Non-Compete Agreements Are Enforceable to Protect Trade Secrets and Customer Contacts
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Pearl Copeland and LuAnn Helms worked for Oxford Healthcare, a home healthcare provider. Each signed non-compete agreements stating that they would not work for a competing business within a radius of 100 miles from Joplin, Missouri, for a period of two years after their employment with Oxford ended. Both Copeland and Helms resigned from Oxford and went to work for Integrity, a competing home healthcare provider. Following their resignation, some of Oxford’s clients requested that the Missouri Division of Aging transfer their services to Integrity. Oxford filed suit seeking injunctive relief and damages. The trial court granted the injunctive relief, but awarded no damages. The Supreme Court affirmed the judgment for injunctive relief but remanded on the issue of damages in Healthcare Services of The Ozarks v. Copeland, #SC87083 (Mo.banc 2006).
“Non-compete agreements are typically enforceable so long as they are reasonable. In practical terms, a non-compete agreement is reasonable if it is no more restrictive than is necessary to protect the legitimate interests of the employer.”1 “Non-compete agreements are enforceable to the extent they can be narrowly tailored geographically and temporally. In addition, such restrictions are not enforceable to protect an employer from mere competition by a former employee, but only to the extent that the restrictions protect the employer’s trade secrets or customer contacts.”2
‘“Customer contacts’ has been defined as ‘essentially the influence an employee acquires over his employer’s customers through personal contact.’”3 “The quality, frequency, and duration of an employee’s exposure to an employer’s customers are crucial in determining the covenant’s reasonableness.”4 The purpose of a non-compete agreement is to keep the covenanting employee out of a situation in which he might be able to make use of contacts with customers to his former employer’s disadvantage.”5 “Enforcing non-compete agreements involves a delicate balance of practical business considerations. While the former employee is free to compete, the former employer is entitled to utilize non-compete agreements to protect itself from unfair competition by misuse of its trade secrets or misuse of the employee’s customers[’] contacts developed at its expense. ‘Protection of the employer, not punishment of the employee, is the essence of the law.”’6
“Non-compete agreements are considered contracts in restraint of trade.”7 “Missouri courts have[, however,] carved out narrow exceptions for trade secrets and customer contacts.”8 Schmersahl, 28 S.W.3d at 349; West Group Broad. v. Bell, 942 S.W.2d 934, 937 (Mo. App. S.D. 1997).
“Although non-compete agreements must be strictly construed, they are valid for limited purposes.”9 Here, Oxford “establish[ed] a protectable interest in its patient base. In a healthcare context, patients are a protectable interest just as customers are protectable in a business context.”10 Oxford had a protectable interest in its patient base; the non-compete agreements signed by Copeland and Helms were valid and enforceable. Moreover, “[n]ot-for-profit corporations are entitled to protect themselves [by non-compete agreements] just as for-profit corporations can. … Oxford’s not-for-profit status has no effect on its ability to protect itself from unfair competition by way of non-compete agreements.”11 “Oxford is entitled to damages for the loss of any patient who left Oxford” for Integrity, “assuming such damages are proven.”12
In Product Liability Case Against Tobacco Companies. Plaintiff Not Required to Introduce Evidence of Reasonable Alternative Design/Risk-Utility; Judicial Notice Not Taken on Dangers of Smoking; Jury Was Properly Instruced on Comparative Fault
Michael Thompson smoked cigarettes for 30 years, beginning in 1964 when he was 14. In 1997, he “was diagnosed with laryngeal (throat) cancer, which required four surgeries and radiation treatment.”13 In 2000, he sued Brown & Williamson Tobacco Company and Phillip Morris, the manufacturers of the cigarettes he smoked, seeking damages for his cancer on the theories of negligence and strict product liability. At trial, he “testified that he remembered seeing…[the] warning messages” on the cigarette packages, “but they had no effect on his decision to smoke.”14 He tried to quit smoking on several occasions, but became too stressed out and went back to smoking. “He said that he did not know that nicotine was addictive,” nor “that the symptoms he felt [when he quit] were those of withdrawal from the nicotine. He switched to…‘light’… cigarettes, which were advertised as yielding less tar and nicotine,…but did not know that he was likely getting the same amount of tar and nicotine.”15 Before trial, defendants withdrew their affirmative defense of comparative fault, but the trial court submitted a comparative fault instruction to the jury. The jury awarded Thompson damages of $1,593,000.00, and assessed 50% fault to Thompson, 40% to Phillip Morris and 10% to Brown & Williamson. Defendants appealed, and the Court of Appeals affirmed in Thompson v. Brown & Williamson Tobacco Corporation, No. WD 63897 (Mo. App. W.D. 2006).
