                In the Missouri Court of Appeals
                        Eastern District
                                                 DIVISION TWO

WMAC 2013, LLC,                                         )        No. ED107204
                                                        )
                            Respondent,                 )        Appeal from the Circuit Court
                                                        )        of St. Louis County
vs.                                                     )
                                                        )        Honorable Thea A. Sherry
DENNIE R. GLADNEY, et al.,                              )
                                                        )
                            Appellants.                 )        FILED: January 14, 2020

                                                  Introduction

           Dennie R., Sharon, and Diana Gladney (collectively “the Gladneys”) appeal from the trial

court’s grant of summary judgment to WMAC 2013, LLC (“WMAC13”) in a quiet title and

ejectment action. In their sole point on appeal, the Gladneys challenge the trial court’s entry of

summary judgment. The Gladneys contend a genuine issue of material fact exists as to whether

the tax lien certificate on their property was sold to a prohibited purchaser under Section

140.190.2.1 Because the sale of the tax-deficient property to a statutorily prohibited purchaser

does not address a material fact given the circumstances of this case, we deny the Gladneys’

point on appeal and affirm the judgment of the trial court.




1
    All Section references are to RSMo (2016).
                                  Factual and Procedural History

        Dennie R. and Sharon Gladney acquired the real property at 3815 Brown Road in St.

Louis, Missouri (“the Property”) in 2010. Subsequently, Dennie R. and Sharon Gladney failed to

pay property taxes on the Property. In August 2015, WMAC 2014, LLC (“WMAC14”)

purchased a tax lien certificate for the Property at a public tax sale auction. In 2016, Dennie R.

and Sharon Gladney transferred the Property to their daughter, Diana Gladney.

        The Gladneys did not redeem the Property within the year following the tax sale.

Consequently, in September 2016, the St. Louis County Collector of Revenue issued a

Collector’s Deed for Taxes for the Property (“the Deed”) to WMAC14, which later conveyed the

Deed to WMAC13. WMAC13 filed a petition to quiet title pursuant to the Deed and to eject

Dennie R. and Sharon Gladney from the Property. Subsequently, Diana Gladney was granted

leave to intervene.

        WMAC13 moved for summary judgment against the Gladneys on its petition to quiet

title. In an attempt to defeat summary judgment, the Gladneys argued that they raised a genuine

issue of fact regarding the validity of the Deed. Specifically, the Gladneys offered evidence that

WMAC14 was a successor company of WMAC13. The Gladneys maintained that WMAC14’s

successor liability rendered it a prohibited purchaser at the tax sale under Section 140.190.2

because WMAC13 had failed to pay property taxes on other St. Louis County properties at the

time WMAC14 acquired the Property. The Gladneys reasoned that since WMAC14 was a

successor company of WMAC13 and WMAC13 was a prohibited purchaser, then WMAC14 was

a prohibited purchaser as well. Accordingly, the Gladneys argued that WMAC13 was not

entitled to summary judgment on its petition because WMAC14 obtained the Deed through an

invalid sale.



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           The trial court found that WMAC13 presented a prima facie case for summary judgment

and that no credible evidence was presented to successfully challenge the Deed under Section

140.610. Accordingly, the trial court granted summary judgment. The Gladneys now appeal.

                                                   Point on Appeal

           In their sole point on appeal, the Gladneys contend that the trial court erred in granting

summary judgment. The Gladneys maintain that they raised a genuine issue of fact regarding

WMAC14’s status as a prohibited purchaser in the tax sale, which, if shown, would render

WMAC13’s title invalid and, as a matter of law, defeat its right to judgment on the petition to

quiet title.

                                                 Standard of Review

           We review an appeal from summary judgment de novo. Farrow v. Saint Francis Med.

Ctr., 407 S.W.3d 579, 587 (Mo. banc 2013) (citing ITT Commercial Fin. Corp. v. Mid-Am.

Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). “[We review] the record in the

light most favorable to the party against whom judgment was entered and afford[] that party the

benefit of all reasonable inferences.” Id. (citing Lewis v. Gilmore, 366 S.W.3d 522, 524 (Mo.

banc 2012)). We also review questions of statutory interpretation de novo. Newsome v. Kan.

City, Mo. Sch. Dist., 520 S.W.3d 769, 780 (Mo. banc 2017) (internal citation omitted).

                                                        Discussion

           Trial courts are required to enter summary judgment where “there is no genuine issue as

to any material fact” and where “the moving party is entitled to judgment as a matter of law.”

Rule 74.04(c)(6).2 “[A] ‘genuine issue’ exists where the record contains competent materials

that evidence two plausible, but contradictory, accounts of the essential facts[.]” ITT



2
    All Rule references are to Mo. R. Civ. P. (2018).

                                                            3
Commercial Fin. Corp., 854 S.W.2d at 382. “A material fact in the context of summary

judgment is one from which the right to judgment flows.” Goerlitz v. City of Maryville, 333

S.W.3d 450, 453 (Mo. banc 2011) (internal citation omitted). More specifically, “material facts

are those ultimate facts that constitute the elements of a cause of action or affirmative defense[.]”

Custer v. Wal-Mart Stores E. I, LP, 492 S.W.3d 212, 215 (Mo. App. S.D. 2016) (citing ITT

Commercial Fin. Corp., 854 S.W.2d at 379–81).

       On appeal, the Gladneys acknowledge that WMAC13 has made a prima facie case for

summary judgment. See Section 140.460.2 (providing that a collector’s deed is “prima facie

evidence of a good and valid title in fee simple in the grantee of said deed”). However, the

Gladneys posit that they sufficiently rebutted the prima facie case by introducing a genuine issue

of fact regarding WMAC14’s status as a prohibited purchaser in the tax sale as the successor of

WMAC13. See Edwards v. Black Twig Mktg. & Commc’ns LLC, 418 S.W.3d 512, 520 (Mo.

App. E.D. 2013) (internal citations omitted) (providing a successor may be liable for the

liabilities of its predecessor where a transaction is entered into fraudulently to escape liability).

The Gladneys then reason that WMAC14’s status as a prohibited purchaser under Section

140.190.2 raises a material fact challenging WMAC13’s right to judgment.

       The Gladneys’ argument fails because, under the summary judgment facts presented,

whether WMAC14 was a prohibited purchaser under the statute is immaterial to WMAC13’s

rights in the Property, and its corresponding right to judgment. Therefore, even if the Gladneys

could establish at trial that WMAC14 was a prohibited purchaser, that fact is not material to their

challenge of WMAC13’s title in the Property.

       Section 140.610 governs “all suits and controversies involving the title of land claimed

and held by virtue of the deed executed by the county collector for nonpayment of taxes



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thereon[.]” “[I]n order to defeat the title conveyed by such deed,” the person claiming adverse

title “shall be required to prove” one of the following:

       [1] [T]hat the land described therein was not subject to taxation at the date of
       assessment of the tax for which it was sold, or [2] that the taxes for the nonpayment
       of which the land was sold were paid to the proper officer within the time limited
       by law therefor, or [3] that the same had not been assessed for the taxes for the
       nonpayment of which it was sold, or [4] that the same had been redeemed pursuant
       to law, or [5] that a certificate in proper form had been given by the proper officer,
       within the time limited by law for paying taxes or for redeeming from sales made
       for the nonpayment thereof, stating no taxes were due at the time such sale was
       made, or [6] that at the date of the deed the redemption period had not expired.

Section 140.610. Section 140.610’s usage of the words “shall” and “required” makes clear that a

party must prove one of the six statutory grounds to defeat the title conveyed by a collector’s

deed. See State v. Teer, 275 S.W.3d 258, 261 (Mo. banc 2009) (internal citation omitted) (“The

word ‘shall’ generally prescribes a mandatory duty.”); see also State ex rel. Jackson v. Dolan,

398 S.W.3d 472, 479 (Mo. banc 2013) (quoting State v. Moore, 303 S.W.3d 515, 520 (Mo. banc

2010)) (“When interpreting a statute, [Missouri courts] must give meaning to every word or

phrase of the legislative enactment.”). The Gladneys’s argument that WMAC14’s status as a

prohibited purchaser voids the Deed is simply not listed in the statute as one of the express

grounds upon which the Gladneys may seek to set aside the Deed as invalid. See Section

140.610.

