Missouri Dam and Reservoir Safety Law is Not Unconstitutional as a Retrospective Law
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
"Rainbow Lake Dam, located in Greene County, was constructed in 1974, and is 40 feet high and 500 feet long. In 1979, the Missouri Dam and Reservoir Safety Law, sections 236.400 to 236.500 RSMo, became effective.”
1 In 1995, Paul and Marilil Olive purchased land on which Rainbow Lake Dam is located. In 2000 and 2001, the Olives filed for an agricultural exemption for their dam, which was not granted by the Department of Natural Resources. In 2001, the Missouri Dam and Reservoir Safety Council issued a notice of violation to the Olives. Later in 2001, the state filed suit against the Olives alleging “that the dam . . . failed to meet the registration permit requirements because of insufficient design and capacity of the emergency spillway.”
2 The state also requested an order compelling the Olives to submit a construction permit detailing repairs and improvements to eliminate the defects in the dam, to complete these improvements, and to conduct an as-built survey of the dam. The Olives filed a motion for summary judgment alleging that the permitting requirements are unconstitutional as a law retrospective in operation for dams built before the law’s effective date. The trial court granted summary judgment to the Olives, but the Supreme Court of Missouri reversed in
State ex rel. Koster v. Olive.
“All citizens hold their property subject to a reasonable exercise of police power. City of St. Louis v. Brune, 515 S.W.2d 471, 474 (Mo. banc 1974). . . . The function of police power has been held to promote the health, welfare and safety of the people by regulating all threats harmful to the public interest, and the legislature is afforded wide discretion to exercise this power. See Craig v. City of Macon, 543 S.W.2d 772, 774 (Mo. banc 1976). . . . Statutes enacted under the police power for the protection of the public health or safety are valid so long as they bear a reasonable and substantial relationship to the public health, welfare or safety. Brune, 515 S.W.2d at 474. . . . Property owners may lawfully be required to alter or reconstruct existing buildings without compensation when such alteration or reconstruction is reasonably necessary to ensure the public safety or to protect the public health. See Kalbfell v. City of St. Louis, 211 S.W.2d 911, 916-17 (Mo. 1948). . . .”2
“The requirement that owners of dams or reservoirs comply with the permitting requirements is a legitimate exercise of police power. The construction, operation and management of dams and reservoirs have important consequences for public safety. Failure of dams and reservoirs can result in the loss of life, economic disaster, and extensive environmental and property damage. The permitting requirements, which require property owners to comply with the safety rules and regulations, are intended to prevent such disaster and to protect the public interest. Further, all dams in operation, including those in existence when the act took effect, are legitimate public safety concerns.”3
“A law is retrospective in operation if it takes away or impairs a vested or substantial right. See Beatty v. State Tax Comm’n, 912 S.W.2d 492, 496 (Mo. banc 1995). A vested right ‘must be something more than a mere expectation based upon an anticipated consequence of the existing law.’ Id. ‘Neither persons nor entities have a vested right in a general rule of law or legislative policy that would entitle either to insist that a law remain unchanged.’ Id.”4 “The permitting requirements, as applied to owners of dams in existence when the act took effect, do not operate retrospectively. . . . The dam’s present use and its present ability to hold back substantial amounts of water is the issue. The duty imposed to obtain a registration permit is based on the current existence, operation and safety of the dam.”5
Plaintiff May Add Party to Defeat Defendant’s Motion to Transfer Venue
Lauren Cockerell was driving a car at the time of a train-car collision with a Kansas City Southern train in Louisiana. Hannah McFarland was a passenger in the Cockerell vehicle and died in the collision. The McFarlands and Cockerells filed suit against Kansas City Southern Railway Company in Jackson County Circuit Court. Kansas City Southern filed a motion to transfer venue pursuant to Supreme Court Rule 51.045, contending that the only proper venue was in St. Louis County, because the plaintiffs were injured outside of Missouri, none of the plaintiffs were Missouri residents, and the registered agent for Kansas City Southern was located in St. Louis County.
After the motion to transfer venue was filed, the “plaintiffs sought leave to add railway employee Kevin McIntosh, a resident of Jackson County, as a defendant in the case. The trial court granted plaintiff’s motion for leave to add McIntosh” and denied Kansas City Southern’s motion to transfer venue.6 The Supreme Court held that the trial court did not err in State ex rel. The Kansas City Southern Railway Company v. Nixon.
“This Court formerly severed the concepts of jurisdiction and venue in State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820 [(Mo. banc 1994)].”7 “Though not a jurisdictional requirement, trial courts do have a ministerial duty to transfer cases to correct venues. Id. at 821. It follows that an appellate court may issue an extraordinary writ requiring that the circuit court transfer a case to the proper venue, particularly when issuance of the writ is necessary to prevent unnecessary, inconvenient and expensive litigation. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856 (Mo. banc 2001). The question presented here is whether the ministerial duty to transfer venue must be exercised immediately, requiring that the circuit court take no other action. The word ‘shall’ appears throughout statutes and rules relating to this subject, though the phrase ‘shall only’ and other similar command does not.”8
“[W]here, as in this case, the addition of a party cures a defect in venue, the case should remain in the court where venue is proper considering the newly added party.”9 “There are two reasons to allow a judge to grant leave to amend a party before acting on the motion to transfer. The first is that neither section 476.410, RSMo. 2000, nor Rule 51.045 requires the circuit court to stop everything and transfer the case.”10 “The second reason for allowing an amendment before ruling on the motion to transfer is practical. If the court immediately had ordered the case transferred to St. Louis County, as the railway urged, the plaintiffs could have dismissed the action without prejudice under Rule 67.02 and filed a new petition in Jackson County naming the railway and McIntosh as defendants. And, of course, venue would be proper. Time and money would be wasted in this process and the ultimate effect would be nil. The resulting amendment to the pleading – i.e., the addition of McIntosh as a defendant – rendered venue in Jackson County proper.”11 “The trial court did not err in overruling the railway’s motion to transfer.”12 (While conceding that the principal opinion offered a practical approach, the dissent stated that when a rule uses the word “shall” it should mean “shall.”)
Municipal Charter Provision is Valid if Consistent With The Missouri Constitution and State Laws
A group of Kansas City residents formed a committee that collected sufficient signatures on an initiative petition to submit to the voters of Kansas City a transportation sales tax to construct a light rail system in Kansas City. Kansas City is a constitutional charter city. After receiving the initiative petition, the city council of Kansas City placed the “light rail” ordinance on the November 2006 ballot, and the voters approved it. One year later, the city council repealed the light rail ordinance under the authority of Section 704 of the Kansas City Charter. In repealing the ordinance, the city council noted that studies conducted on the cost of the light rail plan indicated it could not be constructed or maintained within the budget outlined in the proposed ordinance. The citizens' committee filed suit against the City of Kansas City, alleging that § 704 of the city charter was unconstitutional and requesting that the trial court issue an order requiring the city to implement the light rail ordinance. The trial court granted the city’s motion to dismiss and the Court of Appeals affirmed in State of Missouri ex rel. Chastain v. City of Kansas City.13
“The powers of a municipality under the Missouri Constitution have been defined as follows. Municipal charters are a charter city’s organic law, its constitution. Mo. Const. Art. VI, § 19(a); State ex rel. Childress v. Anderson, 865 S.W.2d 384, 387 (Mo. App. [S.D.] 1993). A municipal charter is adopted by a vote of the citizens of a municipality. Mo. Const. art. VI, § 19(a); State ex rel. Petti v. Goodwin-Raftery, 190 S.W.3d 501, 505 (Mo. App. [E.D.] 2006). In granting a city the ability to adopt and amend a charter, the Missouri Constitution reflects a city’s “‘broad authority to tailor a form of government that its citizens believe will best serve their interest.’” State ex rel. Petti, 190 S.W.3d at 505 (quoting City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo. banc 1996)). The only limitation of a municipality’s authority to tailor its government is that the charter must be consistent with and subject to the Missouri Constitution and state laws. Mo. Const.Art. VI, § 19(a); State ex rel. Childress, 865 S.W.2d at 387. ‘If consistent with and subject to the constitution and laws of this state, charter provisions have the force and effect of enactments of the legislature.’ State ex rel. Petti, 190 S.W.3d at 505. “‘In construing city charter provisions, courts seek the intent of its drafters as gleaned from the language used.’” Skaggs v. City of Kansas City, 264 S.W.3d 694, 698 (Mo. App. [W.D.] 2008) (citing Client Servs. Inc v. City of St. Charles, 182 S.W.3d 718, 724 (Mo. App. [E.D.] 2006)).”14
