Maxwell v. Daviess County, WD 65715.

• Decision Date: 09 May 2006
• Docket Number: No. WD 65715.,WD 65715.
• Citation: 190 S.W.3d 606
• Parties: Georgia MAXWELL, Recorder of Deeds, Appellant, v. DAVIESS COUNTY, Missouri, and the Daviess County Commissioners, David Holcomb, David Tolen and Danny Heldenbrand, Respondents.
• Court: Missouri Court of Appeals

190 S.W.3d 606

Georgia MAXWELL, Recorder of Deeds, Appellant, v. DAVIESS COUNTY, Missouri, and the Daviess County Commissioners, David Holcomb, David Tolen and Danny Heldenbrand, Respondents.

No. WD 65715.

Missouri Court of Appeals, Western District.

May 9, 2006.

Robert Cowherd, Chillicothe, MO, for Appellant.

D. Keith Henson, St. Louis, MO, for Respondents.

Before BRECKENRIDGE, P.J., and HOWARD and HOLLIGER, JJ.

VICTOR C. HOWARD, Judge.

Georgia Maxwell, elected to the office of Recorder of Deeds of Daviess County, Missouri, appeals the circuit court's denial of her writ of mandamus to compel the Daviess County Commission to pay her the same cumulatively added percentage cost-of-living adjustment to her salary as was paid to other county officeholders. We conclude that the circuit court's decision denying her relief was correct.

Daviess County is a third-class, non-chartered county and is governed by a county commission. Prior to December 31, 2002, as provided for in Missouri law, the county office of recorder of deeds was held as an ex-officio office by the same person holding the position of Clerk of the Circuit Court of Daviess County. The salary and cost-of-living compensation for this ex-officio office was under the fiscal control of the circuit court and was paid for by the State of Missouri. However, the salary of the deputy recorder of deeds was set and paid by the Daviess County Commission ("County Commission"), including the cost-of-living salary adjustments given to other county officers. Georgia Maxwell held a deputy recorder of deeds position prior to December 31, 2002.

On November 26, 2001, the Daviess County Salary Commission ("Salary Commission") met and set the salaries for county officeholders. The actions of the Salary Commission are reflected in its meeting minutes, which said:

[T]he salaries for the offices whose next term of office begins during the calendar year 2003 should be increased by cost of-living adjustments as provided for by Section 50.333.12 RSMo 2000. [It is further moved] that said salaries shall be adjusted each year on the office's date of incumbency by the same percentage increase, if any, as awarded to all county employees. All cost-of-living adjustments shall be calculated on the base salary and added to the salary of the previous year. The base salary shall be the salary established by the valuation tables for the year 2003, as set by the legislature.

The report of the Salary Commission's action, which was required to be filed by section 50.333.8,¹ said that the Salary Commission met "pursuant to law to establish compensation for county officers to be paid to such officers during the next term of office beginning in 2003 for the officers affected." The report further stated: "[C]ounty officer's salaries set at 100 percent of the allowable compensation plus an annual cost-of-living allowance equal to the same percentage awarded to county employees."

On December 10, 2001, the Daviess County Commissioners ("County Commissioners") voted to separate the office of the Recorder of Deeds from the office of the Clerk of the Circuit Court, pursuant to section 59.042. Georgia Maxwell was elected to the newly-separated office of the Recorder of Deeds of Daviess County on November 5, 2002. She took office on January 1, 2003, and was paid a salary of $34,000, as designated by section 50.334.1, plus a 3% cost-of-living adjustment, for a total of $35,020 for the year 2003. In 2004, she was paid $34,000, plus 5.2% (3% plus 2.2%), for a total of $35,768.

On August 12, 2004, Maxwell filed a petition for a writ of mandamus in the Circuit Court of Daviess County, because she believed that she was being paid improperly under the applicable state law. She contended that if the Salary Commission authorizes a cost-of-living component, the language of section 50.333.12, which requires that "the percentage increase shall be the same for all county officers, not to exceed the percentage increase given to the other county employees," means that she is entitled to the cumulative total of cost-of-living increases previously acquired by other officeholders who have apparently held their offices for multiple years. Specifically, she contended that other officeholders received 12.7% cost-of-living raises (representing cumulative increases of 1.4% for 1999, 2.3% for 2000, 3% for 2001, 3% for 2002 and 3% for 2003) as opposed to the 3% for 2003 which she received.

