Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County Honorable Ellen W.
RICHTER, PRESIDING JUDGE
Bond Company LLC ("Appellant") appeals from the
Amended Judgment and Order ("Order") of the Circuit
Court of St. Louis County granting motions to dismiss filed
by Respondent St. Louis County ("the County") and
its Collector of Revenue Mark Devore ("Devore");
Respondent Western Surety ("Western Surety"); and
Respondents Old Republic Title Company of St. Louis, Equity
Trust Company Custodian FBO Richard Fornjoy IRA, and Juaneka
Gore (collectively "the 1861 Atmore Respondents").
The Order dismissed with prejudice all claims against Devore
and the County asserting Appellant was entitled to recover
attorney's fees, while all other claims against them were
dismissed without prejudice. The Order dismissed the claims
against Western Surety without prejudice, finding Appellant
was not the real party in interest and lacked standing to
sue. And finally, the Order dismissed Count VI against the
1861 Atmore Respondents without prejudice. We dismiss for
lack of a final judgment.
action underlying this appeal began in August 2016, when
Appellant purchased multiple properties-including the 12 at
issue in this appeal ("the Properties")-that were
being sold at a real property tax sale. The properties were
being sold for delinquent taxes. On March 13, 2017, Appellant
signed a letter of intent for services to be provided by
Gebhardt Real Estate and Legal Services, L.L.C.
("GRELS"). Within that letter there was a
"Description of Services - Charges" section, which
listed the charge, in attorney's fees, for each service
GRELS would provide. Among other things, GRELS was to draft a
limited title examination for $200 per property, draft notice
letters in compliance with Section 140.405,
RSMo. for $150 per property with an additional
$50 for every additional mailing of 20 notice letters, and
draft and file the affidavit required by Section 140.405, as
well as provide assistance with the issuance of the
collector's deed for $150 per property. From the record,
it appears GRELS performed most or all of these duties.
owners of record, or other persons with a recorded interest,
redeemed the Properties before they were foreclosed. Section
140.340 provides that where an owner or party with an
interest in a property at the time of a tax sale redeems the
property before foreclosure, the tax sale purchaser is
entitled to the "reasonable and customary costs of the
tax sale." Section 140.340.2. Appellant subsequently
submitted invoices to Devore seeking reimbursement of what it
deemed to be the reasonable and customary costs. Devore sent
Appellant a letter that stated as follows:
Your invoice included the cost of a title report wherein it
is labeled "Attorney's Fees for
Title Report for notice letter with right of redemption for
'address of property'," at a cost of $500 each.
Later in the same invoice you include attorney fees of $50.
Adding the additional postage costs, the invoice costs for
redemption come to $570.90 to $1, 011.53 depending on how
many letters you sent.
Section 140.340.2 . . . allows the purchaser of property to
recover reasonable and customary costs of a tax sale, which
include the cost of a title search and postage but
not attorney fees.
In examining the cost of the title search . . . $500 is not
only not recoverable but also not reasonable. As to the
listed $50 attorney's fee, that is not recoverable.
Please provide this office with an invoice for the title
search that does not include attorney's fees and within
the same invoice do not include any other attorney's
fees. When a new invoice is submitted . . . [Devore's]
Office will review . . . and accept the invoice if the
reported costs . . . are reasonable and customary costs.
of submitting new invoices, Appellant filed this action.
January 2018, Appellant filed its Second Amended Petition
("Petition") naming 21 defendants across 12
counts. The Petition alleged, inter alia,
that the Properties were not properly redeemed, resulting in
an unconstitutional taking, in violation of Appellant's
rights under the Fifth and Fourteenth Amendments to the U.S.
Constitution, and Article I Section 2 of the Missouri
Constitution, that Devore abused his discretion in denying
payment of Appellant's reasonable and customary costs and
attorney's fees, and that Devore's denial of
attorney's fees was arbitrary and capricious.
multiple parties filed motions to dismiss: Western Surety
filed a motion to dismiss for lack of standing; Devore and
the County filed a motion to dismiss the Petition for failure
to state a claim upon which relief could be granted; and the
1861 Atmore Respondents filed a joint motion to dismiss Count
VI of the Petition, or alternatively for a more definite
statement. The trial court entered its order on the motions
to dismiss on August 7, 2018, and suasponte amended that order on August 8, 2018
("the Order"), granting all of the motions to
dismiss. The Order dismissed all claims alleging Appellant
was entitled to recover attorney's fees with prejudice,
and dismissed without prejudice all other claims against
Devore and the County. The Order dismissed with prejudice all
claims against Western Surety, finding Appellant "is not