City Not Liable for Sewer Backup Due to Faulty Lateral Line
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
“Harvard Properties … owned four basement apartments which were damaged by two sewer backups that occurred after heavy rainfall in January 2005.”
1 “The City [of Springfield] maintained the sewer main, but it was the property owner’s responsibility to install and maintain the lateral lines that connected to the main. In order for a lateral line to drain properly, it [needed] a ‘positive slope’ of 1/4” of drop per foot of run from the building to the main.”
2 The lateral line from the Harvard apartment building to the sewer main line “was approximately 20 feet long and had a negative slope of 1/8” of drop per foot of run.”
3 Consequently, the lateral line sloped downward from the main back toward the apartments; this negatively sloping lateral line did not drain properly. During 2004, there was a backup in the apartment building and a plumber recommended to Harvard that it install a lift station. This lift station was never installed.
At trial on the suit filed by Harvard against the City of Springfield to recover damages for inverse condemnation, it was shown that no other buildings in the vicinity of this apartment building had a sewer backup during the heavy rain that fell in January 2005. Even though there was an elevated flow in the main line due to heavy rainfall, the water did not back up into properties with properly sloped lateral lines. Because the lateral line from Harvard’s apartment building had a negative slope, however, the rainwater ran down the lateral and into the garden apartments. Video inspections of the sewer main line to which this lateral line connected showed no defects or cracks. The trial court entered judgment in favor of Harvard on its inverse condemnation claim and awarded it damages of $6,870. The Court of Appeals reversed, however, in Harvard Properties v. City of Springfield.
“The Missouri Constitution provides that ‘private property shall not be taken or damaged for public use without just compensation.’ Mo. Const. art I, § 26. ‘This concept encompasses inverse takings, where the government takes or damages land, sometimes unintentionally, without going through an official process.’ Collier v. City of Oak Grove, 246 S.W.3d 923, 925 (Mo. banc 2008). One such type of unintentional inverse taking occurs when, as a direct consequence of a condemning authority’s improvement, damage is caused to land which has not been condemned or taken. State ex rel. City of Blue Springs v. Nixon, 250 S.W.3d 365, 371 (Mo. banc 2008); State ex rel. State Highway Comm’n v. Swink, 537 S.W. 2d 556, 558 (Mo. banc 1976). In that circumstance, the parties seeking damages for inverse condemnation [are] required to prove that the damage resulted from some affirmative conduct by the condemning authority. City of Blue Springs, 250 S.W.3d at 367. In Basham v. City of Cuba, No. 28146 [(Mo. App. S.D. 2008)], this Court noted that an inverse condemnation claim arising from the operation of a city sewage system is grounded in the law of nuisance. Id at 2. The essential elements necessary to recovery are injury, damage and causation. Id. ‘The causation element of a nuisance claim is proven when it is shown that the use of the offending property was done in a manner that caused injury to the property of the one claiming damages.’ Id.”4
Here, “Harvard did not prove that the sewer backups were caused by infiltration of rainwater into the sewer main.”5 Harvard’s property had a lateral line that had a negative slope to it. Other properties with properly sloped lateral lines were not affected by the heavy rains that occurred when Harvard reported the backup in its apartments. As in Basham, Harvard failed to prove that its damage was caused by any blockage, damage to or malfunction of the main line. In addition, there was no evidence of other backups or problems with the sewer system in the vicinity of Harvard’s property. The city had no notice of any deficient condition in its sewer system. “To accept Harvard’s arguments would require the City to become an insurer of the proper installation and operation of a lateral line that is not the City’s responsibility or under its control.”6 The judgment of the trial court is reversed and the case is remanded with directions to enter judgment for the city.