Although defendants contend that Thompson failed to make a submissible case by failing to introduce evidence of an alternative design that would have prevented his injuries, the Missouri Supreme Court has consistently rejected the reasonable alternative design/risk-utility test of the Restatement (Third) of Torts. “To establish liability in a design defect case, the plaintiff bears the burden of proving that the product, as designed, is unreasonably dangerous and, therefore ‘defective.”’16 “Under Missouri’s strict tort liability, a product’s design is deemed defective when a preponderance of evidence shows that the design renders the product unreasonably dangerous.”17 “Under Missouri law,…Thompson was not required to prove the existence of a reasonable alternative design in order to make a submissible case.”18 Also, Congress has not preempted state law liability claims. Thompson presented sufficient evidence to make a submissible case on his claim that the cigarettes manufactured by defendants were unreasonably dangerous. The “evidence was sufficient to make a submissible case that the tobacco companies knew that the design of their cigarettes contained addictive nicotine and carcinogenic substances, and was [also] sufficient for the jury to find that the products were unreasonably dangerous as designed. Th[e] evidence went beyond [the] categorical attack on the danger of cigarettes in general and showed evidence of specific design choices by [the defendants] that had the potential to affect Thompson’s health during the time period he smoked.”19
Defendants also contend that because “the risks associated with smoking were commonly known”20, they had no duty to design their cigarettes to protect Thompson and no duty to warn him of the danger of cancer due to smoking. “This is an issue of first impression in Missouri.”21 “The main inquiry in a strict liability case ‘is whether the product – because of the way it is designed – creates an unreasonable risk of danger to the consumer or user when put to normal use.”22 “Missouri has long recognized that a manufacturer has the duty to warn ultimate users of its products…which are inherently dangerous or are dangerous because of the use to which they are put.”23 “[T]he open and obvious exception to the duty to warn in a negligence claim” generally requires either a visibly observable open and obvious danger or that the injured party “had actual knowledge of the specific danger.”24
The court finds “that reasonable minds could differ as to whether public knowledge about the health risks of developing laryngeal cancer and nicotine addiction from smoking cigarettes was so certain and generally known that [defendants] had no duty to warn Thompson of the dangers. Thus, that issue was for the jury to decide.”25 “[T]he simple fact that courts disagree about whether or not to take judicial notice of” the common knowledge of dangers from smoking “further illustrates…that this fact is subject to considerable [debate], such that taking judicial notice of it would be improper.”26 Thompson presented evidence that, “prior to 1969, there were no labels on cigarettes warning of the dangers of addictive nicotine or carcinogens that could cause…cancer. [He] testified that he was not aware of these dangers and would not have become a ‘confirmed…smoker’ if he had had [those] specific warnings. The issue of whether an adequate warning would have altered Michael Thompson’s behavior was properly submitted to the jury.”27
Thompson’s treating physician “testified to a reasonable degree of medical certainty that Michael Thompson’s cancer was caused by”28 a history of smoking. “[D]efendant’s negligence need not be the sole cause of the plaintiff’s injury, but simply a cause or contributing cause.”29 Thompson’s evidence, taken as a whole, “was sufficient to establish causation under Missouri law that Michael Thompson’s smoking [of] cigarettes caused or contributed to cause his cancer and [this issue] was properly submitted to the jury for their consideration.”30
The trial court did not err in instructing the jury on comparative fault, even though defendants withdrew their affirmative defense of comparative fault. Defendants “attempted to turn the concept of comparative fault from a shield into a sword.”31 “To permit the defendants…to withdraw consideration of comparative fault from the jury in this case would negate the clear intent of the legislature and the courts to enact comparative negligence and would effectively reinstate the concept of contributory negligence.”32 “Although a defendant may withdraw an affirmative defense, once the issue of a plaintiff’s fault has been injected into the case by substantial evidence, the plaintiff may still request an instruction on comparative fault.”33 “The determinative factor in deciding whether comparative fault is applicable in a particular case depends on the sufficiency of the evidence presented.”34 Substantial evidence exists in this record to support the giving of the comparative fault instruction. “Comparative fault is not merely an affirmative defense, which the defendants have a right and an obligation to plead if they choose. It is a substantive basis of liability which applies to the very core of the manner in which the claim is proven or not proven, and the State of Missouri has chosen for reasons of fairness to adopt a system of comparative apportionment of fault. To permit a defendant to withdraw comparative fault from the jury’s consideration would have the effect of reinstating contributory negligence as a complete bar to a plaintiff’s claim.”35
