THE FLAG
Five-Year Statute of Limitations
Applies to Breach of Contract Suit
BY W. DUDLEY MCCARTER
John Rolwing filed suit against Nestle
Holdings, Inc. alleging that it violated
a stock merger agreement by making
a late payment to shareholders. The
petition was filed more than five years
after the alleged late payment. The trial
court dismissed the petition pursuant to
§ 516.120(1), which applies a five-year
limitations period to a “[a]ll actions
upon contracts … except those mentioned in Section 516.110.” Rolwing
argued that the trial court erred in not
applying the 10-year statute of limitations in § 516.110(1), which applies
to all actions “upon any writing … for
the payment of money…” Rolwing
appealed and the Supreme Court of
Missouri affirmed in Rolwing v. Nestle
Holdings, Inc.1
Section 516.110(1) is an exception to the general five-year
limitations period established
by section 516.120(1). The
exception mentioned in section
516.110(1) consists of “actions
upon a written contract …
for the payment of money or
property.” The plain language
of section 516.120(1), however,
applies generally to all breach
of contract actions, including
W. DUDLEY MCCARTER
Behr, McCarter & Potter
St. Louis
180 / Journal of the MISSOURI BAR
written contracts containing
a promise for the payment
of money or property. If this
Court adopts Rolwing’s argument that section 516.110(1)
applies to all breach of contract
actions involving a contract
that includes a promise to pay
money or property, with no
requirement that the plaintiff
seek a judgment for recovery of the money promised,
then section 516.110(1) and
516.120(1) often will conflict.
Section 516.110(1) – the exception – would overcome the
generally applicable five-year
limitations period established
by section 516.120(1).2
“The 10-year statute of limitations
applies when a plaintiff files suit to enforce a written promise to pay money.”3
“Community Title [v. Stewart Title
Guaranty Co., 977 S.W.2d 502, 502
(Mo. banc 1998)] established that, once
it is shown that the writing is for the
payment of money and that the writing
contains a promise to pay money, the
exact amount to be paid or other detail
of the obligation may be shown by extensive evidence – but not the promise
itself. Id at 502.”4
“Section 516.110 does not apply to
an action alleging a breach of a written
contract and that seeks money damages, such as the interest in this case,
that is not based on a promise in the
contract.”5 “[T]he trial court did not err
in that the general five-year limitations
period in section 516.120(1) applies to
Rolwing’s action.”6
Defendant's Motion to Transfer
Venue Was Timely Filed
Schwarz Pharma, Inc. filed its motion to transfer venue in seven lawsuits
within the 60-day period after it was
served with the petitions. The trial court
denied the motion to transfer venue
from St. Louis City to St. Louis County
and Schwarz petitioned the Supreme
Court to issue its writs prohibiting the
trial court from taking any action other
than granting its motions to transfer
venue. State ex rel. Schwarz Pharma, Inc.
v. Dowd.7
The Supreme Court held that
Schwarz’s motions were timely filed and
issued its permanent writs prohibiting
the trial court from taking any action
other than granting the motions to
transfer venue.
“Rule 51.045 governs transfer of
a suit when venue is improper. Rule
51.045(a) provides that a motion to
transfer venue ‘shall be filed within 60
days of service on the parties seeking
transfer.’”8 Schwarz filed its motion
to transfer venue 42 days after it was
served in the actions.
Prohibition is a discretionary
writ that only issues to prevent
an abuse of judicial discretion,
to avoid irreparable harm to a
party, or to prevent exercise of
extra-jurisdictional power. State
ex rel. McDonald’s Corp. v. Midkiff, 226 S.W.3d 119, 122 (Mo.
banc. 2007). When a timely
motion to transfer venue is filed
showing that venue is improper,
prohibition lies to bar the trial
court from taking any further
action except to transfer the
case to a proper venue. Id.9
“It is uncontested that a newly joined
defendant has the right to bring a timely
motion to transfer venue even if the
time for the other defendants to file a
motion to transfer venue has expired.
Rule 51.045; § 508.012, RSMo Supp.
