Breach of Contract Claim on Construction Project, Not Asserting a Mechanic's Lien, Is Not Required to Join in Equitable Mechanic's Lien Suit on Same Project

W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
George Weis Company was a drywall subcontractor to Stratum Design-Build on a construction project owned by Hurlbut Investments. An equitable mechanic’s lien suit brought by other subcontractors of Stratum was filed in 2003 and dismissed after settlements were reached. Weis had not filed a mechanic’s lien and did not attempt to intervene in the equitable mechanic’s lien suit. In 2005, Weis filed a breach of contract and third-party beneficiary suit against Stratum and Hurlbut. The trial court dismissed the suit on the grounds that it was barred under § 429.300, RSMo., due to the failure by Weis to intervene in the prior equitable mechanic’s lien suit filed on the same project. The Supreme Court of Missouri reversed, however, in George Weis Company v. Stratum Design-Build.¹ The Supreme Court held that prior cases reaching a contrary result were incorrect and should not be followed, referring to Drywall Interior Systems Construction v. Ladue Building & Engineering Corp.² and State ex rel. Power Process Piping, Inc. v. Dalton.³

The plain and ordinary language of § 429.300 states that this statute governs only the enforcement of rights of mechanic's lien claimants.⁴ Mechanic's liens involve claims against property, not persons. “The purpose of an equitable mechanics’ lien action is to enforce multiple mechanics’ lien claims filed against the same real estate and to adjudicate the rights claimed under all conflicting liens, encumbrances, or other interests in the property.”⁵ This allows “interests against the same real estate [to] be adjudicated in one action…avoiding inconsistent judgments or promoting a race to foreclose.”⁶ State ex rel. Kirkwood Excavating, Inc. v. Stussie, 689 S.W.2d 131, 135 (Mo. App. E.D. 1985).

There is no comparable policy basis to force claimants who assert no claim to an interest in the real estate into the mechanic’s lien suit. Unlike lien claimants, a non-lien claimant does not hold a competing interest in the property at issue. Rather, a non-lien claimant has an individual claim against the owner or some other entity involved in a project undertaken on the property. To force the non-lien claimant into an equitable action designed to adjudicate competing interests in property in which the non-lien claimant has no interest does not further any of the policy goals identified. For these reasons, “a claimant, not made a party to [the] related equitable mechanic’s lien action, who does not avail itself of the mechanic’s lien statute and elects, instead, to bring a common law breach of contract action to recover damages is not barred from bringing such action by the provisions of the equitable mechanic’s lien statute.”⁷

“[A] party who is a mechanic’s lien claimant cannot also bring a separate suit on other claims but must join all of its claims in a single action. This furthers the goal of avoiding a multiplicity of litigation and is consistent with the requirement of sections 429.270 and 429.300 that other suits brought on a mechanic’s lien shall be filed together and that this equitable suit shall determine all the rights of mechanics’ lien claimants.”⁸ To the extent that cases have held “that an equitable mechanic’s lien suit is ‘the only available forum’ for filing a breach of contract claim, even where the plaintiff is not also seeking to enforce a mechanic’s lien, they are incorrect and should no longer be followed.”⁹ Weis is not a mechanic’s lien claimant and has not claimed any interest in the property that was the subject of the equitable mechanic’s lien suit. The equitable mechanic’s lien statutes have no application to the action filed by Weis.

Waiver of Liability For Future Negligence is Disfavored, But Binding If Clear and Unmistakable

Deanna Milligan “was injured when she fell two stories while saving herself and her children from a fire in their apartment building.”¹⁰ She filed suit against the owner of the apartment and its management company, alleging negligence as to fire codes, smoke alarm inadequacies and other dangers. In the lease Milligan signed was a provision entitled “WAIVER OF LIABILITY.” That provision acknowledged that the Lessee released the Lessor from all claims “from any cause whatsoever, even if the cause or damages or injuries are alleged to be the fault or caused by the negligence or carelessness of the Lessor.”¹¹ The owner and management company moved for summary judgment, which was granted as to both of them by the trial court. The court of appeals affirmed the judgment for the apartment owner, but reversed as to the management company in Milligan v. Chesterfield Village, GP.¹²

Public policy disfavors, but does not prohibit, releases of future negligence.¹³ Alack v. Vic Tanny International of Missouri, Missouri’s lead case, demands that “exculpatory language…effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Our traditional notions of justice are so fault-based [that we]…require clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence.”¹⁴ Consumer contracts must conspicuously employ “negligence,” “fault,” or equivalent words so that a clear and unmistakable waiver and shifting of risk occurs.¹⁵

Clear and explicit language is required to absolve a person from future negligence, and is strictly construed against the party claiming its benefit.¹⁶ Historically, Missouri appellate courts have required that a release from one’s own future negligence be explicitly stated.¹⁷ Alack’s analysis culminates in its essential holding that “exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence.”¹⁸ Alack’s bright-line rule is but a means to this end, as is its call for “clear, unambiguous, unmistakable and conspicuous language in order to release a party from his or her own future negligence.”¹⁹ The “waiver of liability” provision in the lease met Alack’s bright-line rule. The release clearly, unambiguously, unmistakably and conspicuously applied “even if the cause or damages or injuries are alleged to be the fault or caused by the negligence or carelessness of the Lessor.”²⁰ It effectively notified plaintiff she was releasing the Lessor from claims arising from its negligence and thus met Alack’s bottom-line standard as well.

The release in the lease did not, however, apply to the apartment manager. An agreement to release one person’s tort liability discharges no other tort-feasor unless the agreement so provides.²¹ This “operates to preclude the unintended release of persons liable in tort.”²² Effective notice that one “is releasing the other party from claims arising from the other party’s own negligence” imports “clear, unambiguous, unmistakable and conspicuous” disclosure of not just what, but who, is released.²³ Otherwise, § 537.060’s principle of avoiding unintended releases is violated. The word “agents” could have been added to the waiver, but was not. Courts do not imply exemptions from negligence, especially in contracts like this one, arguably of adhesion.²⁴

Trial Court Must Be Given Opportunity To Correct Inconsistent Jury Verdict

Three physicians, Dr. Mark J. Harrell, Dr. Heather Isom and Dr. Michael K. Shafe, filed suit against Mercy Health Services Corporation for breach of their employment contracts. When the employment contracts were signed, the physicians were advised that the incentive compensation program referred to in their contracts was still under discussion and not yet implemented. After working for several years under the contracts, each submitted letters of resignation and ultimately left the hospital. At the time they left, no incentive compensation plan had been implemented. In their suit, they sought damages for the failure of the hospital to provide the incentive compensation referred to in their contracts. At trial, the jury returned a verdict in favor of the physicians, but awarding zero damages. Plaintiff’s counsel moved for a mistrial on the grounds that the verdict was inconsistent. “The trial court discharged the jury and took Plaintiffs’ motion for mistrial under advisement.”²⁵ Later, the trial court denied the motion for mistrial, and “entered judgment in favor of Plaintiffs awarding zero damages, and assessing court costs against [the] Defendant.”²⁶ Both parties appealed and the court of appeals remanded the case “to the trial court with instructions to enter judgment for Defendant” in Harrell v. Mercy Health Services Corporation.

The general rule is that an objection to inconsistency in verdicts must be made before the jury is discharged. “If such an objection is not made at this time the error is deemed waived.”²⁷ Here, plaintiffs asked for a mistrial before the jury was discharged, but did not request the trial court to order the jury to return for further deliberations. If plaintiffs believed that the verdict was inconsistent, their proper method of seeking relief was to request the trial court to return the jury for further deliberations.²⁸ While plaintiffs argue on appeal that the trial court erred in not returning the jury for further deliberations, plaintiffs did not request such relief. “Without affording the trial court the opportunity to correct any inconsistency in the jury’s verdict, plaintiffs’ claim of inconsistency has been waived.”²⁹

In its cross-appeal, defendant maintains that there was no evidence of mutuality of agreement regarding an incentive compensation arrangement. “To make a submissible case for breach of contract, a party must establish: 1) mutual agreement between parties capable of contracting; 2) mutual obligations arising out of the agreement; 3) valid consideration; 4) part performance by one party; and 5) damages resulting from the breach of contract.”³⁰ The evidence at trial revealed that the terms of the incentive compensation arrangement referred to in the contracts was never agreed upon. Under such circumstances, there can be no breach of contract claimed, because the element of “mutuality of agreement” is lacking.³¹ Because plaintiffs failed to establish each element of their breach of contract claim, they did not make a submissible case on that claim. The trial court erred in denying defendant’s motion for judgment notwithstanding the verdict and the case is remanded to the trial court with instructions to enter judgment for defendant.

