Property Owner Entitled to Prejudgment Interest on Inverse Condemnation Damages
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Due to problems with the sewer system in the City of Oak Grove, significant rainfall overloaded the city’s sewer system, which caused sewage to seep into an apartment building owned by Randolph and Kelly Akers. The sewage was more than a foot deep, creating extensive damage and forcing the residents to move out. The Akers filed suit on a claim of permanent inverse condemnation. The jury found for the Akers and awarded them damages of $110,000. The trial court then awarded prejudgment interest in the amount of $25,791, using a rate of nine per cent per annum. The Supreme Court of Missouri confirmed the award of prejudgment interest, but remanded for the interest to be calculated at six percent per annum in Akers v. City of Oak Grove.1
“The Missouri Constitution provides that ‘private property shall not be taken or damaged for public use without just compensation.’”2 “This concept encompasses both direct takings, wherein the government formally takes land for public use via eminent domain, and inverse takings, where the government takes or damages land, sometimes unintentionally, without going through an official process. United States v. Clarke, 445 U.S. 253, 257 (1980). When a taking occurs, the owner ‘is entitled to be put in as good a position monetarily as if his property had not been taken.’”3 “[A] taking can be classified as any combination of permanent/temporary and total/partial. Here, the Akers suffered temporary damage to four of their eight apartment units, they have a claim for a temporary partial taking.”4
“‘Missouri recognizes that the taking or damage of only part of a plaintiff’s property by a public entity may cause consequential damage to the plaintiff’s remaining property.’”5 “[W]e have previously held that prejudgment interest is an acknowledged component of just compensation in cases of direct takings.”6 “No discernable, logical or constitutional distinction exists that would lead to a different conclusion in cases of indirect takings.”7 “Although more complicated than a permanent taking, calculating prejudgment interest on a temporary taking is not only possible, but is constitutionally required. . . . Unlike a permanent taking, where prejudgment interest is simply added to the full fair market value of property from the date of the taking, a temporary taking requires different calculations based on the details of the primary damage measurement. This is because the court must ensure that interest is not calculated until that time at which the plaintiff would have theoretically received the underlying damages.”8
“In Missouri, the six percent interest rate provided in section 523.045 reflects the legislature’s judgment of what is constitutionally required to achieve just compensation for a direct taking. . . . [T]his court holds that prejudgment interest in cases involving indirect takings should be calculated at the same rate as in cases involving direct takings: six percent per annum.”9 “The Akers have suffered a temporary partial taking. . . . [T]he basic measure of damages is the fair market rental value of the property during the time it was taken.”10 “The Akers are also entitled to compensation to repair their property. As each payment would accrue, interest would begin to run on that payment from the date of accrual. Likewise, as the Akers incurred repair costs, interest would begin to run on each payment when made.”11
Class Definition Must Be Sufficiently Definite So That It is Administratively Feasible to Identify Members of the Class
Diana Pennington filed suit against Coca-Cola, alleging that it made affirmative misrepresentations and omitted material information regarding the types of artificial sweeteners used in fountain Diet Coke, in violation of § 407.025 RSMo. She claimed that Coca-Cola employed a deceptive marketing scheme that misled consumers into believing fountain Diet Coke is the same product as bottled Diet Coke, even though fountain Diet Coke was sweetened with a blend of aspartame and saccharine, while bottled Diet Coke was sweetened exclusively with aspartame. She alleged that she and many other customers would not have purchased fountain Diet Coke if they had known it contained saccharine. At Pennington’s request, the circuit court certified the lawsuit as a class action and defined the class as all individuals who purchased, for consumption and not resale, fountain Diet Coke in the state of Missouri after March 24, 1999 through the date of this order. Coca-Cola filed a petition for writ of prohibition, which the Supreme Court made absolute in State ex rel. the Coca-Cola Company v. Nixon.12
“Class actions are designed to provide an ‘economical means of disposing of similar lawsuits’ while simultaneously protecting defendants from inconsistent obligations and the due process rights of absentee class members.”13 “[A] properly defined class is necessary to realize both the protections and benefits for which the class action device was created.”14 “A class definition that encompasses more than a relatively small number of uninjured putative members is overly broad and improper.”15 “That being said, a putative class may initially include members who could not have brought the underlying action in their own name. In that circumstance, the class definition may be modified consistent with the precepts of section 407.025.3 and Rule 52.08 in order to remove the uninjured putative members.”16 “If, after such modification, a relatively small number of uninjured putative members remain, the circuit court can easily resolve individual questions after the common questions have been answered. If this result cannot be achieved, the putative class is impermissibly overbroad.”17
