Property Owner May Recover Pre-Condemnation Damages Upon Proof of Aggravated Delay or Untoward Activity
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
The City of Gladstone enacted an ordinance declaring property owned by Clay County Realty Company and Edith Investment Co. to be blighted. Over the next two years, Gladstone solicited proposals for a tax increment financing plan, but never approved a TIF plan or instituted formal condemnation proceedings. Clay County Realty and Edith Investments filed suit against Gladstone alleging that the delay in instituting condemnation proceedings resulted in tenants refusing to renew their leases and that they were unable to attract other tenants because of the delays. They further alleged that the city engaged in undue delay and untoward activity in implementing condemnation proceedings and also claimed an unconstitutional “taking” of their property in violation of Missouri Constitution Article I, Section 26. The trial court granted summary judgment to the city, but the Supreme Court reversed and remanded in
Clay County Realty Co. v. City of Gladstone.1
“The issue presented in this appeal is whether Missouri recognizes a cause of action for pre-condemnation damages when the condemning authority is alleged to have caused undue delay and committed untoward acts in implementing condemnation proceedings.”2 “‘While the mere declaration of blight and other initial steps authorizing condemnation, even if they result in a decline of property values, do not constitute a taking requiring compensation to the property owner…governmental action short of acquisition or occupancy may constitute a constructive or de facto taking.’”3 “Inverse condemnation does not require the landowner to show a physical taking where an invasion or appropriation of a valuable property right that caused an injury can be shown.’”4
“‘It is not uncommon for a lengthy period of time to elapse between the time when the area is declared blighted by the legislative body and the time when the property is taken for condemnation purposes[, and] [b]etween the time of blighting and the time of taking, the property frequently has substantially deteriorated in value at great loss to the landowner.’”5 “The damages suffered when a ‘cloud of condemnation’ hangs over a property and an actual taking is never effectuated or is long-delayed has been labeled as ‘condemnation blight.’”6 “Condemnation blight can be marked by departure of rental tenants, unmarketability, and declines in rentability, capital values and profits.”7 “This Court has long-recognized that the common, long delays associated with blight designations and condemnation proceedings can damage property owners’ interests.”8
“Several jurisdictions recognize claims for condemnation blight under a theory of inverse condemnation.”9 “Although a property owner has never been successful in bringing such a claim in Missouri, Missouri courts have suggested property owners can prevail against condemning authorities for claims relating to condemnation blight where they provide specific evidence demonstrating aggravated delay, bad faith or untoward activity by the condemning authority.”10 “Considering the constitutional prohibition against takings without just compensation, this Court holds that actions for condemnation blight are inverse condemnation claims that property owners may advance in order to recover consequential pre-condemnation damages, such as the claims brought by [plaintiffs] in this case for increased operating costs and for lost rental and lease income.
“Because some delays relating to condemnation proceedings are natural and unavoidable, before property owners have a viable cause of action for precondemnation damages, they must establish that there has been aggravated delay or untoward activity in instituting or continuing the condemnation proceedings at issue. Without the standard requiring a showing of ‘aggravated delay or untoward activity,’ every condemnation case would give rise to a separate cause of action based on precondemnation activity, because the condemnation process involves governmental and judicial decisions that are endemic with delays.
“Determining whether a condemnor has acted with undue delay should include consideration of the time limitations for condemnation proceedings established by the legislature. Where a condemning authority’s delays have not exceeded statutory limits, the delay should not be labeled as ‘aggravated’ without additional evidence of related ‘untoward activity.’