Action to Set Aside Default Judgment More Than One Year Old is an Independent Action in Equity
Patricia Mathers was issued a homeowner’s insurance policy by Allstate Insurance Co. When her residence was damaged by fire, she filed a claim with Allstate, which Allstate denied. She filed suit against Allstate and Allstate was properly served with a summons, but failed to respond. Mathers obtained a default judgment against Allstate for $101,705. More than a year later, Allstate filed a motion to set aside the default judgment. Following a hearing, the trial court found that Allstate had shown the default to be the result of accident, mistake or inadvertence, and entered an order setting aside the default judgment. The Court of Appeals reversed, however, and reinstated the judgment in Mathers v. Allstate Insurance Co.7
A “motion to set aside a default judgment based on Rule 74.05(d) must be filed within one year after the entry of the default judgment.”8 Similarly, a party seeking relief from a judgment under Rule 74.06(b) must also file its motion within one year. “Once the one-year time limits imposed by 74.05(d) and 74.06(c) have expired, a party may only rely on the equitable power of the Court for relief from judgment.”9 “The rule does not create the action (which exists because of the court’s inherent equitable powers), but merely recognizes its existence and mandates that courts continue entertaining it.”10
“Missouri courts have consistently held that an independent action in equity to set aside a default judgment must be based on extrinsic fraud, or fraud on the court.”11 “Extrinsic fraud is ‘fraud that induced a party to default or to consent to judgment against him.’”12 “Intrinsic fraud, which is ‘knowing use of perjured testimony or otherwise fabricated evidence,’ is not sufficient to support setting aside a default judgment more than one year after its entry.”13 “Further, for a judgment to be set aside on the ground of extrinsic fraud, a party must demonstrate its absence of fault, neglect or inattention to the case. Reding v. Reding, 836 S.W.2d 37, 43 (Mo. App. S.D. 1992). The defaulting party is not entitled to equitable relief where that party is chargeable with neglect. See Massa v. Anderson, 691 S.W.2d 496, 497 (Mo. App. E.D. 1985).”14
Here, the trial court found that Allstate had shown the default to be the result of accident, mistake or inadvertence. As held in Thompson v. Columbia Mutual Insurance Co., 820 S.W.2d 626, 630 (Mo. App. S.D. 1991), the test for equitable relief in setting aside a default judgment requires a finding that “(1) extrinsic fraud, accident or mistake occurred and (2) the defendant’s actions (or inactions) were unmixed with neglect or inattention. Accordingly, in Thompson, the Court refused to set aside a default judgment because it concluded the defendant’s actions were unmixed with neglect and inattention.”15 Here, “Allstate specifically acknowledged that it was chargeable with ‘inadvertence and mistake’ in handling the petition. This failure [by Allstate] to demonstrate it was free from fault, neglect or inattention is fatal to the action.”16 Moreover, Allstate was required to show extrinsic fraud, but failed to do so. “[W]hile it is generally true that the law disfavors default judgments, see Klaus, 42 S.W.3d at 832, in the instant case the trial court erred in setting aside the default judgment.”17
Defendant Did Not Have Sufficient Minimum Contacts in Missouri to be Subject to Personal Jurisdiction Here
William and Robin Childers, Missouri residents, entered into a “Referral Fee Agreement” with Gary Schwartz, a California resident. Under the agreement, Schwartz agreed to find potential buyers for property owned by the Childerses and located in Missouri. The Childerses signed the agreement in Missouri and sent it to Schwartz, who signed it in California. When a dispute arose over the referral fees being claimed by Schwartz, the Childerses filed suit against Schwartz in Jackson County, Missouri, alleging negligent misrepresentations and contending that Schwartz was not entitled to receive referral fees. Schwartz filed a motion to dismiss for lack of personal jurisdiction along with his affidavit. In his affidavit, Schwartz stated that all of his actions under the agreement occurred in California and that all of the buyers he referred to the Childerses were California residents. His affidavit further stated that he never went to Missouri to identify or refer potential buyers to the Childerses, that he never owned property in Missouri, never had an office in Missouri, never had a bank account or any property in Missouri, and never had a telephone listing or address in Missouri. The trial court granted Schwartz’s motion to dismiss and the Court of Appeals affirmed in Childers v. Schwartz.18