“[A] proposed class definition may be improper because the putative class is indefinite. ‘The primary concern underlying the requirement of a class capable of definition is that the proposed class not be amorphous, vague, or indeterminate.’”18 “The class definition must be sufficiently definite so that it is administratively feasible to identify members of the class.”19
“. . . Pennington’s proposed class undoubtedly includes an extremely large number of uninjured class members, that is, those who did not care if the Diet Coke they purchased contained saccharine. Many consumers had no choice of the brand of fountain diet cola the purchased at any given location, let alone the particular type of sweetener used in one brand, Diet Coke. . . . Pennington fails to provide an estimate of a number of potential class members. Because of the presumably large number of individuals who purchased fountain Diet Coke in Missouri, her proposed class ‘could include millions who were not injured and thus have no grievance under § 407.025.’”20 “Because Pennington’s proposed class definition [could not] be amended without becoming indefinite and given the sizable number of uninjured putative class members, the class definition is impermissibly overbroad. The circuit court abused its discretion when it certified this class action.”21
Capable of Ascertainment Standard is Objective
In 2006, Robert Visnaw filed suit against the Marianist Province for sexual abuse he allegedly suffered in 1984 and 1985 by acts of William Mueller, a vice principal at St. John Vianney High School. Visnaw alleged that Mueller physically and sexually abused him by asking him to hyperventilate and strip to his underwear, that Mueller also massaged his genitals, blindfolded him and held a knife to his throat. Wisnaw admitted that he always recalled the non-sexual details of these incidents, but due to repressed memory, did not remember the sexual details until 2005. The Marianist Province filed a motion for summary judgment contending that Visnaw should have filed suit no later than April of 1993, five years after he turned 21 years old. The circuit court denied the motion and the Marianist Province filed a petition for writ of prohibition. The Supreme Court of Missouri held that the circuit court erred in overruling the motion and made its writ of prohibition absolute in State ex rel. Marianist Province of the United States v. Ross.22
In Missouri, a “cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment.”23 “In Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc 2006), the Court held that the ‘capable of ascertainment test’ set forth in Section 516.100 is an objective test. The issue is not when the injury occurred or when a plaintiff subjectively learned of the wrongful conduct. Instead, the test is ‘when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.’ Id. In other words, the statute of limitations begins to run when the ‘evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.’ Id.”
“The capable of ascertainment standard is an objective one; therefore, when relevant facts are uncontested, the statute of limitations issue can be decided by the Court as a matter of law. Id. at 583. Summary judgment is not proper if contradictory or different conclusions may be drawn from the evidence. In that case, it is a question of fact for the jury to decide.”24 Here,
Visnaw admitted that he always remembered the incidents he was subjected to. “Even though [he] alleges [that] he did not remember the sexual details of those incidents, the conduct that he always remembers was sufficient to ‘place a reasonably prudent person on notice of a potentially actionable injury.’”25
Variances Must Be Granted Sparingly and Only Under Exceptional Circumstances
Robert Baumer submitted an application for a variance to the board of adjustment of the City of Jennings. He requested permission to build a new garage on his property that would encroach on the setback required by the city’s zoning ordinance. He requested a 10-foot variance from the required 25-foot setback so that he could build his garage within 15 feet of the property line. At the hearing, he testified that this was required because of a sanitary sewer line that was maintained by the Metropolitan St. Louis Sewer District, which prevented him from positioning the proposed garage further away from the property line. MSD maintained the sewer line but did not have an easement on Baumer’s property. The city’s public works director testified that the sewer line should not be considered a problem because it could be replaced with a stronger pipe so that the garage could then be built on top of the line. The board of adjustment denied Baumer’s request but the circuit court reversed that order and approved the variance. On appeal, however, the Court of Appeals upheld the board’s decision and denied the variance in Baumer v. City of Jennings.26