Trial Becomes Complete When the Jury is Discharged
Carolyn Franklin filed a personal injury action against Southwestern Bell Telephone Company to recover damages for personal injuries she suffered in an automobile collision. The jury returned a verdict that assessed 50% fault to plaintiff and 50% fault to defendant and awarded damages of $10,000. Nine jurors signed the verdict. After the verdict was read, the jury was polled. Nine jurors affirmed that the verdict was theirs. The trial court announced that it accepted the verdict and thanked the jury; the jurors were told that they could leave. After an off-the-record discussion with the attorneys, a record was made during which the jury foreperson explained that she had felt pressured to sign the verdict. Plaintiff moved for a mistrial, which the trial court granted. Defendant subsequently filed a motion for entry of judgment in accordance with the jury verdict. The trial court set aside its order declaring a mistrial and entered judgment on the verdict. The Court of Appeals affirmed the entry of judgment in Franklin v. Southwestern Bell Telephone Company, 195 S.W.3d 524 (Mo. App. E.D. 2006).
“The trial court had no power to declare a mistrial after the trial had concluded. ... A court may declare a mistrial before the jury returns a verdict; but after a verdict has been returned, the trial is complete. Once a trial is concluded, a trial court can no longer grant a motion for mistrial ….A trial court order declaring a mistrial after the conclusion of the trial is a nullity.”36 Missouri courts “recognize[] the inherent power of a trial court to revoke, set aside, or disregard its words discharging the jury or recording the verdict while the jury was still within its control in order to salvage an improper verdict and avoid a retrial.”37 “[B]efore a judgment may be entered on a verdict, the trial court must determine that ‘the jury intended its decision to be final and determinative.’”38 “Whether a finding is made by the jury and is intended by the jury to be its final decision are matters of fact for determination by the trial court considering the totality of the circumstances.”39 It is “not necessary for the trial court to have ‘recorded’ the verdict in order for the verdict to be final.”40 Here, “the trial court accepted the verdict and discharged the jury.”41 After the jury had been discharged, “the trial was complete, and [the trial court] could not declare a mistrial.”42
Rezoning of Property Did Not Constitute Unconstitutional Taking
Dianna Reagan purchased property “in St. Louis County for $134,000, with the intention of constructing an office building” on it.43 “At the time she purchased it, the property was zoned …[i]ndustrial and an office building was a permissible use.”44 “In preparation for construction” of the office building, she “demolished three dilapidated structures” and “removed asbestos.”45 The property was located between two residential subdivisions. The St. Louis County Council “introduced a resolution to rezone [this] property to residential, after receiving complaints from homeowners in the neighboring area.”46 At the public hearing, 85 people expressed support for the rezoning, with three people in opposition. The county planning commission recommended rezoning to residential and the county council rezoned it to residential. Reagan filed suit against St. Louis County alleging that the rezoning was “an unconstitutional taking without just compensation” and a violation of “her substantive due process rights.”47 While the suit was pending, she sold the property for $171,969.31. The trial court entered judgment for Reagan finding that the rezoning reduced the property value by $65,300 and awarded her that amount in damages, plus attorney’s fees. The Court of Appeals reversed, however, in Reagan v. County of St. Louis, No. ED 85763 (Mo. App.E.D. 2006).
A regulatory taking occurs when a regulation enacted by the government goes too far.”48 “There are no ‘set formulas’ for determining [this; the] courts make that determination on a case-by-case basis.”49 “There are two situations where a landowner is entitled to compensation for a per se regulatory taking[:]” “(1) [when] the government causes a landowner to suffer an actual physical invasion of [his or] her property; and (2) [when] a regulation completely deprives a landowner of all economically beneficial or productive use of [the] land.”50 Here, there was no per se taking. When there is no per se taking, the “courts must make a case-specific factual inquiry, utilizing three factors, to determine whether the government’s regulation resulted in a compensable taking.”51 Those three “factors are: (1) ‘the economic impact of the regulation;’ (2) ‘the extent to which the regulation has interfered with distinct investment-backed expectations;’ and (3) ‘the character of the governmental action.’”52 This is known as the Penn Central balancing test. None of the three factors are singularly dispositive.
