Class Action Waiver in Loan Contract Was Unconscionable
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Dequae Woods borrowed money from QC Financial Services (d/b/a Quick Cash), a payday lender. Quick Cash is a large national company that does business with people who borrow money, against their next paycheck, at interest rates exceeding 400 percent. The loan contract signed by Woods contained a mandatory arbitration clause, which prohibited both a class arbitration and also prohibited the borrower from filing a class action lawsuit. Woods filed suit against Quick Cash seeking a declaratory judgment that the arbitration clause is unconscionable. Quick Cash sought dismissal of the suit and asked the trial court to compel Woods to engage in individual arbitration. The trial court found that the clause in the loan contract prohibiting class arbitration was unconscionable and denied the request of Quick Cash that Woods be ordered to participate in an individual arbitration. “The trial court [also] ordered that [Woods’] claim be sent to the American Arbitration Association, … as provided for in the arbitration clause, without any prohibition against class arbitration, and declared that a panel of arbitrators [would] determine whether a class should be certified and damages awarded, pursuant to Missouri law.”
1 The Court of Appeals affirmed in
Woods v. QC Financial Services.
Quick Cash “is in a much superior bargaining position, the contract is presented on a take it or leave it basis and there is no negotiation between the parties.”2 Quick Cash “admits it has never negotiated the terms of the contract with any of the 400,000 customers with whom it has entered into the contract approximately 2.8 million times over the five years prior to the trial court proceeding.”3 “There is no question that Quick Cash is in a much superior bargaining position than its customers with regard to this contract.”4 Woods’ “expert testified that the spacing of the lines in the arbitration clause were so close that words from adjacent lines touched and an optical scanner was unable to make out the characters. The clause contains more than 1,300 words made to fit into one page. When presented in a double-spaced, 12 point Times New Roman font, which is how this opinion is presented, the clause is six pages long…. [T]he trial court’s finding of procedural unconscionability is supported by substantial evidence.”5
“[T]he unconscionability issue in this matter centers on access to a class-wide proceeding in the arbitral setting. A class-action waiver in a payday loan contract reduces the possibility of attracting competent counsel to advance the cause of action, and thus can functionally exculpate wrongful conduct.”6 “Individualizing each claim absolutely and completely insulates and immunizes [Quick Cash] from scrutiny and accountability for its business practices” and ‘“also serves as a disincentive for [appellant]…to avoid the type of conduct that might lead to class action litigation in the first place.’”7 ‘“Because … damages in a consumer case are often small and because “[a] company that wrongfully exacts a dollar from each of millions of customers will reap a handsome profit…the class action is often the only effective way to halt and redress such exploitation.’” Discover Bank, 36 Cal.4th at 156, 30 Cal. R.P.T.R. 3d at 82, 113 P.3d at 1105, quoting Linder v. Thrifty Oil Co., 2 P.3d 27, 39 (Cal. 2000).”8
“[T]he class action waiver in the mandatory arbitration clause of [Quick Cash’s] form loan contract of adhesion is unconscionable, as the loan contract is formed in a setting of procedural unconscionability, … and in repeated situations in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money. See e.g. Laster v. T-Mobile USA, Inc., 407 F.Supp.2d 1181, 1191-92 (S.D. Cal. 2005); Discover Bank, 36 Cal. 4th at 162, 163, 30 Cal. R.P.T.R. 3d at 87, 113 P.3d at 1110. To hold otherwise would indeed allow [Quick Cash] to continue imposing ‘its improper and deceptive charges ad infinitum since none of its customers would have a practical remedy to bring about a stop to the conduct.’”9 “A defendant cannot exculpate itself from liability unless the language is clear and unambiguous.”10
Employees on Strike Were Entitled to Unemployment Compensation Because of Unfair Labor Practices By Their Employer
In October 2001, St. John’s Mercy Health System entered into a collective bargaining agreement with the United Food and Commercial Workers Local 655 that required nurses to join the union and pay dues. It also required St. John’s to discharge nurses who failed to pay dues upon receiving written notice from the union. During 2002, the union sent St. John’s monthly notices of non-compliant nurses, but St. John’s refused to discharge those nurses because of the detrimental impact on the hospital. The union filed four unfair labor practice charges between April 2002 and December 2004. On the first three charges, St. John’s was found to have violated the collective bargaining agreement. On December 4, 2005, while negotiating a new collective bargaining agreement, the nurses gave St. John’s notice of their intent to strike. Certain nurses went on strike from December 15, 2004 to January 21, 2005, and also filed for unemployment compensation benefits. A deputy with the Division of Employment Security found the nurses ineligible because the unemployment resulted from a strike, but that decision was reversed by the Labor & Industrial Relations Commission. The Supreme Court affirmed the commission’s decision in St. John’s Mercy Health System v. Division of Employment Security.10a
