Sexual Harassment of Employee By a Company Supervisor Warranted Punitive Damages Against the Company

W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

Kendra Lynn worked for 16 months as an assembly line scanner for TNT Logistics North America. During this time, her supervisor made numerous lewd and sexually suggestive comments to her and also hit her on the buttocks in front of other employees. Lynn complained about this to another supervisor and her complaints were forwarded to the manager of the facility at which she worked, but no action was taken. She filed suit against TNT for sexual harassment and sought damages under the Missouri Human Rights Act. After a five-day jury trial, she was awarded $50,000 in compensatory damages and $6.75 million in punitive damages. The trial court reduced the punitive damages to $450,000. The Court of Appeals affirmed the award of compensatory damages and prejudgment interest, but modified the punitive damages to be $3.75 million in Lynn v. TNT Logistics North America, Inc.¹

“Sexual harassment creates a hostile work environment when sexual conduct either creates an intimidating, hostile or offensive work environment or has the purpose or effect of unreasonably interfering with an individual’s work performance.”² “The plaintiff establishes a primary element of a cause for sexual harassment where she can show that the employer knew, or should have known, of the harassment and failed to take appropriate action.”³ The conduct to which Lynn was subjected “goes beyond harmless comments or boorish conduct of a supervisor directed at a female employee.”⁴ TNT ignored the conduct and did “absolutely nothing to curb or punish the conduct of its supervisor, even though the company had immediate knowledge of the conduct, which was reported to supervisors and pushed up the chain of command.”⁵

Moreover, “Lynn presented sufficient evidence to establish the submissibility of her punitive damages claim.”⁶ TNT “provided no training for sexual harassment, or even human resources personnel, at a plant employing 175 employees”⁷ until after Lynn’s employment ended. “[TNT] had direct knowledge of the sexual harassment but ignored the egregious conduct of one of its supervisors. Such behavior constitutes reckless indifference…. Punitive damages were properly submitted.”⁸

“Although great deference is given the jury’s verdict amount, this court, after examination of the evidence, concludes, as did the trial court, that the award of $6.75 million was excessive. Punitive damages are intended to punish outrageous conduct and deter a future occurrence of similar conduct.”⁹ TNT “did nothing to correct the actions of its supervisor that created a workplace that was hostile and rife with sexual harassment.”¹⁰ “[T]he facts peculiar to this case warrant punitive damages beyond a single digit ratio to compensatory damages.”¹¹ “In the interest of judicial economy, this court may exercise its judicial prerogative to enter the judgment the trial court should have entered. Rule 84.14; Gentry v. Simmons, 754 S.W.2d 579, 584 (Mo. App. [W.D.] 1988). Accordingly, this court orders that judgment be entered awarding Lynn $3.75 million in punitive damages.”¹² “The award … is not grossly excessive within the limits of due process, as expressed in [BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996)].”¹³ “If the plaintiff … agrees, within 15 days of the court’s mandate to remit the amount of punitive damages to $3.75 million, the cause will be remanded to the trial court for entry of a judgment, including prejudgment interest on one-half that amount. Otherwise, the judgment for punitive damages will be reversed for a new trial.”¹⁴ “[I]f Lynn accepts this court’s remitted amount, she may only receive prejudgment interest on one-half of the punitive award.”¹⁵

Missouri Does Not Recognize a Cause of Action for Educational Malpractice

In 2001, “a Piper Turboprop [airplane] crashed, … killing the pilot and his four passengers. The surviving family members of the decedents brought suit against Dallas Airmotive, a [company] that provided maintenance for the aircraft and FlightSafety International,”¹⁶ the flight training school that trained the pilot. “Dallas Airmotive reached settlements with the claimants and pursued crossclaims for contribution against FlightSafety….”¹⁷ In support of its cross-claim for contribution, Dallas Airmotive adopted the allegations of the claimants that FlightSafety failed to train the pilot of the known dangers of shutting down an engine in flight without the ability to properly feather the propeller. The trial court granted summary judgment to FlightSafety and the Court of Appeals affirmed in Dallas Airmotive v. FlightSafety International.

