State ex inf. Thomas v. Olvera

987 S.W.2d 373, 1999 Mo. App. LEXIS 39, 1999 WL 8306
CourtMissouri Court of Appeals
DecidedJanuary 12, 1999
DocketNo. WD 55972
StatusPublished
Cited by3 cases

This text of 987 S.W.2d 373 (State ex inf. Thomas v. Olvera) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex inf. Thomas v. Olvera, 987 S.W.2d 373, 1999 Mo. App. LEXIS 39, 1999 WL 8306 (Mo. Ct. App. 1999).

Opinion

HOWARD, Judge.

Pursuant to a quo warranto proceeding, Patsy Olvera was removed from office as recorder of deeds for Lafayette County. She now appeals, claiming that the trial court erred by entering the summary judgment which removed her from office because there remained a genuine issue of material fact as to whether she willfully neglected any of her official duties, as required for removal pursuant to § 106.220, RSMo 1994.

Affirmed.

This case arises from lengthy investigations of Olvera’s office by the State Auditor’s Office and the Missouri State Highway Patrol. As a result of these investigations, Olvera was indicted by a Lafayette County grand jury on twelve counts of alleged criminal violations. In addition, on April 14,1997, a special prosecuting attorney filed a quo warranto petition to remove Olvera from office pursuant to § 106.220.

Section 106.220 authorizes the removal of certain county or municipal officials who have “been guilty of any willful, corrupt or fraudulent violations or neglect of any official duty.” In this case, the trial court found that Olvera had failed to comply with her duties as a recorder of deeds in a second class county, as defined by §§ 59.230 and 59.240, RSMo 1994:

59.230. Fees received — reports—deposited where (second class counties). — The recorder of deeds in counties of the second class shall keep a full, true and faithful account of all fees of every kind received and shall make a report thereof every year to the county commission. All fees received by him each year of his official term shall be paid by him into the county trea[375]*375sury, except that whenever there is in the county treasury to the credit of the jury fund six thousand dollars or more, the aforementioned fees received by the recorder of deeds shall be paid into the county treasury to the credit of the general revenue fund.
59.240. Fees to be collected — affidavit required — report, contents of (second class and certain first class counties).— The recorder of deeds of each county of the first class not having a charter form of government and of each county of the second class shall charge, receive and collect in all cases every fee, charge, or money due his office by law. He shall also, when he makes and files the report required by section 59.227 or by section 59.230 at the end of each year of his official term, verify the same by affidavit, and the report shall show the source and amount of every fee or charge collected. All fees, charges and moneys collected by the recorder of deeds shall be the property of the county.

The trial court referred to a number of separate transactions in finding that Olvera failed to comply with her duties as a recorder of deeds. First, the court found that on or about November 16, 1995, her office received a check from the Dunbrooke Company for $77.00. However, Olvera personally altered the corresponding entry in the official fee book, changing the $77.00 payment to read $7.00. As a consequence, when she swore under oath that the fees for November 1995 totaled $6,694.00, the true figure was at least $70.00 higher.

Second, the court found that on or about February 17, February 23, March 6, and March 10, 1995, her office received checks from Agmo Financing for $9.00, $16.50, $32.50, and $54.00, respectively. These checks were never entered in the official fee book. As a consequence, when Olvera swore under oath that the fees for February 1995 totaled $5,608.00, the true figure was at least $25.50 higher, and when Olvera swore under oath that the fees received in March 1995 totaled $7,972.50, the true figure was at least $86.50 higher.

Third, the court found that on or about March 27, 1995, her office received a check from the Waverly Bank in the amount of $28.00. The corresponding entry in the official fee book was for only $14.00. As a consequence, when Olvera swore under oath that the fees received in March 1995 totaled $7,972.50, the true figure was an additional $14.00 higher.

Fourth, the court found that on or about January 27, 1995, her office received a check from the Third National Bank for $43.50. This check was never entered into the official fee book. As a consequence, when Olvera swore under oath the fees received in January 1995 totaled $5,916.00, the true figure was at least $43.50 higher.

Fifth, the court found that, as the cumulative result of all these discrepancies, when Olvera swore under oath that the fees received by her office in 1995 totaled $81,-620.00, the true figure was at least $239.50 higher. The court ordered Olvera removed from office because there was uncontradicted evidence that, contrary to her monthly and yearly affidavits, she failed to account for all the money received.

In her first point on appeal, Olvera claims that no affidavits were attached to the relator’s motion for summary judgment or otherwise filed with the court. Therefore, she contends, the trial court erred in granting the summary judgment.

Her claim is without merit, however, as the record on appeal shows that affidavits and other exhibits were before the court. In its findings of fact and conclusions of law, the trial court states that it reached its decision “after careful consideration of the filed affidavits and contravening affidavits, and after reviewing the depositions which the Court has by Respondent’s Request agreed to consider to supplement and oppose the affidavits filed by the parties herein.” Point denied.

In her second point on appeal, Olvera claims that the trial court abused its discretion by denying her request, pursuant to Rule 74.04(f), to either deny the relator’s motion for summary judgment or continue the hearing on the motion for summary judgment because of the relator’s failure to provide timely discovery. To place this claim in a chronological context, we note that the [376]*376relator’s quo warranto petition to remove Olvera from office was filed on April 14,1997, and relator’s motion for summary judgment was filed on June 27,1997. A hearing on the motion was set for August 8, 1997, but after being continued once, the hearing was actually held on August 15,1997.

The decision to grant or deny relief pursuant to Rule 74.04(f) is within the discretion of the trial court. State ex rel. Conway v. Villa, 847 S.W.2d 881, 885 (Mo.App. E.D. 1993). Olvera is not entitled to relief because she has not indicated that discovery would show the existence of any genuine issue of material fact. Kemp Const. v. Landmark Bancshares, 784 S.W.2d 306, 309 (Mo. App. E.D.1990). It is not sufficient to claim that further discovery might provide the necessary evidence. Id. Under the circumstances of this case, we find no abuse of discretion in the trial court’s refusal to grant relief pursuant to Rule 74.04(f). Point denied.

In her third point on appeal, Olvera claims that the trial court erred by entering the summary judgment which removed her from office because she presented evidence that she did not know that any of the entries in the official fee book were incorrect. Therefore, she argues, there remained a genuine issue of material fact as to whether she “willfully neglected” any of her official duties, as required for removal pursuant to § 106.220.

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987 S.W.2d 373, 1999 Mo. App. LEXIS 39, 1999 WL 8306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-inf-thomas-v-olvera-moctapp-1999.