“State laws regulating or prohibiting conduct protected by the National Labor Relations Act are preempted.”11 “States may make policy decisions regarding unemployment benefits. Baker v. General Motors Corp., 478 U.S. 621, 634 (1986). The payment of unemployment compensation to employees on strike is not addressed in the NLRA or Social Security Act, which shows Congress intended states to have this power. Id., citing N.Y. Tel. Co., 440 U.S. at 544.”12 “Section 288.040.6(2) [RSMo.] provides unemployment benefits to employees on strike when the employer has been found guilty of an unfair labor practice. It does not determine if a violation occurred, as that is determined by the NLRB or a federal court. Section 288.040.6(2). As states have the power to provide unemployment benefits to employees on strike, Section 288.040.6(2) is not preempted by the NLRA.”13
“At the time claimants went on strike, St. John’s unfair labor practices for failing to comply with the collective bargaining agreement by not discharging non-compliant nurses had been ongoing for over two and a half years. The record provides evidence that claimants went on strike because of the failing collective bargaining negotiations, including disagreements over the union security clause, wages and benefits. Claimants also produced evidence that they were motivated to strike, in part, in response to the ongoing unfair labor practices.”14 “Claimants [met] the requirements of Section 288.040.6(2) because the unfair labor practice occurred prior to the strike, was causally connected to the strike and there was a finding of guilt.”15
“The unfair labor practice clause serves a legitimate interest. It seeks to prevent employers from engaging in unfair labor practices by providing striking employees with unemployment benefits. Without this provision, employees must choose between allowing the unfair labor practice to continue in order to be paid and striking to end the practice without any compensation. It also can be said that striking employees are unemployed as a result of the employer’s actions; therefore, they are eligible for unemployment benefits because they are unemployed through no fault of their own. Section 288.040.6(2) is rationally related to a legitimate government interest and does not violate the federal and state equal protection clauses.”16
Wrongful Death Suit Against Nursing Home May Proceed Because Wrongful Death Claim Not Subject to Mandatory Arbitration Agreement
Dorothy Lawrence took up residence at Beverly Manor Nursing Home in March of 2003. Upon her admission, an agreement was signed by her daughter stating that all claims arising out of any services provided by Beverly Manor shall be resolved exclusively by binding arbitration. Dorothy’s daughter signed this agreement on behalf of her mother and acting in her capacity as her mother’s agent under a power of attorney. Shortly after being admitted to Beverly Manor, Dorothy died. Her son then filed a wrongful death suit against Beverly Manor. Beverly Manor filed a motion in the circuit court to compel arbitration. The circuit court denied that motion and the Supreme Court of Missouri affirmed in Lawrence v. Beverly Manor.16a
“The parties do not dispute the fact that if Dorothy Lawrence were alive, she would be bound by the arbitration agreement.”17 “The relevant question then becomes whether a suit for wrongful death can be considered derivative of any underlying tort claims that could have been brought by the deceased.”18 ‘“The wrongful death act creates a new cause of action where none existed at common law and did not revive a cause of action belonging to the deceased,’ this Court held in O’Grady v. Brown, 654 S.W.2d 910 (Mo. banc 1983) (emphasis added). ‘The right of action thus created is neither a transmitted right nor a survival right.’ Id.”19 The wrongful death statute and the cases interpreting it clearly consider wrongful death to be a cause of action separate and distinct from the underlying tort.
“Under Missouri’s wrongful death statute, the party or parties may receive ‘pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training and support of which those on whose behalf suit may be brought have been deprived by reason of such death.’ Section 537.090. … Wrongful death, therefore, is a cause of action separate from the underlying torts.”20 “Dorothy Lawrence could not be a party to a wrongful death suit resulting from her death. A claim for wrongful death is not derivative from any claims Dorothy Lawrence might have had, and the damages are not awarded to the wrongful death plaintiff on Dorothy Lawrence’s behalf.”21
Dorothy’s daughter did not sign the arbitration agreement in her individual capacity; she signed it in her capacity as her mother’s agent. “The arbitration agreement does not bind the class of wrongful death plaintiffs.”22 The concurring opinion held that requiring a resident to sign, upon admission to a nursing home, an agreement to arbitrate any personal injury claims is unenforceable as procedurally and substantively unconscionable.
