State ex rel. Webster County v. Hutcherson

• Decision Date: 20 July 2006
• Docket Number: No. 27369.,27369.
• Citation: 199 S.W.3d 866
• Parties: STATE of Missouri, ex rel., WEBSTER COUNTY, Missouri, By and Through Its Duly Elected Commission, Relator, v. The Honorable John R. HUTCHERSON, Respondent.
• Court: Missouri Court of Appeals

199 S.W.3d 866

STATE of Missouri, ex rel., WEBSTER COUNTY, Missouri, By and Through Its Duly Elected Commission, Relator, v. The Honorable John R. HUTCHERSON, Respondent.

No. 27369.

Missouri Court of Appeals, Southern District, Division Two.

July 20, 2006.

Motion for Rehearing or Transfer Denied August 4, 2006.

Application for Transfer Denied September 26, 2006.

COPYRIGHT MATERIAL OMITTED

William H. McDonald, McDonald, Hosmer, King & Royce, P.C., Springfield, for Appellant.

John E. Price, Carnahan, Evans, Cantwell & Brown, P.C., John T. Coghlan, Lathrop & Gage, L.C., Springfield, for Respondent.

PHILLIP R. GARRISON, Judge.

This case arises from a petition for a stay and a writ of prohibition and/or mandamus filed by Webster County, Missouri, by and through its duly elected Commission ("Relator") against The Honorable John R. Hutcherson ("Respondent"). The petition relates to a suit brought by Webster County Abstract Company and D.D. Hamilton Company ("Plaintiffs") against Nancy Jo Wester¹, Recorder of Deeds of Webster County, Missouri ("Defendant"). Relator petitioned this court for, and we granted a preliminary order in prohibition directing Respondent to take no further action in the case until further order of this Court. In short, Relator asks that we prohibit Respondent from ordering that funds paid to Defendant by Plaintiffs for copies of records be held by the circuit clerk in order to satisfy a potential judgment against Defendant, and to issue a writ of mandamus or prohibition to either order that it be joined in the action below, or in the alternative to order the underlying action be dismissed entirely. As is set out in more detail below, we agree in part and now, regarding the fees which Respondent indicated he would order held, enter our peremptory writ in prohibition, and enter our peremptory writ in mandamus ordering that Relator's motion to intervene in the underlying action be granted.

The underlying case has a complicated procedural and factual history, spanning over four years and is set out below only so far as relevant to the disposition of Relator's petition. Plaintiffs are abstract companies doing business in Marshfield, Missouri and in October 2001, they filed a petition in the Circuit Court of Webster County against Defendant. In Count I, Plaintiffs sought a declaratory judgment that Defendant was acting unlawfully by charging fees² for electronic copies of public land records in excess of the actual cost of reproduction ($1 vs. 25¢ per double-sided page), and in refusing to charge them the actual cost of reproduction unless they agreed not to duplicate the records for sale or dissemination. In addition, Plaintiffs sought a "refund" of all sums paid by them to Defendant that exceeded the actual cost of reproduction. In doing, so they rely on Section 610.026.1(2) RSMo 2000,³ which states:

Fees for providing access to public records maintained on computer facilities, recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices, shall include only the cost of copies, staff time required for making copies and programming, if necessary, and the disk or tape used for the duplication.

(emphasis added). On the other hand, Defendant argues that the governing statute is Section 59.310.3,⁴ which states, in pertinent part:

Recorders of deeds shall be allowed fees for their services as follows:

(2) For copying or reproducing any recorded instrument, except surveys or plats: a fee not to exceed two dollars for the first page and one dollar for each page thereafter.

In Count II, Plaintiffs sought injunctive relief to prohibit Defendant from charging fees in excess of the actual cost to reproduce the records and to halt any restriction upon Plaintiff's dissemination of the public documents.

Missouri Land Title Association ("MLTA") and The Recorders' Association of Missouri ("TRAM") were both permitted to intervene. The proceedings stretched from roughly, October 2001 until December 2004, when the parties entered into, and filed a "Stipulation of Uncontroverted Facts."

In November 2005, as the parties were beginning to file motions for summary judgment, and responses, Relator filed its motion to intervene under Rule 52.12, or to dismiss for lack of subject matter jurisdiction. A telephone conference was subsequently held, at which time Respondent announced his intentions to deny Relator's motion to intervene and order all fees thereafter paid to Defendant by Plaintiffs to be deposited with the circuit clerk pending the outcome of the case. Respondent directed Plaintiffs' attorney to draft an order with his rulings and announced that he would enter the order on December 2, 2005. Relator's motions to reconsider were denied.

