gross are assignable if commercial in
character.”). 7
All of this is to say that this property interest is a valid easement, that is, an easement having
legal strength or force, and not one of the various other property interests alleged by Appellant.
Valid Easement of Record or in Use
Next, we address the trial court’s conclusion that this easement is “of record” and “in use.”
In addition to its requirement of a valid easement, Section 140.722 also requires an easement either
“of record or in use.” The trial court found both. The trial court correctly concluded that this
easement is “of record,” as the trial evidence demonstrated that the easement was recorded in St.
Louis County, the locus of the property, and Appellant does not challenge that fact. See Hall v.
7 The interest at issue here also is not a license, given that the Easement and Assignment of Lease Agreement specifically states, “Grantor may not terminate this Agreement . . . .” (Exhibit B, L.F. 23:3). An essential characteristic of a license is that it is freely terminable by the grantor. See Tenampa, 616 S.W.3d at 336 (quoting Ashley, 485 S.W.2d at 644). 12 Allen, 771 S.W.2d 50, 53 (Mo. banc 1989). The uncontroverted evidence also proved that the
easement continues “in use.”
This easement is a valid easement of record or in use and therefore survived the tax sale
pursuant to Section 140.722.
Point II is denied.
Point III
In Appellant’s third point, it alleges the trial court misapplied the law in declining to
adjudicate Appellant’s ownership of the property because Respondents failed to plead an
affirmative defense of insufficient notice. What Appellant appears to challenge is the trial court’s
alleged refusal to adjudicate its claim in the First Amended Petition that “[t]he requirement[s] of
RSMo. § 140.405(2) were fulfilled to ‘notify any person who holds a publicly recorded deed of
trust, mortgage, lease, lien, or claim upon that real estate of the latter’s rights to redeem his security
or claim’.” 8
In fact, the trial court did adjudicate Appellant’s rights of ownership relative to
Respondents’ rights. The trial court specifically held that “due to [Appellant’s] failure of proof
regarding notice, [Respondents’] interests in the Property (i.e., the Easement and sign structure)
are superior to those of [Appellant] pursuant to RSMo 140.405(8).”
Section 140.405(2) requires tax purchasers to provide notice to persons who hold recorded
claims upon the purchased real estate. Appellant argues that the trial court should have decided it
8 Though Appellant’s First Amended Petition purports to directly quote the language of Section 140.405(2), that quotation is incorrect. Section 140.405(2) states, in pertinent part, “At least ninety days prior to the date when a purchaser is authorized to acquire the deed, the purchaser shall notify the owner of record and any person who holds a publicly recorded unreleased deed of trust, mortgage, lease, lien, judgment, or any other publicly recorded claim upon that real estate of such person’s right to redeem the property.” 13 owned the property outright relative to Respondents because it produced a collector’s deed, which
is, according to Section 140.460:
prima facie evidence that the property conveyed was subject to taxation at the time assessed, that the taxes were delinquent and unpaid at the time of sale, of the regularity of the sale of the premises described in the deed, and of the regularity of all prior proceedings, that said land or lot had not been redeemed and that the period therefor had elapsed, and prima facie evidence of a good and valid title in fee simple in the grantee of said deed . . . .
The upshot of Appellant’s reading of Section 140.460 is that because it has prima facie evidence
of “good and valid title in fee simple in the grantee of said deed,” Appellant owns the property
unencumbered. Appellant also wields its collector’s deed as prima facie evidence that Appellant
provided proper notice to Respondents.
Appellant is correct insofar as the collector’s deed is prima facie evidence that proper
notice was given to the parties. The Missouri Supreme Court held in Mitchell v. Atherton, 563
S.W.2d 13, 17–18 (Mo. banc 1978), that a collector’s deed, under Section 140.460, would be
“prima facie evidence of notice in compliance with the law because notice and sale would be ‘prior
proceedings’ under sec. 140.460.” 9 The Court went on to observe, however, that “[t]his would not
prevent an opponent from offering evidence at variance with the title.” Id. at 18.
Appellant thus is incorrect that Respondents were required to plead an affirmative defense
to rebut Appellant’s prima facie evidence. “[P]rima facie evidence is not conclusive evidence.”