On appeal, the court “must determine whether [the action of the board of adjustment] is supported by competent and substantial evidence upon the whole record or whether it is arbitrary, capricious, unreasonable, unlawful or in excess of its jurisdiction.”27 “The court must view the evidence and reasonable inferences in the light most favorable to the board’s decision.”28 “Only where the board exceeds its authority should the reviewing court hold the board’s ruling to be illegal and void.” The power of the board of adjustment to grant a variance “must be exercised sparingly and only under exceptional circumstances.”30 Here, the variance sought from the setback requirement was a nonuse variance. An applicant for a nonuse variance must establish practical difficulties, i.e., “the existence of conditions slightly less rigorous than unnecessary hardships.”31
“The determination of whether practical difficulties exist is a factual matter that is reversible only for an abusive discretion. State ex rel. Charles F. Vatterott Construction Co., Inc. v. Rauls, 170 S.W.3d 47, 51 (Mo. App. E.D. 2005). A board may consider the hearsay testimony of City staff members received without objection. State ex rel. Sander v. Board of Adjustment of the City of Creve Coeur, 60 S.W.3d 14, 16 (Mo. App. E.D. 2001). ‘The determination as to the credibility of witnesses is strictly for the administrative tribunal, and if the evidence supports either of two contrary conclusions, the administrative determination must prevail.’”32 “[T]he burden is on the petitioner to demonstrate to the board that the variance request should be granted.”33
“Reviewing the evidence in the light most favorable to the board’s decision, it was reasonable for the board to accept the testimony of the city public works director, who testified that it was feasible for Baumer to modify the sewer pipe.”34 The board did not “abuse its discretion in determining that there was insufficient evidence of any practical difficulty unique to the land that would prevent [Baumer] from using the land for a permitted use. [The] board is not bound to grant a variance that it believes would benefit the Petitioner for the sake of convenience, but would also lead to the detriment of the surrounding existing community by controverting the spirit of the local zoning regulations.”35 “Based upon a complete review of all of the evidence and viewing the evidence in light most favorable to [the] Board’s decision, . . . [Baumer] did not satisfy his burden. . . .”36 “The record contains substantial and competent evidence to support the Board’s decision denying the variance.”37 The Board did not abuse its discretion in denying the variance.
Sheriff’s Return of Service Can Be Impeached Only by Clear and Convincing Evidence
Ebony Silinzy filed a personal injury action against Nicholas Williams. The summons to Williams was served on his mother by the sheriff’s department at the address listed on Williams’ driver’s license. This was the same address given by Williams to the police at the time of the automobile accident that resulted in the lawsuit. Williams failed to respond to the lawsuit and Silinzy filed a motion for default judgment. At the default hearing, Silinzy testified about her injuries and the trial court entered a default judgment against Williams for $30,000. Five weeks later, Williams filed a motion to quash service and vacate the default judgment. In support of his motion, he filed his own affidavit and the affidavit of his mother, both stating that the home at which the sheriff left the summons was not his “usual place of abode.” Silinzy filed a response that included an affidavit from the sheriff who effected service, verifying that he confirmed Williams resided at that address prior to leaving the summons there, and further stating that he would not have left the summons with Williams’ mother had she advised him that Williams did not reside there. The trial court denied the motion to quash or to set aside the default judgment, which was affirmed in Silinzy v. Williams.38
“Unless a defendant is served with process, or summoned, in a manner and form authorized by statute, the court is without authority to proceed.”39 “Where the statutorily prescribed requirements for process and the manner of service are not met, the court in which the action is pending is without power to adjudicate.”40 “A sheriff’s return of service is considered ‘prima facie evidence of facts recited therein.’”41 “The return is subject to impeachment by the party alleged to have been served only by clear and convincing evidence.”42 “Thus, [Williams] was obligated to provide clear and convincing evidence that his usual place of abode was not [the residence at which the summons was left]. The trial court [correctly] found that [Williams] did not provide such evidence.”43
“Service of process is nothing more than the fulfillment of the due process requirement of notice.”44 “Where a proper method of service is followed, as it was here, the method of service does not violate [Williams’] due process rights, even if he does not receive actual notice of the service from [his mother], . . . who physically accepted the service at Williams’ usual place of abode.”45 “Due process only requires notice reasonably calculated to apprise defendant of the pendency of the action and afford him an opportunity to present his objections.”46 The trial court did not err in denying Williams’ motion to quash service or in finding that the service did not violate his right to due process.
