James A. Finnegan, Appellant v. Old Republic Title Co. of St. Louis, Inc., Respondent. (Consolidated with) Lisa L. Rokusek and Jennifer Human, Appellants v. Security Title Insurance Company and Security Title Insurance Agency, Respondents. (Consolidated with) Lisa L. Rokusek and Jennifer Human, Appellants v. Commonwealth Land Title Insurance Company, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: James A. Finnegan, Appellant v. Old Republic Title Co. of St. Louis, Inc., Respondent. (Consolidated with) Lisa L. Rokusek and Jennifer Human, Appellants v. Security Title Insurance Company and Security Title Insurance Agency, Respondents. (Consolidated with) Lisa L. Rokusek and Jennifer Human, Appellants v. Commonwealth Land Title Insurance Company, Respondents. Case Number: SC88761, SC88762 and SC88763 Handdown Date: 03/18/2008 Appeal From: Circuit Court of St. Louis County, Hon. Steven H. Goldman, (No. SC88761), Hon. Melvyn W. Wiesman, (No. SC88762) Hon. John F. Kintz, (No. SC88763) Counsel for Appellant: Fernando Bermudez Counsel for Respondent: Christopher O. Bauman and Robert D. Blitz Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: These cases, which have been consolidated for purposes of this opinion, involve individuals who alleged they were overcharged for notary public services in connection with real-estate transactions because the notaries failed to record the notarial acts in their notary journals. In a unanimous decision written by Judge Mary Rhodes Russell, the Supreme Court holds that the applicable statute required both that the signatures be notarized and that the notarial acts be recorded in the journals before the notaries public could charge $2 for the service, instead of $1. Facts: Three property owners sued Old Republic Title Company of St. Louis Inc.; Security Title Insurance Company, now known as Security Title Insurance Agency; and Commonwealth Land Title Insurance Company, alleging the title

companies overcharged them for notary public services provided in connection with real estate closings because the notaries did not record in their notary journals the notarizations for which they charged the property owners and seeking return of the monies they were charged improperly for the unrecorded notarizations. The property owners further alleged these overcharges resulted in unjust enrichments for the title companies. In addition, the property owners alleged the overcharges violated the state's merchandising practices act because they were a "deception" and "unfair practice." The trial courts entered summary judgments in the title companies' favor. The property owners appeal. REVERSED AND REMANDED. Court en banc holds: The trial courts erred in finding that the title companies did not violate section 486.350, RSMo Supp. 2007. The failure of the title companies' notaries to record their notarizations of the property owners' signatures before charging them $2 violates the plain language of section 486.350.1, which provides that a notary cannot collect the maximum $2 fee per signature unless the notary both notarizes the signature and properly records the notarial act in the notary's journal. Although this is consistent with statements made in a handbook the Missouri secretary of state's office provides to notaries, this handbook information was not provided to the trial courts. The trial courts also erred in dismissing the property owners' unjust enrichments and merchandising practices act claims, predicated on the courts' erroneous conclusions about the requirements of section 487.350.1. Citation: Opinion Author: Mary R. Russell, Judge Opinion Vote: REVERSED AND REMANDED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net.

These cases present the issue of whether section 486.350, RSMo Supp. 2007,

(FN1) requires a notary public to both notarize a signature and record that act in a notary journal before charging a $2 fee. Plaintiffs(FN2) appeal after judgment was entered against them on their claims against three title companies(FN3) (collectively "Defendants") for alleged overcharges of notary public fees under section 486.350. This Court has jurisdiction pursuant to Mo. Const. art. V sec. 10, as these cases were transferred after dispositions by the court of appeals. This Court reverses, and the causes are remanded. A. Background Section 486.350 sets the maximum fees that can be charged by notaries public. In relevant part, it states:

1. The maximum fee in this state for notarization of each signature and the proper recording thereof

in the journal of notarial acts is two dollars for each signature notarized. . . . .

1. The maximum fee in this state is one dollar for any other notarial act performed.

. . . .

