Insurance Policy was Unambiguous and Excluded Coverage for Intentional Acts
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Kodey Todd attended an elementary school in Clark County. James Patterson was a substitute teacher who was assigned to Kodey’s classroom. Patterson physically assaulted Kodey on school premises, grabbing him by the neck and lifting him off the ground. Patterson subsequently pleaded guilty to criminal assault and child endangerment. Kodey and his mother filed suit against the district and Patterson. They settled their claim against the district for $20,000, but excluded Patterson from the settlement. Patterson entered into a consent judgment for $100,000 with the stipulation that Kodey and his mother would only seek to recover payment from the school district’s insurance carrier. The Todds then filed suit against the Missouri United School Insurance Council (MUSIC) seeking payment of the $100,000 judgment. MUSIC filed a motion for summary judgment, which the trial court granted, finding that the policy excluded coverage for intentional acts. The Supreme Court of Missouri affirmed in Todd v. Missouri United School Insurance Council.1
“‘[W]here insurance policies are unambiguous, they will be enforced as written.’”2 “‘Whether an insurance policy is ambiguous is a question of law.’”3 “The event giving rise to this lawsuit was Patterson grabbing Kodey by the neck and lifting him off the ground. This intentional act of physical force was not an ‘accident.’”4 “Patterson’s intentional assault on Kodey was not an ‘Occurrence’ as defined by the policy and was not covered.”5
“The Todds argue that the policy is ambiguous” and “should be construed in their favor,” citing Behr v. Blue Cross Hospital Service, Inc., of Missouri.6 “The principle enunciated in Behr is more accurately stated as follows: ‘Though it is the duty of the court to reconcile conflicting clauses in a policy so far as their language reasonably permits, when reconciliation fails, inconsistent provisions will be construed most favorably to the insured.’”7 Words “may not unreasonably distort the language of a policy or exercise inventive powers for the purpose of creating an ambiguity when none exists.”8 “Definitions, exclusions, conditions and endorsements are necessary provisions in insurance policies. If they are clear and unambiguous within the context of a policy as a whole, they are enforceable.”9
“The policy language . . . clearly states that ‘Damages’ must be the result of an ‘Occurrence.’ An ‘Occurrence’ is an ‘accident’ resulting in injury ‘neither expected nor intended by the Covered Party.’”10 “The language of the MUSIC’s policy is unambiguous and shall be enforced as written.”11 “When read as a whole, nothing in the coverage or the exclusions would give the Todds any expectation of coverage for intentional acts of . . . Patterson. . . . The assault upon Kodey Todd was intentional and, therefore, not a covered ‘Occurrence’ under the plain language of the policy.”12
Statute of Limitations on Judgments Runs from Date of Last Payment, Whether Voluntary or Involuntary
In September 1994, Thomas Polen obtained a judgment against Jerry Crockett on a promissory note. Polen’s efforts to collect the judgment by garnishments were unsuccessful until March of 2004, when payments were received and recorded. In January 2005, Polen moved to quash the garnishment pending, arguing that the 10-year statute of limitations on the original judgment had lapsed. The trial court denied the motion and the Supreme Court of Missouri affirmed in Crockett v. Polen.13
“Section 516.350.1 RSMo., Supp. 2005, provides, in pertinent part: ‘Every judgment…shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof [. . .] or, in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made.”14 “Polen argues that the garnishment checks deposited with the court beginning in March 2004 did not restart the 10-year statute of limitations because the payments were not voluntary.”15 “This court rejects Polen’s analysis.”16 “[T]he plain language of the statute contains no express requirement that the debtor pay voluntarily. Such an interpretation would encourage reticent debtors to neglect their obligations and simply wait for the statute of limitations to lapse.”17 “The payments effected, through the garnishment of Polen’s wages, and recorded by the court clerk prior to September 13, 2004 tolled the statute of limitations.”18
Plaintiff Had Burden of Proving Claim Fell Within the "Failure to Inform" Exception to the Two-Year Statute of Limitations for Medical Malpractice
In 1998, Philip White was having abdominal pain and was referred for a whole body scan. White’s bone scan appeared brighter (called areas of increased uptake) in both knees. Dr. Mark Zubres observed the increased uptake in White’s knees, but did not report this to White’s doctor because he assumed there was a benign reason for it. In 2002, White began suffering pain in his right leg and underwent a second bone scan. That bone scan resulted in a diagnosis of osteosarcoma, a cancer of the tibia bone. Four months later, White sued Zubres for negligently failing to inform him or his doctor of the increased uptake in his knees. Zubres filed a motion for summary judgment, contending that White’s lawsuit – filed four years after the first bone scan – was barred by the two-year statute of limitations for medical malpractice under § 516.105, RSMo. 2000. White appealed, contending that the suit was timely under the “negligent failure to inform” exception that permits a plaintiff to bring a medical negligence suit within two years from the date of discovering the alleged negligent failure to inform or from the date a patient exercising ordinary care should have discovered such alleged negligent failure to inform. The Supreme Court affirmed the dismissal in White v. Zubres.19