On Claim of Wrongful Discharge Under Public Policy Exception to Employment-At-Will Doctrine, Plaintiff Must Prove That Plaintiff’s Protected Action Was the Exclusive Cause of the Discharge
Michelle Fleshner was an at-will employee of Pepose Vision Institute. The U.S. Department of Labor (DOL) began an investigation into the failure of Pepose to pay its employees overtime in violation of federal wage law. A DOL investigator interviewed Fleshner at the Pepose office; Fleshner consented to having the DOL investigator contact her at home. Later, the DOL investigator did contact Fleshner at home by telephone and she provided the investigator with specific information. The next day she described this conversation to her supervisor, who questioned why she had provided this information to DOL. He recommended to the wife of Dr. Pepose (who worked at the Pepose office) that Fleshner be terminated; she agreed with that recommendation. Fleshner was terminated the next day. At the trial on Fleshner’s claim for wrongful termination in violation of public policy, the jury awarded her $30,000 in compensatory damages and $95,000,000 in punitive damages. The Court of Appeals reversed and remanded, however, in Fleshner v. Pepose Vision Institute.23
“Missouri considers employees whose term of employment is not protected by contract to be employees at-will. See Johnson v. McDonnell-Douglas Corp., 745 S.W.2d 661, 663 (Mo. banc 1988); Dake v. Tuell, 687 S.W.2d 191, 192-93 (Mo. banc 1985). Under the employment-at-will doctrine, ‘an employer can discharge – for cause or without cause – an at-will employee…and still not be subject to liability for wrongful discharge.’ Dake at 193.”24 In Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. App. W.D. 1985), the Western District of the Missouri Court of Appeals recognized a public policy exception to the employment at-will doctrine. All three Missouri appellate courts have recognized and continue to recognize a public policy exception in the four categories identified by Boyle.
The public policy exception to the employment-at-will doctrine is a narrow one. “To prevail on a claim of wrongful discharge under the public policy exception, a plaintiff must prove that plaintiff engaged in one of the protected actions, that plaintiff was discharged, and that plaintiff’s protected action was the exclusive cause of the discharge.”25 ‘“For a plaintiff to meet his or her prima facie burden for wrongful discharge under the public policy exception, the plaintiff must establish an exclusive causal relationship between the discharge and the allegation of violation of public policy.’ Lynch, 901 S.W.2d at 152 (emphasis added).”26 Here, “[t]he trial court erred and misdirected the jury in failing to submit exclusive causation as a required element in the verdict directing instruction. See Lynch, 901 S.W.2d at 152. This error was prejudicial because it allowed the jury to find in plaintiff’s favor without finding exclusive causation.”27
“Punitive damages are available for a wrongful discharge claim brought under the public policy exception.”28 “Plaintiff’s common law cause of action under the Missouri public policy exception to the employment-at-will doctrine is not displaced by the [Fair Labor Standards Act] because the FLSA remedy does not ‘fully comprehend and envelop’ the common law remedies in that punitive damages are available under the common law, but not under the FLSA.”29
Arbitration Clause May Be Waived by Conduct That is Inconsistent with Arbitration and Prejudicial to the Other Party
Major Cadillac and General Motors were involved in disputes over the terms of the dealer agreement and other agreements between them. Major Cadillac filed suit against GM in Jackson County, alleging a number of claims, including fraudulent inducement, negligent misrepresentation, tortious interference with business relationship, violation of the Missouri Motor Vehicle Franchise Practices Act, breach of good faith and fair dealing, and civil conspiracy. Major Cadillac joined several GM employees as defendants in the lawsuit. GM removed the case to federal district court contending that the GM employees were fraudulently joined to destroy diversity. Major Cadillac filed a motion to remand to state court, which was granted. After the case was remanded to state court, GM filed an application for change of judge, a motion to dismiss, and also engaged in discovery. Then, GM filed a motion to compel arbitration. The trial court denied GM’s motion to compel arbitration and the Court of Appeals affirmed in Major Cadillac, Inc. v. General Motors Corp.30
“To determine whether arbitration should be compelled, the circuit court must decide if a valid arbitration agreement exists and, if so, whether the dispute fits within the scope of the arbitration clause.”31 “A party may waive a valid arbitration agreement.”32 ‘“A party waives its right to arbitrate if it: (1) had knowledge of the existing right to arbitrate; (2) acted inconsistently with that right, and (3) prejudiced the party opposing arbitration.’”33 “A court cannot properly find a party waived its right to arbitrate without first finding prejudice to the party contesting arbitration. Id. at 229. There is a strong presumption against prejudice and the party contesting arbitration has the burden to show it. Id.”