“Missouri, along with most other jurisdictions that have considered the issue, has found that educational malpractice claims are not congnizable because there is no duty.”¹⁸ “Educational malpractice claims tend to fall into one of three general categories: (1) the student alleges that the school negligently failed to provide him with adequate skills; (2) the student alleges that the school negligently diagnosed or failed to diagnose his learning or mental disabilities; or (3) the student alleges that the school negligently supervised his training.”¹⁹ “While the student is usually the person asserting the claim, third parties have sometimes attempted to assert educational malpractice claims by contending that they were injured by the school’s negligent teaching of the student.”²⁰

“Where the court is asked to evaluate the course of instruction or the soundness of the method of teaching that has been adopted by an educational institution, the claim is one of educational malpractice.”²¹ “The distinction between an educational malpractice claim and a cognizable negligence claim arising in the educational context may not always be clear. The duty not to cause physical injury by negligent conduct ‘does not disappear when the negligent conduct occurs in an educational setting.’”²² But this is not a case of an injury during instruction; this is a case about the quality of the instruction. “[M]any factors contribute to the quality of a student’s education and the quality of his later performance. The recognition of liability, of course, would be a great invitation to speculation as to causation. See Sellers v. School Board of the City of Mansassas, 960 F.Supp. 1006, 1014 & n. 36 (E.D. Va. 1997). Public policy also suggests that schools, and their regulating, accrediting, and certifying agencies, not courts, need to make curriculum decisions.”²³ “Dallas Airmotive’s claims are not cognizable, as there is no legal duty upon which to premise the claim of negligence.”²⁴

“[S]ummary judgment in FlightSafety’s favor was appropriate as the claims were not cognizable.”²⁵

Agent May Be Personally Liable for Failure to Disclose Agency Relationship

Larry Mays rented his condominium to Jeff Hodges. Hodges told Mays that he was going to reside in the condominium. The rental agreement that was signed identified the tenant as “Tri-Lakes Developers, Inc.,” but was signed by Jeff Hodges, without any designation of his office or title. Hodges failed to pay the agreed upon rent and Mays filed suit against Hodges personally for the unpaid rent. The trial court entered judgment in favor of Mays for the past due rent and the Court of Appeals affirmed in Mays v. Hodges.²⁶

While the “‘execution of a contract in a corporate name that contains an indicia of corporate status, such as “Inc.” or “Corp.” or the like, can be a sufficient disclosure’ of a corporate principal, Corporate Interiors, Inc. v. Randazzo, 921 S.W.2d 124, 127 (Mo. App. [E.D.] 1996), in this case, the agreement was executed by Jeff Hodges without any such indicia. The use of the “Tri-Lakes Developers, Inc.’ name in the listing for the tenant is ambiguous at best.”²⁷ “‘[T]he principal is liable, and not the agent, where the principal is disclosed and the capacity in which the agent signs the contract is evident, such as placing “president” or “secretary” after his signature.’”²⁸ “Where, as here, ‘the individual signs the agreement without indicating that the signature is only given as an agent, the question of his personal liability is one for the trier of fact.’ Moore v. Seabaugh, 684 S.W.2d 492, 495 (Mo. App. [E.D.] 1984). ‘Upon proof that an agent signed his signature without limitations, to an instrument and with no limitations stated in the body of the instrument, the other party to the agreement has made a prima facie case for the agent’s personal liability, and the agent bears the burden of proving both disclosure of the principal and the intention of the parties not to impose personal liability on the agent.’ Id.”²⁹

“‘An ambiguity as to whether an individual is personally liable is created where the form of the signature is inconsistent with the assumption of personal liability under the terms of the agreement.’ Headrick Outdoor, Inc. v. Middendorf, 907 S.W.2d 297, 299 (Mo. App. [W.D.] 1995). Here, … an ambiguity exists between the form of Defendant’s signature and the designation of the tenant.”³⁰ When a contract is ambiguous, the court may look to extrinsic evidence to aid in the interpretation.³¹ “[T]he parties’ intent can be determined from other sources such as, most notably, Plaintiff’s testimony that he rented the condominium to the Defendant, coupled with Defendant’s use of the condominium as his personal residence during the rental period. This evidence demonstrating the parties’ intent supports the trial court’s conclusion that defendant was the tenant in the rental agreement,”³² not the corporate entity identified as the tenant.