After the hearing, but prior to Respondent's order being filed, Relator filed a petition for stay and writ of prohibition, mandamus or certiorari with this court alleging, inter alia, that Respondent was acting without subject matter jurisdiction because Relator is a necessary and indispensable party and therefore the underlying case should be dismissed, or Relator should be joined; and that Respondent exceeded his authority and was in violation of Section 59.250.2 in attempting to seize fees Defendant was, and is, collecting from Plaintiffs, which, under Section 59.250.2, belong to Relator. This Court issued a stop order and a preliminary order in prohibition staying all action in the case.

Relator's petition, as we understand it, essentially raises two issues: (1) must Relator be joined as a party, and (2) does Respondent have the authority to issue an order that all fees paid by Plaintiffs to Defendant be deposited with the circuit clerk pending the outcome of the underlying case. We take each issue in turn.

First, we review the telephone conference preceding Respondent's announcement of his intended ruling. He initially took the position that Relator would ultimately be responsible for any monetary judgment awarded to Plaintiffs, stating specifically:

BY THE COURT: I think [Relator] is the one who'd have to write the check [if Plaintiffs are successful]. I doubt the recorder could do it. . . .

It appears from this record that none of the parties objected to Relator joining the suit, as these statements illustrate:

BY THE COURT: . . . Let me ask a question. . . . This might simplify everything. Does anyone object to [Relator] intervening?

[COUNSEL FOR TRAM]: [TRAM] welcomes their entry.

. . . .

[COUNSEL FOR PLAINTIFFS]: . . . I can tell everybody on this call that my leaning in terms of a recommendation to my client is to tell them why take any risk that [Relator] is a necessary party, why, not bring them in. . . .

. . . .

[COUNSEL FOR MLTA]: Before we get to damages, Your Honor, I think that [Relator] is needed right now in that issue. . . .

However, Respondent then indicated that it may be too late for Relator to intervene and that Relator may not be bound if the trial court were to find Defendant liable because it is not a party as is evident from the following colloquy:

[COUNSEL OF PLAINTIFFS]: . . . [T]he motions for summary judgment that have been filed, (A) only seek relief against the recorder and don't seek any relief against [Relator], since it has not been a party, but, secondly, the motions for summary judgment only [are to decide liability first].

. . . . BY THE COURT: And the amount of damages, if any, later?

[COUNSEL FOR PLAINTIFFS]: That's correct. ... [I]f ... [Relator] would be the one that would have to write the check, it seems to me that that's something that will have to be decided separately from [Defendant's] liability.

BY THE COURT: . . . [O]bviously they're coming in late in the game, and ordinarily I would probably say no, but on the other hand, let's just say that I don't let them in and then we go down the road and one of the plaintiffs wins that would entitle somebody to money. I think playing what if, if I decide nobody's entitled to any money, it isn't going to hurt that they're not in it, but if I decided ...

....

BY THE COURT: ... that anybody's entitled to damages, in other words, I decide the liability issue, now, how is [Relator] bound by that if they're not a party?

The following exchange makes clear that Respondent's biggest concern in ruling on the motion to intervene was whether Relator would agree to the stipulation of facts the parties to the litigation had developed:

BY THE COURT: Here's the biggest concern I have. Have you looked at the Stipulation of Fact, [Counsel for Relator]?

[COUNSEL FOR RELATOR]: I have.

BY THE COURT: Are you willing to sign it?

[COUNSEL FOR RELATOR]: I am not.

BY THE COURT: Then I don't much want you in the case.

....

BY THE COURT: We've been, what, a year and a half or more in dragging this and hoping that we would get what we got, and that is a Stipulation of Fact that lets this case proceed on the legal issues, which are the main concern.

Respondent then described what his ruling would be, stating specifically:

BY THE COURT: The only thing [Relator's] got to do with it is they've got the purse strings, right?

[COUNSEL FOR PLAINTIFFS]: That's correct.

BY THE COURT: They do not run [Defendant's] office, they had no control over [Defendant's] office other than the annual budget for supplies and things like that that [Relator's] going to have to pay for, and they weren't a part of the process of making the decisions, right? In others words, [sic] the policy and decision of what [Defendant] was going to charge, that was her decision and not [Relator's]. [Counsel for Defendant] do you agree with that?

[COUNSEL FOR DEFENDANT]: I would agree with that Judge.

....

BY THE COURT: [Counsel for Plaintiffs] I want you to draft an order.... Deny their right to intervene at this point. It's just so late and we're so far down the road and I see no benefit. Then secondarily in that order order that all...