       Despite the mandate of Section 140.610, the Gladneys direct this Court to Section

140.190.2 to argue that WMAC13’s Deed was void as the result of an invalid sale. Section

140.190.2 provides that “no sale shall be made to any person or designated agent who is

currently delinquent on any tax payments on any property, other than . . . on the property being

offered for sale, and who does not sign an affidavit stating such at the time of sale.” (Emphasis

added). The Gladneys argue that the Deed was transferred to WMAC14 in an invalid sale



                                                 5
because WMAC13 was delinquent on its property taxes at the time of the tax sale, and

WMAC14, the purchaser at the tax sale, is WMAC13’s successor. See Edwards, 418 S.W.3d at

520 (internal citations omitted). The Gladneys essentially argue that they need not seek to void

the Deed under Section 140.610 to defeat the quiet title action because the Deed was inherently

invalid under Section 140.190.2. This argument fails because even if the sale was made to a

prohibited purchaser as defined under Section 140.190.2, that fact alone does not render the

Deed invalid.

       Notably, Section 140.190.2 states that “[f]ailure to sign such affidavit [attesting to non-

delinquent tax status] as well as signing a false affidavit may invalidate such sale.” (Emphasis

added). Thus, a sale to a prohibited purchaser is not automatically invalid once the sale has

occurred. See Section 140.190.2. But, while Section 140.610 does not allow a third party to

judicially invalidate such a collector’s deed, the statute is not without an enforcement

mechanism. Section 140.540.1 provides that, “[w]henever the county collector shall discover,

prior to the conveyance of any lands sold for taxes, that the sale was for any cause whatever,

invalid, he shall not convey such lands[.]” (Emphasis added). First, the statute specifically

empowers the county collector to refuse any sale or transfer to a party who is delinquent on its

payment of county taxes. And should a delinquent taxpayer somehow succeed in making a

purchase of a collector’s deed at a tax sale, the county collector may possess the legal right to

have the deed invalidated; however, any such right resides exclusively with the county collector

under a plain reading of the statute.

       We see no language in the statute authorizing delinquent taxpayers any right to assert a

county collector’s rights under Section 140.190.2. While this statutory scheme does not provide

a judicial remedy to tax-delinquent title-holders such as the Gladneys for sales made to a



                                                 6
prohibited purchaser, the statute does provide for other remedies. Should the tax-delinquent

title-holder discover the collector’s deed was sold to a prohibited purchaser before the county

collector conveys the land, the tax-delinquent title-holder can notify the county collector, who

presumably would then not convey the land. See Section 140.540.1. Second, and more

fundamental to the statutory scheme, the tax-delinquent title-holder has one full year to redeem

the property following the tax sale. See Section 140.340.1. The statutory provisions addressing

the subsequent sale of the collector’s deed for tax-delinquent properties were enacted to protect

the county collector, not the tax-delinquent property owner. Additionally, it bears noting that

title-holders will only find themselves in this situation if they fail to pay their property taxes. See

Section 140.010; Section 140.150.

       After reviewing the record, we find that the Gladneys failed to raise a genuine issue of

material fact that, if proven, would void the Deed and thereby defeat the entry of summary

judgment. Even if WMAC14 were both a prohibited purchaser and a successor of WMAC13,

WMAC13 nevertheless is entitled to summary judgment under the facts of this case.

Accordingly, we affirm the trial court’s entry of summary judgment. Point One is denied.

                                             Conclusion

       The judgment of the trial court is affirmed.




                                       _____________________________________
                                       KURT S. ODENWALD, Judge

Philip M. Hess, P.J., concurs.
Lisa P. Page, J., concurs.




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