“Additionally, plaintiff property owners must prove that their damages were caused by the condemning authorities’ actions or inactions. Proving causation in condemnation blight cases is inherently challenging, as presumably cities usually do not attach blight designations to properties that are not already in decline.”11 A property owner “need not wait until their property is condemned to seek precondemnation damages, as suits can seek awards of damages that is for harm that is ongoing.”12
Municipality May Prohibit New Billboards Even Though Permit Obtained From the Missouri Department of Transportation
Ad Trend obtained a permit from the Missouri Department of Transportation to erect an outdoor advertising sign on property located within Platte City. Ad Trend then submitted an application for a building permit from the city. While the application was pending, the city amended its zoning code to prohibit outdoor advertising signs of the type for which Ad Trend sought the permit. After the city denied Ad Trend’s permit application, Ad Trend filed a declaratory judgment suit against the city. The trial court granted summary judgment to the city and the Court of Appeals affirmed in State of Missouri ex rel. Ad Trend v. City of Platte City.13
“In 1965, the Missouri Legislature enacted the Billboard Act, the purpose of which, among other objectives, was ‘to reduce the number of signboards crowding the highways.’”14 “Under this version of the statute, the Missouri Billboard Act ‘was preemptory and . . . ordinance provisions which prohibited billboard construction, which the Missouri Billboard Act permitted, were invalid.’”15 “The legislature provided additional discretion to cities and counties in 1997 by passing section 71.288 RSMo. That statute provides that ‘any city or county shall have the authority to adopt regulations with respect to outdoor advertising that are more restrictive than the height, size, lighting and spacing provisions of sections 226.500 to 226.600, RSMo.’”16 “‘Section 71.288 thus grants municipalities the authority to regulate outdoor advertising beyond that provided in the Missouri Billboard Act.’”17 “The regulations in section 226.540 provide a set of default standards for new billboard construction, and section 71.288 grants authority to cities and counties to pass more restrictive ordinances.”18
“The Missouri Billboard Act authorizes a city to completely ban the construction of new outdoor advertising.”19 “The Missouri Billboard Act sets the minimum regulations to prevent Missouri from losing federal highway funds.”20 “Section 71.288 is ‘the state’s election to allow local governments to exercise more than the minimum regulatory control necessary to maintain the state’s federal highway funds.’”21 “Because the legislature provides cities and counties with the ability to regulate height, size, lighting and spacing to any extent, it impliedly provided the authority to pass a total ban on signs. The ordinance in question regulates the size and spacing of signs in the City’s jurisdiction. We interpret the ordinance to mean that the maximum area of a sign be no greater than zero and the minimum spacing between signs be infinite.”22
Evidence of the Absence of Prior Accidents Was Relevant
Stephanie and Ronald Heitman filed suit against Heartland Regional Medical Center for the injuries Stephanie sustained when she slipped while exiting the shower in the bathroom of her hospital room (Room 110), the day after she gave birth. As a result of the fall, Stephanie sustained a sacral fracture, herniated disk, and other injuries. At trial, the Heitmans presented the testimony of Rachel Scroggins, who had been a patient in Room 110 three months earlier. She testified that as she got out of the shower, she started to slip but caught herself. She told a nurse about the problem with the shower and the nurse said she would take care of it. In response to Ms. Scroggins’ testimony, Heartland introduced two exhibits at trial to show the absence of reports of problems with the shower in Room 110. One exhibit was a list of 33 patients who occupied that room between Ms. Scroggins’ stay and Ms. Heitman’s stay. The other exhibit listed all maintenance work orders for the labor and delivery unit and showed no work order for the shower in Room 110 until the complaint of Ms. Heitman. In addition, a nurse testified that all 33 women in Room 110 took at least one shower and that no one reported to her that the shower was broken. The jury returned a verdict in favor of Heartland and the Court of Appeals affirmed in Heitman v. Heartland Regional Medical Center.23
“Evidence of the absence of prior accidents is relevant to show: (1) absence of a defect or condition; (2) lack of a causal relationship between the injury and the defect or condition charged; (3) non-existence of an unduly dangerous condition; or (4) lack of knowledge of or grounds to realize the danger.”24 “‘For such evidence to be admissible, the proponent of the evidence must show that no accidents occurred … under conditions substantially similar to those faced by plaintiff and that an adequate number of those situations occurred to make the absence of accidents meaningful.’”25 “Whether a proper foundation is established for the admission of evidence of the absence of prior accidents is primarily within the discretion of the trial court.”26
“Heartland laid a proper foundation for the admission of evidence that no other patients complained of, had problems with or fell in the shower in Room 110 between [Ms. Scroggins’ stay and Ms. Heitman’s stay].”27 Heartland’s “evidence demonstrated that no complaints of problems with the shower or accidents involving the shower occurred under conditions substantially similar to those faced by Ms. Heitman and that an adequate number of similar situations had occurred to make the absence of prior accidents meaningful.”28
“Furthermore, the evidence of lack of the problems or incidents involving the shower were proper rebuttal evidence to Ms. Scroggins’ testimony, which was presented to prove that Heartland had knowledge of the defective shower. ‘A party may introduce evidence to rebut that of his or her adversary, and for this purpose, any competent evidence to explain, repel, counteract, or disprove the adversary’s proof is admissible.’”29
“The recent trend is to allow evidence of the absence of other accidents to rebut proof of notice of a danger.”30 Here,
“[e]vidence that thirty-three other patients stayed in Room 110 between Ms. Scroggins stay and Ms. Heitman’s stay and used the shower daily without reporting a problem with or an accident involving the shower was admissible to rebut Ms. Scroggins testimony.”31
Relocation of Child Was in Child’s Best Interests
Donna Will and Stephen Ratteree were the parents of a 5-year-old son, Grant. Under the terms of a custody order entered in a paternity case, the mother was the residential parent, but the parents shared joint physical and legal custody and had approximately equal visitation rights. The mother sought court permission to relocate Grant to San Francisco due to an involuntary job transfer. The father opposed this request. At trial, the mother presented evidence that her position in St. Louis had been eliminated and that her company offered her a similar position in San Francisco. If she remained in St. Louis working for the company, any position she took would be a demotion. Father presented testimony of a vocational expert who stated that there were several opportunities for similar positions in St. Louis, but did not know whether mother could obtain these positions because she had not completed high school.
Mother testified that she had located a school, doctor, and activities for Grant similar to those he had in St. Louis, and also testified that her sister lived in San Francisco. Grant’s grandparents and great-grandparents lived in St. Louis. Father’s current wife and his two older daughters, who had developed relationships with Grant, all lived in St. Louis. Prior to mother’s request to relocate, father had exercised less than half of his visitation time with Grant and, when he did, they often ate out. When Grant visited his father, his mother provided Grant with clean clothes and he would return from visiting his father with a bag full of dirty clothes. The trial court was unable to determine the nature and extent of father’s business activities and concluded that father lacked financial responsibility. The trial court permitted mother to relocate Grant to San Francisco and the Court of Appeals affirmed in Ratteree v. Will.32
“A parent seeking to relocate with a child has the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.”33 “Furthermore, the relocation must comply with the requirements of Section 452.377.10.”34 “The trial court based its findings of good faith on three things. First, the court found that mother was involuntarily transferred to San Francisco; second, that she must live in San Francisco to perform her business duties; and third, that it was necessary for mother to move to San Francisco for her continued employment … and … financial stability.”35 The trial court’s findings were “supported by substantial evidence and not against the weight of the evidence.”36
“The trial court [also] found that relocation was in Grant’s best interests ‘due to [Father’s] lack of some parenting skills, lack [of] a stable household, significant eating out in restaurants … and his lack of financial responsibility.’”37 “Past cases have noted that, in our highly mobile society, it is unrealistic to confine a parent to one geographic location.”38 “It was not against the weight of the evidence for the trial court to find that despite the deprivation of Grant’s time with his Father and extended family in St. Louis, it was in Grant’s best interests to relocate.”39
The parenting plan provided father with an eight-week period during the summer “during which Mother may exercise custody for up to five days. Grant would also spend each spring break with Father, along with each President’s Day weekend, Martin Luther King Day weekend, and Memorial Day weekend.”40 Thus, he would travel to St. Louis between six and eight times per year for a period of at least three days each time. The parenting plan the court adopted substantially complied with the statutory requirements. “While economic benefit can be a factor weighing in favor of relocation, a parent is not required to show it in order to be permitted to relocate.”41 “Here, the trial court … found that the quality of life economically would be approximately the same for Grant in San Francisco as it had been in St. Louis.”42 The trial court’s findings that mother sought to relocate in good faith and that relocation was in Grant’s best interests were supported by substantial evidence.