Here, “GM acted inconsistently with a right to arbitrate when it removed the case to federal court, requested a change of circuit court judge, and filed motions to dismiss….”34 In addition to the delay caused by GM, Major Cadillac claims that it was prejudiced. “Prejudice is determined on a case-by-case basis. McCarney v. Nearing, Staats, Preloger & Jones, 866 S.W.2d, 881, 890 (Mo. App. W.D. 1993). The prejudice requirement is met ‘when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.’ Boogher v. Stifel, Nicolaus & Co., 825 S.W.2d 27, 30 (Mo. App. E.D. 1992). ‘“Prejudice may result from lost evidence, duplication of efforts, use of discovery methods unavailable in arbitration, or litigation of substantial issues going to the merits.’” Nettleton v. Edward D. Jones & Co., 904 S.W.2d 409, 411 (Mo. App. E.D. 1995) (quoting McCarney, 866 S.W.2d at 890).”35 “Prejudice may be found when a party’s time and funds are expended because that party has not received the benefit of arbitration: ‘efficient and low-cost resolution of disputes.”’36
“GM’s removal of the case based on diversity jurisdiction required [Major Cadillac] to seek a remand to the circuit court.”37 “Upon remand, GM requested a change of judge and extension of time to file an answer, further delaying the litigation. GM then filed a motion to dismiss the case in circuit court.”38 “GM spent eight months litigating substantial issues going to the merits with various motions, which denied [Major Cadillac] an efficient and low-cost resolution of disputes. This conduct prejudiced the petitioners. See Reis, 935 S.W.2d at 631…. GM waived any right to arbitrate. …”39
City Engaged in Good Faith Negotiations Before Filing Condemnation Suit and City Council’s Determination of Blight Was Valid
“[T]he Tax Increment Financing Commission of Kansas City adopted a resolution recommending that the City Council of Kansas City … approve a redevelopment plan.”40 “[T]he City Council [then] enacted an ordinance adopting the recommendation of the TIF Commission.”41 The city council enacted another ordinance approving a redevelopment plan. In that ordinance, the city council determined that the redevelopment area as a whole was blighted. In making that determination, the city council had before it four different blight studies. Property owned by Chung and Myong Ku was in the redevelopment area. The city offered to pay the Kus $390,500 for their property. The Kus rejected that offer and made a counteroffer of $2,000,000. The city council then enacted an ordinance to proceed with condemnation of the Ku property. The trial court found that the redevelopment plan, as amended, complied with the TIF Act and that the city had complied with all conditions precedent to the condemnation action. The Kus appealed and the Court of Appeals affirmed in City of Kansas City v. Ku.
“‘Before a court may enter an order of condemnation, the court shall find that the condemning authority engaged in good faith negotiations prior to filing the condemnation petition.’”42 The Kus contend that the city’s appraisal did not comply with the Uniform Standards of Professional Appraisal Practice as stated in § 339.535 RSMo. However, “Section 523.253 RSMo., which deals specifically with condemnation proceedings states, ‘Any appraisal referred to in this section shall be made by a state-licensed or state-certified appraiser using generally accepted appraisal practices.’”43 The statute on which the Kus rely, § 339.535, deals generally with real estate appraisers. “Section 523.253, however, deals specifically with condemnation proceedings. Section 523.253 is the more specific statute and it controls. Accordingly, an appraiser in a condemnation proceeding must adhere to generally accepted appraisal practices – such an appraiser is not required to adhere to USPAP.”44 “The trial court did not err in determining that the city engaged in good faith negotiations before filing its condemnation suit.”45
“The City Council, in making its determination of blight, had before it four blight studies…. The trial court found that the City Council individually considered each parcel of property in the redevelopment area. Section 523.274.1 RSMo. states that ‘if the condemning authority finds a preponderance of the defined redevelopment area is blighted, it may proceed with the condemnation of any parcels in such area.”’46 In support of its argument that the blight determination was arbitrary, the Kus “rely on Centene Plaza Redevelopment Corp. v. Mint Props., 225 S.W.3d 431, 433 (Mo. banc 2007). In Centene, the definition of blight is set forth as ‘those portions of the city that by reason of age, obsolescence, inadequate or outmoded design or physical deterioration have become economic and social liabilities, and that such conditions are conducive to ill health, transmission of disease, crime or inability to pay reasonable taxes.’ Id.” Under the TIF Act, however, a blighted area is defined as one that constitutes an economic or social liability. Section 99.805(1) RSMo. Because the TIF Act, Section 99.805(1), is the more specific statute, its definition of blight must be used.