“The statute of limitations is an affirmative defense. Rule 55.08. A party who moves for summary judgment on the basis of a statute of limitations bears the burden of showing that the statute bars the plaintiff’s claims.”20 “But once the movant shows that the plaintiff’s claim would be barred by the statute of limitations, the plaintiff bears the burden of showing that he comes within an exception in the statute so as to avoid the application of the limitations period to the claim.”21 On its face, White’s petition alleges that the bone scan was taken in July 1998, and his suit was filed in 2002, more than four years after the alleged negligent action occurred. Thus, White’s suit “would be barred by the statute of limitations unless the exception applies.”22 “White pleaded that his claim falls within this so-called negligent failure to inform exception in the statute.”23
“Because the petition was filed beyond the two-year limitations period, White was required to present evidence that Dr. Zubres’ failure to inform was negligent.”24 “’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.’”25 “White did not produce any evidence that would establish negligence.”26
“According to Dr. Zubres’ testimony, whether a radiologist reports increased uptake in any part of the body from a bone scan depends on the clinical circumstances of the patient.”27 His “testimony – all of which is unrefuted – is that increased uptake around the knee area in an individual of White’s age . . . can be considered normal and would not necessarily be reported.”28 “White presented no evidence to rebut Dr. Zubres’ testimony as to the standard of care. . . . [I]t was White’s burden to produce evidence that Dr. Zubres’ failure to inform was negligent.”29 “Had [White] produced evidence of negligence, there would have been a factual issue to be tried as to whether the statute of limitations, or its exception, applies.”30 Here, however, “there was no factual issue for trial on the statute of limitations defense.”31
When Contract is Ambiguous, Court Will Look Beyond the Contract to Determine Intent of the Parties
Glennon Goellner and his twin brother, Clarence, each owned 50% of Goellner Printing. In anticipation of their retirement, each brother entered into an agreement with the company that required the company to provide each of them and their spouses with medical, hospitalization and life insurance coverage in such amounts and upon such terms as is provided to employees of the company. After Glennon and Clarence retired, the company provided them with supplemental Medicare insurance. This insurance was not part of the company’s insurance plan for employees. After Glennon died in 1979, the company continued to provide supplemental Medicare insurance for his wife, Erlene, until 2004, when it stopped doing so. When Erlene inquired as to why the company stopped paying for the insurance, she was told that the company had been providing it for reasons of good will, but was terminating it because of the untenable family relationship. Erlene filed suit against the company, asking the court to declare that the agreement between her husband and the company required the company to pay her medical insurance until she died. Her suit also sought attorney’s fees. The trial court found in favor of the company, but the Court of Appeals reversed in Goellner v. Goellner Printing.32
“Interpretation of a contract is a question of law.”33 “A contract is ambiguous when the terms are susceptible of more than one meaning, such that reasonable persons may fairly and honestly differ in their construction of the terms.”34 Here, the language of the contract is ambiguous. “When a contract is ambiguous, we may look beyond the contract to determine the parties’ intent.”35 “The court will consider: ‘…the entire contract, subsidiary agreements, the relationship of the parties, the subject matter of the contract, the facts and circumstances surrounding the execution of the contract, the practical construction the parties themselves have placed on the contract by their acts and deeds, and other external circumstances that cast light on the intent of the parties.’”36
Here, the company “provided Erlene with supplemental health insurance for more than twenty years and abruptly terminated her coverage when the relationship between [the company and her] son-in-law became ‘untenable.’ The decision to terminate Erlene’s health insurance payments appears to have been done entirely out of spite. These circumstances lead us to conclude that the contracting parties intended for the company to provide Erlene with health insurance until her death. [The company] cannot abandon its contractual obligation merely because it no longer wishes to fulfill it.”37