Appeal May Be Dismissed if the Controversy is Moot
Suit was filed against the City of Valley Park challenging the validity of city ordinances 1708 and 1715. The plaintiffs requested injunctive relief against enforcement of the ordinances and also alleged that the ordinances were void and unenforceable. After the trial court issued temporary restraining orders against the enforcement of each ordinance, the city repealed them. After trial on the merit of plaintiff’s claims, the trial court found both ordinances to be void in their entirety. The city appealed, but the Court of Appeals dismissed the appeal for mootness in Reynolds v. City of Valley Park.43
“‘A threshold question in any appellate review of a controversy is the mootness of the controversy.’”44 “‘Because mootness implicates the justiciability of a case, an appellate court may dismiss a case for mootness sua sponte.’”45 “‘A cause of action is moot when a question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect on any then existing controversy.’”46
“[A] court has discretion to review a moot case in two instances.”47 “The first instance is when a case becomes moot after submission and argument.”48 “The second instance occurs ‘when the case presents an unsettled legal issue of public interest and importance of a recurring nature that will escape review. …’”49 “‘The public interest exception is very narrow…and if an issue of public importance in a moot case is likely to be present in a future live controversy, practically capable of review, [this] exception does not apply.’”50 “We find this case is moot because the enforcement provisions of the ordinances which Plaintiffs seek this Court to review are repealed and have been substituted with new ordinances…. Any ruling this court would make regarding the enforcement provisions of the two repealed ordinances would have no practical effect on any existing controversy.”51
Civil Litigants Have a Constitutional Right to a Fair and Impartial Jury
Gilbert Hudson took his 6-year-old grandson, Anthony Hudson, to the Marion County Fairgrounds to ride a pony named Tex, who was owned by Gilbert Hudson. While the grandson was riding Tex, Lacey Behring was riding another horse, named Pressor, which was owned by the Behring family. Anthony fell from Tex and Lacey proceeded to try to corral Tex. As this was happening, Anthony ran between Pressor and Tex when Pressor kicked Anthony in the face, causing immediate injury. Anthony and his parents filed suit against the Behrings for ownership of a dangerous animal, and also sued the grandfather, Gilbert Hudson, alleging negligent supervision. During the trial, plaintiff’s counsel brought to the trial court’s attention a conversation that one of the jurors had with the grandfather’s daughter, Kathy Williams. Out of the hearing of the jury, Williams testified that the juror said to her, “If you see your dad later, tell him I love him to death.” Plaintiff’s counsel requested that the juror be excused and replaced with an alternate, but the trial court denied that request. The jury returned a verdict for all defendants, but the Court of Appeals reversed and remanded for a new trial in Hudson v. Behring.52
“The substitution of an alternate juror for a regular juror during trial is a matter entrusted to the discretion of the trial court.”53 “It is axiomatic that civil litigants have a constitutional right to a fair and impartial jury of twelve qualified jurors.”54 “Litigants ‘are entitled to unbiased jurors whose experiences…will not prejudice the resolution of the case.’”55 “It is essential that a competent juror must be in a position to enter the jury box disinterested and with an open mind, free from bias or prejudice.”56
“Replacement of a juror with an alternate is an appropriate remedy when there is a possibility of bias.”57 Here, the juror’s statement, “‘tell him I love him to death,’ clearly shows at least a possible bias.”58 “Even if [the juror] would have reaffirmed his ability to be impartial upon questioning, ‘[a] venireperson should not be allowed to judge his own qualifications to serve as a juror.’”59 Here, “the juror’s statement clearly indicates a real possibility of bias.”60 “[T]he trial court abused its discretion in failing to excuse [the juror] and seat an alternate when the juror’s statement so clearly indicated a possible bias.”61