“The power created by a municipal charter derives from the citizens of the municipality. State ex rel. Childress, 865 S.W.2d at 387. The citizens, alone, delegate their power to representative instruments such as the municipal charter. Id. While Article III, §49, of the Missouri Constitution sets forth the power reserved to the people of Missouri to propose and enact state laws by initiative, the powers reserved to a municipality with respect to enacting municipal ordinances by initiative are defined and limited by the charter. State ex rel. Petti, 190 S.W.3d at 505.”15
“Because there is no constitutional right to initiate laws at the municipal level and citizens of a municipality possess broad authority to tailor municipal charters as they see fit, the Missouri Constitution is not violated by charter provisions, such as section 704, that permit interference with the initiative process at the municipal level. The will of the citizens of Kansas City is set forth in the Kansas City Charter.”16
“[T]he citizens reserved the power to initiate ordinances, but also granted the Council power to repeal any initiated ordinance. The Council’s power to repeal initiated ordinances derives directly from the authority delegated to it by the citizens of Kansas City.”17 “The power that the citizens of Kansas City expressly reserved to the Council to repeal voter initiated ordinances is not in violation of . . . the Missouri Constitution.”18
City Liable for Wrongful Demolition Due to Failure to Give Property Owner Adequate Notice
Millard Arbogast and Zoie Helms owned property on Quincy Street in the City of St. Louis. After a fire caused damage to the building, the owners performed some repairs. Although the owners boarded-up the building, squatters would take down the boards and stay in the building. A city inspector determined that the structure violated the city’s building code and should be condemned. The city served notice of condemnation and potential demolition on the owners by posting the notice on the outside of the property and sending it by regular mail. When the property owners did not remedy the building code violations or appeal the city’s decision to condemn, the city demolished the structure on the property. The owners then filed a wrongful demolition claim against the city. They testified that they never saw the notice posted on the property and never received the mailed notice. The jury awarded the owners $65,000 on their wrongful demolition claim and the Court of Appeals affirmed in Arbogast v. City of St. Louis.19
“While ‘[d]ue process does not require that a property owner receive actual notice before the government may take his property,’ the government must provide ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ Jones v. Flowers, 547 U.S. 220, 226 (2006).”20 Here, the city posted a copy of the condemnation notice on the property and mailed a copy of the notice by regular mail to the address of the property owners as recorded in the City Assessor’s Office. The “posted notice was not reasonably calculated to reach” the property owners.21 The city inspector stated she was aware that squatters who wanted to live in condemned properties would tear down boards and condemnation notices from the outside of those properties. She confirmed that it was “quite common for squatters or vandals to take down condemnation notices … immediately after she posted them.”22 This testimony shows that the posting of the condemnation notice “would not have been what someone desirous of actually informing [the owners] about the condemnation and potential demolition of their property would do to accomplish notice. See Jones, 547 U.S. at 229.”23 “[T]he city’s posted notice was not reasonably calculated to reach the property owners.”24
“Under most circumstances, notice sent by mail is deemed reasonably calculated to apprise interested parties that their property rights are in jeopardy. Weigner v. City of New York, 852 F.2d 646, 650 (2d Cir. 1988). But in some special circumstances, mailed notice may be inadequate and due process may require the government to do something more than sending a letter to the address on file. Id. at n.4. These special circumstances include: (1) where the government knows that an interested party does not reside at the mailing address and knows that the interested party could not have access to the address; (2) where the recipient is known to be a person who could not understand the mailed notice; and (3) where the government learns that the mailed notice is returned by the post office before the taking occurs. Jones, 547 U.S. at 223-239; Robinson v. Hanrahan, 409 U.S. 38, 38-40 (1972). . . . The third special circumstance, which is discussed in Jones, 547 U.S. at 223-239, applies to this case.”25