City Entitled to Sovereign Immunity From Wrongful Discharge Claim by Former Employee

Evelyn Topps was the city clerk for the City of Country Club Hills for three years. After reporting unethical business practices and violations of city policies and procedures, she resigned her position. She filed a wrongful discharge suit against the city alleging that she was retaliated against as a whistle-blower and was forced to resign. She alleged in her suit that the city had waived sovereign immunity because it participated in the Missouri Public Entity Risk Management (MOPERM) Fund for its insurance coverage. The MOPERM “Memorandum of Coverage” states that it will pay on behalf of the city for losses that the city becomes legally obligated to pay by reason of liability arising out of injuries directly resulting from the negligent act or omission by public employees arising out of the operation of a motor vehicle within the course of their employment and injuries caused by the dangerous condition of the city’s property. A disclaimer section in the memorandum states that nothing in the memorandum shall be construed to broaden the liability of the city beyond the Missouri statutes governing sovereign immunity or waive any defense at law that might be otherwise available to the city or its officers and employees. Finding that the whistle-blower claims of Topps were barred by sovereign immunity, the trial court granted the city’s motion for summary judgment and the Court of Appeals affirmed in Topps v. City of Country Club Hills.³³

“‘Sovereign immunity does not necessarily describe the immunity held by municipalities because municipalities, as distinguished from other governmental entities, exercise both governmental and proprietary functions.’”³⁴ “Municipalities have traditionally had immunity with regard to actions they undertake as a part of their ‘governmental functions – actions benefiting the general public.’”³⁵ “On the other hand, municipalities do enjoy sovereign immunity for torts committed ‘while performing proprietary functions – actions benefiting or profiting the municipality in its corporate capacity.’”³⁶ “The Missouri Supreme Court ‘has held that termination of a city employee is a governmental function,’”³⁷ and thus sovereign immunity applies.

“Because ‘finding a municipality liable for torts is the exception to the general rule of sovereign immunity, [ ] a plaintiff must plead with specificity facts demonstrating his claim falls within an exception to sovereign immunity.’ Parish, 231 S.W.3d at 242. The plaintiff shoulders the burden of proving the existence of an insurance policy, and that the terms of the policy cover the claims asserted by the plaintiffs against the municipality.”³⁸ Here, the MOPERM policy covers claims arising out of injuries resulting from the operation of motor vehicles or dangerous conditions of property. “Given the plain and clear language of … the MOPERM policy, [it] does not provide insurance coverage to the city for employee whistle blower claims. …”³⁹

Moreover, the MOPERM policy “includes disclaimer language that [specifically] reserves the city’s sovereign immunity.”⁴⁰ “[T]he ‘Memorandum of Coverage’ clearly states that the policy should not be construed to broaden the liability of the City beyond the sovereign immunity provisions of Section 537.600 to 537.610, nor ‘to abolish or waive any defense at law which might otherwise be available’ to the City. Because a number of courts have held that ‘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,’ the disclaimer provision in the City’s MOPERM policy acts to retain the City’s sovereign immunity.”⁴¹

While affirming summary judgment for the city and finding that it enjoyed sovereign immunity from the whistle-blower retaliation claims asserted by Topps, the court also commented that it was sympathetic to well-intentioned and law-abiding municipal employees who could face whistle-blower retaliation for reporting wrongdoing and illegal activities. “Municipal employees who have genuine concerns about the legality and propriety of their employer’s acts know that, if they report the alleged wrongdoings, they risk losing their jobs and have no recourse. They are ‘second-class’ employees with fewer rights and protections than employees in the private sector.”⁴² “[O]ur system of government would benefit from a policy that excludes whistle blower retaliation claims from the protection of sovereign immunity. Despite these concerns, we are constrained by the very clear law and the … MOPERM policy at issue. Any change in the application of sovereign immunity to whistle-blower retaliation claims must come from the legislature.”⁴³

A Tale of Two Non-Compete Agreements: One Not Enforceable, Another One Enforceable

