Daily Development for Monday, January 19, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

NOTARIES; FEES; RECORDATION OF NOTARIAL ACTS: Title company notarites could not charge statutory $2 fee for notarization of documents if they did not further record the relevant notarial information in their notarial journals. 

Finnegan v Old Republic Title Insuranc Co. of St. Louis, 246 S.W. 3d 948 (Mo. 2008)

Plaintiffs participated in the carrying out of various real estate transactions through several different title insurance companies.  In each case, it appeared, the closing statements charged plaintiffs $2 per notarization as part of the costs of the transaction.

The statute permitted a $2 fee where a notary both notarized a signature and “properly recorded the notarial act in their notary journal.”  Otherwise only a $1 charge was permitted for an act of notarial service. 

The notaries were employees of the involved title companies.   In addition to the fee refund, the plaintiffs argued unjust enrichment and a violation of the Missouri Merchandising Practices Act.  The basic statute provides that the employer is liable if the employee notary acted within the scope of employment and the employer consented.  The court noted that the court below had granted summary judgment for the title companies based upon a misconstruction of the statute (which now was reversed) so the question of employer consent was a factual issue.  Good luck with that one.

Comment 1: This was not styled as a class action, but the plaintiffs took the case to the Missouri Supreme Court, one assumes for more than the $30 or $40 in overcharges.  So we may see more of this issue over time. 

Comment 2: The author is unaware of whether to keep a journal is a common practice among title company closers.  There were four companies and different closing officers involved here, suggesting that it was a common practice at the time in St. Louis.  The sums are small, but can some trial lawyer pump this issue into something? 

Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters.  The same is true of all
commentary provided by contributors to the DIRT
list.  Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality


DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 to 15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message
signoff DIRT to the address:


for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters.  Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.”  But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list.  If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, any substitute reporters, DIRT, and its sponsors.

DIRT has a WebPage at: