Barnes v. Uhlich, WD 82622
| Decision Date | 12 November 2019 |
| Docket Number | WD 82622 |
| Parties | Kevin BARNES, Appellant, v. Rebecca UHLICH, Saline County Circuit Clerk, Respondent. |
| Court | Missouri Court of Appeals |
Matthew Mueller, Kansas City, MO, Counsel for Appellant.
Anna Connelly, Kansas City, MO, Counsel for Respondent.
Before Division Three: Gary D. Witt, P.J., Edward R. Ardini, and Thomas N. Chapman, JJ.
Summary
Kevin Barnes (Barnes) appeals the Saline County Circuit Court’s judgment, dismissing his petition in mandamus brought against the Saline County Circuit Clerk, Rebecca Uhlich (Circuit Clerk). Kevin Barnes was charged with a felony offense in Lafayette County, but his case was subsequently transferred to Saline County, in the matter entitled State v. Kevin Barnes , Saline County Circuit Court Case No. 17LF-CR00300-02. Following his conviction and sentence, the Saline County Circuit Court sought to recover court costs from Barnes associated with his conviction. Barnes filed a motion to retax costs in the Saline County criminal case, arguing that the Circuit Clerk was required to present a bill of costs to the Lafayette County Commission (the county that initiated Barnes’s prosecution). Barnes later withdrew the notice calling up his motion to retax costs in his criminal case; and filed his Petition in Mandamus in the instant action, seeking an order compelling the Circuit Clerk to present a bill of costs to Lafayette County. The Judgment Entry in the instant action dismissed Barnes’s petition, finding that he failed to plead an essential element of his claim for mandamus relief and that he lacked standing to pursue such relief.
Barnes appeals the dismissal of his petition in mandamus, arguing that the Saline County Circuit Court erred in dismissing his petition because (1) the Circuit Clerk had a ministerial duty to present a bill of costs to the Lafayette County Commission; (2) that the Circuit Clerk defaulted by not filing an answer to his petition; and (3) that the Circuit Clerk is liable for treble the amount of costs assessed in Barnes’s underlying criminal case. Finding no error, we affirm.
In March 2017, Barnes was charged with the class E felony of domestic assault in the third degree in Lafayette County, Missouri. Barnes sought and obtained a change of venue to Saline County, Missouri.1 He was convicted and sentenced to four years imprisonment in the Missouri Department of Corrections.
While serving his sentence in July 2018, Barnes received a demand letter from a collection agency stating that he owed "outstanding court debt" in connection with his criminal case in the amount of $409.61. Barnes responded to the collection letter by disputing the validity of the debt. In its reply to Barnes, the collection agency stated that its client, the Saline County Circuit Court, had verified the validity of the debt. As a result of the costs that were taxed to Barnes by Saline County, "the amount of approximately $2.12 per month" was being seized from his prison inmate account.
In November 2018, Barnes filed a motion to retax costs in the Saline County criminal case. He argued that Lafayette County (the county that originated his prosecution) was responsible for reimbursing Saline County (the county where his case was transferred) for court costs incurred as a result of his prosecution and that he was "not responsible for any of the costs in this case." Barnes’s motion to retax costs was taken up for hearing on November 29, 2018, and again for further consideration on December 20, 2018, and January 14, 2019; and remained under advisement after each hearing. On January 15, 2019, Barnes filed notice calling up his motion for change of judge and his "Request for Ruling on Defendant’s Motion to Retax Costs" for hearing on January 28, 2019. On January 24, 2019, Barnes filed a Notice of Cancellation of Hearing, indicating that he would "be pursuing an alternate remedy in a separate action in the hopes of more expeditiously bringing resolution to the legal claims raised in this cause." (Emphasis added). The same day, Barnes filed his Petition in Mandamus in this matter, requesting an order compelling the Circuit Clerk "to complete and present a fee bill to the Lafayette county commission for payment of costs taxed in this cause[.]"
On February 11, 2019, the circuit court entered a Preliminary Order in Mandamus in the instant action directing the Circuit Clerk to "file [her] pleading to the petition in mandamus on or before February 22, 2019[.]" On February 20, 2019, the Circuit Clerk filed her Motion to Dismiss Barnes’s petition, arguing that (1) his petition failed to state a cause of action for mandamus because he had an adequate alternative remedy in the form of a motion to retax costs, and (2) he lacked standing to pursue his action in mandamus. The same day Barnes filed a Motion for Civil Judgment, asking the Court to enter judgment against the Circuit Clerk "in treble the amount of costs taxed in cause number 17LF-CR00300-02 ..." On February 23, 2019, Barnes then filed his Motion for Default Judgment, arguing that the Circuit Clerk was required to file an answer to his petition, and that she had defaulted by filing a motion to dismiss in lieu of an answer. Barnes did not file a notice along with his Motion for Default Judgment. The Circuit Clerk filed suggestions in opposition to Barnes’s motion for default judgment and moved in the alternative for leave to file an answer out of time.
