In the Matter of Foreclosure of Liens for Delinquent Land Taxes by Action in REM, Collector of Revenue City of St. Louis, Missouri, and Scott W. Reibe v. A&W Investment Group, LLC

• Court: Missouri Court of Appeals
• Decided: January 23, 2024
• Docket: ED111425
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

IN THE MATTER OF FORECLOSURE OF ) No. ED111425 LIENS FOR DELINQUENT LAND TAXES ) BY ACTION IN REM, COLLECTOR OF ) REVENUE CITY OF ST. LOUIS, MISSOURI, ) ) Respondent, ) Appeal from the Circuit Court of ) City of St. Louis & ) Cause No. 2122-LT20329 ) SCOTT W. REIBE, ) ) Respondent, ) Honorable Michael J. Colona ) vs. ) ) A & W INVESTMENTS GROUP, LLC, ) Filed: January 23, 2024 ) Appellant. )

Before Judges Thomas C. Clark II, P.J., James M. Dowd, J. and John P. Torbitzky, J.

Introduction

A&W Investments Group, LLC (Appellant) appeals the trial court’s order and judgment

granting Scott Reibe’s (Respondent S.R.) motion to set aside the tax sale of a land parcel located

in the 7900 block of Minnesota in the City of St. Louis (Land Parcel). Appellant raises one point

on appeal, arguing that the trial court erred by granting Respondent’s motion because the Sheriff

of the City of St. Louis (Sheriff) provided notice of the tax sale to W.R., Respondent S.R.’s

father and previous owner of the Land Parcel, as disclosed in the city assessor’s records

1 (Assessor) as required by § 92.810. 1 We reverse and remand to the trial court for further

proceedings.

Factual and Procedural Background

As the Land Parcel’s previous owner, W.R. signed a beneficiary deed naming

Respondent S.R. as the grantee of the Land Parcel and recorded it with the City of St. Louis

Recorder of Deeds (Recorder of Deeds) on July 14, 1998. On June 30, 2019, W.R. died and

ownership of the Land Parcel transferred automatically to Respondent S.R. pursuant to the

beneficiary deed. Respondent S.R. did not know about the beneficiary deed until three years after

W.R.’s death and around the time of the tax sale involving the Land Parcel.

Following W.R.’s death, the property taxes on the Land Parcel were not paid in 2019,

2020 and 2021 for an initial outstanding balance of $1,573.88, causing the City of St. Louis

Collector of Revenue (Collector) to petition for the property sale due to unpaid taxes in cause

2122-LT00212 on June 8, 2021. 2 At that time, both the records for the Collector and the

Assessor still listed W.R. as the Land Parcel’s owner. The trial court entered judgment against

W.R. in the foreclosure lawsuit after an evidentiary hearing on August 26, 2021. In the

foreclosure judgment, the trial court concluded that the Collector notified W.R. as the owner of

record by U.S. postage and by publication in the St. Louis Daily Record as required by the

Municipal Land Reutilization Law (§§ 92.700–92.920). Following the judgment, the Sheriff

prepared to conduct a tax sale of the property on June 28, 2022, posting notice of the tax sale on

the door of the Civil Courts Building in the City of St. Louis, publishing notice in the St. Louis

1 All statutory references are to the Revised Statutes of Missouri (2016). The 1993 version of § 92.810 applies here because it was the version in effect at the time of the tax sale even though the Missouri General Assembly amended the provision effective August 28, 2022, prior to the trial court’s final judgment and order on January 5, 2023. 2 At the time of the tax sale on June 28, 2022, the general taxes, statutory interest, penalties, attorney fees and costs associated with the property sale increased to $2,260.00.

2 Daily Record and mailing notice of the sale to W.R., as the owner of record according to the

Assessor and the Collector. Additionally, the Sheriff posted notice of the upcoming tax sale at

the Land Parcel on June 2. Respondent S.R. did not receive notice of the tax sale as conceded by

both parties. At the June 28 tax sale, Appellant purchased the Land Parcel for $37,400.00.

After its successful bid, Appellant filed a Motion to Confirm the Tax Sale with the trial

court on August 10, 2022 and filed the property appraisal with the appraiser’s accompanying

affidavit on September 12. Respondent S.R. learned of his property ownership soon after the tax

sale but before the confirmation hearing on September 22. At the confirmation hearing,

Respondent S.R. appeared, made an oral motion to continue the confirmation hearing and filed a

Motion to Set Aside the Tax Sale. On November 4, the parties argued Appellant’s Motion to

Confirm the Tax Sale and Respondent S.R.’s Motion to Set Aside but the trial court withheld an

immediate ruling, providing the parties with an opportunity to file briefs addressing the issues.

On January 5, 2023 and following the briefing period, the trial court issued its order and

judgment, concluding that Respondent S.R. did not receive sufficient notice of the tax sale. Now

Appellant appeals.

Standard of Review

In a judge-tried case, we will affirm the judgment of the trial court unless substantial

evidence does not support it, it is against the weight of the evidence or it erroneously declares or

applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Where a party asserts

the trial court erroneously declared or applied the law, our review is de novo. Wallace v. Byrne,

672 S.W.3d 96, 107 (Mo. App. E.D. 2023); see also Hampton v. Llewellyn, 663 S.W.3d 899, 901

(Mo. App. W.D. 2023).