1. A notary public who charges more than the maximum fee specified . . . is guilty of official misconduct.

. . . . Sec. 486.350 (emphasis added). Plaintiffs allege that Defendants, through their notary employees, violated section 486.350.1.(FN4) They contend that they were overcharged for notary services provided in connection with real estate closings because the notaries did not record in their notary journals the notarizations for which Plaintiffs were charged.(FN5) Plaintiffs' real estate transactions were unaffected by the notaries' failures to record the notarizations in their notary journals, but Plaintiffs contend that they are entitled to return of the monies they were improperly charged for the unrecorded notarizations. They argue that the violations of section 486.350 resulted in unjust enrichment for the title companies. They also allege that the overcharges were violations of the Missouri merchandising practices act (MMPA) because they were a "deception" and "unfair practice." Defendants moved for summary judgment on Plaintiffs' claims, and judgments were entered in their favor.(FN6) Plaintiffs appeal. B. Standard of Review Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id.

C. Requirements of Section 486.350 Plaintiffs maintain that the trial courts' judgments were in error because, under the plain language of section 486.350.1, the title companies' notaries were not entitled to collect a $2 fee unless they (1) notarized a signature and (2) properly recorded the notarial act in their notary journal. Statutory interpretation is an issue of law that this Court reviews de novo. State ex rel. Wolfrum v. Wiesman, 225 S.W.3d 409, 411 (Mo. banc 2007). The primary rule of statutory interpretation is to ascertain the intent of the General Assembly from the language used and to give effect to that intent. Cmty. Fed. Sav. & Loan Ass'n v. Dir. of Revenue, 752 S.W.2d 794, 798 (Mo. banc 1988). In determining legislative intent, this Court considers the language of the statute and words employed in their plain and ordinary meaning. Id. Section 486.350.1 provides: "The maximum fee in this state for notarization of each signature and the proper recording thereof in the journal of notarial acts is two dollars for each signature notarized." This subsection's use of the word "and" indicates a legislative intent that recording of a notarial act be an additional requirement to a $2 charge under the statute.(FN7) As such, the failure of the notaries to record their notarizations of Plaintiffs' signatures before charging them was a violation of the plain language of section 486.350.1. The trial courts' judgments in favor of Defendants were reliant on finding that there were no violations of section 486.350 and, therefore, the judgments are reversed. D. Unjust Enrichment and MMPA Claims

Plaintiffs also argue that the trial court erred in entering judgment against them on their unjust enrichment and MMPA claims.(FN8) The trial courts' dispositions of these claims were predicated on their erroneous conclusions about the requirements of section 486.350.1. Because the trial courts rejected these claims after finding that the notaries had properly collected fees from Plaintiffs, these judgments are reversed. E. Conclusion The trial courts' judgments in favor of Defendants are reversed, and the causes are remanded. All concur. Footnotes: FN1.All references to section 486.350 are to RSMo Supp. 2007. FN2.Plaintiffs in these three consolidated cases include James A. Finnegan, Lisa L. Rokusek, and Jennifer Human. They are collectively referred to as "Plaintiffs" throughout this opinion. FN3.The defendant title companies were sued in the three separate cases now consolidated in this opinion. Defendants include: Old Republic Title Company of St. Louis, Inc.; Security Title Insurance Company, now known as Security Title Insurance Agency; and Commonwealth Land Title Insurance Company. FN4.Section 486.360, RSMo 2000, provides: The employer of a notary public is also liable to the persons involved for all damages proximately caused by the notary's official misconduct, if: (1) The notary public was acting within the scope of his employment at the time he engaged in the official misconduct; and (2) The employer consented to the notary public's official misconduct. Defendants argue that they cannot be liable for their notaries' conduct under this statute because (1) there was no "official misconduct" and (2) even if there was misconduct, they did not consent to it. This is a factual dispute that is left for the trial courts on remand. FN5.Plaintiff Finnegan alleges that defendant Old Republic wrongly charged him $10 for five signatures that were notarized, but not recorded in the notary's journal. Plaintiffs Rokusek and Human allege that Security Title wrongly charged them $12 for 10 signatures that were notarized, but not recorded in the notary's journal; and they contend that Commonwealth overcharged them $12 for notarizing six signatures that were notarized, but not recorded in the notary's journal.

FN6.Commonwealth moved to dismiss the claim against it relating to the MMPA. The motion to dismiss was granted, such that summary judgment in Commonwealth's favor related only to the section 486.350 and unjust enrichment claims against it. FN7.Plaintiffs point out that this interpretation is consistent with the statements made in the "Document Certification Services" handbook provided to notaries by the Missouri Secretary of State's office. Plaintiffs concede, however, that this handbook information was not provided to the trial court. FN8.Plaintiffs Rokusek and Human argue that the trial court erred in dismissing their MMPA claim against Commonwealth. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.