Barbara Yates worked for Payroll Advance, Inc., a payday loan company, located in Kennett. After Yates became a branch manager in 1999, she signed a non-compete agreement that prohibited her from becoming an employee of any business that competed with Payroll Advance, within a 50-mile radius, for a period of two years after termination of her employment. Yates was terminated for cause in 2007 after nine years of employment. “Approximately thirty-two days after being terminated, Yates became employed with Check Please, one of the approximately fourteen other payday loan establishments in the area. At Check Please, [she] performed basically the same duties that she had … with [Payroll Advance].”⁴⁴ Payroll Advance filed suit against Yates to enforce the non-compete agreement she had signed. At trial, Yates testified that she took the position with Check Please because she had been unable to find another job and that she was the only person in her family working. She also testified that she had not taken any client lists with her when she was terminated and had not called or attempted to call any clients of Payroll Advance. The trial court declined to enforce the non-compete agreement and the Court of Appeals affirmed in Payroll Advance v. Yates.

“‘Generally, because covenants not to compete are considered to be restraints on trade, they are presumptively void and are enforceable only to the extent that they are demonstratively reasonable.’”⁴⁵ “‘Noncompetition agreements are not favored in the law, and the party attempting to enforce a noncompetition agreement has the burden of demonstrating both the necessity to protect the claimant’s legitimate interests and that the agreement is reasonable as to time and space.’”⁴⁶ “‘Non-compete agreements are enforceable to the extent they can be narrowly tailored geographically and temporally.’”⁴⁷ “‘Such restrictions are non-enforceable to protect an employer from mere competition by a former employee, but only to the extent that the restrictions protect the employer’s trade secrets or customer contacts.’”⁴⁸

“Here, the covenant not to compete grandly declares that [Yates] cannot compete with [Payroll Advance] as [an employee] in any business that is in competition with [Payroll Advance] and within a 50 mile radius….”⁴⁹ The agreement “fails to set out with precision what is to be considered a competing business and certainly does not specify that it only applies to other payday loan businesses…. [I]n addition to barring … employment at a different payday loan establishment, the covenant not to compete also bars [the employee] from being employed anywhere loans are made, including banks, credit unions, savings and loan organizations, title-loan companies, pawn shops, and other financial organizations. Such a restraint on the geographic scope of [Yates’] employment and upon her type of employment is unduly burdensome and unreasonable.”⁵⁰

Further, the court looks not only “to the actual terms of the covenant not to compete but to the impact on the former employee.”⁵¹ Here, Yates testified that “she was the only person able to work in her family” and that “she took the job because she needed the income. There is evidence supporting the trial court’s determination that requiring [Yates] to comply with [the limitations] under the covenant not to compete would greatly restrict her ability to provide for her family and clearly be a restraint on her future employment. Having considered ‘the facts of this particular case and all surrounding circumstances,’ … this court finds no error in the trial court’s denial” of the request by Payroll Advance for injunctive relief against Yates. R.E. Harrington, Inc. v. Frick, 428 S.W.2d 945, 950 (Mo. App. [E.D.] 1968).

* * *

On the other hand, the trial court granted injunctive relief for the enforcement of a non-compete agreement and the Court of Appeals affirmed in Naegele v. Biomedical Systems Corp., No. ED 90584 (Mo. App. E.D. 2008). In this case, Mary Naegele challenged the non-compete agreement she signed with Biomedical Systems Corp. that prohibited her from contacting any customer or prospective customer of Biomedical Systems that she had dealt with at any time during her last one year of employment with the company. In upholding the injunction issued by the trial court, the court held that Missouri courts have recognized customer contacts to be protectable interests because customer relationships are pursued and developed at the employer’s expense, and add value to the employer’s business.⁵²

“Therefore, an employer may protect customer relationships, even if the employee had contact with some of the … customers before joining the employer.”⁵³ “As Naegele’s employer, Biomedical had the right to require Naegele to develop strong relationships with any and all customers that she could. The evidence … showed that Biomedical invested considerable money, time and effort to allow Naegele to develop, maintain, foster and preserve Biomedical’s relationships with its customers….”⁵⁴ “Biomedical had a legitimate business interest in restraining Naegele from pursuing those customers with whom she developed or strengthened a relationship while working for Biomedical, regardless of whether those customer contacts originated with Naegele while she was working at [a previous employer].⁵⁵ Because Biomedical had a protectable interest in the customer contacts, it is unnecessary to address Naegele’s argument that Biomedical failed to prove that its customer lists were trade secrets.⁵⁶

