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Missouri Bond Co. LLC v. Devore

Court of Appeals of Missouri, Eastern District, First Division

August 20, 2019

MISSOURI BOND COMPANY LLC, Appellant,
v.
MARK R. DEVORE, et al., Respondents.

          Appeal from the Circuit Court of St. Louis County Honorable Ellen W. Dunne

          ROY L. RICHTER, PRESIDING JUDGE

         Missouri 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.

         I. Background

         The 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.[1] 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.

         The 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.

         Instead of submitting new invoices, Appellant filed this action.

         In January 2018, Appellant filed its Second Amended Petition ("Petition") naming 21 defendants across 12 counts.[2] 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.

         Subsequently, 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 ...


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