Lisa Rokusek and Jennifer Human, Plaintiffs/Appellants, v. Security Title Insurance Company and Security Title Insurance Agency, Defendants/Respondents.

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: Lisa Rokusek and Jennifer Human, Plaintiffs/Appellants, v. Security Title Insurance Company and Security Title Insurance Agency, Defendants/Respondents. Case Number: ED88953 Handdown Date: 06/26/2007 Appeal From: Circuit Court of St. Louis County, Hon. Melvyn W. Wiesman Counsel for Appellant: Fernando Bermudez Counsel for Respondent: John E. Petite, James J. Zych, and Jennifer D. Mann Opinion Summary: Lisa Rokusek and Jennifer Human appeal the trial court's judgment sustaining summary judgment for Security Title Insurance Company and Security Title Insurance Agency in a class action suit. Rokusek and Human alleged Security Title violated the Missouri Notary Public Statute pursuant to section 486.350, RSMo, unjust enrichment and the Missouri Merchandising Practices Act pursuant to section 407.020, RSMo. AFFIRMED. Division Four Holds: The trial court did not err in entering summary judgment for Security Title as there are no genuine issues of material fact and Security Title 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). Security Title properly charged Rokusek and Human for the provided notarial services in accordance with section 486.350. Consequently, Security Title were not unjustly enriched and did not violate the MMPA by charging Rokusek and Human and the members of the identified class excessive notary fees. Citation: Opinion Author: Sherri B. Sullivan, J.

Opinion Vote: AFFIRMED. Richter, P.J. Crane, J., concur. Opinion: Introduction Lisa L. Rokusek and Jennifer Human (Plaintiffs) appeal from the trial court's grant of summary judgment in favor of Security Title Insurance Company and Security Title Insurance Agency (Defendants) in Plaintiffs' action alleging violation of the Missouri Notary Public Statute(FN1) (Notary Statute), unjust enrichment, and violation of the Missouri Merchandising Practices Act(FN2) (MMPA) . Background As pertinent to the issues on appeal, the record reveals the following. Plaintiffs filed a three-count class action petition against Defendants and Ticor Title Insurance Company (Ticor),(FN3) alleging violation of the Notary Statute, unjust enrichment, and violation of the MMPA. On their own behalf and on behalf of all others similarly situated, Plaintiffs alleged that Defendants provided notary public services when Plaintiffs refinanced a residential real estate property in September of 2003, notarizing signatures and charging Plaintiffs $12 for the notarizations. The notary performing this service did not record the notarized signatures in a journal of notarial acts. Plaintiffs alleged that because a notary public is statutorily barred from charging more than $2 for notarizing a signature, Defendants' notary violated the Notary Statute by overcharging them. Plaintiffs further alleged that Defendants violated the notary statute by overcharging them and others similarly situated because, by failing to so record, the notaries did not complete any notarial service. In their unjust enrichment count, Plaintiffs alleged that Defendants were unjustly enriched by collecting more money for their services than they were statutorily entitled. As to their MMPA claim, Plaintiffs 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 Defendants violated the MMPA by charging them and the members of the identified class excessive notary fees during the purchase of residential real estate in Missouri. Defendants filed an answer with affirmative defenses, as well as a motion for summary judgment (Motion), with a Statement of Uncontroverted Material Facts and supporting exhibits, including the documents they notarized for Plaintiffs.

In their Statement of Uncontroverted Material Facts, Defendants stated as follows. Plaintiffs paid $12 for notary fees to Defendants in connection with their residential real estate closing in September of 2003. Five documents bearing both plaintiffs' signatures (ten signatures total) were notarized in connection with the closing, including two deeds of trust, a survey affidavit, a payoff information agreement, and an affidavit regarding title insurance. In their Motion, Defendants contended that the undisputed facts established that Plaintiffs paid $12 for ten signatures and that the Plaintiffs were charged less than the statutory maximum for their notary fees. In support of their Motion, Defendants argued that, because they charged Plaintiff less than they were entitled to under the Notary Act, Plaintiffs' Notary Act claim failed as a matter of law. Defendants also contended that Plaintiffs' unjust enrichment and MMPA claims were preempted by the Notary Act. Defendants further argued that the unjust enrichment claim failed as a matter of law because Defendants were not unjustly enriched as they charged less than what they were entitled. Likewise, they asserted that Plaintiff's MMPA claim failed as a matter of law because Plaintiffs suffered no ascertainable loss. In their response, Plaintiffs admitted all of Defendants' stated uncontroverted material facts. The trial court granted summary judgment to Defendants on all three counts, holding that there were no issues of material fact and Defendants were entitled to summary judgment as a matter of law. Points on Appeal Plaintiffs raise two points on appeal. In their first point, they allege the trial court erred in granting summary judgment in favor of Defendants on their claim arising under the Notary Statute because Defendants charged $12 for notarizing ten signatures that they failed to record in a notary journal and the statute prohibits notaries from charging more than $1 per notarized signature not so recorded. In their second point, Plaintiffs claim the trial court erred in granting summary judgment in favor of Defendants on their unjust enrichment claim because the common law unjust enrichment claim was not preempted by the Notary Statute. In their third point, Plaintiffs claim the trial court erred in granting summary judgment to Defendants on the MMPA claim because the Notary Statute does not preempt MMPA. 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 Plaintiffs' first point claims the trial court erred in entering summary judgment for Defendants on their claim that Defendants violated the Notary Statute because Defendants overcharged them. The parties agree that Defendants notarized ten signatures for Plaintiffs and charged them $12 in connection with these acts. Plaintiffs argue, however, that Defendants were 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, Plaintiffs cite to Section 486.350, 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.

Plaintiffs maintain the Notary Statute's language acts to prohibit notaries from charging $2 per notarized signature unless they record the notarization in their journals. Plaintiffs further argue that Defendants' notarial acts were incomplete because they were not recorded in a journal, and thus Defendants were not entitled to charge for them at all. The notarial recording requirement is found in Section 486.260 RSMo 2004,(FN4) 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, this section serves to prohibit a notary from charging an additional fee for recording the notarial act in a journal. Finally, Plaintiffs' argument overlooks the purpose of a notary's service, which is to prove the authenticity of a signature. Herrero v. Cummins Mid-Am., Inc., 930 S.W.2d 18, 21 (Mo. App. W.D. 1996). Accordingly, the Notary Statute's purpose is satisfied where, as here, the authenticity of the signatures is undisputed. Id. We reject Plaintiffs' argument that Defendants' failure to record the notarizations renders their acts incomplete. We conclude Defendants properly charged Plaintiffs $12 for notarizing ten signatures. Our determination that Defendants correctly charged Plaintiffs for the services Plaintiffs received is likewise dispositive of their claims that Defendants were unjustly enriched and violated the MMPA by charging them and the members of the identified class excessive notary fees. See Section 407.020 (defining unlawful practices under the MMPA); Romeo v. Jones, 86 S.W.3d 428, 431 (Mo. App. E.D. 2002) (where trial court does not specify its reason for granting motion for summary judgment, appellate courts presume it did so in accordance with grounds set forth in the motion and will affirm if judgment deemed correct under any reasonable theory supported by all of the evidence); Associate Eng'g Co. v. Webbe, 795 S.W.2d 606, 608 (Mo. App. E.D. 1990) (enrichment of defendant must be unjust). Plaintiffs' Points One, Two, and Three 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.Plaintiffs dismissed without prejudice their claims against Ticor on July 19, 2006; thus, Ticor is not a party to this appeal. FN4.This exception language was added to the statute 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.