Annexation Did Not Meet Compaction Requirement of Statute

The Curtis, Jehle and Beck families owned property along Pioneer Road near the City of Hillsboro. The city passed ordinances purporting to annex approximately 1,700 lineal feet of Pioneer Road into the city, together with two tracts of land located on the opposite sides of the Pioneer Road stretch to be annexed. The Curtis, Jehle and Beck families filed a declaratory judgment action against the city seeking a declaration that the annexation was invalid because neither the Pioneer Road stretch nor the two tracts that were part of the annexation were “compact” to the pre-annexation boundaries of the city as required by § 71.014 RSMo. On summary judgment, the trial court found the attempted annexation to be invalid and the Court of Appeals affirmed in Curtis v. City of Hillsboro.⁵⁷

The recent case of Dodson v. City of Wentzville, 216 S.W.3d 173, 177 (Mo. App. E.D. 2007) noted that the word “compact” is defined in the dictionary as “firmly put together, joined or integrated….” Relying on Reed v. City of Union, 913 S.W.2d 62, 64 (Mo. App. E.D. 1995), the Dodson court “held that an attempted ‘flag annexation’ did not meet the test of compactness.”⁵⁸ “In applying the law to the facts of that case, the [Dodson] court held that the attempted annexation of the strip and the parcel did not meet the statutory requirement of compactness because of the shape of the tracts. Id. The court stated that the annexation did not make the city’s boundaries more regular, nor would the city and the annexed area be one closely-grouped solid tract of land. Id.”⁵⁹ Here, “the attempted annexation [by the City of Hillsboro] does not meet the test of compactness. The annexation does not make the City’s boundaries more regular, nor would the City and the annexed area be one closely-grouped, solid tract of land.”⁶⁰

Here, the city’s reliance for this “flagpole annexation” under Missouri Rural Electric Coop v. City of Hannibal, 938 S.W.2d 903 (Mo. banc 1997) is misplaced. “Under the current version of Section 71.012, the exception for annexing areas along a road or highway up to two miles from the existing boundary of a city only applies to a third class city, town or village that borders a fourth class city, a second class county, and the Missouri River. [Hillsboro] is located in Jefferson County [and] does not meet those requirements. If the legislature intended for any city to be able to annex along a road up to two miles, it could have expanded the exceptions, but it did not.”⁶¹

“The City’s contention that the trial court’s application of compact is an unconstitutional impairment of the right to contract and violated due process fails first and foremost because the City has not established there was a contract. These were voluntary annexations of property not contractual situations. Because they were voluntary annexations, the annexations must meet the requirements of the statute, in particular Section 71.014. The annexations here did not meet the requirements because the tracts were not compact to the City.”⁶² The city’s constitutional challenge is not real and substantial. The trial court’s interpretation of the statute and the requirement that the annexed property must be compact does not interfere with the city’s constitutional rights.

Under Supreme Court Rule 44.01, When Deadline Falls on a Sunday or Holiday, Suit May Be Timely Filed the Next Day

Bobbie Morris filed a complaint with the Missouri Commission on Human Rights, alleging that her former employer, Karl Bissinger, Inc., had discriminated against her in violation of the Missouri Human Rights Act. She received a right-to-sue letter from the MCHR, dated October 1, 2007. In that letter, she was notified that her suit must be filed within 90 days from the date of the letter. Morris filed suit against Bissinger on Monday, December 31, 2007, ninety-one days from the date of the right-to-sue letter. The trial court granted Bissinger’s motion to dismiss the suit as being untimely filed, but the Court of Appeals reversed in Morris v. Karl Bissinger, Inc.⁶³

Supreme Court “Rule 44.01(a) states in part: ‘In computing any period of time prescribed…by any applicable statute…the last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a legal holiday.’” “In this case, the 90th day following the date of issuance of the right-to-sue notice was December 30, 2007, a Sunday. Therefore, [under] Rule 44.01(a), December 30th is not included in computing the time for Ms. Morris to file her claim, and she timely filed her suit on Monday, December 31, 2007.”⁶⁴