Vexatious Refusal Penalty and Prejudgment Interest Were Supported by the Evidence
Curtis and Ann Long filed suit against Columbia Mutual Insurance Company, seeking damages under the insurance policy issued to them for the loss of cattle owned by the Longs. When cattle started disappearing, the Longs became suspicious of an individual who worked as their farm manager. They reported their loss of cattle and their suspicion to the local sheriff’s office, who initiated an investigation. The Longs also reported the loss of cattle to Columbia Mutual Insurance Company. After conversations with a Columbia adjuster, the Longs received a letter from Columbia denying their claim. Columbia then initiated a declaratory judgment action alleging that there was no coverage because the losses were suffered by wrongful conversion or embezzlement. The Longs filed a counterclaim for damages. Columbia dismissed its declaratory judgment action prior to trial and the claims of the Longs proceeded to a jury trial, at which damages were assessed against Columbia for both the losses and vexatious refusal to pay. The trial court denied the Longs’ request for prejudgment interest. The Court of Appeals affirmed the damages and vexatious refusal penalties, but remanded to the trial court to award interest under § 408.020 RSMo. in Columbia Mutual Insurance Co. v. Long.62
“An action for vexatious refusal is based upon section 375.420 [RSMo.]”63 “That statute establishes three elements that a plaintiff must prove in order to prevail on such a claim: (1) the existence of an insurance policy with the defendant,
(2) the defendant’s refusal to pay under the policy, and (3) such refusal was ‘without reasonable cause or excuse.’”64 “A claim for vexatious refusal is a claim for statutory damages, not a common law claim….”65 Thus, clear and convincing evidence is not required. Moreover, “‘direct and specific evidence to show vexatious refusal is not required; the jury may find vexatious delay upon a general survey and a consideration of the whole testimony and all the facts and circumstances in connection with the case.’”66 “At trial, the Longs presented expert testimony that insurance industry customs, standards, and practices require that, ‘before a denial of a claim can be made, it must be fully, thoroughly, and adequately investigated.’ That same expert testified that, on the basis of those customs, standards and practices, ‘Columbia’s investigation of the Longs’ loss was terribly inadequate.’”67 “[T]here was sufficient evidence to support the jury’s determination that Columbia refused the Longs’ claim without reasonable cause or excuse.”68
“Where the damages are liquidated, application of section 408.020 is mandatory, rather than discretionary.”69 “As a general rule, damages are liquidated for purposes of prejudgment interest when the amount becomes due and is ‘fixed and determined and/or readily ascertainable by computation or a recognized standard.’”70 “The mere fact that a party denies liability or defends a claim against him, or even the existence of a bona fide dispute as to the amount of the indebtedness, does not preclude recovery of interest….” 71 “In the instant case, the amount due was fixed, by the insurance policy itself, as the value of the stolen cattle.”72 “The mere fact that the amount was not ‘fixed and determined’ is of no legal significance if that amount was readily ascertainable by computation or a recognized standard.”73 “The rule that prejudgment interest is not to be awarded on unliquidated claims is based upon ‘the idea that where the person liable does not know the amount he owes, he should not be considered in default because of failure to pay.’”74 “The Longs filed a timely proof of loss, …” but “Columbia declined an opportunity to examine the Longs’ records detailing the quantity of missing cattle and the value thereof.”75 Columbia’s failure, for over four years, “to fully investigate that loss cannot stand as a basis for denying the Longs a recovery that accounts for the time-value of the amounts owed to them under the policy.”76 “[T]he cause is remanded to the trial court for determination of when payment became due under the policy and an adjustment of the award to reflect interest at the statutory rate from that time until the date of judgment.”77