Wattree v. Div. of Emp’t Sec., 698 S.W.3d 471, 479 (Mo. App. W.D. 2024). “Prima facie evidence
is such evidence which does not necessarily compel a verdict for the party whose contention it
9 Although Section 140.460 was amended in 2013, the language interpreted by the Court remains the same. Compare Section 140.460 (“Such deed shall be prima facie evidence . . . of the regularity of the sale of the premises described in the deed, and of the regularity of all prior proceedings, . . .”), with Mitchell, 563 S.W.2d at 17 (quoting Section 140.460 (1969)) (“Sec. 140.460, subsec. 2, RSMo 1969, provides that a tax deed is to be ‘prima facie evidence . . . of the regularity of the sale of the premises described in the deed, and of the regularity of all prior proceedings, . . .’”). 14 supports, but is sufficient to satisfy the burden of proof to support a verdict in favor of the party
by whom it is introduced when not rebutted by other evidence.” Id. (quoting Hodel v. Dir. of
Revenue, 61 S.W.3d 274, 278 n.7 (Mo. App. S.D. 2001)) (internal quotations omitted). Unlike an
affirmative defense, a rebuttal does not “‘aver[] that . . . the allegations of the petition are taken
as true . . .’” Giudicy v. Mercy Hosps. E. Comtys., 645 S.W.3d 492, 500 (Mo. banc 2022) (quoting
Dieser v. St. Anthony’s Med. Ctr., 498 S.W.3d 419, 428 (Mo. banc 2016)).
Instead, to rebut prima facie evidence, a party presents “substantial controverting
evidence.” Wattree, 698 S.W.3d at 479. This is true specifically regarding rebuttal of prima facie
evidence of proper notice under Section 140.460, which allows an opponent to “offer[] evidence
at variance with the title.” Mitchell, 563 S.W.2d at 18. Accordingly, though Respondents did not
plead an affirmative defense that notice was improper under Section 140.405, they were still able
to rebut Appellant’s prima facie evidence.
Among Respondents’ rebuttal evidence was the trial testimony of J.W., the principal
member of Appellant 3018 Pershall, LLC. 10 On direct-examination, J.W. testified to the contents
of Exhibit 7, a packet Appellant submitted to St. Louis County to receive its collector’s deed. J.W.
listed all of the individuals and entities to whom Appellant sent notice via certified mail as part of
the redemption process. Neither Respondents nor the individual members of their organizations
were listed. On cross-examination, J.W. admitted he did not personally prepare any of the notices,
mail any of the notices, or receive any return-notices from the intended recipients. Also,
Respondents established that no one attempted to identify the holder of the easement estate before
10 The personal identifying information of victims and witnesses has been omitted pursuant to RSMo § 509.520 (Supp. 2023). 15 submission of the packet for the collector’s deed, despite that the easement appeared on the title
report.
Respondents also challenged the credibility of Appellant’s other evidence of notice.
Appellant claimed its process server posted notice on the billboard itself. But Respondents elicited
that the process server’s photographs of the posted notice were of such poor quality that the text
of the notice could not be seen to be verified, two photographs of allegedly the same notice
appeared to differ, and J.W. did not personally verify that notice was posted on the billboard. 11
Due to J.W.’s evasiveness and lack of personal knowledge, the trial court excluded Exhibit
7 and found that Appellant presented no credible evidence of the statutorily required notice. The
trial court also found that the “title report and the documents referenced in it clearly showed both
‘leasehold’ and ‘easement’ interests related to Outfront’s and Landmark’s rights in the Property”
and that “no notice of redemption was provided to Outfront or Landmark, respectively.”
“In questions of fact, we defer to the circuit court’s assessment of the evidence and its
credibility findings.” Ducote v. Dir. of Revenue, 577 S.W.3d 170, 174 (Mo. App. E.D. 2019). The
trial court “‘is in a better position not only to judge the credibility of witnesses and the persons
directly, but also their sincerity and character and other trial intangibles which may not be
completely revealed by the record.’” White v. Dir. of Revenue, 321 S.W.3d 298, 308–09 (Mo. banc
2010)(quoting Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo. banc 2009)).
