James M. Finnegan, Plaintiff/Appellant, v. Old Republic Title Co. of St. Louis, Inc. Defendant/Respondent

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: James M. Finnegan, Plaintiff/Appellant, v. Old Republic Title Co. of St. Louis, Inc. Defendant/Respondent Case Number: ED88957 Handdown Date: 06/26/2007 Appeal From: Circuit Court of St. Louis County, Hon. Steven H. Goldman Counsel for Appellant: Fernando Bermudez Counsel for Respondent: Robert D. Blitz and Christopher O. Bauman Opinion Summary: James Finnegan appeals the trial court's judgment sustaining summary judgment in favor of Old Republic Title Company of St. Louis. Finnegan sued Old Republic alleging it violated the Missouri Notary Public Statute, unjust enrichment and violation of the Missouri Merchandising Practices Act (MMPA). Finnegan alleged that Old Republic violated the notary statute by charging him $10 for notary services when he purchased a home, but overcharged him because the notaries did not complete any notarial service. He claimed that Old Republic was unjustly enriched by collecting more money for its services than it was statutorily entitled and that it violated the MMPA by overcharging notarial fees as a deceptive and unfair practice in connection with the sale of merchandise in trade or commerce. Old Republic moved for summary judgment arguing three of the five notarized documents that were publicly recorded for Finnegan in connection with his residential real estate closing. The trial court granted summary judgment to Old Republic finding the record showed that Old Republic's notary notarized five documents for Finnegan and charged the proper amount, that the technical deficiency of failing to record notarization in a journal was insufficient to support a claim under the notary statute and that Finnegan could not recover when there were no damages as he was able to close on his residential property and enjoy its benefits .

AFFIRMED. Division Four Holds: The trial court did not err in entering summary judgment for Old Republic as there are no genuine issues of material fact and Old Republic is entitled to judgment as a matter of law. Glasgow Enter., Inc. v. Bowers, 196 S.W.3d 625, 628 (Mo. App. E.D. 2006). Old Republic properly charged Finnegan for the provided notarial services in accordance with section 486.350, RSMo 2000. Consequently, Old Republic was not unjustly enriched and did not violate the MMPA by charging Finnegan and the members of the identified class excessive notary fees. Citation: Opinion Author: Sherri B. Sullivan, Judge Opinion Vote: AFFIRMED. Richter, P.J. and Crane, J., concur Opinion: Introduction James M. Finnegan (Finnegan) appeals from the trial court's grant of summary judgment in favor of Old Republic Title Company of St. Louis (Old Republic) in Finnegan's action alleging violation of the Missouri Notary Public Statute (Notary Statute),(FN1) unjust enrichment and violation of the Missouri Merchandising Practices Act (MMPA).(FN2) Background As pertinent to the issues on appeal, the record reveals the following. Finnegan filed a three-count class action petition against Old Republic, alleging violation of the Notary Statute, unjust enrichment, and violation of the MMPA. On his own behalf and on behalf of all others similarly situated, Finnegan alleged that Old Republic provided notary public services when Finnegan purchased a home, notarizing signatures and charging Finnegan $10. The notary performing this service did not record the signatures in a journal of notarial acts. Finnegan further alleged that Old Republic violated the notary statute by overcharging him and others similarly situated because the notaries did not complete any notarial service. In his unjust enrichment count, Finnegan alleged that Old Republic was unjustly enriched by collecting more money for its services than it was statutorily entitled. As to his MMPA claim, Finnegan alleged that the overcharging of notarial fees is a

deception and unfair practice in connection with the sale of merchandise in trade or commerce and that Old Republic violated the Act by charging him and the members of the identified class excessive notary fees during the purchase of residential real estate in Missouri. Old Republic filed its answer, as well as a motion for summary judgment (Motion), with a Statement of Uncontroverted Material Facts and supporting exhibits, including the documents it notarized for Finnegan. In its Statement of Uncontroverted Material Facts, Old Republic stated as follows. Finnegan was charged $10 for notary fees in connection with his residential real estate closing. Five documents bearing Finnegan's signature or the signature of Finnegan's wife were notarized in connection with the closing, including a Signature/Name Affidavit, a Compliance Agreement, an Attachment to Warranty Deed, an Assent to Execution of Deeds, and a Deed of Trust. Three of the five notarized documents were publicly recorded. The closing on Finnegan's residential real estate purchase occurred on December 10,

1. As a consequence, Finnegan owns property situated at 3270 Jasper Park, St. Louis Missouri.

In his response to Old Republic's Statement of Uncontroverted Facts, Finnegan admitted that he was charged $10 as notary fees in connection with his residential real estate closing, that the closing on his purchase occurred on December 10, 2003, and that he owned the Jasper Park property. With his response, Finnegan filed his counsel's affidavit stating that in response to a question submitted to Old Republic in Finnegan's first set of interrogatories, "What notarial acts did you perform for Finnegan during his real estate closing on his property at 3270 Jasper Park in December, 2003[,]" Old Republic objected and refused to answer the question. Finnegan also submitted a copy of those interrogatories containing Old Republic's objection and a copy of a settlement statement provided to the sellers of Finnegan's home. In its Judgment and Order, the trial court granted summary judgment to Old Republic, finding that the record before it showed the undisputed fact that Old Republic's notary notarized five documents for Finnegan and charged the proper amount, $10, for those notarial acts. The trial court found that Finnegan had not denied this fact through reference to discovery, exhibits, or affidavits as required by Rule 74.04(c)(2). It rejected Finnegan's argument that the entire amount charged by Old Republic was an overcharge because the notarial acts were not recorded in a notary journal. The trial court noted that three of the five documents were publicly filed and did not require such recordation and that Finnegan did not contest the authenticity of his signature on any of the notarized documents. The trial court concluded that the technical deficiency of failing to record notarization in a journal was insufficient to support a claim under the Notary Statute

