Court of Appeals of Missouri, Southern District, First Division
STATE OF MISSOURI EX REL. SEAN COMERFORD AND SHERRY MASON, Relators,
HONORABLE R. CRAIG CARTER, Respondent.
PRELIMINARY WRIT OF MANDAMUS MADE PERMANENT
W. SHEFFIELD, P.J.
Comerford and Sherry Mason ("Relators") filed a
petition for a writ of mandamus requesting that "this
Court enter a preliminary and then permanent order in
mandamus commanding Respondent to rescind" an August 17,
2017 order that dissolved Relators' notice of lis
pendens. Relators had filed the lis pendens as to multiple
pieces of real property due to their claim in an underlying
suit against Janice Comerford and Enterprise Real Estate,
LLC, for, among other things, an equitable lien on the real
properties. After this Court received suggestions in support
and in opposition, we issued our preliminary writ ordering
Respondent "to immediately set aside" his order of
August 17, 2017, "which shall have the effect of
reinstating [R]elators' notice of lis pendens, pending
full resolution of this writ proceeding." Over a month
later, Respondent complied, reinstating the lis pendens.
preliminary writ also ordered Respondent to file an answer to
Relators' writ petition on or before September 5, 2017,
but Respondent did not do so. Proceedings in mandamus in the
court of appeals "shall be as prescribed in Rule 84.22
to Rule 84.26, inclusive, and this Rule 94." Rule
94.01. A preliminary order in mandamus
"shall order the respondent to file an answer within the
time fixed by the order." Rule 94.05. "If a
preliminary writ is issued, an answer to the petition shall
be filed within such time as the court specifies by
order." Rule 84.24(d). Within that same time specified
by the court, "any party in the underlying matter may
file an answer to the petition, either individually or
jointly with any other person filing an answer." Rule
failed to file an answer to Relators' writ petition
within the time fixed by this Court. "Accordingly, we find
Respondent to be in default and enter judgment making
permanent the preliminary order" in mandamus. State
ex rel. Kansas City S. Ry. Co. v. David, 105 S.W.3d 517,
518 (Mo. App. E.D. 2003); see also State ex rel. Hayes v.
Forder, 973 S.W.2d 555, 556 (Mo. App. E.D. 1998) (making
permanent a preliminary order in prohibition where Respondent
was in default due to failure to file an answer as
also argue that-should this Court rule in Relators'
favor- they are entitled to damages and costs, including
attorney's fees, because "Respondent's failure
to file Respondent's Answer constitutes the filing of a
false return and entitles Relators to recover their damages
and costs, in such manner as they might do in a civil action
for a false return" pursuant to Section 529.060, RSMo
in a mandamus action are governed by Section 529.060, which
In case a verdict shall be found for the person suing out
such writ, or judgment be given for him on motion to dismiss,
or by nihil dicit, or for want of a replication or other
pleading, he shall recover his damages and costs, in such
manner as he might do in a civil action for a false return,
and the same may be levied by execution, as in other cases.
courts have interpreted this provision to mean that an award
of damages is appropriate under Section 529.060 only
if the respondent makes a false return. State ex
rel. Raine v. Schriro, 914 S.W.2d 56, 58 (Mo. App. W.D.
1996). The concept of a false return harkens back to the
procedure surrounding writs of mandamus at common law.
Id. at 59 (citing Smith v.
Berryman, 272 Mo. 365, 199 S.W. 165, 166 (Mo. banc
Schriro explained that the concept of a false return
comes from the common law history of the writ of mandamus and
that Berryman, after reviewing that history and the
legislative history of Missouri's mandamus statutes,
concluded that a successful relator has no recoverable
damages "unless the respondent by making a false return,
and thereby raising a false issue of fact, as
contradistinguished from pure issues of law, puts the relator
to vexation and expense in disproving such false issue of
fact." Schriro, 914 S.W.2d at 59 (quoting
Berryman, 199 S.W. at 166). "In such cases, and
in no other, can a successful relator in mandamus recover
damages." Berryman, 199 S.W. at 166. Finally,
Schriro noted that even through [sic]
Berryman was "interpreting prior versions of
the mandamus statutes, the provisions of the statutes have
remained substantially the same since their original
enactment in 1825." Schriro, 914 S.W.2d at 59.
The current version of [S]ection 529.060 has remained
unchanged since it was enacted in 1939.
State ex rel. Scherschel v. City of Kansas City, 470
S.W.3d 391, 401 n.3 (Mo. App. W.D. 2015); see also State
ex rel. Dahl v. Lange, 661 S.W.2d 7, 8 (Mo. banc 1983)
("Relators' request for attorney's fees pursuant
to [S]ection 529.060, RSMo 1978, is denied. Such damages may
not be recovered under this section unless and until the
respondent makes a false return.").
provide no citation to authority, argument, or analysis for
their bare conclusion that failure to file an answer should
be treated as the equivalent of filing a false return under
the statute. This Court cannot provide that argument for them
without impermissibly acting as their advocate. Bishop v.
Metro Restoration Services, Inc., 209 S.W.3d 43, 46-48
(Mo. App. S.D. 2006). Moreover, it appears the purpose of the
statute would not be served by equating Respondent's
failure to file an answer with the affirmative filing of a
false return-Relators only argument as to why they should be
awarded damages-because Relators do not claim that Respondent
has made any spurious factual allegations that have the
effect of placing upon Relators the vexation and expense of
disproving false issues of fact (which is the reasoning
behind awarding damages for filing a false return). See
Scherschel, 470 S.W.3d at 401 n.3. Accordingly, we find
that Relators have not established their right to recover
damages and costs under Section 529.060.
preliminary writ ...