Under the Missouri Arbitration Act, Where a Contract is Induced by Fraud, the Defrauded Party May Escape Mandatory Contractual Arbitration by Rescinding the Contract
Gina Fiordelisi signed a contract with Mt. Pleasant, LLC for remodeling work to be performed on her residence. The contract required disputes between the parties to be resolved through arbitration. Fiordelisi filed suit against Mt. Pleasant, alleging breach of contract and misrepresentations. She alleged that Mt. Pleasant falsely represented that it was bonded, licensed, and insured. Mt. Pleasant sought to compel arbitration, which the trial court granted. The arbitrator awarded Fiordelisi $19,287 for work that was not performed in a good and workmanlike manner. The arbitrator’s award did not mention her misrepresentation claim and denied all other claims not specifically mentioned in the award. The trial court confirmed the arbitration award and Fiordelisi appealed. The Court of Appeals affirmed in Fiordelisi v. Mt. Pleasant.47
The parties agreed at oral argument that the Missouri Arbitration Act applies and, therefore, it will be followed even if the contract between the parties involved commerce. The critical question is whether the arbitration provision, whether it is deemed to be broad or narrow, should have been enforced if the homeowner was fraudulently induced to enter the contract containing the arbitration provision. It appears to be undecided whether a party may be compelled to arbitrate under the Missouri Arbitration Act when he or she claims fraud in the inducement of the contract containing the arbitration provision at issue. Under the Federal Arbitration Act, arbitration would be mandated. “Where the contract containing the arbitration provision sought to be enforced is thought to be void or otherwise unenforceable, there is no valid arbitration agreement and the parties will not be compelled to arbitrate the dispute.”48
“Under Missouri law, a party who is fraudulently induced to enter a contract may either affirm the contract and sue for damages or may disaffirm the contract and sue in equity for its rescission.”49 “We hold that where a contract is induced by fraud, the defrauded party may escape arbitration under the Missouri Arbitration Act by rescinding the contract, thus leaving no valid contract and no valid arbitration provision.”50
“However, the problem here is that the homeowner never sought to rescind her contract. While the homeowner characterized her claim as one of misrepresentation, the broader tenor of her complaint is that the contractor’s work was not compliant with the parties’ contract. . . . Because the homeowner did not seek to rescind the contract with the contractor, but instead implicitly affirmed the contract and sought damages for what is fundamentally the contractor’s poor workmanship, we hold that her misrepresentation claim was arbitrable pursuant to the parties’ arbitration agreement.”51
Public Officials Are Entitled to Qualified Immunity
Sean Wood was a trooper with the Missouri State Highway Patrol. After allegations were made against him regarding improper sexual contact by use of forcible compulsion, an investigation was conducted by the patrol. Wood was interviewed by two Highway Patrol officers who were conducting an internal affairs investigation. Later, Wood was notified of a disciplinary hearing that he requested be continued. The Highway Patrol officer in charge of the disciplinary hearing denied Wood’s request for a continuance. Wood submitted his resignation before the hearing, but the disciplinary board did not accept his resignation. The board issued its findings that Wood subjected a female to sexual contact by use of forcible compulsion. Wood filed suit under 42 U.S.C.§1983, alleging that the three officers involved in the investigation violated his civil rights. The trial court denied the motions for summary judgment filed by the three officers, but the Court of Appeals issued an absolute writ of prohibition and directed that the suit against the three officers be dismissed in State of Missouri ex rel. Wilhoit v. Seay.52
“‘Public officials are provided qualified immunity for their official acts insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”53 “It is appropriate to grant a writ of prohibition where a defendant is immune from suit as a matter of law and the trial court refuses to grant summary judgment.”54 “This is appropriate because qualified immunity is ‘an immunity from suit, rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.’”55
“An officer’s conduct is shielded by qualified immunity when he makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances.”56
In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If, and only if, the court finds a violation of the constitutional right, “the next, sequential step is to ask whether the right was clearly established…in light of the specific context of the case.” Ibid
“Scott v. Harris, 127 S.Ct. 1767, 1774 (2007). The purpose of this rule is to excuse the liability of an officer who makes a reasonable mistake in the exercise of his official duties.”57
Here, the denial of the continuance was not an abuse of discretion and there was no deprivation of Wood’s due process rights. “Because Wood … failed to allege facts that amount to a valid constitutional violation,”58 there is protection by qualified immunity for those claims. Moreover, with respect to the claims based on the interview that was conducted of Wood, there was also no clearly established constitutional right that Wood can contend was violated. “Wood … has failed to allege facts that adequately prove [the defendants] lost their qualified immunity by violating a clearly established statutory or constitutional right.”59 The case is remanded with directions that it be dismissed.