In ruling in favor of the County Commissioners on the petition on June 10, 2005, the circuit court said:

No legal authority exists for the Daviess County Commissioners, nor the individual commissioners thereof, to grant [Maxwell] cost of living pay increases granted to other county officeholders in the years 1999, 2000, 2001, and 2002, when [Maxwell's] office, Recorder of Deeds, was not a county funded position. The office, in fact, did not exist as a separate county funded office until January 1, 2003.

The court went on to say: "[Maxwell's] claim for pay `equal' (emphasis added by the court) to certain other officeholders, while understandable, has no basis in the law nor facts."

In her sole point on appeal, Maxwell contends that the circuit court erred in quashing her petition for a writ of mandamus, because section 50.333.12 requires the County Commission to pay all office-holders the same percentage cost-of-living adjustment regardless of when their office came into existence. She specifically contends that the language "the percentage increase shall be the same for all county officers, not to exceed the percentage increase given to the other county employees" in section 50.333.12 creates a "consistency requirement." She interprets this to mean that if any officeholder is given a cumulatively added total of annual cost-of-living increases, for multiple years of service that all officeholders must be given the same.² The interpretation of section 50.333.12, relating to cost-of-living increases, is a case of first impression.

Our review of the circuit court's action is governed by the standards established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), that we may reverse only if the trial court's judgment is not supported by substantial evidence, is against the weight of the evidence, or incorrectly declares or applies the law. Irvin v. Kempker, 152 S.W.3d 358, 360 (Mo.App. W.D. 2004). However, where the sufficiency of the evidence is not controverted, we are not bound by the circuit court's conclusions of law. Standard Prof'l Servs., Inc. v. Towers, 945 S.W.2d 693, 694 (Mo.App. E.D. 1997). The interpretation of statutory language is a question of law, and our review of it is de novo. Psychiatric Healthcare Corp. of Mo. v. Dep't of Soc. Servs., 100 S.W.3d 891, 899 (Mo.App. W.D. 2003). Because this case involves a question of law, we review "the trial court's determination independently, without deference to that court's conclusions." Id. (quoting Lakin v. Gen. Am. Mut. Holding, 55 S.W.3d 499, 503 (Mo.App. W.D. 2001).

The remedy of a writ of mandamus is only appropriate where a party has "a clear duty to perform a certain act." State ex rel. City of Crestwood v. Lohman, 895 S.W.2d 22, 27 (Mo.App. W.D. 1994) (citing State ex rel. City of St. Louis v. Mummert, 875 S.W.2d 108, 109 (Mo. banc 1994)). The purpose of mandamus is to require the performance of a duty already defined by the law. Id. (relying on State ex rel. Phillip v. Pub. Sch. Ret. Sys., 364 Mo. 395, 262 S.W.2d 569, 573 (banc 1953)). Thus, mandamus enforces existing rights, but may not be used to establish new rights. Id. (citing State ex rel. City of Blue Springs v. Rice, 853 S.W.2d 918, 920 (Mo. banc 1993)). Therefore, in order to prevail, Maxwell must demonstrate that the County Commission had a clear duty existing under the current law to pay her a cost-of-living addition to her salary, the percentage amount of which was calculated on cumulative cost-of-living increases granted to other officeholders prior to the time she assumed her office.

We first address the issue of when Maxwell's office came into existence. Maxwell contends that the office of recorder of deeds has always existed, and that, therefore, the County Commission could not deny her accumulated cost-of-living increases on the grounds that the office of the recorder of deeds was newly-separated from the office of the circuit clerk. It was settled in State ex inf. Lamkin ex rel. Harrison v. Tennyson, 347 Mo. 1024, 151 S.W.2d 1090, 1091 (banc 1941), that the separation of the ex officio office of recorder of deeds from the office of the circuit clerk created no new office, but that the office of recorder of deeds had always existed. The issue here, however, is not whether the office existed prior to Maxwell's taking office, but whether she was entitled to the benefits of that office, or benefits acquired by other officeholders, before she formally took office.

Determination of the benefits of office to which Maxwell is entitled is controlled by three statutes: section 50.333.7, which provides for the county salary commission to set salaries for county officials; section 50.334, which specifically sets the base salaries for recorders of deeds; and section 50.333.12 which provides for optional cost-of-living increases. Maxwell does not contest the setting of her base salary, but only the meaning of the language and the consequential application of the cost-of-living component authorized by section 50.333.12. Because the language of that section has never been interpreted, and because we must do so to understand the benefits to which Maxwell is entitled, it is instructive to look at the language of section 50.333.7 and cases which have interpreted it.

The primary rule of statutory construction is "to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words in the statute in their plain and ordinary meaning." Day v....