“Erlene is entitled to the attorney’s fees and costs she incurred in bringing this action.”38 “Section 527.100 RSMo. (2000) states: ‘In any proceeding under Sections 527.010 and 527.130, the court may make such award of costs as may seem equitable and just.’ However, ‘costs’ do not automatically include attorney’s fees.”39 “In Bernheimer v. First National Bank of Kansas City, 225 S.W.2d 745 (Mo.banc 1949), the Court held that attorney’s fees may be awarded in a declaratory judgment action when there are special circumstances. This exception is narrow, strictly applied and does not apply every time two litigants maintain inconsistent positions. Royal Crown Bottling Co. at 469. We believe that special circumstances have been shown – after relying on [the company] to pay her health insurance premiums for more than 20 years, these payments were terminated, out of spite and Erlene – 92 years old at the time of trial – was forced to bring a declaratory judgment action.”40
“[The company] is ordered to provide Erlene with health insurance until her death, as required by the Agreement and to reimburse Erlene for the health insurance premiums she has paid since [the company] terminated her plan in 2004.”41 The case is also remanded “to the Circuit Court for a determination of an appropriate attorney’s fees award.”42
Good Cause Must Be Shown to Set Aside a Default Judgment
Chandra Dozier filed a petition for dissolution of her marriage to Michael Dozier. More than three months after he had been served with the summons and petition, Michael had not filed an answer. At the request of Chandra, the trial court entered a default judgment dissolving the parties’ marriage, awarding the parties joint legal custody of their three children, and granting Chandra sole physical custody of the children. The same day the default judgment was entered, Michael filed a motion for leave of court to file an answer out of time, along with an answer and a cross-petition for dissolution. The next day, Michael filed a motion to set aside the default judgment. The trial court denied Michael’s motion to set aside the default judgment and the Court of Appeals affirmed in Dozier v. Dozier.43
“Because the law does not favor default judgments, trial courts ‘are allowed greater discretion in granting a motion to set aside a default judgment than in denying such motions.’”44 “The law’s distaste for default judgments is even stronger in dissolution cases involving child custody.”45 “The court’s discretion is restricted in an action involving the dissolution of marriage because ‘there is practically no such thing as a divorce decree by confession and … because of the state’s interest in the welfare of the parties.’”46 “In cases of dissolution where child custody is concerned, ‘strict rules pertaining to the setting aside of such judgments are less rigorously applied.’”47 “When child custody is concerned, ‘the welfare of the child becomes paramount and the trial court’s discretion is more narrowly bounded.’”48 “‘Because the adversarial process better protects the child’s interests in a custody proceeding, default judgments in custody cases are strongly disfavored and a refusal to set aside such a judgment is reviewed with heightened scrutiny.’”49
“Rule 74.05(d), by its express terms, requires a motion to set aside a default judgment to state facts constituting both a meritorious defense and good cause.”50 “Because the prerequisites of Rule 74.05(d) for setting aside a default judgment, a ‘meritorious defense’ and ‘good cause’ are stated in the conjunctive, a default judgment is to be set aside only if the movant alleges facts in his motion that establish both of the prerequisites.”51 “‘Good cause’ for purposes of setting aside a default judgment ‘includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.’”52
On appeal, Michael contended that he had good cause for not timely filing an answer because he had financial problems that hindered his ability to engage the services of an attorney. These grounds were not, however, alleged in his motion and “Rule 74.05(d) expressly mandates that the motion to set aside the default judgment must state facts constituting good cause.”53 “[E]ven if [Michael] had pled in his motion financial hardship in hiring an attorney as good-cause justification for his not filing a timely answer, his appeal would still fail.”54 As held in Gering v. Walcott,55 Michael “simply chose to ignore the litigation because he could not afford counsel.”56 He did not attempt to represent himself and did not inform the court of his situation. “There are a number of other measures that were available to him, short of ignoring the case.”57 “[I]n failing to respond in any manner to the lawsuit, [Michael] ‘intentionally and recklesssly impeded the judicial process.’”58 “[This] conduct consisted of a conscious choice to ignore the litigation and, as such, amounted to reckless behavior.”59
Municipality Entitled to Sovereign Immunity When Acting in its Governmental Capacity: Insurance Policy May Contain Disclaimer That Does Not Waive Sovereign Immunity
