Texasfile, LLC v. Boevers

• Decision Date: 29 August 2018
• Docket Number: Case No. 116,852
• Citation: 437 P.3d 211
• Parties: TEXASFILE, LLC, Plaintiff/Appellant, v. Jeannie BOEVERS, in Her Capacity as Kingfisher County Clerk, Defendant/Appellee, and Lori Fulks, in Her Capacity as Garvin County Clerk, Intervenor/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

437 P.3d 211

TEXASFILE, LLC, Plaintiff/Appellant,

v.Jeannie BOEVERS, in Her Capacity as Kingfisher County Clerk, Defendant/Appellee,andLori Fulks, in Her Capacity as Garvin County Clerk, Intervenor/Appellee.

Case No. 116,852

Court of Civil Appeals of Oklahoma, Division No. 4.

FILED: August 29, 2018

Mandate Issued: March 27, 2019

William K. Elias, Wyatt D. Swinford, ELIAS, BOOKS, BROWN, & NELSON, P.C., Oklahoma City, Oklahoma, and Henry J. Hood, HENRY J. HOOD, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant

Mike Fields, KINGFISHER COUNTY DISTRICT ATTORNEY, John M. Salmon, Eric Epplin, ASSISTANT DISTRICT ATTORNEYS, Kingfisher, Oklahoma, for Defendant/Appellee

Randall J. Wood, April D. Kelso, PIERCE COUCH HENDRICKSON, BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma and Greg Mashburn, GARVIN COUNTY DISTRICT ATTORNEY, Carol Price Dillingham, ASSISTANT DISTRICT ATTORNEY, Norman, Oklahoma, for Intervenor/Appellee

OPINION BY KEITH RAPP, JUDGE:

¶ 1 Trial court plaintiff, TexasFile, LLC, (TexasFile) appeals the trial court's Journal Entry of Judgment denying the summary judgment motion of TexasFile and granting summary judgment in favor of defendant, Jeannie Boevers, in her capacity as Kingfisher County Clerk, and Intervenor, Lori Fulks, in her capacity as Garvin County Clerk. This accelerated appeal proceeds pursuant to Okla.Sup.Ct.R. 1.36(c), 12 O.S. Supp. 2017, ch. 15, app. 1.

BACKGROUND

¶ 2 TexasFile is a company that provides remote access to images of county land records to its subscribers via the Internet. TexasFile does business in Texas, New Mexico and a few counties in Oklahoma. TexasFile has contracts with officials from Blaine County, Logan County, Oklahoma County, and Grady County to receive digital land records for its business. TexasFile receives copies of available digital land records and allows their subscribers to access the images of these public land records.

¶ 3 On May 6, 2016, TexasFile requested, pursuant to the Oklahoma Open Records Act, a "complete electronic copy of all the Kingfisher County land records that are currently available in electronic format." TexasFile did not request the associated tract index. TexasFile specifically requested all records that were currently available on OKcountyrecords.com. TexasFile also requested the fee and timeline for providing the requested scanned records in electronic form. The County Clerk of Kingfisher County did not respond to the May 6, 2016, request.

¶ 4 TexasFile made a second request for the electronic copy of the land records on January 11, 2017. TexasFile also acknowledged they had recently made similar requests to Oklahoma, Blaine, and Logan Counties and those counties had complied with the requests. TexasFile had entered into a formal agreement to receive electronic copies of the land records with each of those counties.

¶ 5 On May 15, 2017, Jeannie Boevers, as County Clerk of Kingfisher County, responded to TexasFile's request per the Oklahoma Open Records Act and denied TexasFile's request. Boevers explained:

This is to inform you that your request does not fall within the provisions of the Act as interpreted by the Oklahoma Supreme Court in County Records, Inc. v. Armstrong , 2012 OK 60, 299 P.3d 865. Neither the tract index nor the data (land records) inextricably linked to the computer software can be provided for resale. Commercial use or dissemination of these records is prohibited. You are welcome to come to my office like all other persons to inspect and copy documents.

¶ 6 TexasFile filed this declaratory judgment and mandamus action against Jeannie Boevers in her capacity as County Clerk of Kingfisher County asking the trial court to enter an order determining TexasLink was entitled to an electronic copy of the Kingfisher County public land records maintained by the County Clerk, pursuant to the Oklahoma Open Records Act, and compelling the County Clerk of Kingfisher County to make available the land records of the Kingfisher County Clerk's office in an electronic format at a reasonable fee.

