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State ex rel. Yoest v. McEvoy

Court of Appeals of Missouri, Western District, Third Division

October 3, 2017

STATE OF MISSOURI EX REL JOEL YOEST, DAWN YOEST, LIBERTY ASSETS, LLC, LIBERTY ASSET HOLDINGS, LLC, JUPITER GROUP, LLC, CASTLE ASSOCIATES, LLC, FIVE STAR INVESTORS, LLC, Appellants,
v.
LYDIA H. MCEVOY, CLAY COUNTY MISSOURI COLLECTOR OF REVENUE, Respondent.

         Appeal from the Circuit Court of Clay County, Missouri Honorable Louis Angles, Judge

          Before Alok Ahuja, P.J., Thomas H. Newton, and Cynthia L. Martin, JJ.

          THOMAS H. NEWTON, JUDGE.

         Mr. Joel and Ms. Dawn Yoest and their business entities (hereinafter referred to as "The Yoests") appeal the Clay County circuit court's judgment dismissing their petition for a writ of mandamus against Clay County Collector of Revenue Lydia McEvoy. We reverse.

         On August 16, 2016, [1] Ms. Lydia McEvoy emailed the Yoests to inform them that she was permanently banning them from participating in the 2016 tax sale as well as any future tax sales in Clay County. Ms. McEvoy informed the Yoests that this decision was the result of an ongoing investigation against them.

         The following day, the Yoests filed a petition for a writ of mandamus and requested a temporary restraining order against Ms. McEvoy. The writ sought to command Ms. McEvoy to "cease and lift any and all bans against [the Yoests] from participating in present and future Clay County, Missouri tax" sales. The Yoests also requested that the court enter a preliminary order in mandamus forcing Ms. McEvoy to answer their petition. The Yoests argued that nothing in the statutes gave Ms. McEvoy the power to stop them from participating in the tax sale.

         Ms. McEvoy opposed the petition and the restraining order, arguing that she had a duty "to refuse bids from those who have demonstrated a history of dishonesty, lack of integrity, and lack of reliability." She said that due to the ongoing investigation, it "became necessary to ban them as bidders in order to protect the taxpayers of the county, uphold the due process rights of taxpayers, and protect the integrity of the tax sale process." Ms. McEvoy listed the following six allegations against the Yoests: (1) failed to personally serve someone in a quiet title action, (2) persuaded the court to award them a tax sale surplus, (3) refused to deliver the tax sale surplus to the former owner, (4) convinced an owner to sign a quitclaim deed without informing the owner of the possibility of a surplus, (5) harassed a property owner into signing a quitclaim deed by threatening to call the police, and (6) prepared a form that falsely stated that an estate had no interest in the subject property. Ms. McEvoy argued that the Yoests did not show that they had a right to be a bidder at the tax sale. She asked the court to deny the temporary restraining order and set a hearing for the mandamus to determine whether the Yoests should be permanently banned.

         The trial court denied the request for the temporary restraining order on August 19, 2016, and held that "[m]andamus is available only when there is an already existing legal right." The court did not engage in a discussion on the merits of the malfeasance claims. The Yoests moved the trial court to reconsider. The court issued a preliminary order in mandamus on August 29, 2016, commanding Ms. McEvoy to answer the petition.

         Ms. McEvoy filed her answer on September 15, 2016, along with a motion to dismiss. The court granted the motion to dismiss on November 28, 2016, holding that the Yoests had "failed to establish a clear, unequivocal right to be bidders at the annual Clay County tax delinquency sale." The Yoests moved the court for a new trial and argued that an evidentiary hearing was necessary because the pleadings raised disputed issues of material fact. The trial court denied the post-judgment motion, and the Yoests appealed to the Missouri Supreme Court which transferred the appeal to this Court. The Yoests ask that this court either (1) issue a permanent writ of mandamus, or (2) remand the case for trial.

         Legal Analysis

         The parties disagree on the proper standard of review. Our first task is to determine the correct standard. Ms. McEvoy argues that an appeal from a motion to dismiss must be reviewed de novo. We disagree.

         The Yoests argue that the standard of review is the same as in Professional Fire Fighters of Eastern Missouri v. City of University City, 457 S.W.3d 23 (Mo. App. E.D. 2014). As here, the trial court issued a preliminary writ of mandamus and then dismissed the petition without holding an evidentiary hearing. Id. at 25. Therefore, the standard of review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and this Court will reverse the trial court's dismissal if the Yoests can demonstrate that it was not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. at 26.

         The trial court erred in ruling that mandamus did not lie because the Yoests have demonstrated that Ms. McEvoy had a ministerial duty to allow them to participate in the tax sale. A writ of mandamus is meant to "compel a public official to do that which he or she is obligated by law to do and undo that which he or she was prohibited by law from doing." State ex rel. Thomas v. Neeley, 128 S.W.3d 920, 924 (Mo. App. S.D. 2004). A party seeking a writ must "allege and prove he or she has a clear, unequivocal right to the thing claimed." Banks v. Slay, 410 S.W.3d 767, 769 (Mo. App. E.D. 2013) (citation omitted).

         Ms. McEvoy and the circuit court claim that mandamus does not lie because the Yoests have failed to point to a clear and unequivocal right in the relevant statute. Ms. McEvoy suggests that for this writ to lie, the statute would need to say, "[a]ny person not delinquent on land taxes and signing an affidavit attesting to the same, who is a Missouri resident, shall have an absolute right to bid at the sale and have his or her bid accepted, should it be made for the required sum." We cannot agree with this narrow view. To determine the intent of a statute, "the words must be considered in context and sections of the statutes in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words." Bolen v. Orchard Farm R-V School Dist., 291 S.W.3d 747, 751 (Mo. App. E.D. 2009). "We must ...


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