Plaintiff's Failure to Timely File Health Care Affidavit in Medical Malpractice Suit Requires Dismissal Without Prejudice

Michael Bishop filed a medical malpractice action against SSM Healthcare St. Louis d/b/a St. Joseph Health Center. Bishop “failed to file a health care affidavit within ninety [(90)] days…as mandated by Section 538.225.5.”³² Bishop also did not file a motion with the trial court that alleged good cause and seeking an additional ninety (90) days within which to file such affidavit. SSM filed a motion to dismiss for failure to comply with the statute. The trial court denied the motion and SSM filed a petition for a writ of mandamus. The preliminary order in mandamus was made absolute in SSM Health Care v. Schneider.³³

The principal “rule of statutory construction is to determine the legislature’s intent” from the language of the statute.³⁴ The court “will give effect to the…intent [of the legislature] if possible, and consider the words in their plain and ordinary meaning.”³⁵ “When the language of the statute is unambiguous,” there is no room for statutory construction.³⁶ The court “presumes that the legislature intended that every word and provision … have effect.³⁷ In general, the use of the word “shall” in a statute will be interpreted as mandatory rather than directory.³⁸ “[W]hen a statute mandates that something be done by providing that it shall occur, and it also provides what results shall follow a failure to comply with” the statute, it is clear that “it is mandatory and must be obeyed.”³⁹

“The language in Section 538.225.5-6 is clear and unambiguous. The plain and ordinary meaning is that if a party files a motion to dismiss for failure to file a health care affidavit, and a statutorily adequate health care affidavit has not been timely filed, the trial court must dismiss the complaint without prejudice. [The word] ‘shall’ in the statute is mandatory. There is a statutorily mandated action, and a penalty for not complying with it.”⁴⁰ The trial court “is directed to enter an order dismissing Plaintiff’s cause of action against [SSM] without prejudice.”⁴¹

Secured Party's Failure to Give Notice of Sale of Collateral Precludes Deficiency Judgment

Rodney Valleroy and Connie Lalumondier purchased a manufactured home from Monty’s Manufactured Homes. Monty’s assigned the retail installment contract executed by Rodney and Connie to Reno Financial, Ltd. Rodney and Connie defaulted on the installment contract and the manufactured home was repossessed by Reno in January 2005. Reno published notice and solicited bids for the manufactured home, and sold it on February 15 for $8,000. No notice of the sale was sent to Rodney and Connie. After the proceeds from the repossession sale were applied to the outstanding loan, there was a deficiency of $9,176. Reno filed suit and the trial court granted judgment to Reno for the deficiency amount, plus attorney’s fees. Rodney and Connie appealed, contending that Reno was not entitled to a deficiency judgment because it had failed to provide notice of the sale to them. The court of appeals agreed and reversed the judgment in Reno Financial, Ltd. v. Valleroy. ⁴²

Compliance with the notice provision of Section 400.9-611 is a prerequisite to recovery of a deficiency judgment after resale of collateral. See McKesson Corp. v. Coleman’s Grant Village, Inc., 938 S.W.2d 631, 633 (Mo.App. E.D. 1997). “Notice is required in order to apprise a debtor of the details of a sale so that he may take whatever action is necessary to protect himself.” Id., citing Chrysler Capital Corp. v. Cotlar, 762 S.W.2d 859, 861 (Mo.App. E.D. 1989). A secured party’s failure to give reasonable notice of the sale of collateral as mandated by statute precludes that party from obtaining a deficiency judgment. Id.⁴³

The court was not persuaded by Reno’s argument that “manufactured homes are exempt from the notice requirements of the Section 400.9-611(b)” on the grounds that “manufactured homes fall under the ‘recognized market’ and ‘speedily’ declining value exceptions” in the statute.⁴⁴