¶ 7 After filing an Answer in the litigation, Boevers, in her capacity as Kingfisher County Clerk, and joined by Lori Fulks, in her capacity as Garvin County Clerk, (collectively referred to as County Clerks) filed a Motion to Consolidate Cases and Supporting Brief. County Clerks alleged TexasFile filed an identical action as the present action again Lori Fulks, in her capacity as Garvin County Clerk. County Clerks further alleged TexasFile sought a declaratory judgment that it was entitled to electronic copies of the public land records of Garvin County for a reasonable fee under the Oklahoma Open Records Act. County Clerks further alleged the legal issues in the Kingfisher County and the Garvin County actions are identical. The County Clerks also asserted:

[a] number of County Clerks of the State of Oklahoma ... seek a uniform judicial determination of the legal issue raised by TexasFile, LLC. Specifically, does the Open Records Act require the County Clerk's office to empty its electronic files into the hands of the Plaintiff so that the Plaintiff may then resell these records to customers in a commercial enterprise?

The County Clerks argued several factors favored consolidation — consolidation would prevent resolution of this important legal issue in a piecemeal fashion; concerns of judicial economy; and uniformity in a decision. In addition, County Clerks argued the Garvin County action was in its early stages of litigation.

¶ 8 On October 20, 2017, TexasFile filed a Motion for Summary Judgment and Brief in Support arguing there were no material facts in dispute and it was entitled to judgment as a matter of law. TexasFile argued Boevers, as County Clerk of Kingfisher County, had a statutory duty to maintain land records in Kingfisher County and to provide electronic copies of these land records to those making a request for the records. TexasFile relies on Title 19 O.S. § 286 and the Oklahoma Open Records Act for its premise that Boevers is bound to provide TexasFile with electronic copies of the Kingfisher County land records.

¶ 9 TexasFile argues that, under Section 286, the county clerk is required to maintain all instruments filed in the clerk's office and to make these records, including computerized records, available for viewing and copying. TexasFile contends "[t]he undisputed material facts show that TexasFile is entitled to downloaded copies of the land records maintained in electronic format under Section 286."

¶ 10 TexasFile also argues that the Open Records Act provides TexasFile the right to access and obtain downloaded copies of the electronic land records of Kingfisher County. TexasFile concedes the Open Records Act prohibits the copying of the tract index if the purpose is to sell the information, but states TexasFile did not request a copy of the tract index. In addition, TexasFile argues the policy of the Open Records Act -- "to guarantee the public's right to access and reproduce the public records of the state and its entities" - supports its request for copies of the electronic land records.

¶ 11 TexasFile asserts the case relied on by Boevers, County Records, Inc. v. Armstrong , 2012 OK 60, 299 P.3d 865, is inapplicable to the present case. TexasFile alleges Armstrong is distinguishable because it involved a request for the tract index, which is statutorily prohibited. Here, TexasFile did not request the tract index. In addition, TexasFile argues the Armstrong court relied on the Abstractors Act, which is not involved in the present action.

¶ 12 Finally, TexasFile argues the fees charged by the County Clerk of Kingfisher County are illegal and unreasonable because the fees do not reflect the actual cost of providing the electronic copies. According to TexasFile, the fees charged by the County Clerk are more appropriate for providing hard copies of the land records and not the electronic copies.

¶ 13 On October 30, 2017, TexasFile filed its opposition to the Motion to Consolidate. The trial court entered a Court Minute on November 3, 2017, ruling that it was treating the Motion to Consolidate as a motion to intervene and granting the Motion to Intervene. The Court Minute further stated that the "[p]arties agree to stay Garvin County case pending resolution of Kingfisher County case."

¶ 14 County Clerks filed a joint response to TexasFile's summary judgment motion. County Clerks agreed there were no material facts in dispute and the motion presented an important question of law: "[A]re the county clerks required to comply with TexasFile's request for land record information so that TexasFile can then sell the same for a profit[?]" County Clerks argued the Oklahoma Supreme Court decided this issue in Armstrong holding that a county clerk is prohibited "from providing any documents and data from the land records for the intentional sale of that information." Armstrong , 2012 OK 60 ¶ 11, 299 P.3d at 868. County Clerks also argued the Open Records Act prohibits the County Clerk from satisfying TexasFile's request.

¶ 15 After hearing arguments, the trial court denied TexasFile's summary judgment motion and granted summary judgment in favor of County Clerks pursuant to District Court Rule 13. The trial court entered a Journal Entry of Judgment memorializing its ruling, filed on February 13, 2018. TexasFile appeals.

STANDARD OF REVIEW

¶ 16 Whether the trial court's grant of summary judgment was proper is a question of law, which this Court reviews de novo . Manley v. Brown , 1999 OK 79, ¶ 22, 989 P.2d 448, 455. In a de novo review, the appellate court has the "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hosp. Auth. , 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. This Court will examine the parties' pleadings and evidentiary materials to determine if there is a disputed material fact or whether reasonable minds could draw different conclusions from undisputed facts. Harmon...