The evidence demonstrated that the notice mailed by the city was returned to the city by the post office and that the city took no further action to notify the property owners. “Applying Jones to the facts of [this] case, we do not think that a person who actually desired to inform Plaintiffs of a condemnation and impending demolition would do nothing when the mailed notice was returned to the City and informed the City of Plaintiff’s forwarding address.”26 “[B]ecause the undisputed evidence demonstrates that the City became aware prior to the demolition that its attempt at mailed notice failed, due process required the City to take further reasonable steps if any were available. Jones, 547 U.S. at 225-239.”27 “The City’s mailed notice, which, prior to the demolition of the property was returned to the City with a forwarding address for plaintiffs, did not meet the requirements of due process.”28 “The posted notice accompanied by mailed notice was not constitutionally sufficient under the circumstances of this case.”29 “[T]he City failed to provide plaintiffs with notice, reasonably calculated under the circumstances, to apprise them of the condemnation and potential demolition of their property and afford them an opportunity to present their objections.”30 “Plaintiffs were excused from exhausting their administrative remedies because the City failed to provide them with [sufficient] notice. . . .”31
Liability for Inverse Condemnation Requires Proof of an Affirmative Act
Michael and Leslie Christ filed suit against the Metropolitan St. Louis Sewer District (“MSD”) seeking recovery for inverse condemnation. The Christs alleged that MSD allowed the sewer system to become blocked, which resulted in the backup of contaminated water into the Christ’s residence. MSD filed a motion for summary judgment contending that there was no proof of an affirmative act by MSD. The trial court granted summary judgment to MSD and the Court of Appeals affirmed in Christ v. The Metropolitan St. Louis Sewer District.32
‘“Inverse condemnation is the exclusive remedy when private property is damaged by a nuisance operated by an entity having the power of eminent domain.”’33 “The fact that MSD owns and operates a public sewer system does not alone constitute a nuisance. Id. Instead, there must be evidence that MSD was provided with notice of inadequacy of the sewer and subsequently failed to remedy the condition. [Id.] No such evidence was presented in this case.”34 “Therefore, plaintiffs could not prove the element of causation and recover on their claim for inverse condemnation and MSD was entitled to summary judgment.”35
“[P]laintiffs argue the failure to maintain and inspect the sewer system exposes MSD to liability for inverse condemnation. Essentially plaintiffs’ argument is based upon the alleged ‘inaction’ of MSD in failing to have an inspection program in place…. Missouri courts have indicated, however, that absent an affirmative act, plaintiffs cannot sustain an action for inverse condemnation. Specifically, in State ex rel. City of Blue Springs v. Nixon, 250 S.W.3d 365, 372 (Mo. banc 2008), the Missouri Supreme Court [held that] . . . there is no liability absent an affirmative act.”36 The Court cited Ressel v. Scott County,37 and also “referred to several cases cited in the Ressel opinion in which the court had rejected claims based upon the rationale that a municipality had not undertaken any affirmative conduct to cause an injury, but had merely failed to alleviate the injury. Id. at 372.”38 ‘“A failure to meet aspirational goals does not result in liability. . . .’”39 Here, MSD did not commit any affirmative act upon which liability could be based. As in State ex rel. City of Blue Springs, MSD cannot be held liable for inverse condemnation for issues based upon an alleged failure to prospectively maintain or inspect the sewers.
Advice of Counsel Defense to Malicious Prosecution Action Requires Proof of Full and Truthful Disclosure to Attorney of All Material Facts
Donald Ehrhardt and Ronald Herschend were candidates for the office of Taney County Commissioner, running in separate districts of Taney County. During the campaign, Ehrhardt placed a political advertisement in the local newspaper stating that Herschend had admitted breaking into a “locked county facility.” In a later advertisement, Ehrhardt retracted the assertion. Herschend then filed a defamation suit against Ehrhardt. Ehrhardt was granted summary judgment, which was not appealed. Ehrhardt then filed a malicious prosecution action against Herschend. The trial court granted summary judgment to Herschend, finding that Herschend’s defamation suit against Ehrhardt was based on advice of counsel. The Court of Appeals reversed, however, in Ehrhardt v. Herschend.40
“The elements for a cause of action for malicious prosecution are: (1) previous commencement of a lawsuit against plaintiff; (2) instigated by defendant; (3) termination of the lawsuit in favor of plaintiff; (4) lack of probable cause for the instigation of the suit; (5) malice; (6) damages. Wetherill v. Hunt, 834 S.W.2d 199, 203 (Mo. App. [W.D.] 1991). A defense to an action for malicious prosecution is that the prior suit was filed on advice of counsel. See Wetherill, supra n.2. The defense of advice of counsel requires a showing that defendant made full and truthful disclosure to his attorney of all material facts prior to the filing of the previous lawsuit…. Advice of counsel is an affirmative defense, although that defense is ‘inextricably bound up with the plaintiff’s burden to demonstrate lack of probable cause.’”41