“When the defendant raises the issue of personal jurisdiction in a motion to dismiss, the plaintiff has the burden to show that the circuit court’s exercise of jurisdiction is proper.’ Capitol Indem. Corp. v. Citizen’s Nat’l Bank of Fort Scott, N.A., 8 S.W.3d 893, 899 (Mo. App. [W.D.] 2000). To subject a non-resident defendant to the long arm jurisdiction of Missouri, the plaintiff must show that the defendant engaged in one of the acts listed in Missouri’s long arm statute, section 506.500, and that the defendant had sufficient minimum contacts with Missouri to satisfy due process requirements. Id.”19 “The due process clause of the Fourteenth Amendment limits the power of a court to exercise personal jurisdiction over a nonresident defendant in that a nonresident defendant must have sufficient minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).”20 “‘[T]o establish minimum contacts within the forum state, a plaintiff must show that the defendant has taken some act by which it purposely avails itself of the privilege of conducting business within the forum state.’ Wilson Tool & Die, Inc. v. TBDN-Tenn Co., 237 S.W.3d 611, 616 (Mo. App. [E.D.] 2007).”21 “‘A defendant’s contacts with the forum state must be purposeful and such that defendant should reasonably anticipate being haled into court in the forum state.’”22
Here, Schwartz had insufficient minimum contact with the state of Missouri. “All elements of Schwartz’s performance under the contract occurred outside of Missouri and, as such, show that Schwartz did not have sufficient contacts with Missouri to satisfy due process. Iowa Elec. Light & Power Co. v. Atlas Corp., 603 F.2d 1301, 1303-04 (8th Cir. 1979), cert. denied, 445 U.S. 911(1980). Moreover, although Schwartz used the telephone, e-mail and mail to communicate with the Childerses, that alone cannot establish the minimum contacts necessary to satisfy due process. Consol. Elec., 185 S.W.3d 773, 777 (Mo. App. E.D. 2006).”23 “While Missouri may have an interest in providing a forum to its residents and while it may be more convenient for the Childerses to try their action in Missouri, those factors alone do not require the exercise of jurisdiction. Schwartz’s lack of contacts with Missouri and the fact that he performed all of his obligations under the contract in California establishes that due process would be violated if he were subjected to personal jurisdiction in Missouri.”24 “Schwartz did not take any act by which he purposefully availed himself of the privilege of conducting business in Missouri.”25 “The circuit court did not err when it concluded that Schwartz did not have sufficient minimum contacts with Missouri to satisfy due process requirements.”26
Property Owned by Quasi-Public Entity is Not Subject to Mechanic’s Liens; Entity Liable for Failure to Obtain Payment from Contractor
AmerenUE supplies electric service to residents in large portions of eastern Missouri. AmerenUE is subject to regulation by the Missouri Public Service Commission and its “authority to provide utility services to Missouri residents is derived solely from its regulation by the PSC.”27 It “owns … real estate in Missouri where it has constructed electrical substations necessary to provide electrical service in the areas surrounding the substations.”28 AmerenUE hired a general contractor, TM2, to construct improvements at several of these substations in St. Louis, Warren and Jefferson counties. TM2 then hired certain subcontractors to perform portions of the work. TM2 filed bankruptcy without paying the subcontractors in full for the work they performed. AmerenUE had not required a payment bond from TM2. Several subcontractors filed mechanic’s liens against the AmerenUE substations where their work was performed and then filed lawsuits to enforce their liens.
The trial courts granted AmerenUE’s motions to dismiss the mechanic’s lien claims on the grounds that AmerenUE is a regulated utility and its properties are exempt from mechanic’s liens. “Thereafter, the … trial courts allowed Subcontractors to file amended lawsuits against AmerenUE alleging liability pursuant to Section 107.170”29 RSMo. for the failure of AmerenUE to obtain a payment bond from TM2. The trial courts held AmerenUE liable to the subcontractors under Section 107.170 RSMo. and the Court of Appeals affirmed in Collins & Hermann, Inc., et al v. TM2 Construction Co.