3 Discussion

Appellant argues that the Collector and Sheriff provided the requisite notice pursuant to §

92.810 and we agree. According to the U.S. Supreme Court, a notifying party must provide

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 v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); see

also Foreclosure of Liens for Delinquent Taxes by Action In Rem v. Holton, 428 S.W.3d 670,

677 (Mo. App. W.D. 2014) and Lohr v. Cobur Corp., 654 S.W.2d 883, 886 (Mo. banc 1983).

Our primary inquiry is whether notice was adequate pursuant to §92.810 and we conclude that it

was. In part, the 1993 version of § 92.810 states:

“No later than twenty days prior to the sheriff's sale, the sheriff shall send notice of the sale to the owner or owners, as disclosed upon the records of the assessor of the real estate for which tax bills thereon are delinquent. The search of the records of the assessor must be made not more than forty days prior to the sending of this notice.”

§ 92.810.3 (emphasis added).

The sheriff followed the language of § 92.810. Both the Assessor and Collector listed

W.R. as the Land Parcel’s owner. Based on this information, the Sheriff sent notice via U.S.

postage to W.R. at the Land Parcel’s address in the 7900 block of Minnesota on May 23, 2022.

The record does not reflect that the Sheriff knew or had reason to know that W.R. was deceased

or that notice to W.R. was ineffective because he relied on the Assessor’s records identifying

W.R. as the Land Parcel’s owner, fulfilling the requirements of § 92.810. See In re Foreclosure

of Liens for Delinquent Land Taxes by Action v. Bhatti, 334 S.W.3d 444, 448 (Mo. banc 2011)

(“With hundreds of properties subject to tax lien foreclosures in the City of St. Louis, notions of

due process do not require the sheriff to take any further steps to find property owners absent

knowledge the notice was not received.”).

4 Additionally, the Sheriff posted notice of the tax sale on the door of the Civil Court’s

Building, published notice and posted notice of the sale on the Land Parcel’s premises. Since the

Sheriff complied with the statutory requirements and additionally posted notice of the tax sale on

the premises, Respondent has failed to show that the notice was not “reasonably calculated to

apprise him of the tax sale or that the sheriff knew or should have known that the notice was

ineffective.” Id. at 448 (finding notice of foreclosure sale sufficient where the Sheriff mailed

notice to the affected land parcel and did not know or have reason to know that the notice was

ineffective).

Our determination may appear contrary to logic considering W.R. filed the deed with the

Recorder of Deeds identifying Respondent S.R. as the intended property beneficiary. Despite

this, the record does not reflect that anyone, including Respondent S.R., alerted the Recorder of

Deeds about W.R.’s death, which presumably would prompt him to adjust his records and notify

the Assessor so he could also document the Land Parcel’s change of ownership. In fact, the

record does not indicate that Respondent S.R. attempted to notify any of the City of St. Louis’

various taxing entities about W.R.’s death. Without knowing this, the Collector and Sheriff

continued their efforts to contact W.R. about the delinquent taxes and the pending tax sale,

effectively complying with the statutory guidelines.

While we regret that Respondent S.R. lost access to the Land Parcel and equally

recognize that our determination defeats the desire of the decedent, we likewise conclude that

Respondent S.R. made insufficient efforts to preserve his property interest. Although he asserts

that he was unaware of the delinquent taxes until sometime after the tax sale but before the

September 2022 confirmation proceeding, this nearly three-year period is also marked by his

inactivity and is devoid of any recognizable effort to identify, express or memorialize his interest

5 in the property. During the nearly three years separating W.R.’s death in 2019 and the tax sale in

2022, the record fails to reflect that Respondent S.R. reviewed W.R.’s records for a will or deed

documenting the property transfer or reviewed the records of the Recorder of Deeds which most

likely would have alerted him about the beneficiary deed. Additionally, the record does not

demonstrate that Respondent S.R. made any effort to probate his father’s estate while suspecting,

if not knowing, that he had a superior claim to the property as his heir. Further, the record does

not reflect that he attempted to forward W.R.’s death certificate to any of the appropriate taxing

entities or even forwarded his father’s mail to Respondent S.R.’s address. The simple due

diligence of pursuing some or any of these initiatives would have uncovered his ownership,

demonstrated his interest in the property, alerted him about his property tax obligations or, at the

very least, prompted him to inform the Assessor and Collector about the change of ownership.

We weigh Respondent S.R.’s duty to preserve his interest in the Land Parcel with the Sheriff’s

responsibility to provide notice of the tax sale and find the notice sufficient considering

Respondent S.R.’s failure to preserve his property interest. See Holton, 28 S.W.3d at 682 (“At

some point a property owner’s presumptive duty to preserve his property outweighs the

responsibility of a tax collector to provide more extensive forms of notice”); see also Schwartz v.

Dey, 780 S.W.2d 42, 45 (Mo. banc 1989)).

Conclusion

We reverse the trial court’s January 5, 2023 order and judgment granting Respondent

S.R.’s motion to set aside the tax sale of the Land Parcel and remand to the trial court for

proceedings consistent with this decision.

_______________________________ Thomas C. Clark II, P.J.

6 James M. Dowd, J., and John P. Torbitzky, J., concur.