All three factors favor St. Louis County. First, the landowner was able to sell the property under the residential zoning for a 28% appreciation. Thus, “the economic impact of the rezoning … [was] insufficient to support the Landowner’s takings claim.”53 Second, because the property was adjacent to two residential subdivisions, the landowner’s expenditures on the property were not reasonable investment-backed expectations. “It is not reasonable for a landowner to presume that the zoning of ... property will remain indefinitely.”54 “This is particularly true here, where the industrial zoning of [the] property was inconsistent with the residential nature of the surrounding neighborhood. The County had the right to promote the general welfare by rezoning … [it] to make it compatible with the uses adjacent to it.”55
Third, St. Louis “County did not physically invade Landowner’s property. It merely rezoned [it] to make it compatible with the” surrounding areas.56 Because “all three factors of the Penn Central balancing test are in favor of” St. Louis County, the trial court’s judgment awarding damages and attorney’s fees is reversed.57 St. Louis County’s rezoning of the property did not constitute a compensable taking under Article I, Section 26 of the Missouri Constitution. Moreover, the action taken by St. Louis County was not truly irrational and did not violate the landowner’s substantive due process rights under 42 U.S.C. §1983. “To be truly irrational, the County’s action had to be ‘… more than … arbitrary, capricious, or in violation of state law.”’58 “The theory of substantive due process is properly reserved for truly egregious and extraordinary cases.”59 The rezoning by St. Louis County did not rise to that level.
Expert Testimony Was Inadmissible Because It Was Not Supported By Facts in the Record
Rebecca Thomas filed a slip and fall negligence claim against Festival Foods. In trial, Thomas “present[ed] expert testimony from a retail store consultant.”60 The expert testified that the store’s policies and procedures for floor maintenance were inadequate because the floor inspections were not regularly documented on a log sheet. He expressed the opinion that the water on the floor that caused Thomas to slip had been there for an unreasonable period of time, but admitted that he did not know how long the water had been standing. His opinion relied solely on the fact that the store did not document the inspections conducted on the date of the accident. The jury awarded Thomas $300,000, but the Court of Appeals reversed and remanded for a new trial in Thomas v. Festival Foods, No. WD 65034 (Mo. App. W.D. 2006).
“Expert testimony is permitted under Section 490.065.1, RSMo., 2000, when scientific, technical, or other specialized knowledge will assist the trier of fact’s understanding of the evidence or determination of the facts at issue. The expert’s opinion must be based on facts in evidence, and those facts must be substantial and probative.”61 “Expert testimony is allowed only when the expert’s competence on the subject is superior to that of an ordinary juror and the expert’s opinion aids the jurors in deciding an issue in the case.”62 “In general, the trial court has discretion to admit or exclude expert testimony; absent a showing of discretional abuse, we will not interfere with such decisions on appeal. However, the issue of whether an expert’s opinion is supported by facts in evidence is a question of law, reviewed de novo and without deference to the trial court’s ruling.”63
Here, the expert’s “opinion that the water was on the floor for an unreasonable period of time was unsupported by any facts in the record. [His] opinion was inadmissible, and … the jury should not have been allowed to consider it in determining whether [the store] knew water as on the floor and failed to remove it or warn of the danger. The [expert’s] opinion addressed one of the ultimate issues in the case and clearly could have affected the jury’s verdict.”64 While the entire testimony of the expert was not necessarily inadmissible, “the trial court should have excluded his opinion that [the store] ‘should have known about the water on the floor … prior to the time Ms. Thomas fell.’”65 This opinion was not a proper subject for expert testimony.
Venue is Determined Solely By Statute
Kenneth Sanders filed a personal injury suit against Kent Harness arising out of a tractor accident that occurred on property owned by Harness in Clark County. Sanders filed his suit in the circuit court of the City of St. Louis. Harness filed a motion to transfer for improper venue, supported by an affidavit stating that he was a resident of Clark County. The response filed by Sanders stated that Harness had an Iowa mailing address. The trial court denied Harness’s motion, but the Court of Appeals issued its oder in prohibition directing the trial court to transfer the case to the circuit court of Clark County in State of Missouri, ex rel. Harness v. Grady, No. ED 87819 (Mo. App. E.D. 2006).