“[O]ur Supreme Court has long-held that ‘the applicable provisions of Rule 44.01(a) should be construed as applying to statutory limitation periods within which suits must be filed, as well as to procedures occurring after suit is filed.’ Bowling v. Webb Gas Co., Inc. of Lebanon, 505 S.W.2d 39, 42 (Mo. 1974). In words equally applicable here, the Supreme Court articulated its rationale:

Our construction of the rule will result in a uniform procedure for computation of time and tend to accomplish the general purpose for Sundays and holidays, i.e., the general suspension of work and labor…We think it should also be noted that a construction contrary to the one we have reached would, for all practical purposes, result in reducing the statutory limitation period. Id.”

Moreover, § 1.040 RSMo. “provides that ‘the time within which an act is to be done shall be computed by excluding the first day and including the last. If the last day is a Sunday, it shall be excluded.’”⁶⁵ Missouri “courts have routinely construed Section 1.040 in a practical manner and have held that ‘this statute is intended to furnish a general rule, plain and comprehensible, of the computation of the time mentioned in all statutes.’”⁶⁶ “Guided by this principle, we find that Section 1.040, which generally applies to all Missouri statutes, also applies to Section 213.111”⁶⁷ [the Missouri Human Rights Act]. “[T]he trial court erred by failing to apply Rule 44.01(a) and Section 1.040 when computing the time to file an action under [the Missouri Human Rights Act] and improperly dismissed Ms. Morris’ petition as untimely.”⁶⁸

Voluntary Dismissal of Suit Takes Effect Upon Filing

“Following the death of his wife on November 5, 2003, Fredric Rickner filed medical malpractice and wrongful death claim against [Demitrios Golfinopoulos and several other health care providers]. Rickner voluntarily dismissed all of his claims on April 14, 2006.”⁶⁹ On April 24, 2006, the circuit court entered an order dismissing Rickner’s suit, without prejudice. “Rickner filed a second lawsuit, asserting the same claims against the same defendants, on April 24, 2007. [T]he defendants … filed motions to dismiss on the grounds that the lawsuit was filed outside the one-year savings statute.”⁷⁰ The trial court granted the motions finding that the savings statute expired on April 14, 2007, not April 25, 2007. The Court of Appeals affirmed in Rickner v. Golfinopoulos.

Under Supreme Court “Rule 67.02, a ‘voluntary dismissal’ constitutes a nonsuit because it allows a plaintiff to dismiss a civil action without prejudice and ‘without order of the court’ any time prior to the introduction of evidence at trial.”⁷¹ “[T]he savings statute [Section 537.100 RSMo.] allows a plaintiff to refile an action within one year of the date of the voluntary dismissal.”⁷² Under Rule 67.02, Rickner’s voluntary dismissal took effect the day it was filed, April 14, 2006, and “triggered the one-year refiling period under the savings statute.”⁷³

“Although the circuit court entered an order of dismissal on April 25, 2006, that order was a ‘nullity’ because the dismissal was effective immediately upon its filing on April 14, 2006. Id. The savings period under Section 516.230 and Section 537.100 expired on April 14, 2007, one year after the effective date of the voluntary dismissal.”⁷⁴ “[N]o court order was necessary because [Rickner’s] voluntary dismissal was without prejudice and immediately effective by operation of Rule 67.02.”⁷⁵ The trial court properly determined that Rickner’s cause of action could only be refiled within one year of the date of his previous voluntary dismissal of the suit.

Footnotes

1 No. WD 68096 and WD 68135 (Mo. App. W.D. 2008).

2 Id., citing Barekman v. City of Republic, 232 S.W.3d 675, 679 (Mo. App. S.D. 2007).

3 Id., citing Howard v. Burns Bros., 149 F.3d 835, 840 (8th Cir. 1998).

4 Id.

5 Id., citing Williams v. Missouri Department of Mental Health, 407 F.3d 972, 975-6 (8th Cir. 2005).

6 Id.

7 Id.

8 Id., citing In Drury v. Missouri Youth Soccer Ass’n., 259 S.W.3d 558, 573 (Mo. App. E.D. 2008).

9 Id., citing Van Eaton v. Thon, 764 S.W.2d 674, 677 (Mo. App. W.D. 1988).

10 Id.

11Id.