“The public policy of Missouri, as expressed in Section 429.010 and Section 107.170, is that subcontractors and suppliers are entitled to the protection of either mechanic’s liens or payment bonds depending on the nature of the property they improve.”30 “Missouri courts have created an exception to the mechanic’s lien law that bars the imposition of mechanic’s liens on public property owned by a traditional governmental body held for the ‘benefit of the public’ and ‘reasonably necessary for public use.’”31 “Section 107.170.2 applies to the erection, construction, repair, etc. of a ‘public utility’ owned by a ‘public entity.’”32 “Ameren’s authority to provide utility services is derived solely from its regulation by the PSC, which is a state agency.”33 “Section 107.170 must be broadly construed to carry out [the] purpose” of preventing unjust enrichment of those who receive a material benefit from a material supplier or subcontractor.34
“The purpose of Section 107.170 has long been to afford to those furnishing labor or material on public work the same measure of protection as is afforded by the mechanic’s lien law where the building or improvement is not of a public character.”35 “Section 107.170 gives a right to surety bond protection to every person who would otherwise have a right to file and enforce a mechanic’s lien.”36
“Following the public policy behind the mechanic’s lien and public bond statutes, AmerenUE is subject to the provisions of Section 107.170. [It] is a ‘public utility’ operated in the public interest and its substations are ‘reasonably necessary for public use.’ Redbird Engineering Sales, Inc. v. Bi-State Development Agency of Missouri – Illinois Metropolitan District, 806 S.W.2d 695, 697 (Mo. App. E.D. 1991). The trial court correctly found that AmerenUE is a ‘quasi-public corporation’ whose property is affected with a public use [and] was not subject to a mechanic’s lien.”37 “Sections 429.010 and 107.170 are intended to provide ‘inclusive’ protection to those furnishing labor and materials.”38 Because AmerenUE is a “‘quasi-public regulated utility’ exempt from mechanic’s lien claims under Section 429.010, it is required to post bond pursuant to Section 107.170.”39
Municipality Entitled to Sovereign Immunity for Improper Inspection of Electrical Wiring
Paul and Connie Scott purchased a mobile home in Nevada, Missouri. Mr. McKinney of ABBA Electric installed the electrical service to the Scotts’ mobile home. The National Electric Code, which had been adopted by the City of Nevada, required a fourth grounding wire for electrical connections to mobile homes. Mr. McKinney had installed three wires, but not the fourth grounding wire. An inspector for the City of Nevada did not know that electrical service to a mobile home required a fourth grounding wire and approved the improper installation that had only three wires. Two days later, Mr. Scott was electrocuted. Mrs. Scott filed suit against the City of Nevada and other defendants. The trial court denied the city’s motion for summary judgment and the city sought a writ of prohibition. The Court of Appeals made its preliminary writ in prohibition absolute in the case of State of Missouri, ex rel. City of Nevada v. Bickel.40
“Where it applies, sovereign immunity is an absolute defense.”41 “Under the common law, municipalities are immune from suit in tort for governmental functions, but may be liable for proprietary functions.”42 “Governmental functions are activities undertaken for the benefit of the public. Junior College District of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004). A proprietary function is one in which the municipality acts for its own special benefit or profit. Dallas v. City of St. Louis, 338 S.W.2d 39, 44 (Mo. banc 1960). In analyzing whether a particular function is governmental or proprietary, we look to the generic nature of the activity that gave rise to the injury. Russell, 843 S.W.2d at 359. Here, the relevant activity is the City’s performance of electrical inspections. The generic nature of the inspections is to enforce ordinances designed to protect public health and safety. It is well established that enforcement of ordinances is a governmental function.”43
The fact that the city charged a fee of $12.50 for performing the inspection does not make it a proprietary function. “Charging a fee for a public service does not transform a governmental function into a proprietary one.”44 “Nor does negligent performance of a public function, even grossly negligent performance, make a governmental function proprietary.”45