Here, the affidavits filed with defendant’s motion for summary judgment “did not identify the specific facts that defendant disclosed to his attorney.”42 “There was a conflict in whether defendant’s attorney had been shown the advertisement that was the basis for the first suit.”43 “The first suit, defendant’s defamation claim, had been determined favorably to plaintiff. This was an acquittal of defendant’s claim against plaintiff on the merits, one of the elements required to maintain an action for malicious prosecution.”44 “If any material part of the evidence showing existence or want of probable cause is in conflict, a fact issue exists that is sufficient to make a submissible case. …The case is remanded for further proceedings.”45
Exceptions to Title Insurance Policy Must Be Clear, Precise and Unambiguous
When Michael and Kimberly Crossman purchased their home, they purchased a title insurance policy from Lawyers Title Insurance Corp. Shortly after purchasing their home, a pipeline company began removing trees from their property. The Crossmans then learned that an easement for a petroleum pipeline crossed their back yard, consuming roughly half of their property. The Crossmans sought coverage under their title insurance policy, but Lawyers Title denied their claim based on an exception in the policy for “building lines and easements according to the plat thereof recorded in Plat Book 21, pp. 55-56.” This exception referred to the plat of the subdivision in which the Crossmans’ property was located. The title insurance policy did not mention a pipeline or pipeline easement. The Crossmans filed a declaratory judgment action against Lawyers Title. The trial court granted summary judgment to Lawyers Title, but the Court of Appeals reversed in Crossman v. Yacubovich.46
“Title insurance differs from most other types of insurance because it seeks to eliminate risk of loss arising from past events, rather than assuming risk of loss for future events and then distributing the risk among policy holders. Stephen M. Todd, Title Insurance, in 1 Mo. Real Estate Practice 2-1, §2.2 at 2-4 and 2-5 (Mo. Bar Ed. 4th ed. 2000). A title insurer eliminates risk by searching county records for all documents affecting title to the subject property, and analyzing those documents to determine whether any defects exist. Id. § 2.2, at 2.4. The insurer, however, must assume some risk that certain title defects will not appear in the records or will be overlooked or misinterpreted. Id.”47
‘“[P]rovisions limiting or cutting down, or avoiding liability in the coverage made in the policy are construed most strongly against the insurer.’ Foremost Construction Co. v. Killam, 399 S.W.2d 593, 596 (Mo. App. K.C. 1966). … The insurer has the burden to prove that an exclusionary clause applies. Id.”48
“Here, the [subdivision] plat, incorporated by reference and on which the policy exception relies for all meaning, fails to clearly, precisely and unambiguously identify the petroleum-pipeline easements crossing the homeowners’ property.”49 “The plat does not clearly, precisely, and unambiguously show the existence of multiple easements on the insured property.”50 Moreover, “the plat contains no terms that would clearly, precisely and unambiguously indicate to a reasonable person that the pipeline easements exist for petroleum-pipeline purposes rather than for ordinary utility purposes.”51 “An insurance policy is ambiguous if, when viewed in the meaning that would ordinarily be understood by the lay people who bought the policy, it is reasonably open to different constructions.”52 The subdivision “plat is ambiguous, which renders ambiguous the policy exception incorporating the plat. . . . [T]he title-insurance policy does not clearly, precisely and unambiguously except the petroleum-pipeline easements from coverage.”53
Statute of Limitations Begins to Run When Plaintiff’s Right to Sue Arises
In 2007, several taxpayers of Gasconade County filed suit against former commissioners of the county to recover mid-term pay increases that the commissioners received while in office during 1999 and 2000, pursuant to § 50.333, RSMo. “In 2001, the Missouri Supreme Court declared § 50.333 RSMo. invalid because it violated Article VII, Section 13 of the Missouri Constitution.”54 In 2002, the Missouri State Auditor’s Office conducted an audit of Gasconade County and concluded that the commissioners unlawfully received the mid-term pay increases. In the suit filed by the taxpayers, the trial court ordered the commissioners to repay the mid-term pay increases each had received, plus interest and attorney’s fees. The Court of Appeals reversed, however, in State of Missouri, ex rel. Gasconade County v. Jost, and held that the suit was barred by the five-year statute of limitations.