12 Id.

13 Id.

14 Id.

15 Id., citing Fust v. Attorney General for the State of Missouri, 947 S.W.2d 424, 431 (Mo. banc 1997).

16 Dallas Airmotive v. FlightSafety International, No. WD 68784 (consolidated with WD 68785) (Mo. App. W.D. 2008).

17 Id.

18 See e.g. Bunker v. Ass’n. of Mo. Elec. Coops., 839 S.W.2d 608, 611 (Mo. App. W.D. 1992).

19 See Moore v. Vanderloo, 386 N.W.2d 108, 113 (Iowa 1986).

20 Dallas Airmotive, citing Moss Rehab v. White, 692 A.2d 902, 905 (Del. 1997).

21 Id., citing Andre v. Pace University, 655 N.Y.S. 2d 777, 779 (N.Y. App. 1996).

22 Id., quoting Vogel v. Maimonides Academy of W. Conn., 754 A.2d 824, 828 (Conn. App. 2000).

23 Id., citing Moore v. Vanderloo, 386 N.W.2d 108, 115 (Iowa 1986).

24 Id.

25 Id.

26 No. SD28600 (Mo. App. S.D.2008).

27 Id.

28 Id., quoting General Elec. Capital Corp. v. Rauch, 970 S.W.2d 348, 356 (Mo. App. S.D. 1998).

29 Id.

30 Id.

31 See Finova Cap. Corp. v. Ream, 230 S.W.3d 35, 42 (Mo. App. S.D. 2007).

32 See Mays.

33 No. ED 91509 (Mo. App. E.D. 2008).

34 Id., quoting Parish v. Novus Equities Co., 231 S.W.3d 236, 241 (Mo. App. E.D. 2007).

35 Id., quoting Junior College District of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004).

36 Id., quoting Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006).

37 Id., quoting Kunzie.

38 Id. citing Parish at 246.

39 Id.

40 Id.

41 Id., citing Parish at 246.

42 Id.

43 Id.

44 Payroll Advance v. Yates, No. SD 29040 (Mo. App. S.D. 2008).

45 Id., quoting Easy Returns Midwest, Inc. v. Schultz, 964 S.W.2d 450, 453 (Mo. App. E.D. 1998).

46 Id., quoting Health Care Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 612 (Mo. banc 2006)

47 Id., quoting Health Care Servs.

48 Id., quoting Health Care Servs.

49 Id.

50 Id., citing Health Care Servs. at 609-10.

51 Id., citing AEE – EEMF, Inc. v. Passmore, 906 S.W.2d 714, 719 (Mo. App. W.D. 1995).

52 See AEE-EMF, Inc. v. Passmore, 906 S.W.2d 714, 719 (Mo. App. W.D. 1995).

53 Naegele, citing Emerson Electric Co. v. Rogers, 418 F.3d 841, 844-45 (8th Cir. 2005).

54 Id.

55 Id., citing Emerson Electric Co.

56 See Schmersahl Treloar & Co. v. McHugh, 28 S.W.3d 345, 349 (Mo. App. E.D. 2000).

57 No. ED 90538 (Mo. App. E.D. 2008).

58 Id., citing Dodson, 216 S.W.3d at 178.

59 Id.

60 Id.

61 Id.

62 Id.

63 No. ED 91202 (Mo. App. E.D. 2008).

64 Id.

65 Id.

66 Id., quoting Bank of Holden v. Bank of Warrensburg, 15 S.W.3d 758, 760 (Mo. App. W.D. 2000).

67 Id.

68 Id.

69 Rickner v. Golfinopoulos, No. WD 68690 (Mo. App. W.D. 2008).

70 Id.

71 Id.

72 Id., citing Fuller v. Lynch, 896 S.W.2d 764, 765 (Mo. App. W.D. 1995).

73 Id., citing Fuller at 765-66.

74 Id.

75 Id.