“[T]he City was entitled to summary judgment on its defense of sovereign immunity.”46
Mechanic’s Liens Are Remedial in Nature and Given a Liberal Construction to Protect the Claims of Contractors and Suppliers; Lien Claimant Entitled to Prejudgment Interest
Glenstone Block Company manufactured and supplied block for the Parkview Bay Condominium Complex under an agreement with Vincent Pebworth, who was the general contractor for the project. When Mr. Pebworth failed to pay Glenstone, it gave its written notice of intent to file its mechanic’s lien to the owner of the condominium complex. Thereafter, Glenstone filed its mechanic’s lien statement, which contained 33 pages of invoices identifying the block that it supplied to Mr. Pebworth on the project. After evidence was introduced at trial, the trial court issued its judgment finding that the materials described in Glenstone’s mechanic’s lien were used to construct a wall at the condominium complex and that the prices charged by Glenstone were fair and reasonable. The trial court further found that Glenstone had timely given notice of its intent to file its lien and met all of the statutory requirements for the enforcement of its mechanic’s lien. Finally, the trial court concluded that the deed of trust on the property secured a construction loan and was inferior to Glenstone’s mechanic’s lien. Parkview Bay Development and its bank appealed. The Court of Appeals affirmed the enforcement of the mechanic’s lien, but reversed and remanded the case with regard to the finding of priority over the loan in Glenstone Block Company v. Pebworth.47
“‘[S]tatutes creating mechanic’s liens are remedial in nature and should be given a liberal construction so as to effectuate their object and purpose and protect the claims of the mechanics and materialmen. The mechanic’s lien law is to be construed as favorably to the materialman as its terms permit.’”48 “‘It has long been held that ‘testimony showing that materials were delivered, coupled with receipts of such materials are sufficient under the mechanic’s lien statutes’” for enforcement of the lien.49 “‘It is impossible, in cases of this kind, to prove that [someone] saw every stick…put into the [structure]. If such rigid proof was required, few liens could be enforced.’”50 “There was sufficient evidence to support the trial court’s judgment” that Glenstone furnished the blocks that were incorporated into the condominium complex owned by Parkview.51
Moreover, the trial court did not err in finding that the inclusion of two erroneous invoices were inconsequential and did not invalidate the lien. “‘A lien statement may be regarded as just and true, so as not to vitiate the entire lien, if the inclusion of a non-lienable item is the result of honest mistake or inadvertence without intent to defraud and if the non-lienable items can be separated from the lienable items.”’52 “It is a question of fact for the trial court whether or not to overlook mistakes in a lien statement and treat it as just and true.”53 “[W]here lienable items can be separated from non-lienable items improperly included in the lien statement and there is no intention to defraud, then those items mistakenly included may be separated out by the trial court.”54 Here, there was testimony that the erroneous invoices were mistakenly included in the lien statement by a bookkeeper and the trial court subtracted those amounts from the amount stated in the lien. “There is nothing in the record to suggest these items were included in the [mechanic’s lien] with the intent to defraud or that their inclusion was anything other than a mistake by [Glenstone].”55
Finally, the trial court did not err in applying § 431.180, RSMo, and awarding Glenstone interest at .75% per month. The trial court noted that it is within its discretion to award interest up to 1.5% per month, but determined that an award of one-half of the maximum interest allowed by that statute would neither penalize nor reward either party. Section 429.210, RSMo, allows for the payment of prejudgment interest.56 “The lack of privity notwithstanding, it would be an incomplete remedy to allow a lien for the reasonable cost of labor and materials, but not interest thereon ‘after the account should have been paid.”’57 “Accordingly, the trial court properly found that prejudgment interest was includable in the special lien imposed on the property in question and there was no abuse of discretion on the part of the trial court in awarding prejudgment interest.”58
To Be Enforceable, a Contract With a Public Entity Must Be in Writing and Executed