To Recover Under Quantum Meruit, Plaintiff Must Prove Benefit of Its Services
M & M Building performed construction work on a movie theater owned and operated by Miles Horn. The contract between M & M and Horn was signed by Mr. Horn as owner. There was no reference in the contract to Mary Horn, wife of Miles Horn. During the construction process, Mr. Horn passed away. He had paid M & M approximately $193,000 for the work that it had performed. Upon Mr. Horn’s death, Mrs. Horn notified M & M that she wanted the work to stop. She later sold the property for $100,000. M & M filed suit against Mrs. Horn seeking recovery in quantum meruit for $153,000. The trial court found in favor of Mrs. Horn and the Court of Appeals affirmed in Miller v. Horn.78
“The elements of unjust enrichment are: ‘(1) that the defendant was enriched by the receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; [and] (3) that it would be unjust to allow the defendant to retain the benefit.’”79 “The third element, unjust retention of the benefit, is considered the most significant and the most difficult of the elements.”80 “Mere receipt of benefits is not enough, absent a showing that it would be unjust for the defendant to retain the benefit.”81 “The fact that a party knew of the work, acquiesced in its performance and voiced no disapproval of the work does not in itself make the party liable.”82 “Before one spouse can be held liable for another spouse’s legal obligations in actions at law, there must be evidence of agency or of ratification, by the spouse.”83 “Here, there was no evidence of ratification because Mrs. Horn promptly stopped the construction” after her husband’s death.84 “The trial court could … reasonably conclude that Mrs. Horn was no more than a passive beneficiary of M & M’s services” and was not an active participant.85
“Unjust enrichment can occur only when a person retains a benefit without paying its reasonable value.”86 “To recover under quantum meruit, it is the plaintiff’s burden to show that its services benefited the defendant.”87 “The plaintiff must also show the amount of the benefit.”88 There must be evidence establishing the objective reasonableness of plaintiff’s charges.89 Here, Mr. Horn had previously paid M & M more than $193,000 for work performed and Mrs. Horn sold the land, with the partially constructed building on it, for $100,000. “The burden of showing that a benefit was conferred after Miles Horn had already paid $193,000, and the value of that benefit, rested on M & M.”90 “M & M failed to prove the extent of any benefit received by Mrs. Horn. If Mrs. Horn benefited at all by any uncompensated construction services, M & M failed to provide the trial court with tools to measure that benefit.”91 “The trial court did not err in concluding that Mrs. Horn was not benefited by any of M & M’s uncompensated construction services, because the benefit was not shown.”92
Footnotes
1 No. SC 88924 (Mo. banc 2008).
2 Id.
3 Id., quoting Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir. 1979).
4 Id., citing State ex rel. Chiavola v. Village of Oakwood, 931 S.W.2d 819, 824 (Mo. App. W.D. 1996).
5 Id., quoting State ex rel. Washington University Medical Center Redevelopment Corp. v. Gaertner, 626 S.W.2d 373, 375-6 (Mo. banc 1982).
6 Id., quoting Dale A. Whitman, Eminent Domain Reform in Missouri: A Legislative Memoir, 71 Mo. L.Rev. 721, 757 (2006).
7 Id., citing Whitman.
8 Id.; see Washington University at 375-6.
9 Id.
10 Id.; see Land Clearance for Redevelopment Authority of the City of St. Louis v. Morrison, 457 S.W.2d 185, 199 (Mo. banc 1970).
11 Id.
12 Id., citing Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo. banc 1980).
13 No. WD 68559 (Mo. App. W.D. 2008).
14 Id., citing Redpath v. Mo. Highway & Trans. Comm’n, 14 S.W.3d 34, 39 (Mo. App. W.D. 1999).
15 Id., quoting State ex rel. Drury Displays, Inc. v. City of Shrewsbury, 985 S.W.2d 797, 799 (Mo. App. E.D. 1998).
16 Id., quoting § 71.288, RSMo.
17 Id., quoting Wall USA, Inc. v. City of Ballwin, 53 S.W.3d 168, 171 (Mo. App. E.D. 2001).
18 Id.
19 Id.
20 Id., citing C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 330 (Mo. banc 2000).
21 Id. quoting C.C. Dillon Co.
22 Id.
23 No. WD 68374 (Mo. App. W.D. 2008).
24 Id., citing Henson By and Through Lincoln v. Board of Education of Washington School District, 948 S.W.2d 202, 206 (Mo. App. E.D. 1997).