2013; see State ex rel. Linthicum v.
Calvin, 57 S.W.3d 855, 858 (Mo. banc.
2001)….”10
Rule 51.045 … requires
only that a motion to transfer
venue: (1) Shall be filed within
60 days of service on the party
seeking transfer… (2) Specify
one or more counties in which
the movant contends venue is
proper, and (3) State the basis
for venue in each such county.
Rule 51.045(a). This court
rejects Plaintiffs’ attempt to add
to this rule the additional – and
unsupported – requirement
that the motion to transfer
venue specify why it is timely
brought.11
“Because Schwarz’s motions to transfer were timely filed and it is uncontested that Schwarz showed venue was
improper in St. Louis City and proper
in St. Louis County, the trial court was
required by law to sustain the timely
filed motions and lacked authority to do
anything to the contrary.”12
Insurer Had No Duty to Defend;
No Facts in the Petition Gave Rise
to Potential Coverage
Franklin Quick Cash, LLC was sued
for wrongfully repossessing a vehicle.
Franklin tendered the defense of the
suit to its insurer, Continental Western
Insurance Company, which declined to
provide a defense because there was no
potential for coverage under the policy.
Franklin filed suit against Continental
Western and the trial court granted
Franklin’s motion for summary judg-
ment. The Supreme Court reversed,
however, finding that Continental
Western did not have a duty to defend
in Allen v. Continental Western Insurance
Company.13
“An insurer owes two distinct duties
to its insured: a duty to indemnify and
a duty to defend. McCormack Baron
Mgmt. Servs., Inc. v. Am. Guar. & Liab.
Ins. Co., 989 S.W.2d 168, 170 (Mo.
banc 1999).”14
The insurer’s duty to defend,
though broader than its duty
to indemnify, arises only when
“there is a potential or possible
liability to pay based on the
facts at the outset of the case.”
Id. In determining whether the
insurer has a duty to defend,
the court first compares the
policy language with the allegations in the petition from the
underlying lawsuit. Id. If the
underlying petition alleges facts
that give rise to a claim potentially covered by the policy, the
insurer has a duty to defend. Id.
at 170-71.
Beyond the facts alleged in
the plaintiff’s petition, the insurer also has a duty to defend
if facts that are known to the
insurer, or that are reasonably
apparent to the insurer at the
commencement of the suit establish a potential for coverage.
Zipkin v. Freeman, 436 S.W.2d
753, 754 (Mo. banc 1968)….
The insurer is not relieved of its
duty to defend merely because
the plaintiff in the underlying lawsuit pleaded his or her
claims inartfully. Marshall’s
U.S. Auto Supply [v. Md. Cas.
Co.], 189 S.W.2d at 531 [(Mo.
1945)]….
However, the insurer’s duty
to defend rises only from potential coverage based on facts:
(1) alleged in the petition; (2)
the insurer knows at the outset
of the case; or (3) that are reasonably apparent to the insurer
at the outset of the case. Zipkin,
436 S.W.2d at 754.15
The purpose of a commercial general liability policy is
for business owners to “protect
against the unpredictable, potentially unlimited liability that
can be caused by accidentally
causing injury to other persons
or their property.” Columbia
Mut. Ins. Co. v. Schauf, 967
S.W.2d 74, 77 (Mo. banc
1998). It does not protect its
insured from every risk of operating a business. Id. Because
insurers have an interest in
being certain they will not be liable for the insured’s deliberate
actions, liability insurance policies typically exclude coverage
for injury or damage intended
or expected by the insured. 7A
Couch on Insurance, § 103:23
(3d ed. 2013).16
The Continental Western policy
“explicitly does not apply if the insured
expected or intended the property
damage. The ‘expected or intended
injury’ exclusion is unambiguous and
must be enforced as written. See Todd
[v. Mo. United Sch. Ins. Council], 223
S.W.3d at 163 [(Mo. banc. 2007)].”17
Here, Franklin intended to repossess
the vehicle. “Therefore, the ‘expected or
intended injury’ exclusion plainly barred
coverage for Franklin’s intentional acts
at the outset of [the] lawsuit, and Continental Western did not have a duty to
defend.”18
Employee Barred From
Unemployment Benefits Because
He Was Discharged for Misconduct
Connected With His Work
Cheikh Seck was employed by MoDOT as a bridge maintenance worker.