Each of the four blight studies considered by the city council extensively examined the properties contained in the redevelopment area, including the Ku property. Among other things, the four studies found that much of the redevelopment area suffered “from a dramatic decline in physical condition caused by lack of use, coupled with damage caused by transients, vandals and weather.”47 The studies further found deteriorated properties within the redevelopment area adversely affecting the surrounding buildings, resulting in the overall area being blighted. The studies found that the dominant features of the area included significant physical deterioration and functional obsolescence, insanitary and unsafe conditions, and excessive vacancies. “There was sufficient evidence to support the trial court’s conclusion that the City Council’s findings were made using reasonable methods and that the City Council’s determination of blight was valid.”48
A Defendant Who Contracts With Another Generally Owes No Duty to a Plaintiff Who is Not a Party to That Contract
Dale, Jonathan and Shannon Haney d/b/a Haney Construction were hired by the Taylors to repair tornado damage to the roof of the Taylors’ home. The Taylors’ insurance company hired a firm to conduct an environmental study on the home. That study revealed that the home contained toxic airborne mold that posed a health risk to humans. Although the Taylors’ insurance company knew that Haney Construction was working on the Taylor home intermittently, unaware of the mold, neither it nor the firm it hired warned the Haneys about the mold for nearly four weeks. Alleging personal injuries due to mold exposure, the Haneys sued the Taylors’ insurance company, its adjuster, and the environmental firm. The trial court dismissed all of the Haneys’ claims and the Court of Appeals affirmed in Haney v. Fire Insurance Exchange.49
“[A] defendant who contracts with another generally owes no duty to a plaintiff who is not a party to that agreement, nor can a non-party sue for negligent performance of the contract.”50
“‘Whether a duty exists “depends upon a calculus of policy considerations.” Lough v. Rolla Women’s Clinic, Inc., 866 S.W.2d 851 (Mo. banc 1993). Among these considerations, “Forseeability is the paramount factor in determining the existence of a duty, but a relationship between the parties where one is acting for the benefit of another also plays a role.’” Id… “As such, foreseeability is not enough to establish a duty. Id. In this respect, there must also be some right or obligation to control the activity which presents the danger of injury.” Burrell ex rel. Schatz v. O’Reilly Automotive, 175 S.W.3d 642, 656 (Mo. App. [S.D.] 2005) (quoting Stitt v. Raytown Sports Ass’n., Inc., 961 S.W.2d 927, 930 (Mo. App. [W.D.]1998).”’
The trial court properly found that the firm performing the environmental study owed no legal duty to the plaintiffs because there was no legal relationship or privity of contract between them. “Whether a duty exists, is an issue of law, and a question for the court alone.”51 “‘This general rule of privity is designed to protect contractual parties from exposure to unlimited liability and to prevent burdening the parties with obligations they have not voluntarily assumed.’”52 Plaintiffs allege no facts and cite no case credibly supporting their claim that the environmental firm owed a duty of disclosure to them.
