Judge resolves recorder case in defendants' favor

by Karen E. Culp

SBJ Staff

More than a year after General Land Title filed a federal lawsuit against the recorder of deeds, County Commission and three other land title companies, the judge in the case has ruled in favor of the defendants.

The lawsuit was filed by plaintiffs Christian County Land Title, doing business as General Land Title, and Jimmie Bell, who is president of the company, regarding access to records the firm needed to conduct its land title business.

Those records were available in the recorder of deeds' office and are accessed by title companies in a variety of ways so that the companies can copy them and use them for their businesses.

One group of title companies formed an association, the Greene County Land Title Association, to maintain a microfilm and photocopying machine in the recorder's office. The equipment, to be used only by those companies who paid to be members of the association, has since been removed, and the recorder has changed the access to records so that microfilm is processed by an outside party and available daily.

U.S. District Court Judge Ortrie Smith entered judgment in favor of the defendants Oct. 30, just four days after the Oct. 26 trial. Responding to the plaintiffs' charge that Linda Montgomery, recorder of deeds, acting alone and in a conspiracy with the county commissioners, deprived the plaintiffs of certain constitutional rights, Smith said in his order that "several key predicates to this claim were never proven at trial."

He found no proof of a conspiracy involving members of the Greene County Land Title Association. He also found no proof of an agreement involving the county commissioners.

Smith said in the order that the plaintiffs had alleged their First Amendment rights had been violated because they were forced to associate with members of the association to obtain the right to use the association's copying machine.

Saying that the equipment belongs to the association, Smith said "(f)or Montgomery to decree that only association members may use the association's copying machine seems imminently justified; indeed, she probably lacks the power to order the association to let nonmembers use its machinery."

The need for the equipment in the office initially was justified, Smith said, because the recorder at the time, Russell Keller, was making a "reasonable effort to eliminate the space (the title companies) utilized on a daily basis."

At that time, General Land Title did not exist. Once the company began doing business, it "did not immediately demand the opportunity to place equipment in the recorder's office." When it did so, Smith said, Montgomery had a rational basis for denying the request in that the office contained insufficient space for more equipment.

The plaintiffs also alleged that the recorder lost revenue by permitting the association to use its own copying machine. Smith said, "removal of the equipment would not have increased the recorder's revenue."

Title companies are not interested in copies of the documents, but in the information therein, and have, in the past, sent typists with typewriters to collect the information. Smith stated in the order that "neither plaintiff's equal protection rights have been violated."

The plaintiffs also claimed a tortious interference with contract or business expectancy, which refers to an agreement General Land Title testified it had with Hogan Land Title to obtain some of the records it needed.

Montgomery asked Hogan to stop selling the copies of records it made for General Land Title. Smith said, "there is no evidence that (Bell) had a business expectancy or contract with Hogan."

Montgomery acted to protect her department's revenue and did not employ means that were independently wrongful, Smith stated in his ruling.

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