Court of Appeals of Missouri, Southern District, Second Division
FOUR SEASONS RACQUET AND COUNTRY CLUB PROPERTY OWNERS ASSOCIATION, INC., a Missouri Non Profit Corporation, Plaintiff-Respondent,
CAROL BUTLER, and MILLSAP & SINGER, P.C., a Missouri Professional Corporation as Trustee for Arvest Central Mortgage Company, Defendants, and ARVEST CENTRAL MORTGAGE COMPANY,
FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Kenneth M.
Hayden, Presiding Judge
WILLIAM W. FRANCIS, JR., J.
Central Mortgage Company ("Arvest") appeals from
summary judgment granted in favor of Four Seasons Racquet and
Country Club Property Owners Association, Inc. ("Four
Seasons"). In two points, Arvest contends the trial
court erred in granting summary judgment in favor of Four
Seasons because Four Seasons' "Declaration"
specifically adopts Missouri's Uniform Condominium Act
("the UCA"), as amended; and because the 2014
amendment to the UCA should have applied retroactively, in
that the amendment was remedial rather than substantive.
Finding no merit in Arvest's points, we affirm the trial
and Procedural Procedure
6, 2000, Carol Butler ("Butler") purchased a
condominium unit located in the Four Seasons Racquet and
Country Club condominiums by warranty deed from Kathleen Ray.
February 28, 2005, Four Seasons recorded its "Second
Amendment and Complete Restatement of Declaration of
February 12, 2009, Butler executed a promissory note and deed
of trust in favor of Bank Star One. The deed of trust was
recorded on February 18, 2009. On February 13, 2009, Bank
Star One assigned the note and deed of trust to Arvest by
deed of trust, recorded on February 20, 2009. On October 23,
2013, "Millsap & Singer, P.C., "
("Millsap") was appointed successor trustee under
the deed of trust.
January 1, 2013, Butler failed to pay Four Seasons certain
assessments that were otherwise due and owing, and failed to
remit payment thereafter as other assessments became due.
October 5, 2015, Four Seasons recorded a "Notice of
Delinquent Assessments and Lien" against Butler and the
Property, due to Butler's failure to pay assessments for
the Property due and owing on January 1, 2013, and which
continued to accrue thereafter.
December 15, 2015, Four Seasons filed a Petition to establish
and foreclose its assessment lien against Butler. In a
subsequent First Amended Petition, Four Seasons added Millsap
as a party defendant.
December 29, 2015, Millsap, in its capacity as successor
trustee of the deed of trust, filed a "Notice of
Trustee's Sale" on behalf of Arvest and caused it to
be delivered to Four Seasons.
March 24, 2016, Four Seasons filed a Second Amended Petition
adding Arvest as a defendant, and requesting the court find
Four Seasons' lien as priority against the Property,
superior to the interest of Arvest. Four Seasons asserted it
was a condominium association organized under the UCA,
the Property and Butler were subject to the terms and
conditions of the Declaration recorded in the Camden County
Recorder of Deeds.
September 27, 2016, Arvest filed a motion for summary
judgment. On October 3, 2016, Four Seasons filed its motion
for summary judgment. Both parties filed responses and
replies to these respective motions.
October 4, 2016, Four Seasons filed a "Motion for Order
of Interlocutory Default" against Butler, which the
trial court granted on October 12, 2016.
January 5, 2017, a hearing was held on the parties'
respective motions for summary judgment. The trial court took
the matter under advisement.
4, 2017, the trial court granted summary judgment in favor of
Four Seasons, finding that Four Seasons' lien for unpaid
assessments and fines arose January 1, 2013,  and its lien was
"first, prior and paramount" to Arvest's
mortgage lien. The trial court reasoned that in January 2013,
the controlling version of section 448.3-116.2 gave Four
Seasons a "'super priority' lien which is
superior to ALL other liens" except, as
relevant here: (1) if Arvest's interest were recorded
before the Declaration; (2) were for purchase of the unit;
(3) were a governmental tax lien; or (4) dealt with certain
specific conditions arising out of unit refinancing. The
trial court found there was no genuine issue of material fact
as to these issues, and none of those exceptions applied. The
trial court noted that in 2014, there was an amendment to
section 448.116.2 that removed Four Seasons' "super
priority" status, but determined that such amendment
should not be applied because it effected a "change
[to] the substantive law of priority[, ]" and if
applied, "would take away from [Four Seasons] a vested
right to priority over [Arvest's] lien." The trial
court further found that the Declaration-purporting to adopt
the UCA "as amended"-had no efficacy as to which
version of the UCA applied.
22, 2017, Four Seasons filed a "Motion for Default
Judgment Against Defendant Carol [Butler], " requesting
the trial court enter a default judgment against Butler for
the amount of the delinquent assessments, and to order
foreclosure of Four Seasons' assessment lien.
6, 2017, the trial court entered a final judgment against
Butler and "for foreclosure of [Four
Season]'s lien for delinquent assessments[.]" The
trial court found that pursuant to "Four Seasons'
declaration and the laws of the State of Missouri, "
Four Seasons was entitled to judgment against Butler in the
amount of $66, 553.11 for unpaid and delinquent condominium
assessments, with nine percent interest, attorney fees as
assessed, and costs. Four Seasons was also entitled to all
assessments and fees levied or charged against the Property
after the date of the judgment until the sale of the
trial court further indicated as follows:
IT IS FURTHER ORDERED ADJUDGED AND DECREED that the Judgment
and lien of Plaintiff against the property described is
declared to be a first, superior and paramount lien on and
against the property described above as senior and superior
to all rights, titles, liens or claims of any and all
IT IS FURTHER ORDERED ADJUDGED AND DECREED that Plaintiff is
entitled to foreclosure of its lien and immediate sale of
such real estate; that a special fieri facias execution shall
issue for the sale of the premises described herein; that
Plaintiff shall have the right to credit bid all or any part
of its Judgment herein for such sale; and the proceeds of
such sale be applied to payment of the Judgment herein.
IT IS FURTHER ORDERED ADJUDGED AND DECREED that the
Defendants and all persons claiming under them are hereby
forever barred and foreclosed from any equity of redemption.
IT IS FURTHER ORDERED ADJUDGED AND DECREED that the Court
expressly retains jurisdiction of the property and subject
matter herein ...