Casino Player Has Claim Under Missouri Merchandising Practices
Patricia Raster and other plaintiffs played the video-poker machines at Ameristar Casino in St. Charles County. The plaintiffs were members of the casino’s Star Award Program. Members of this program receive points based on the volume of play on the video-poker machines. In 2006, the casino changed the point program. Plaintiffs filed suit against the casino alleging that the casino secretly increased the number of video-poker machine dollars that were necessary to earn points, in violation of the Missouri Merchandising Practices Act (MMPA). The trial court dismissed the plaintiffs’ claims, but the Court of Appeals reversed in Raster v. Ameristar Casinos, Inc.53
Defendant contends that the MMPA does not apply to gambling. “Defendant apparently believes that the placing of a bet is no different than pitching a coin in a fountain or throwing money down a sewer, actions that are taken with no reasonable expectation of a return. We entirely reject this argument. Certainly, the casino player who drops a coin in a slot machine may lose his bet. But this does not mean the casino player is precluded from seeking relief under the MMPA. Contrary to the casino’s argument, we conclude that the casino player who drops a coin into a slot machine is not engaging in a purposeless act, but is indeed purchasing merchandise, as that term is defined in the MMPA.”54 “The casino player, by dropping a token into the machine is purchasing the intangible chance of winning or, in other words, the intangible right to a product upon the happening of certain conditions.”55
“If we accepted the defendants’ argument, a customer who was cheated by a casino that misrepresented the rules of the game or the odds of winning a bet would have no remedy under the MMPA. We believe a customer placing a bet is owed a duty of fair play. A gambler who places a bet has entered into a wagering contract…. He has a right to expect the casino will honor the wagering contract…. [I]n Missouri, every contract includes an implied covenant of good faith and fair dealing. Farmers’ Electric Cooperative, Inc. v. Missouri Department of Corrections, 977 S.W.2d 266, 271 (Mo. banc 1998). Although the customer may win nothing in placing a bet, he nonetheless has the right to an honest chance of winning. The MMPA is designed ‘to preserve fundamental honesty, fair play and right dealings in public transactions.’ Ulrich v. CADCO, Inc., 244 S.W.3d 772, 777 (Mo. App. E.D. 2008) (quoting Schuchmann v. Air Services Heating & Air Conditioning, Inc., 199 S.W.3d 228, 233 (Mo. App. S.D. 2006).”56 “[P]laintiffs have set forth sufficient facts establishing the elements of an MMPA cause of action.”57
Footnotes
1 Woods v. QC Financial Services, No. ED 90949 (Mo. App. E.D. 2008).
2 Id., citing Whitney v. Alltel Communications, Inc., 173 S.W.3d 300, 310 (Mo. App. W.D. 2005).
3 Id.
4 Id.
5 Id.
6 Id., citing Muhammad v. County Bank of Rehoboth Beach, Delaware, 912 A.2d 88, 100 (N.J. Sup. Ct. App. 2006).
7 Id., quoting Discover Bank v. Superior Court, 36 Ca. 4th 148, 159, 30 Cal. R.P.T.R. 3rd 76, 84, 113 P.3d at 1100, 1108 (2005).
8 Id.
9 Id., quoting Whitney at 310.
10 Id., citing Alack v. Vic Tanny Intern. Of Mo., Inc., 923 S.W.2d 330, 337-38 (Mo. banc 1996).
10a No. SC89152 (Mo. banc 2009).
11 Id., citing N.Y. Tel. Co. v. N.Y. State Dep’t of Labor, 440 U.S. 519, 528-529 (1979).
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
16a No. SC89291 (Mo. banc 2009).
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id., citing Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006).
23 No. ED 90853 (Mo. App. E.D. 2009).
24 Id.
25 Id., citing Lynch v. Blanke Baer & Bowey Krimko, Inc., 901 S.W.2d 147, 150 (Mo. App. E. D. 1995).
26 Id.
27 Id., citing Crabtree v. Bugby, 967 S.W.2d 66, 72 (Mo. banc 1998).
28 Id., citing Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 849-51 (Mo. App. E.D. 2007).
29 Id., quoting Dierkes v. Blue Cross and Blue Shield of Mo., 991 S.W.2d 662, 668 (Mo. banc 1999).
30 No. WD 69823 (Mo. App. W.D. 2009).
31 Id., citing Kansas City Urology, P.A. v. United Healthcare Servs., 261 S.W.3d 7, 11 (Mo. App. W.D. 2008).
32 Id., citing McIntosh v. Tenet Health Sys. Hosps., Inc., 48 S.W.3d 85, 88 (Mo. App. E.D. 2001).
33 Id., quoting Getz Recycling, Inc. v. Watts, 71 S.W.3d 224, 229 (Mo. App. W.D. 2002).
34 Id.
35 Id.
36 Id., quoting Reis v. Peabody Coal Co., 953 S.W.2d 625, 631 (Mo. App. E.D. 1996).
37 Id.
38 Id.
39 Id.
40 City of Kansas City v. Ku, No. WD 69807 (Mo. App. W.D. 2009).
41 Id.
42 Id., quoting § 523.256, RSMo. 43 Id.
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
49 No. SD29098 (Mo. App. S.D. 2009).
50 Id., citing Hardcore Concrete, LLC v. Fortner Insurance Services, Inc., 220 S.W.3d 350, 358 (Mo. App. S.D. 2007).
51 Id., citing Hardcore Concrete at 355.
52 Id., quoting Owens v. Unified Investigations & Sciences, Inc., 166 S.W.3d 89, 92 (Mo. App. E.D. 2005).
53 Nos. ED 90984 and ED 91098 (Mo. App. E.D. 2009).
54 Id.
55 Id.
56 Id.
57 Id.