Liquidated Damage Clause in Lease for $100,000 Was Valid and Not a Penalty
Valentine’s Restaurant signed a lease with Ngo Properties, LLC leasing 3,850 square feet in a shopping center owned by Ngo for use as a steak and seafood restaurant. At the time the lease was signed, Valentine’s anticipated spending approximately $100,000 to improve the space and make it suitable for a restaurant. The lease included a provision that Ngo would not lease space in the center to any other restaurant that served steaks, seafood or pasta and that in the event Ngo violated this clause, it agreed to pay Valentine’s the sum of $100,000 for liquidated damages. After the lease was signed, Ngo rented space in the same building to a Mexican restaurant that served steak and fish items. Valentine’s filed suit seeking payment of the $100,000 in liquidated damages. At trial, Valentine’s produced evidence that the Mexican restaurant offered steak and seafood entrees similar to the items served by Valentine’s, but at a cheaper price. The trial court found that Ngo violated the lease and awarded Valentine’s liquidated damages of $100,000. The Court of Appeals affirmed in Valentine’s v. Ngo.60
‘“The general rule is liquidated damages clauses are valid and enforceable, while penalty clauses are invalid. Liquidated damages are a measure of compensation which, at the time of contracting, the parties agree shall represent damages in case of breach. Penalty clauses, on the other hand, are a punishment for breach.”’61 ‘“Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy…. These rules provide a guide to distinguishing between the two clauses. For a damages clause to be valid liquidated damages: (1) the amount fixed as damages must be a reasonable forecast for the harm caused by the breach; and (2) the harm must be of a kind difficult to accurately estimate.”’62
“It is true that to recover liquidated damages [there must be some showing of] actual harm.”63 ‘“While this need not be a precise dollar amount, it nevertheless must be shown that some harm or damage, in fact, occurred.”’64 “Missouri courts have consistently noted that actual damages for breach of a real estate contract are uncertain and difficult to prove.”65 “Where the difficulty of proof of loss is great, the court allows significant latitude in setting the amount of anticipated damages.”66 Here, “there was sufficient, competent evidence that [Valentine’s] was harmed with the $100,000 anticipated improvement cost, plus the approximately $239,000 paid by it in rent to the date of trial.”67
“Because [Ngo] breached the contract, [Valentine’s] no longer had the benefit [as] the exclusive restaurant for steaks and seafood and has been harmed in not getting the benefit of its bargain. In view of the substantial financial investment [Valentine’s] made in the business, [there was] no error in the application of the law. The liquidated damages clause contained in the lease agreement was valid and enforceable; it does not act as a penalty, and bears a reasonable relationship to the amount of loss anticipated by [Valentine’s] in the case of a breach of the exclusivity clause”68 in the lease.