“While there are no Missouri cases directly on point” as to “whether manufactured homes meet the ‘recognized market’ exception to the UCC’s notice requirements, other jurisdictions have consistently construed ‘recognized market’ very narrowly to mean stocks, bonds, and commodities. See Nationsbank v. Clegg, 1996 WL 165113, at 4 (Tenn.Ct.App. April 10,1996).”⁴⁵ Moreover, a manufactured home is not collateral that threatens to decline speedily in value. “This issue was specifically addressed in Stensel v. Stensel, 380 N.E.2d 526, 528 (Ill.App. 4th Dist. 1978)” in which “the court held, ‘We are not persuaded that a mobile home is collateral which “threatens” to decline speedily in value.’”⁴⁶ “[A]pplication of this provision to chattel property would be a rarity. Its obvious intent was to apply to securities in a rapidly falling market, or any other item, such as gold bullion, which is subject to price fluctuations on a daily basis.”⁴⁷ “Other jurisdictions have similarly held that, just as any other collateral, the sale of a repossessed mobile home requires proper notice. See Stoppi v. Wilmington Trust Co., 518 A.2d 82, 86 (Del. 1986).”⁴⁸ “[B]ecause the manufactured home is not perishable, not likely to decline speedily in value, or of a type sold on a recognized market, [it] did not fall under the notice exceptions in Section 400.9-611(d).”⁴⁹ “The trial court erred in finding [Reno] was entitled to a deficiency judgment because actual notice of sale was not given to [the] Debtors as is required under both the U.C.C. and Missouri law.”⁵⁰

Uncorroborated Opinion Testimony of Police Officer Was Sufficient For Speeding Conviction

Joshua Kimes was charged with speeding in violation of § 304.130, RSMo. At trial, the police officer testified that he estimated Kimes to be traveling at about 35 miles per hour in a 20 mile an hour school zone. The officer’s testimony on the speed that his radar unit had registered for Kimes’ vehicle was objected to on the ground that an adequate foundation had not been laid as to the proper functioning of the radar equipment and this objection was sustained. The trial court found Kimes guilty of speeding beyond a reasonable doubt, based solely on the officer’s testimony and not on radar evidence. The court of appeals affirmed in State v. Kimes.⁵¹

Here, the officer “estimated [the] Defendant to be driving 35 m.p.h. in a 20 m.p.h. zone, which is a variance of 75 percent in excess of the speed limit. This is not a slight variance”⁵² and this case is distinguishable from City of Kansas City v. Oxley,⁵³ which held “under the facts of that case the officer’s uncorroborated opinion testimony…that the defendant was exceeding the speed limit did not constitute substantial evidence of speeding.”⁵⁴ This case is also distinguishable from City of Jackson v. Langford.⁵⁵

Neither Oxley nor Langford addressed the question presented in the instant case of whether the uncorroborated testimony of a police officer is sufficient substantial evidence to support a defendant’s guilt where the variance between the estimated speed and the speed limit is not slight. Apparently this question is one of first impression in Missouri.⁵⁶

“While an experienced officer cannot testify as to the exact speed of a vehicle with precise accuracy, it does not mean that such testimony should be ignored in all cases.”⁵⁷

This is so because as the variance between the estimated speed and the speed limit increases, the level of certainty from which a fact-finder can conclude that a defendant is exceeding that speed limit also increases. For example, where an officer’s estimation of speed is 60 m.p.h., a fact-finder cannot conclude with any degree of certainty that a defendant was exceeding a 55 m.p.h. speed limit, because the accuracy of human estimation of speed cannot easily, readily, and accurately discriminate between such small variations in speed. Yet, that same fact-finder, based upon that same 60 m.p.h. estimation of speed, could conclude beyond a reasonable doubt that a defendant was exceeding a 20 m.p.h. limit. This is so because the variance between the estimated speed and the speed limit falls [between] the margin of error of accuracy within which an experienced person can discriminate between the two speeds.⁵⁸

* * *

A reasonable fact-finder could conclude beyond a reasonable doubt that a defendant was exceeding the speed limit based upon an experienced police officer’s estimation of a speed that is 75 percent or greater than that speed limit. Accord Olsen, 239 N.E.2d at 355. For this reason, we conclude that sufficient substantial evidence supported the trial court’s determination of defendant’s guilt.⁵⁹

Plaintiffs' Expert Testimony Failed to Establish a Standard of Care for Medical Malpractice Claim; Verdict for Plaintiffs Reversed and Remanded For New Trial