St. Louis County owned an historical site known as the General Daniel Bissell Home. St. Louis County approached the Division Cavalry Brigade (DCB) about leasing the Bissell property to the DCB. St. Louis County and DCB discussed the terms of a lease that would be for 25 years, with DCB providing maintenance and building improvements along with payment of rent based on a percentage of DCB’s annual gross income from operation of the property. The St. Louis County Council adopted an ordinance authorizing the St. Louis County Executive to enter into a lease with DCB on the terms that had been discussed during these negotiations. After the ordinance was adopted, St. Louis County provided DCB with unrestricted access to the Bissell property and DCB began providing maintenance and repairs to the property. The final lease agreement was never signed by any St. Louis County official, and a few months later St. Louis County took possession of the Bissell property, excluding DCB from it. DCB filed suit against St. Louis County to enforce the lease agreement. The trial court granted summary judgment to St. Louis County and the Court of Appeals affirmed in The Division Cavalry Brigade v. St. Louis County.59
“To be enforceable, a contract with a municipal corporation must comply with the mandatory statutory provisions of §432.070 RSMo.”60 “Contracts not so executed are not enforceable.”61 “However, in certain circumstances, substantial compliance with § 432.070 may be sufficient to create a valid and enforceable contract.”62 “Furthermore, a contract with a municipality need not be contained in one writing.”63 Here, the requirements of §432.070, RSMo. were not met “and DCB did not provide evidence of substantial compliance with §432.070 RSMo.”64
“The Ordinance [adopted by St. Louis County] merely authorized … [the St. Louis County Executive] to enter into a lease with DCB….”65 “While the Ordinance mentions some basic terms that were contained in the Final Lease Agreement,”66 it did not contain all of the terms of the lease. “The Ordinance was only the initial step toward the parties entering into a lease.”67 The letters that were exchanged by the parties “cannot be combined to constitute substantial compliance with §432.070.”68 The letters signed by St. Louis County officials referred to the intent of St. Louis County and were not intended to be considered lease agreements themselves.
The ordinance that was adopted did not make the signing of the lease a ministerial duty. “[W]hether an act by an official is discretionary or ministerial is determined on a case by case basis.”69 “A discretionary act is one that requires the exercise of reason and discretion to determine how or whether to act or whether a particular course should be pursued.”70 “A ministerial act is one that a public official is required to perform upon a given state of facts, in a prescribed manner, in obedience with the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.”71 The ordinance delegated to the St. Louis County Executive “the power to use reason and judgment in deciding whether to enter into [the] lease….”72 “The Ordinance did nor order, direct or require [the St. Louis County Executive] to sign a lease with DCB and did not declare that he was under a duty to sign such a lease.”73 The ordinance simply gave the St. Louis County Executive the power to enter into the lease if he exercised his discretion to do so.
Footnotes
1 Harvard Properties v. City of Springfield, No. 28601 (Mo. App. S.D. 2008).
2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 No. WD 69164 (Mo. App. W.D. 2008).
8 Id., citing Klaus v. Shelby, 42 S.W.3d 829, 832 (Mo. App. E.D. 2001).
9 Id., citing Cody v. Old Republic Title Co., 156 S.W. 3d 782, 784 (Mo. App. E.D. 2004).
10 Id., citing Sanders v. Ins. Co. of N. Am., 904 S.W. 2d 397, 401 (Mo. App. W.D. 1995).
11 Id., citing Sanders at 401 and Cody at 784.
12 Id., quoting State ex rel. Lowry v. Carter, 178 S.W. 3d. 634, 637 (Mo. App. W.D. 2005).
13 Id., quoting Cody at 784.
14 Id.
15 Id.
16 Id., citing Reding v. Reding, 836 S.W. 2d 37, 43 (Mo. App. S.D. 1992).
17 Id.
18 No. WD 68870 (Mo. App. W.D. 2008).
19 Id.
20 Id.
21 Id.
22 Id., quoting Chromalloy Am. Corp. v. Elyria Foundary Co., 955 S.W.2d 1, 4 (Mo. banc 1997).
23 Id.
24 Id.
25 Id.
26 Id.
27 Collins v. Hermann, Inc., et al v. TM2 Construction Co., No. ED90087 (Mo. App. E.D. 2008).
28 Id.
29 Id.
30 Id., citing Ladue Contracting Co. v. Land Development Co., 337 S.W.2d 578, 584 (Mo. App. E.D. 1960) and Energy Masters Corp. v. Fulsom, 839 S.W.2d 665, 669 (Mo. App. W.D. 1992).