The City of Sunset Hills adopted an ordinance declaring an area within the city to be blighted and also entered into a redevelopment agreement for that area with Novus Development Company. The redevelopment agreement between the city and Novus required Novus to provide periodic written reports concerning the status of the project, including financing commitments. A number of homeowners in the redevelopment area signed real estate contracts for the sale of their homes to Novus. Novus was unable to obtain the necessary financing and did not close on the sales to the homeowners. A number of homeowners then filed suit against Novus and the City of Sunset Hills. The counts against the city alleged that the city was acting in its proprietary capacity, and was negligent in failing to monitor Novus regarding its financial ability to close on the real estate contracts. The suit further alleged that the city waived sovereign immunity by obtaining liability insurance. The trial court granted the city’s motions to dismiss and for summary judgment, and the Court of Appeals affirmed in Parish v. Novus Equities Company.60
“A municipality is completely immune from liability arising from its performance of acts classified as governmental functions, unless a specific exception applies or the municipality specifically waived the immunity.”61 “Finding a municipality liable for torts is the exception to the general rule of sovereign immunity, and a plaintiff must plead with specificity facts demonstrating his claim falls within an exception to sovereign immunity.”62 “Generally, an act of a municipality performed for the common good of all is classified as a governmental function.”63 “Keeping the peace, enforcing laws and ordinances, and preserving the public health are just some of the duties within the province of a municipality as a governmental agency and upon which the municipality acts without liability.”64
“A municipality is not immune from liability for its negligence in performing proprietary functions.”65 “An act of a municipality performed for the special benefit or profit of the municipal corporation, in that it provides local necessities and conveniences only to its citizens, is classified as a proprietary function.”66 Here, “the City’s participation in the Redevelopment Agreement, which the homeowners claim included a duty to monitor and to confirm the status of Novus’ financial commitments, constituted a governmental function. The City’s role was to carry out the broader governmental mandate of protecting public health, safety and welfare within the City’s boundaries.”67 The legislation enacted by the city for the rehabilitation of a blighted area through its participation in the redevelopment agreement “was an act that allowed the City to fulfill its broader governmental mandate.”68
The liability insurance obtained by the city contained an endorsement preserving the city’s sovereign immunity against claims not specifically covered by the policy. Where a municipality obtains “insurance for tort claims, sovereign immunity is waived only to the maximum amount of coverage provided by the policy and only for the types of claims covered by the policy.”69 “Section 537.610 provides an independent basis for waiving sovereign immunity that is cemented in the existence of coverage for the damage or injury at issue under the language of the insurance policy, and we will construe narrowly any such waiver of sovereign immunity.”70 “Consequently, the plaintiff bears the burden of demonstrating the existence of the insurance and that it covered his particular claim.”71 “However, a public entity retains its full sovereign immunity when the insurance policy contains a disclaimer stating that the entity’s procurement of the policy was not meant to constitute a waiver of sovereign immunity.”72 The endorsement in the policy issued to the city clearly “stated that the City’s purchase of the insurance was not a waiver of the City’s sovereign immunity.”73
Jury Verdict Not Final Until Accepted by the Court
Ellen Smith filed a personal injury suit against International Catering North, seeking damages for the injuries she sustained when she slipped and fell on International’s premises. The case was tried to a jury and submitted on comparative fault. The jury returned a verdict, signed by nine jurors, that awarded $90,000 in damages and apportioned fault 25% to Smith and 75% to International. When the jury was polled, eight jurors acknowledged it was their verdict, but four jurors said it wasn’t. One of the jurors who replied “no” was also the jury foreman, who had signed the verdict. When the court questioned the foreman at side bar, he stated that he changed his mind and wanted to review some more material before he would “go with that verdict.” The court then instructed the jury to return to the jury room and continue deliberating. Approximately 30 minutes later, the jury returned a second verdict, signed by 10 jurors, with the same apportionment of fault, but only $20,000 damages. Over the objection of Smith’s counsel, the court accepted the “second verdict” and entered judgment on it. Smith’s post-trial motions to reinstate the first verdict, to amend the judgment or for a new trial were denied. Smith appealed, and the Court of Appeals affirmed the “second” verdict in Smith v. International Catering North, Inc.74