“Roger [Hickman], a music minister, who wrote and recorded gospel music, went to see” his physician for his regular checkup.⁶⁰ During the examination, his physician felt his throat and thought “something was ‘going on’ with his thyroid.”⁶¹ A CT scan and ultrasound revealed nodules on both his left and right thyroid lobes. Hickman was referred to Dr. Michael Bayes, a surgeon specializing in the treatment of ears, nose and throat. Dr. Bayes recommended that Hickman undergo surgery and explained to Hickman that he was going to remove the entire right thyroid lobe. Dr. Bayes further explained that he would have the tumor examined and, if cancer was found, he would perform a total thyroidectomy. During surgery, a section of the thyroid was removed and analyzed, which indicated the tumor was cancerous. “Dr. Bayes indicated in his medical report that he had performed a total thyroidectomy, removing both the right and left lobes.”⁶² After surgery, Hickman continued to have complications and was referred to an endocrinologist for further evaluation. An ultrasound revealed that Hickman’s right thyroid gland was still present and Hickman had a second surgery to remove the right thyroid that had been left during the first surgery. Following this surgery, Hickman had difficulty singing and “had a significantly reduced vocal range.”⁶³ He could no longer sing commercially, record music, or work as a full-time music minister.”⁶⁴ He and his wife filed suit against Dr. Bayes for malpractice and the jury returned a verdict for $299,644.97. Dr. Bayes appealed and argued that Plaintiffs’ expert testimony failed to adequately define the standard of care. The court of appeals reversed and remanded the case for a new trial.

“To make a submissible case in a medical malpractice action, plaintiffs must prove that defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants’ profession and that their negligent act or acts caused plaintiffs’ injury.”⁶⁵ Stated another way, the plaintiff must prove “1) an act or omission of the defendant failed to meet the required standard of care; 2) the defendant was negligent in the performance of the act or omission; and 3) the act or omission caused the plaintiff’s injury.”⁶⁶ “As submitted to the jury, liability…was premised on whether Dr. Bayes ‘failed to perform a total thyroidectomy’” on Hickman and “was thereby negligent.”⁶⁷ It was Dr. Bayes’ position that he removed all of the right thyroid that he safely could. Plaintiffs’ expert testified that a total thyroidectomy was the proper procedure for Hickman’s diagnosis.

“It is not necessary that the [standard of care] be recited in ritualistic fashion, but generally, it must appear somewhere in the context of the expert’s testimony that the proper objective legal standard is the standard being employed by this expert in his or her testimony.”⁶⁸ Wicklund v. Handoyo⁶⁹ held it was sufficient for the expert to define standard of care as “what a reasonable and prudent physician would do in similar circumstances,” even though the standard was imperfectly stated.⁷⁰ In this case, however, “neither [plaintiffs’ expert] nor Dr. Bayes indicated that their testimony was based on the legal standard as defined in MAI 11.06 that the jury received. Likewise, neither indicated that it was based on a substantially similar standard.”⁷¹ The fact that plaintiffs’ expert was board certified and a professor of surgery does not alone qualify his testimony about what the “standard of care” calls for, without further establishing that he is basing it on the appropriate legal standard as defined in MAI 11.06. “Here, the experts presented by Plaintiffs failed to include the appropriate standard of care in any of their testimony.”⁷²

The Supreme Court of Missouri has held that “[a]n appellate court should reverse a plaintiff’s verdict without remand only if it is persuaded that the plaintiff could not make a submissible case on retrial. The preference is for reversal and remand.”⁷³ “If a plaintiff, by mistake or inadvertence, fails to produce sufficient evidence at trial to prove his claim, in a situation where the proof seems to be available, the case should be remanded to permit the introduction of additional evidence.”⁷⁴ “Based on these authorities, we are compelled to reverse and remand the case to the trial court for a new trial.”⁷⁵

Correction To Be Noted

Under the heading of “Statute of Limitations on Judgments Runs from Date of Last Payment, whether Voluntary or Involuntary,” (see p. 162, Journal of The Missouri Bar, July/August 2007), the first two sentences are corrected to read as follows:

In September 1994, Jerry Crockett obtained a judgment against Thomas Polen on a Promissory Note. Crockett’s efforts to collect the judgment by garnishments were unsuccessful until March of 2004, when payments were received and recorded.

Please accept my sincerest apologies for this error.

Footnotes

1 No. SC88194 (Mo. banc July 6, 2007).

2 857 S.W.2d 523 (Mo. App. E.D. 1993).

3 681 S.W.2d 514 (Mo. App. E.D. 1984).