“‘Whether or not a statute of limitations applies is a question of law, which the appellate court reviews de novo.’”55 “Missouri courts have found that the five-year statute of limitations in Section 516.120.2 is appropriately applied in cases where more than one public official is named as a defendant and the cause of action is based upon the public official’s violation of or failure to follow the law. Gerken, 276 S.W.3d at 855…. A civil action upon a liability created by statute other than a penalty or forfeiture must be brought within five years. Section 516.120.2. A civil action can be commenced only within the five-year period after the cause of action accrued. Section 516.100.”56
“The cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered and full and complete relief obtained. Section 516.100….”57 “In other words, the statute of limitations begins to run when the plaintiff’s right to sue arises or when the plaintiff could first successfully maintain his cause of action. Lane v. Non-Teacher’s School Employee Retirement System of Missouri, 174 S.W.3d 626, 634 (Mo. App. W.D. 2005). This is an objective test to be decided as a matter of law. Id. ‘Under this test, a cause of action accrues when the damage can be discovered, not when it is actually discovered.’ Id. A plaintiff’s ignorance of his cause of action will not prevent the statute from running. Id. Section 516.100’s phrase, ‘capable of ascertainment’ refers to the fact of damage, but does not mandate the plaintiff know the precise amount of that damage. Id. ‘The requirement that damages be sustained and capable of ascertainment does not change the tenet that when an injury is complete as a legal injury, the period of limitations commences at once.’ Id., citing Vandenheuval v. Sowell, 886 S.W.2d 100, 102 (Mo. App. W.D. 1994). ‘Statutes of limitation are favored in the law and cannot be avoided unless the party seeking to do so brings himself strictly within a claimed exception.’ White v. Zubres, 222 S.W.3d 272, 276 (Mo. banc 2007).”58
Here, “the five-year statute of limitations began to run when [the commissioners] accepted the second mid-term pay increase in January of 2000 because the damage was sustained and was capable of ascertainment and the legal injury was complete as of that date. See City of Velda City v. Williams, 98 S.W.3d 880, 883 (Mo. App. E.D. 2003). … Although plaintiffs argue they did not actually discover the damage until the December 2002 report was issued by the State Auditor’s Office, the last pay increase received [by the commissioners] could have been discovered on January 1, 2000…. The statute of limitations ran on January 1, 2005, and, because Plaintiffs did not file their suit until February 2007, well beyond the five-year limit imposed by Section 516.120.2, Plaintiff’s claims were barred.”59
Footnotes
1 State ex rel. Koster v. Olive, No. S.C. 89752 (Mo. banc 2009).
2 Id.
3 Id.
4 Id.
5 Id.
6 State ex rel. The Kansas City Southern Railway Company v. Nixon, No. SC 89704 (Mo. banc 2009).
7 Id.
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 No. WD 70100 (Mo. App. W.D. 2009).
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 No. ED 90137 (Mo. App. E.D. 2009).
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 No. ED 92123 (Mo. App. E.D. 2009).
33 Id., quoting Basham v. City of Cuba, 237 S.W.3d 650, 653 (Mo. App. [S.D.] 2008).
34 Id.
35 Id.
36 Id.
37 927 S.W.2d 518, 521 (Mo. App. [E.D.] 1996).
38 Christ v. The Metropolitan St. Louis Sewer District, No. ED 92123 (Mo. App. E.D. 2009).
39 Id., quoting State ex rel. City of Blue Springs v. Nixon, 250 S.W.3d 365 (Mo. banc 2008).
40 No. SD 29058 (Mo. App. S.D. 2009).
41 Id., quoting Zahorsky v. Griffin, Dysart, Taylor, Penner and Lay, P.C. 690 S.W.2d 144 (Mo. App. [W.D.] 1985).
42 Id.
43 Id.
44 Id.
45 Id.
46 No. ED 91947 (Mo. App. E.D. 2009).
47 Id.
48 Id.
49 Id.
50 Id.
51 Id.
52 Id., citing Watters v. Travel Guard Int’l., 136 S.W.3d 100, 108 (Mo. App. E.D. 2004).
53 Id.
54 State of Missouri, ex rel. Gasconade County v. Jost, No. ED 91493 (Mo. App. E.D. 2009).
55 Id., quoting Gerken v. Sherman, 276 S.W.3d 844, 854 (Mo. App. W.D. 2009).
56 Id.
57 Id.
58 Id.
59 Id.