25 Id., quoting Henson at 206.
26 Id., citing Henson.
27 Id.
28 Id., citing Savant v. Lincoln Engineering, 899 S.W.2d 120, 122 (Mo. App. E.D. 1995).
29 Id., quoting Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 164 (Mo. App. W.D. 2006).
30 Id., citing Pierce v. Platte-Clay Electric Co-Op, Inc., 769 S.W.2d 769, 774 (Mo. banc 1989).
31 Id.
32 No. ED 90269 (Mo. App. E.D. 2008).
33 Id., citing § 452.377.9, RSMo.
34 Id., citing Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001).
35 Id.
36 Id.
37 Id.
38 Id.; see Thomas v. Thomas, 989 S.W.2d 629, 634 (Mo. App. W.D. 1999).
39 Id.
40 Id.
41 Id.
42 Id.
43 No. ED 89659 (Mo. App. E.D. 2008).
44 Id., quoting Braveheart Real Estate Co. v. Peters, 157 S.W.3d 231, 233 (Mo. App. E.D. 2004).
45 Id., quoting State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001).
46 Id., quoting Precision Investments, LLC v. Cornerstone Propane, L. P., 220 S.W.3d 301, 304 (Mo. banc 2007).
47 Id., citing Jenkins v. McLeod, 231 S.W.3d 831, 833 (Mo. App. E.D. 2007).
48 Id., citing Jenkins.
49 Id., quoting State ex rel. Chastain v. Kansas City, 968 S.W.2d 232, 237 (Mo. App. W.D. 1998).
50 Id., quoting Jenkins at 833.
51 Id., citing Precision Investments at 304.
52 No. ED 89873 (Mo. App. E.D. 2008).
53 Id., citing Yaeger v. Olympic Marine Co., 983 S.W.2d 173, 187 (Mo. App. E.D. 1998).
54 Id., citing Missouri Constitution, Article 1, Section 22(a); Williams by and through Wilford v. Barnes Hospital, 736 S.W.2d 33, 36 (Mo. banc 1987).
55 Id., quoting Williams at 36.
56 Id., citing Catlett v. Illinois Central Gulf R.Co., 793 S.W.2d 351, 353 (Mo. banc 1990).
57 Id., citing Milam v. Vestal, 671 S.W.2d 448, 453 (Mo. App. S.D. 1984).
58 Id.
59 Id., quoting Dodson by and through Dodson v. Robertson, 710 S.W.2d 292, 295 (Mo. App. S.D. 1986).
60 Id.
61 Id.
62 No. WD 67571 and 67572 (Mo. App. W.D. 2008).
63 Id., citing Dhyne v. State Farm Fire & Casualty Co., 188 S.W.3d 454, 457 (Mo. banc 2006).
64 Id., quoting § 375.420, RSMo.
65 Id.
66 Id., quoting DeWitt v. American Family Mutual Ins. Co., 667 S.W.2d 700, 710 (Mo. banc 1984).
67 Id.
68 Id.
69 Id., citing Huffstutter v. Michigan Mutual Ins. Co., 778 S.W.2d 391, 395 (Mo. App. E.D. 1989).
70 Id., quoting J. R. Waymire Co. v. Antares Corp., 975 S.W.2d 243, 248 (Mo.App. W.D. 1998).
71 Id., citing Twin River Construction Co. v. Public Water Dist. No. 6, 653 S.W.2d 682, 695 (Mo. App. E.D. 1993).
72 Id.
73 Id., quoting J.R. Waymire Co. at 248.
74 Id., citing Fohn v. Title Insurance Corp. of St. Louis, 529 S.W.2d 1, 5 (Mo. banc 1975).
75 Id.
76 Id.
77 Id.
78 No. WD 68024 (Mo. App. W.D. 2008).
79 Id., quoting S & J, Inc. v. McLoud & Co., 108 S.W.3d 765, 768 (Mo. App. S.D. 2003).
80 Id., citing Graves v. Berkowitz, 15 S.W.3d 59, 62 (Mo. App. W.D. 2000).
81 Id., citing S & J., Inc. at 768.
82 Id., citing Graves at 63.
83 Id., citing Cohn v. Dwyer, 959 S.W.2d 839, 843-44 (Mo. App. E.D. 1997).
84 Id.
85 Id.
86 Id., citing Graves at 63-64.
87 Id., citing Hosp. Dev. Corp. v. Park Lane Land Co., 813 S.W.2d 904, 910 (Mo. App. W.D. 1991).
88 Id., citing Kinetic Energy Dev. Corp. v. Trigen Energy Corp., 22 S.W.3d 691, 697 (Mo. App. W.D. 1999).
89 Id. at 698.
90 Id., citing Kinetic Energy at 697.
91 Id.
92 Id.