“Venue is a designation of the location or geographical situs where the court has jurisdiction to act in a particular lawsuit.”66 “Improper venue is a fundamental defect, and a court that acts when venue is improper acts in excess of its jurisdiction.”67 “Prohibition lies to bar the trial court from taking any further action other than to transfer the case to a proper venue.”68 “Venue is determined solely by statute.”69 Section 508.010 RSMo. states that “when the defendant is a Missouri resident, a suit shall be brought either in the county in which the defendant resides, or in the county in which the plaintiff resides and the defendant may be found.”70 Here, Harness filed an affidavit and other evidence confirming that he resided in Clark County. Even though Harness may have received mail at an Iowa post office because of its proximity to his home, that did not establish his place of residence. Under § 508.010 RSMo, venue is proper in Clark County, and “[t]he circuit court acted in excess of its jurisdiction when it denied the [defendant’s] motion to transfer for improper venue.”71
Statute of Limitations — Failure to Inform Exception
In 1998, “Lonnie Davidson underwent an excisional biopsy on his right cervical lymph node. The biopsy specimen was sent to” “Dr. Lazcano[, who] issued a report … stat[ing] that the specimen showed malignant lymphoma.”72 Based on that report, Davidson underwent radiation treatment that was completed in 1999. In 2000, Davidson obtained a second opinion from a physician who had his biopsy specimen reanalyzed. The pathologist who reanalyzed the specimen made a diagnosis that it was benign. In 2002, Davidson filed a medical negligence action against Dr. Lazcano. The trial court found that the action was barred by Section 516.105 RSMo., and the Court of Appeals affirmed in Davidson v. Lazcano, No. ED 86427 (Mo. App. E.D. 2006).
There are four circumstances that can toll the two-year statute of limitations under Section 516.105 RSMo. They are: (1) the foreign object exception, (2) the failure to inform exception, (3) the minor child exception, and (4) the continuing care exception. The plaintiff here invokes the “failure to inform” exception. The “failure to inform” exception was added by the legislature in 1999 following the Missouri Supreme Court decision of Weiss v. Rojanasathit, 975 S.W.2d 113 (Mo.banc 1998). “[T]he evil that the [Missouri legislature] sought to address in enacting [this] exception was the situation where a health care provider negligently fails to inform a patient of a test result. There is nothing … to suggest that the legislature intended to enact an exception that encompasses those situations where the health care provider communicates test results, which are later discovered to be erroneous.”73
“Missouri courts have consistently refused to adopt a ‘discovery’ rule for medical-malpractice claims.”74 In “plain language, the ‘failure to inform’ exception of Section 516.105(2) [RSMo.] applies to toll the statute of limitations in those situations where a health care provider has negligently failed to inform the patient of the results of medical tests. Where test results have, in fact, been communicated, regardless of their accuracy, the [“failure to inform”] exception [ to the statute] has no application.”75 Here, “Dr. Lazcano’s analysis of the biopsy specimen [was] reported to Mr. Davidson within two to three weeks of the biopsy in 1998. As such, the ‘failure to inform’ exception set forth in Section 516.105(2) does not apply in this case to toll the statute of limitations.”76 Davidson’s lawsuit, “filed nearly four years after the act of neglect [alleged], is barred by the statute of limitations … in section 516.105 [RSMo].”77 “We are mindful that [this] holding may deny an effective remedy to certain victims of medical malpractice who have sustained damages as a consequence of negligently performed medical tests” that are not discovered “prior to the running of the statute of limitations.”78 This argument, however, has been rejected by the Missouri legislature and the court is “constrained by the language of the statute as it is written.”79
Footnotes
1 Am. Pamcor, Inc. v. Klote, S.W.2d 287, 290 (Mo. App. E.D. 1969).
2 See Osage Glass v. Donovan, 693 S.W.2d 71, 73-5 (Mo. banc 1985); Schmersahl, Treloar & Co. v. McHugh, 28 S.W.3d 345, 349 (Mo. App. E.D. 2000) (citing Cont’l Research v. Scholz, 595 S.W.2d 396, 400 (Mo. App. E.D. 1980).
3 28 S.W.3d at 349.
4 Washington County Mem’l Hosp. v. Sidebottom, 7.S.W.3d 542, 545 (Mo. App. E.D. 1999).
5 693 S.W.3d at 75.