where the authenticity of the signatures was not at issue. It further held that because Finnegan was able to close on his residential property and enjoy its benefits he suffered no damage and therefore could not recover, as damages are an essential element of a claim based on the statute. The trial court found that Finnegan's unjust enrichment claim failed as a matter of law because Old Republic received the proper amount for the notarial acts it performed. As to Finnegan's MMPA claim, the trial court said that there was nothing unfair or deceptive about Old Republic's actions because it was undisputed that Finnegan paid the proper amount for the notarial acts and he suffered no "substantial" injury. Points on Appeal Finnegan raises two points on appeal. In his first point, he alleges the trial court erred in granting summary judgment in favor of Old Republic on his claim arising under the Notary Statute because Old Republic charged $10 for notarizing five signatures that it failed to record in its notary journal and the statute prohibits notaries from charging more than $1 per notarized signature not so recorded. In his second point, Finnegan claims the trial court erred in granting summary judgment in favor of Old Republic on his unjust enrichment and MMPA claims because Old Republic's success on those claims is dependent upon its claim that it charged Finnegan the proper amount as notary fees and Old Republic charged Finnegan more than the authorized amount. Standard of Review Our review is de novo. Glasgow Enter., Inc. v. Bowers, 196 S.W.3d 625, 628 (Mo. App. E.D. 2006). We accept as true every fact set forth in the moving party's motion unless the non-movant has contradicted it by his response. Id. Summary judgment is properly granted where the moving party has demonstrated, on the basis of facts concerning which there is no genuine dispute, a right to judgment as a matter of law. Id. Discussion Finnegan's first point claims the trial court erred in entering summary judgment for Old Republic on his claim that Old Republic violated the Notary Statute because Old Republic overcharged him. The parties agree that Old Republic notarized five documents for Finnegan and charged him $10 in connection with these acts. Finnegan argues, however,

that Old Republic was not entitled to charge the $2 fee per signature because the notary did not record the notarizations in a journal. In support of this contention, Finnegan cites to Section 486.350 RSMo 2000, which limits the amount of fees that can be charged for notarial acts and states, in pertinent part:

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.

Finnegan maintains the Notary Statute's language acts to prohibit notaries from charging $2 per notarized signature unless they record the notarization in their journals. Finnegan further argues that Old Republic's notarial acts were incomplete because they were not recorded in a journal, and thus Old Republic was not entitled to charge for them at all. The notarial recording requirement is found in Section 486.260 RSMo 2004,(FN3) and states that each notary public shall provide and keep a permanently bound journal of his or her notarial acts. First, we note that, although Section 486.260 of the Notary Statute requires a notary public to keep such a journal, the section also carves out exceptions to this recording requirement, including "those connected with judicial proceedings, and those for whose public record the law provides and the public record is publicly filed within ninety days of execution[.]" If Plaintiffs' argued interpretation of Section 486.350 were applied, the Notary Act would prohibit notaries from charging a fee for these excepted acts, a result obviously not intended. See Investors Title Co., Inc. v. Hammonds, 217 S.W.3d 288, 295-96 (Mo. banc 2007) (statutes involving related subject matter are to be construed together in order to determine their meaning); Bowen v. Missouri Dep't of Conservation, 46 S.W.3d 1, 10 (Mo. App. W.D. 2001) (statutes should not be interpreted in manner which will render some of their phrases to be mere surplusage and courts must presume every word has meaning and purpose). Second, we disagree that Section 486.350 imposes the recording requirement as a prerequisite to charging the $2 fee. Rather, as noted by the trial court in a footnote to its judgment, this section serves to prohibit a notary from charging an additional fee for recording the notarial act in a journal. Finally, Finnegan's argument overlooks the purpose of a notary's service, which is to prove the authenticity of a signature. Herrero v. Cummins Mid-America, Inc., 930 S.W.2d 18, 21 (Mo. App. W.D. 1996). Accordingly, the Notary

Statute's purpose is satisfied where the authenticity of the signatures is undisputed. Id. A notary's failure to record properly his or her notarizations does not render the notarial act incomplete. We conclude Old Republic properly charged Finnegan $10 for notarizing five signatures. Our determination that Old Republic correctly charged Finnegan for the services he received is likewise dispositive of Finnegan's claim that Old Republic was unjustly enriched and violated the MMPA by charging him and the members of the identified class excessive notary fees. See Section 407.020 (defining unlawful practices under the MMPA); Associate Eng'g Co. v. Webbe, 795 S.W.2d 606, 608 (Mo. App. E.D. 1990) (enrichment of defendant must be unjust). Points One and Two are denied. Conclusion The judgment of the trial court is affirmed. Footnotes: FN1.Section 486.350 RSMo 2000. All further statutory citations are to RSMo 2000, unless otherwise indicated. FN2.Section 407.020. FN3.The exception language to the statute was added by the legislature in 2004. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.