On March 5, 2019, the circuit court granted the Circuit Clerk’s Motion to Dismiss, finding that Barnes "failed to establish a necessary element of mandamus relief" in that he had "a specific adequate, alternative legal remedy in a motion to retax costs." The circuit court also found that Barnes lacked standing to pursue the relief requested in his petition. This timely appeal follows.
"A writ of mandamus compels the performance of ‘a ministerial duty that one charged with the duty has refused to perform.’ " State ex rel. Sasnett v. Moorhouse , 267 S.W.3d 717, 720 (Mo. App. W.D. 2008) (). "There is no remedy that a court can provide that is more drastic, no exercise of raw judicial power that is more awesome, than that available through the extraordinary writ of mandamus." State ex rel. Kelley v. Mitchell , 595 S.W.2d 261, 266 (Mo. banc 1980). Thus, "[s]uch a writ is to be used only as a last resort, in those cases in which no adequate alternative remedy exists, and is only appropriate where it is necessary to prevent great injury or injustice." Riley v. City Adm'r of City of Liberty , 552 S.W.3d 764, 766 (Mo. App. W.D. 2018) (citations and quotation marks omitted). Recently, in Curtis v. Missouri Democratic Party , 548 S.W.3d 909, 914 (Mo. banc 2018) the Missouri Supreme Court observed:
A writ of mandamus is discretionary, "and there is no right to have the writ issued." State ex rel. Mo. Growth Ass'n v. State Tax Comm'n , 998 S.W.2d 786, 788 (Mo. banc 1999). A writ of mandamus should issue only when a petitioner "allege[s] and prove[s] that he has a clear, unequivocal, specific right to a thing claimed." Furlong Cos., Inc. v. City of Kansas City , 189 S.W.3d 157, 166 (Mo. banc 2006). A petitioner seeking mandamus relief "must show himself possessed of a clear and legal right to the remedy." Id.
Our review of the grant of a motion to dismiss is de novo. State ex rel. Cmty. Treatment, Inc. v. Missouri Comm'n on Human Rights , 561 S.W.3d 107, 111 (Mo. App. W.D. 2018). " ‘A motion to dismiss a petition for a writ of mandamus for failure to state a cause of action, like any motion to dismiss for failure to state a claim, is solely a test of the adequacy of the relator's petition.’ " Id. (quoting Lemay Fire Prot. Dist. v. St. Louis Cnty. , 340 S.W.3d 292, 294 (Mo. App. E.D. 2011) ). In our review of the circuit court’s dismissal for failure to state a cause of action, we assume all the facts pled in Barnes’s Petition in Mandamus are true. Id. We do not weigh the credibility or persuasiveness of factual allegations as " ‘[t]he determination of factual questions is not appropriate on a motion to dismiss.’ " Id. (quoting Chochorowski v. Home Depot U.S.A., Inc. , 295 S.W.3d 194, 197 (Mo. App. E.D. 2009) ).
"A required element of proving a right to mandamus is that there is no alternative, adequate remedy other than issuance of the writ." State ex rel. KelCor, Inc. v. Nooney Realty Tr., Inc. , 966 S.W.2d 399, 402 (Mo. App. E.D. 1998). In this case, Barnes did not allege in his petition in mandamus that he was without an adequate alternative remedy. In fact, Barnes acknowledged at oral argument that he did have an alternative remedy in the form of a motion to retax costs pursuant to § 514.270.2 See State v. Boston , 572 S.W.3d 160, 163 (Mo. App. E.D. 2019) () (citation and quotation marks omitted).3 Barnes had been diligently pursuing that action up until the day that he cancelled a hearing on his motion to retax costs and announced his intention to pursue a different remedy "in the hopes of more expeditiously bringing resolution to the legal claims raised in this cause."4 Because he has an adequate alternative remedy, Barnes’s petition did not (and cannot) plead the necessary facts to state a claim for mandamus relief5 and the circuit court therefore did not err in dismissing it. See Eckel v. Eckel , 540 S.W.3d 476, 482 (Mo. App. W.D. 2018) () (quotation marks and citation omitted).6
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