6 Superior Gearbox v. Edwards, 869 S.W.2d 239, 247 (Mo. App. S.D. 1993).
7 Sturgis Equipment. v. Falcon Indus. Sales, 930 S.W.2d 14, 16 (Mo. App. E.D. 1996); House of Tools and Eng’g v. Price, 504 S.W.2df 157, 159 (Mo. App. E.D. 1973).
8 Schmersahl, 28 S.W.3d at 349; West Group Broad. v. Bell, 942 S.W.2d 934, 937 (Mo. App. S.D. 1997).
9 Healthcare Services of the Ozarks v. Copeland, #SC87083 (Mo. banc 2006).
10 7.S.W.3d at 545.
11 Healthcare Services of the Ozarks v. Copeland, #SC87083 (Mo. banc 2006).
12 Id.
13 Thompson v. Brown & Williamson Tobacco, WD 63897 (Mo. App. W.D. 2006)
14 Id.
15 Id.
16 Stinson v. E.I. DuPont De Nemours, 904 S.W.2d 428, 431 (Mo. App. W.D. 1995).
17 Id.
18 Thompson v. Brown & Williamson Tobacco, WD 63897 (Mo. App. W.D. 2006).
19 Id.
20 Id.
21 Id.
22 Nesselrode v. Executive Beechcraft, 707 S.W.2d 371, 375 (Mo. banc 1986).
23 Hill v. Gen. Motors, 637 S.W.2d 382 (Mo. App. E.D. 1982) (citing Orr v. Shell Oil Co., 177 S.W.2d 608, 612 (Mo. 1943)).
24 Thompson v. Brown & Williamson Tobacco, WD 63897 (Mo. App. W.D. 2006).
25 Id.
26 Id.
27 Id.
28 Id.
29 Nisbet v. Bucher, 949 S.W.2d 111, 115 (Mo. App. E.D. 1997).
30 Thompson v. Brown & Williamson Tobacco, WD 63897 (Mo. App. W.D. 2006).
31 Id.
32 Id.
33 Monteith v. Cundall, 830 S.W.2d 466, 469 (Mo. App. E.D. 1992).
34 Rudin v. Parkway Sch. Dist., 30 S.W.3d 838 (Mo. App. E.D. 2000) (citing Earll v. Consol. Aluminum, 714 S.W.2d 932, 937 (Mo. App. E.D. 1986).
35 Thompson v. Brown & Williamson Tobacco, WD 63897 (Mo. App. W.D. 2006).
36 Franklin v. Southwestern Bell Telephone, 195 S.W.3d 524, 526 (Mo. App. E.D. 2006).
37 Id.
38 Delaney v. Gibson, 639 S.W.2d 601, 603 (Mo. banc 1982).
39 Id.
40 195 S.W.3d at 528.
41 Id.
42 Id.
43 Reagan v. County of St. Louis, ED 85763 (Mo. App. E.D. 2006)
44 Id.
45 Id.
46 Id.
47 Id.
48 Clay County ext rel. County Comm’n v. Harley and Susie Bogue, Inc., 988 S.W. 102, 106 (Mo. App. W.D. 1999).
49 Id.
50 Id.
51 See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).
52 Id.
53 Reagan v. County of St. Louis, ED 85763 (Mo. App. E.D. 2006).
54 Id.
55 Id.
56 Id.
57 Id.
58 Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992).
59 Id. At 1005 (quoting Myers v. Scott County, 868 F.2d 1017, 1019 (8th Cir. 1989).
60 Thomas v. Festival Foods, WD 65034 (Mo. App. W.D. 2006).
61 Robinson v. Empiregas Inc. of Hartville, 906 S.W.2d 829, 842 (Mo. App. S.D. 1995).
62 Vittengl v. Fox, 967 S.W.2d 269, 279 (Mo. App. W.D. 1998).
63 906 S.W.2d at 842.
64 Thomas V. Festival Foods, WD 65034 (Mo. App. W.D. 2006).
65 Id.
66 State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 196 (Mo. banc 1991).
67 State ex rel. Green v. Neill, 127 S.W.3d 677 (Mo. banc 2004).
68 Id.
69 State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001).
70 State ex rel. Harness v. Grady, ED 87819 (Mo. App. E.D. 2006).
71 Id.
72 Davidson v. Lazcano, ED 86427 (Mo. App. E.D. 2006).
73 Id.
74 Id.
75 Id.
76 Id.
77 Id.
78 Id.
79 Id.