“We presume the judgment below is valid.”75 “Because the adequacy of a jury verdict is solely within the trial court’s purview, we will sustain the trial court’s decision unless there is no evidence to support it or it is against the weight of the evidence.”76 “Whether a finding is intended by the jury to be its final decision is a matter of fact for the trial court.”77 “A verdict is a jury’s final decision, and is not considered final unless and until it is submitted to the court, accepted by the court, assented to by the jury, and recorded by the court.”78 “Because [the trial court] never accepted the jury’s first verdict or recorded it, the first verdict was not final. The Court did not commit error when it asked the jury to continue deliberating, in order to obtain a final decision.”79
Municipal Ordinances Requiring Payment of Fees For Annual Fire Inspection Certificates Violated Hancock Amendment
Prior to 2003, the Kansas City Fire Department conducted fire inspections, without charge, in response to complaints and, occasionally, at the department’s discretion. During the fall of 2002, the city council adopted two ordinances that required annual fire inspections of businesses and multi-family dwellings, for which a fee would be charged up to $100, based on the square footage of the building inspected. When suit was filed by the Building Owners & Managers Association of Greater Kansas City, challenging these ordinances as violations of the Hancock Amendment, the city council passed another ordinance amending the two previously adopted ordinances. The new ordinance required businesses and multi-family dwellings to obtain an annual “Fire Inspection Certificate,” at a fee not to exceed $100. The new ordinance also allowed the building owners to retain private engineers to conduct the annual inspection and pay only a $10 fee for the certificate if the building was privately inspected. The trial court found that all three ordinances violated the Hancock Amendment of the Missouri Constitution and the Court of Appeals affirmed in Building Owners & Managers Association of Greater Kansas City v. City of Kansas City.80
“The Hancock Amendment prohibits a political subdivision ‘from increasing the current levy of an existing tax, license or fees…without the approval of the required majority of qualified voters.’”81 “In Keller v. Marion County Ambulance District, 820 S.W.2d 301, 304 n. 10 (Mo. banc 1991), the Missouri Supreme Court identified five factors to be considered in determining whether an increase is a tax, license, or fee requiring voter approval under the Hancock Amendment.”82 “If the application of the Keller factors creates a genuine doubt as to whether a new or increased charge constitutes a ‘tax, license or fee,’ covered by the Hancock Amendment, we resolve the uncertainty in favor of requiring voter approval.”83 Each Keller factor must be reviewed individually.
"When is the fee paid? Fees subject to the Hancock Amendment are likely due to be paid on a periodic basis while fees not subject to the Hancock Amendment are likely due to be paid only on or after the provision of a good or service to the individual paying the fee.”84 “[T]he mandatory annual fee imposed here more likely runs afoul of the Hancock Amendment.”85
“Who pays the fee? A fee subject to the Hancock Amendment is likely to be blanket-billed to all or almost all of the residents of the political subdivision while a fee not subject to the Hancock Amendment is likely to be charged only to those who actually use the good or service for which the fee is charged.”86 “The fee assessment [here] was not blanket-billed or imposed on residents who did not obtain a fire inspection certificate,”87 and “this factor favors the City.”88
“Is the amount of the fee to be paid affected by the level of goods or services provided to the fee payer? Fees subject to the Hancock Amendment are less likely to be dependent upon the level of goods or services provided to the fee payer.”89 “Because the fees at issue here do not directly relate to the level of the inspection services provided, they are likely subject to the Hancock Amendment.”90
“Is the government providing a service or good?”91 If so, “the fee is less likely to be subject to the Hancock Amendment. The history of the fire inspection program indicates the City was not delivering a good or service when it took steps to enforce the fire code. With the passage of the three ordinances, the City sought to convert this enforcement activity into a service by requiring annual inspections and charging a fee for an inspection certificate.”92 “Because the inspection program does not constitute a service to property owners, the fees related thereto are likely a violation of the Hancock Amendment.”93
“Has the activity historically and exclusively been provided by the government?”94 If so, “the fee is likely subject to the Hancock Amendment. There is no dispute that the City’s fire department conducted inspections for nearly seventy-five years as a means of enforcing the fire code. The City concedes, as it must, that the activity for which it now seeks to charge a fee has been historically and exclusively provided by the municipal government.”95
“Four of the five Keller factors weigh in favor of finding a violation of the Hancock Amendment. [T]he circuit court did not err in invalidating the three ordinances. . . .”96
Footnotes
1 No. SC 88020 (Mo. banc 2007).
2 Todd, quoting Rodiguez v. General Accident Ins. Co. of Am., 808 S.W. 379, 382 (Mo. banc 1991).
3 Todd, quoting Martin v. U.S. Fidelity & Guar. Co., 996 S.W.2d 506, 508 (Mo. banc 1999).
4 See Todd.
5 Id.
6 715 S.W.2d 251 (Mo. banc 1986).
