DocketNumber: No. SC 92805
Citation Numbers: 403 S.W.3d 590
Judges: III
Filed Date: 7/16/2013
Status: Precedential
Modified Date: 10/2/2021
Homeward Residential, Inc. (hereinafter, “Appellant”)
Factual Background
Parkway Towers is located in the Country Club Plaza of Kansas City, Missouri. Parkway Towers consists of 144 individual units owned in fee simple by separate owners, and the remainder of the building is designated for common ownership by the unit owners. The Board of Managers of Parkway Towers is the executive board designated to act on behalf of Parkway Towers.
Trish Carcopa purchased a unit in Parkway Towers in January 2004. She acquired title to her property by way of warranty deed, dated January 23, 2004, and it was recorded on January 29, 2004. On June 23, 2006, Trish Carcopa executed a quit claim deed conveying the Parkway Towers unit to herself, a single person, and Nicole Carcopa, a single person.
On June 23, 2006, Nicole Carcopa executed an adjustable rate note in the principal amount of $164,200; this was a refinancing of the original purchase-money lien. This note was secured by a deed of trust, dated June 23, 2006, executed by Nicole Carcopa and Trish Carcopa in favor of H & R Block Mortgage Corporation, and it was recorded on July 17, 2006. The holder of the note has changed several times, but currently it is held by Appellant.
The unit owners of Parkway Towers approved an assessment, which would be used for major repairs to the common areas, including structural components of the building, the heating and cooling sys-' terns, and refurbishing the non-structural elements. The approved assessment was in the amount of $2.7 million. Trish Car-copa and Nicole Carcopa’s percentage of ownership in the common areas was 0.7169 percent, resulting in $78,144.64 assessment. Parkway Towers recorded its assessment lien with the recorder of deeds for Jackson County, Missouri.
On April 27, 2010, Parkway Towers brought its petition to judicially foreclose
The bench trial consisted of stipulated facts and the testimony of a witness for Parkway Towers. Appellant appeared through its attorney. Neither Trish Car-copa nor Nicole Carcopa, while properly served, appeared or answered, and they were found to be in default.
Standard of Review
This Court reviews the constitutional validity of a statute de novo. Gurley v. Missouri Bd. of Private Investigator Examiners, 361 S.W.3d 406, 411 (Mo. banc 2012). “A statute is presumed valid and will not be held unconstitutional unless it clearly contravenes a constitutional provision.” In re Broach, 332 S.W.3d 115, 119 (Mo. banc 2011). This Court “resolve[s] all doubt in favor of the [statute’s] validity” and in doing so should make every reasonable intendment to sustain its constitutional validity. Ocello v. Koster, 354 S.W.3d 187, 197 (Mo. banc 2011) (quoting Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 5 (Mo. banc 1984)). “The person challenging the statute’s validity bears the burden of proving the act clearly and undoubtedly violates the constitution.” Kansas City Premier Apartments, Inc. v. Missouri Real Estate Com’n, 344 S.W.3d 160, 167 (Mo. banc 2011) (quoting In re Brasch, 332 S.W.3d at 119).
The vagueness doctrine protects against the arbitrary and discriminatory application of laws. Reproductive Health Services of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 185 S.W.3d 685, 689 (Mo. banc 2006). The test for vagueness is whether a person of ordinary intelligence is able to understand the proscribed conduct. Id.
Analysis
Appellant claims section 448.3-116 is unconstitutional because it is vague and ambiguous. Appellant believes the statute is vague with respect to its application to determine priority between a refinancing deed of trust and a delinquent condominium association assessment, section 448.3-116.2(4). This is the first time the constitutional validity of this section has been challenged.
A condominium association is granted super-priority status with regard to an assessment lien because the assessments against individual unit owners ensure that the common elements are maintained and the value of the entire condominium is not diminished. See section 448.3-102.1(6) (delineating the powers of a unit owners’ association to
(1) Liens and encumbrances recorded before the recordation of the declaration;
(2) A mortgage and deed of trust for the purchase of a unit recorded before the date on which the assessment sought to be enforced became delinquent;
(3) Liens for real estate taxes and other governmental assessments or charges against the unit; [and]
(4)Except for delinquent assessments or fines, up to a maximum of six months’ assessments or fines, which are due pri- or to any subsequent refinancing of a unit or for any subsequent second mortgage interest.
Section 448.3-116.2.
Appellant’s lien, recorded on July 17, 2006, arose from the refinancing of the original purchase-money lien. Appellant claims that the language of the section prioritizing the relationship between a refinancing deed of trust and a lien for delinquent assessment of condominium fees, section 448.3-116.2(4), is vague and unconstitutional because it cannot be understood by a person of ordinary intelligence.
The clear language of section 448.3-116.2(4) contemplates a situation when there is a pending assessment lien at the time the unit owner refinances. At the time Trish Carcopa and Nicole Carcopa refinanced their unit, there was no pending assessment lien. The Parkway Towers assessment was levied against Trish Carcopa and Nicole Carcopa’s individual unit after Appellant’s deed of trust was recorded. Appellant does not fall within this subsection. Accordingly, Appellant does not meet any of the statutory exceptions of section 448.3-116.2, and its lien does not receive priority.
Conclusion
Appellant fails to demonstrate that section 448.3-116 “clearly and undoubtedly” is unconstitutionally vague and ambiguous. The judgment is affirmed.
All concur.
.While the trial court entered its judgment against Trish Carcopa, Nicole Carcopa, Option One Mortgage Corporation and the United States of America (unpaid tax lien), the only party to file a notice of appeal was Option One Mortgage Corporation. Option One Mortgage Corporation has changed names and is currently Homeward Residential, Inc.
. All further statutory references herein are to RSMo 2000.
. There is nothing in the record indicating the relationship between these parties nor the degree to which they may or may not be related.
. It does not appear that Trish Carcopa and Nicole Carcopa ever sought to set aside the default judgment.