Footnotes
1 No. SC 88581 (Mo. banc 2008).
2 Id., quoting Missouri Constitution, Art. I, Sec. 26.
3 Id., quoting Olson v. United States, 292 U.S. 246, 255 (1934).
4 Id.
5 Id., quoting Byrom v. Little Blue Valley Sewer District, et al., 16 S.W.3d 573, 577 (Mo. banc 2000).
6 Id., citing St. Louis Housing Authority v. Magafas, 324 S.W.2d 697, 699-700 (Mo. 1959).
7 Id.
8 Id.
9 Id.
10 Id.
11 Id.
12 No SC 88531 (Mo. banc 2008).
13 Id., quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-03 (1980).
14 Id., citing Dale v. DaimlerChrysler Corp., 204 S.W.3d 151, 177-78 (Mo. App. W.D. 2006).
15 Id., citing Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006).
16 Id., citing Davoll v. Webb, 194 F.3d 1116, 1146 (10th Cir. 1999).
17 Id.
18 Id., quoting Kraft v. Philip Morris Co., Inc., 190 S.W.3d 368, 387 (Mo. App. E.D. 2005).
19 Id., citing Kraft at 387-88.
20 Id., quoting Oshana at 514.
21 Id.
22 No. SC 88779 (Mo. banc 2008).
23 Id.
24 Id.
25 Id., quoting Powel at 584.
26 No. ED 90038 (Mo. App. E.D. 2008).
27 Id., citing State ex rel. Teefy v. Board of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 684 (Mo.banc 2000).
28 Id.
29 Id., citing Hutchens v. St. Louis County, 848 S.W.2d 616, 617 (Mo. App. E.D. 1993).
30 Id., citing Matthew v. Smith, 707 S.W.2d 411, 413 (Mo. banc 1986).
31 Id., citing Matthew at 416.
32 Id., quoting State ex rel. Branum v. Board of Zoning Adjustment of the City of Kansas City, 85 S.W.3d 35, 41 (Mo. App. W.D. 2002).
33 Id., citing Ogawa v. City of Des Peres, 745 S.W.2d 238, 242 (Mo. App. E.D. 1987).
34 Id.
35 Id.
36 Id.
37 Id.
38 No. ED 89765 (Mo. App. E.D. 2008).
39 Id., citing State ex rel. Illinois Farmers Ins. Co. v. Gallagher, 811 S.W.2d 353, 354 (Mo. banc 1991).
40 Id., citing Finnigan v. KNG Investments, Inc., 158 S.W.3d 808, 810 (Mo. App. S.D. 2005).
41 Id., quoting State ex rel. DFS v. Sutherland, 916 S.W.2d 818, 820 (Mo. App. W.D. 1995).
42 Id.
43 Id.
44 Id., citing State v. Julius, 664 S.W.2d 31, 32 (Mo. App. E.D. 1984).
45 Id., citing Sutherland at 820.
46 Id., citing State v. Elliott, 225 S.W.3d 423, 424 (Mo. banc 2007).
47 No. ED 89627 (Mo. App. E.D. 2008).
48 Id., citing Estate of Burford ex rel. Bruse v. Edward D. Jones & Co., 83 S.W.3d 589, 595 (Mo. App. W.D. 2002).
49 Id., citing Cabinet Distributors, Inc. v. Redmond, 965 S.W.2d 309, 314 (Mo. App. E.D. 1998).
50 Id.
51 Id.
52 No. 28645 (Mo. App. S.D. 2008).
53 Id., quoting Foremost Ins. Co. v. Public Service Com’n of Missouri, 985 S.W.2d 793, 796 (Mo. App. W.D. 1998).
54 Id., citing State ex rel. Missouri Highway & Transportation Commission v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998)
55 Id., quoting Scott v. Harris, 127 S.Ct. 1767, 1774 (2007).
56 Id., citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
57 Id., citing Foremost.
58 Id.
59 Id.
60 No. 28570 (Mo. App. S.D. 2008).
61 Id., quoting Paragon Group, Inc. v. Ampleman, 878 S.W.2d 878, 880-1 (Mo. App. E.D. 1994).
62 Id., quoting Paragon at 881.
63 Id., citing Strouse v. Starbuck, 987 S.W.2d 827, 829 (Mo. App. S.D. 1999).
64 Id., quoting Goldberg v. Charlie’s Chevrolet, Inc., 672 S.W.2d 177, 179 (Mo. App. E.D. 1984).
65 Id., citing Warstler v. Cibrian, 859 S.W.2d 162, 165 (Mo. App. W.D. 1993).
66 Id., citing Paragon at 881.
67 Id.
68 Id.