7 Todd, citing Bellamy v. Pacific Mutual Life Ins. Co., 651 S.W.2d 490, 496 (Mo. banc 1983).
8 Todd, citing Dieckman v. Moran, 414 S.W.2d 320, 321 (Mo. 1967).
9 See Todd.
10 Id.
11 Todd, citing Rodriguez.
12 See Todd.
13 No. SC 88232 (Mo. banc 2007).
14 See Todd.
15 Id.
16 Id.
17 Id.
18 Id.
19 No. SC 87991 (Mo. banc 2007).
20 White, citing Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 580 (Mo. banc 2006).
21 White, citing Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995).
22 See White.
23 Id.
24 Id.
25 White, quoting Butler, 895 S.W.2d at 19.
26 See White.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 No. ED 88627 (Mo. App. E.D. 2007).
33 Goellner, citing Robbins v. McDonald Douglas Corp., 27 S.W.3d 491, 496 (Mo. App. E.D. 2000).
34 Id.
35 Goellner, citing Royal Banks of Missouri v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc 1991).
36 Id.
37 Id.
38 Id.
39 Goellner, citing Washington University v. Royal Crown Bottling Co. of St. Louis, 801 S.W.2d 458, 468 (Mo. App. E.D. 1990).
40 See Goellner.
41 Id.
42 Id.
43 No. WD 66669 (Mo. App. W.D. 2007).
44 Dozier, quoting Martin v. Martin, 196 S.W.3d 632, 635 (Mo. App. W. D. 2006).
45 Dozier, citing Reed v. Reed, 48 S.W.3d 634, 639 (Mo. App. W. D. 2001).
46 Dozier, quoting Reed.
47 Dozier, quoting Brooks v. Brooks, 800 S.W.2d 468, 470-71 (Mo. App. E.D. 1990).
48 Dozier, quoting Cutter-Ascoli v. Ascoli, 32 S.W.3d 167, 169 (Mo. App. E.D. 2000).
49 Id.
50 Dozier, citing McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 403 (Mo. App. W.D. 2005).
51 Dozier, citing Doe v. Hamilton, 202 S.W.3d 621, 623 (Mo. App. E.D. 2006) and In re Marriage of Williams, 847 S.W.2d 896, 899 (Mo. App. S.D. 1993).
52 Dozier, quoting Rule 74.05(d).
53 See Dozier.
54 Id.
55 975 S.W.2d 496 (Mo. App. W.D. 1998).
56 See Dozier.
57 Id.
58 Dozier, quoting Gering at 499.
59 Dozier, citing Gering at 499.
60 No. ED 88842 (Mo. App. E.D. 2007).
61 Id.
62 Parish, citing Hummel v. St. Charles City R-3 School District, 114 S.W.3d 282, 284 (Mo. App. E.D. 2003).
63 Parish, citing Aiello v. St. Louis Community College District, 830 S.W.2d 556, 558 (Mo. App. E.D. 1992).
64 Parish, citing Donahew v. City of Kansas City, 38 S.W. 571, 572 (Mo. 1897).
65 Parish, citing Junior College District of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004) and Aiello at 558.
66 Id.
67 See Parish.
68 Id.
69 Parish, citing § 537.610.1 and Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006)
70 Parish, citing Investor’s Title Co. Inc. v. Hammonds, 217 S.W.3d 288, 300 (Mo. banc 2007) and Casey v. Chung, 989 S.W.2d 592, 593 (Mo. App. E.D. 1998).
71 Parish, citing Hummel at 284.
72 Parish, citing Langley v. Curators of the University of Missouri, 73 S.W.3d 808, 811 (Mo. App. W.D. 2002).
73 See Parish.
74 No. ED 88897 (Mo. App. E.D. 2007).
75 Smith, citing Delaney v. Gibson, 639 S.W.2d 601, 603-04 (Mo. banc 1982).
76 Smith, citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
77 Smith, citing Delaney at 603.
78 Smith, citing Garland v. National Supermarkets, Inc., 696 S.W.2d 342, 344 (Mo. App. E.D. 1985).
79 See Smith.
80 No. WD 66618 (Mo. App. W.D. 2007).
81 Building Owners, quoting Missouri Constitution, Art. X, Sec. 22.
82 See Building Owners.
83 Building Owners, citing Avanti Petroleum v. St. Louis County, 974 S.W.2d 506, 511 (Mo. App. E.D. 1998).
84 See Building Owners.
85 Id.
86 Id.
87 Id.
88 Id.
89 Id.
90 Id.
91 Id.
92 Id.
93 Id.
94 Id.
95 Id.
96 Id.