4 Mabin Constr. Co. v. Historic Constructors, Inc., 851 S.W.2d 98, 102 (Mo. App. W.D. 1993).

5 Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 430 (Mo. banc 2003).

6 State ex rel. Kirkwood Excavating, Inc. v. Stussie, 689 S.W.2d 131, 135 (Mo. App. E.D. 1985).

7 Mabin, 851 S.W.2d at 102.

8 Weis, No. SC 88194

9 Id.

10 Milligan v. Chesterfield Village, GP, No. 28179 (Mo. App. S.D. July 16, 2007).

11 Id.

12 No. 28179 (Mo. App. S.D. July 16, 2007).

13 Warren v. Paragon Technologies Group, 950 S.W.2d 844, 845 (Mo. banc 1997) and Alack v. Vic Tanny Int’l of Mo., 923 S.W.2d 330, 334 (Mo. banc 1996).

14 Alack at 334.

15 Id.

16 Id.

17 Id. at 336.

18 Id. at 337.

19 Id.

20 Milligan, No. 28179 (Mo. App. S.D. July 16, 2007).

21 Section 537.060, RSMo. (2006).

22 Manar v. Park Lane Med. Ctr., 753 S.W.2d 310, 313 (Mo. App. W.D. 1988).

23 Alack, 923 S.W.2d at 337.

24 Id.

25 Harrell v. Mercy Health Servs. Corp., Nos. 27401 and 27403 (Mo. App. S.D. July 10, 2007).

26 Id.

27 City of Independence v. Kerr Constr. Paving Co., Inc., 957 S.W.2d 315, 319-20 (Mo. App. W.D. 1997).

28 Douglass v. Safire, 712 S.W.2d 373, 374 (Mo. banc 1986).

29 O’Brien v. Mobil Oil Corp., 749 S.W.2d 457, 458 (Mo. App. E.D. 1988).

30 Leo Journagan Construction Co., Inc. v. City Utilities of Springfield, 116 S.W.3d 711, 717 (Mo. App. S.D. 2003).

31 Smith v. Hammons, 63 S.W.3d 320, 325 (Mo. App. S.D. 2002).

32 SSM Health Care v. Scheider, No. ED 89779 (Mo. App. E.D. July 12, 2007).

33 No. ED 89778 (Mo. App. E.D. July 12, 2007).

34 Christensen v. American Food & Vending Services, 191 S.W.3d 88, 90 (Mo. App. E.D. 2006).

35 Id.

36 Id.

37 Id.

38 Bauer v. Transitional School Dist., 111 S.W.3d 405, 408 (Mo. banc 2003).

39 Valli v. Glasgow Enterprises, Inc., 204 S.W.3d 273, 276-77 (Mo. App. E.D. 2006).

40 SSM Health Care, No. ED 89778 (Mo. App. E.D. July 12, 2007).

41 Id.

42 No. ED 88613 (Mo. App. E.D. 2007).

43 Id.

44 Id

45 Id.

46 Id.

47 Id.

48 Id.

49 Id.

50 Id.

51 No. 28138 (Mo. App. S.D. August 15, 2007).

52 Id. at 6-7.

53 579 S.W.2d 113 (Mo. banc 1979),

54 Kimes at 4.

55 648 S.W.2d 927, 930 (Mo. App. E.D. 1983).

56 Kimes at 8.

57 Id. Citing People v. Olsen, 239 N.E.2d 354 (N.Y. 1968).

58 Kimes at 8.

59 Id. at 9.

60 Hickman v. Branson Ear, Nose & Throat, No. 27648 (Mo. App. S.D., August 29, 2007).

61 Id. at 2.

62 Id. at 2.

63 Id. at 4.

64 Id.

65 Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995).

66 Montgomery v. South County Radiologists, 168 S.W.3d 685, 691 (Mo. App. E.D. 2005).

67 Hickman at 6.

68 Id. at 13. Citing Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo. App. W.D. 1994). See also McLaughlin v. Griffith, 220 S.W.3d 319 (Mo. App. S.D. 2007).

69 181 S.W.3d 143 (Mo. App. E.D. 2005).

70 Id. at 146.

71 Hickman at 13.

72 Id. at 16.

73 Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 818 (Mo. banc 2003).

74 Brattin Ins. Agency v. Triple S Properties, Inc., 77 S.W.3d 687, 689 (Mo. App. S.D. 2002).

75 Hickman at 18.