11 Regardless, notice posted on the billboard would not have met the requirements of Section 140.405 as a matter of law. Section 140.405(2) requires notice “by both first class mail and certified mail return receipt requested.” Other means of notice are authorized only when “both the certified notice return receipt card is returned unsigned and the first class mail is returned for any reason except refusal, where the notice is returned undeliverable.” RSMo § 140.405(4).
16 Respondents thus rebutted Appellant’s collector’s deed as prima facie evidence of notice
to Respondents, and substantial evidence supported the trial court’s finding that Appellant failed
to provide proper notice to Respondents. 12
For all the above reasons, we find the trial court adjudicated Appellant’s rights in the
property and did not misapply the law in concluding that Respondents have superior rights.
Point III is denied.
Point IV
Appellant argues in its fourth point that the trial court erroneously declared the law by
declining to adjudicate its ownership of the property because Sections 511.130 and 511.140 require
a single, final judgment.
For an issue to be preserved on appeal, it must be presented to the trial court. Estate of
Overbey v. Chad Franklin Nat’l Auto Sales N., LLC, 361 S.W.3d 364, 370 n.2 (Mo. banc 2012);
see also Rule 78.07. “In a case tried without a jury, a motion for a new trial or a motion to amend
the judgment is not required to preserve an issue for appellate review ‘if the matter was previously
presented to the trial court.’” Williams v. Williams, 669 S.W.3d 708, 717 (Mo. App. E.D. 2023)
(quoting Rule 78.07(b)). “[S]uch motions are necessary when . . . the matter was not presented to
the trial court.” Id. at 717. Appellant did not raise this issue before the trial court or in its Motion
to Amend Judgment or New Trial. Thus, the issue is not preserved. See Estate of Overbey, 361
S.W.3d at 370 n.2; Williams, 669 S.W.3d at 717.
12 There is authority for the proposition that, with some exceptions, a tax purchaser who fails to provide proper notice pursuant to Section 140.405 loses title to the property altogether. See RSMo § 140.405(8); Sneil, LLC v. Tybe Learning, 370 S.W.3d 562, 568 (Mo. banc 2012) (“The failure to comply with the § 140.405 notice requirements by the purchaser at a delinquent tax sale will result in the loss of all interest in the real property as a matter of law.”). Respondents do not press this issue on appeal, and we do not address it. 17 This Court has discretion to review unpreserved issues for plain error. Lyon Fin. Serv., Inc.
v. Harris Cab Co., Inc., 303 S.W.3d 589, 590 (Mo. App. E.D. 2010); Rule 84.13(c). “Plain errors
affecting substantial rights may be considered on appeal, in the discretion of the court, though not
raised or preserved, when the court finds that manifest injustice or miscarriage of justice has
resulted therefrom.” Rule 84.13(c). “‘[T]o reverse for plain error in a civil case, the injustice must
be so egregious as to weaken the very foundation of the process and seriously undermine
confidence in the outcome of the case.’” O’Haver v. 3M Co., 698 S.W.3d 730, 739 n.5 (Mo. App.
W.D. 2024) (quoting Williams v. Mercy Clinic Springfield Cmtys., 568 S.W.3d 396, 412 (Mo. banc
2019)). Plain error review therefore rarely is granted in civil cases. Int. of J.C.S., 658 S.W.3d 260,
265 (Mo. App. S.D. 2023); Mayes v. Saint Luke’s Hosp. of Kan. City, 430 S.W.3d 260, 269 (Mo.
banc 2014).
Also, “[t]his Court will not, ‘sua sponte, review for plain error’ when an appellant has not
requested that analysis.” Int. of K.C.G., 689 S.W.3d 759, 764 (Mo. App. S.D. 2024) (quoting Int.
of J.C.S., 658 S.W.3d 260, 265 (Mo. App. S.D. 2023)).
We do not perceive any error remotely approaching an “injustice . . . so egregious as to
weaken the very foundation of the process,” and Appellant has not requested plain error review.
We decline to review for plain error.
Point IV is denied.
Conclusion
For the foregoing reasons, we affirm the trial court’s judgment.
18 Cristian M. Stevens, J.,
James M. Dowd, P.J., and Angela T. Quigless, J., concur.