31 Id., quoting River’s Bend Red-E-Mix, Inc. v. Parade Park Homes, Inc., 919 S.W.2d 1, 3, (Mo. App. W.D. 1996).
32 Id.
33 Id., citing State ex . Atmos Energy Corp. v. Public Service Commission, 103 S.W.3d 753, 756-57 (Mo. banc 2003).
34 Id., citing Energy Masters Corp., 839 S.W.2d at 668-69.
35 Id., citing Camdenton Consolidated Sch. Dist., etc. v. New York Casualty Co., 104 S.W.2d 319, 322 (Mo. banc 1937).
36 Id., citing Hydraulic Press Brick Co. v. School District of Kirkwood, 79 Mo. App. 665, 669 (Mo. App. E.D. 1889).
37 Id., citing Redbird Engineering Sales, Inc. at 698.
38 Id., citing Energy Masters Corp. at 669.
39 Id.
40 No. WD 69491 (Mo. App. W.D. 2008).
41 Id., citing State ex rel. Division of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 615 (Mo. banc 2002).
42 Id., citing Russell.
43 Id., citing Bean v. City of Moberly, 169 S.W.2d 393, 397 (Mo. banc 1943) and Berger v. City of Univ. City, 676 S.W.2d 39, 41 (Mo. App. E.D. 1984).
44 Id., citing State ex rel. Regional Justice Info. Serv. Commission v. Saitz, 798 S.W.2d 705, 708 (Mo. banc 1990); State ex rel. New Liberty Hospital District v. Pratt, 687 S.W.2d 184, 184 (Mo. banc 1985).
45 Id., citing Berger at 41.
46 Id.
47 No. 28734 (Mo. App. S.D. 2008).
48 Id., quoting Landvatter Ready Mix, Inc. v. Buckey, 963 S.W.2d 298, 302-03 (Mo. App. E.D. 1997).
49 Id., quoting Boyer Lumber, Inc. v. Blair, 510 S.W.2d 738, 745 (Mo. App. E.D. 1974).
50 Id., citing Boyer at 746.
51 Id., citing Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924, 932-33 (Mo. App. E.D. 1992).
52 Id., quoting American Prop. Maint. v. Monia, 50 S.W.3d 640, 643 (Mo. App. E.D. 2001).
53 Id., citing American Prop. Maint. at 644-45.
54 Id., citing American Prop. Maint. at 644; and Dave Kolb Grading at 941.
55 Id.
56 Id., citing Mid-West Engineering & Constr. Co. v. Campagna, 421 S.W. 229, 233 (Mo. 1967).
57 Id., quoting Dave Kolb Grading at 933.
58 Id., citing Vance Bros., Inc. v. Obermiller Construction Servs., Inc., 181 S.W.3d 562, 564 (Mo. banc 2006).
59 No. ED 90693 (Mo. App. E.D. 2008).
60 Id., citing Veling v. City of Kansas City, 901 SW.2d 119, 121 (Mo. App. W.D. 1995).
61 Id., citing Vigran v. Poelker, 433 F.Supp. 168, 170 (D.C. Mo. 1977).
62 Id., citing Veling at 124.
63 Id., citing Sorkin v. City of St. Clair, 800 S.W.2d 817, 818 (Mo. App. E.D. 1990).
64 Id.
65 Id., citing Moynahan v. Gunn, 204 S.W.3d 230, 234 (Mo. App. E.D. 2006).
66 Id.
67 Id.
68 Id.
69 Id., citing Rush v. Senior Citizens Nursing Home District of Ray County, 212 S.W.3d 155, 160 (Mo. App. W.D. 2006).
70 Id., citing Rush.
71 Id., citing Charron v. Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996).
72 Id.
73 Id.