He developed pain in his shoulder from
July-August 2014 / 181
operating a jack hammer. After reporting his injury, he was told to take sick
leave and see a physician. He was then
treated by Dr. Allen, who prescribed a
muscle relaxer. After several weeks on
sick leave, he submitted a return-towork certificate signed by Dr. Allen stating that he was able to return to work
without restriction. At the bottom of
the certificate, however, was a handwritten notation that stated, “Finish medecine and return to work on 8/8.”
under § 228.030.1(23) if he disregards
the ‘standards of behavior which the
employer has the right to expect’ from
its employees.”21 “The ‘disregard’ in the
third category of misconduct … is not
limited to ‘wanton or willful disregard’
(as in the first category), nor to ‘intentional and substantial disregard’ (as in
the fourth category), nor is there even
an explicit requirement that the conduct
be ‘deliberate’ (as in the second category).”22
Suspicious about the misspelling,
MoDOT contacted Dr. Allen’s office
and was told that she had not written the notation on the certificate she
signed. When confronted about the
note, Seck admitted that he had altered
the certificate after Dr. Allen signed it.
MoDOT then terminated Seck. Seck
filed an application for unemployment
benefits to which MoDOT objected.
The Division of Employment Security
denied Seck’s benefits, as did the appeals
tribunal and the Labor and Industrial
Relations Commission. The Supreme
Court upheld the denial of benefits in
Seck v. Department of Transportation.19
“Even though it apparently is not
stated among its expressed rules for employees, MoDOT – like all employers
– is entitled to expect that its employees
will not falsify medical certificates required from and signed by the employees’ physicians. By the same token, Seck
knew that this standard of behavior was
expected of him.”23 “Seck disregarded
that standard of behavior by altering Dr.
Allen’s certificate and then submitting it
to MoDOT as though the statement he
added had come from her. Accordingly,
the Commission did not err in concluding that Seck’s conduct in “falsifying his
doctor’s note” constituted misconduct
under § 228.030.1(23).”24
As a general matter, unemployment benefits are reserved
for “persons unemployed
through no fault of their own.”
§ 288.020.1. Under
§�������������������������������
228.050.2, therefore, a claimant is not eligible for these
benefits if he was “discharged
for misconduct connected with
the claimant’s work.” Though
the claimant has the burden of
proving his right to receive unemployment benefits in the first
instance, the employer bears
the burden of proving that the
applicant is ineligible because
he was discharged for misconduct connected with his work.
Fendler [v. Hudson Servs.], 370
S.W.3d at 589 [(Mo. banc
2012)].20
“[A]n employee commits misconduct
182 / Journal of the MISSOURI BAR
Moreover, “[t]here is no question that
Seck’s misconduct was ‘connected to’
his work with MoDOT. Seck understood that Dr. Allen’s medical certificate
controlled whether – and when – he
would be allowed to return to work at
MODOT, and he changed the date of
that return when he falsified the certificate.”25 “[T]he Commission did not err
in concluding that Seck was discharged
for misconduct ‘connected to [his]
work.”’26
Defendant's Conduct Supported
Both Actual and Punitive Damages
in Age Discrimination Case
Janet Hurst (age 61) filed suit against
the Kansas City, Missouri School
District alleging that it discriminated
against her because of her age when it
eliminated her position as a school psychological examiner and failed to hire
her for the new position of educational
diagnostician. During the 2009-2010
school year, the school district notified all school psychological examiners (“SPEs”), including Hurst, that
it was creating a new position called
educational diagnostician (“ED”). All
former SPEs were eligible for the new
ED position, but were not guaranteed a
position. Hurst applied for the ED position and was interviewed. After being
informed that she was not selected, she
filed suit against the district alleging age
discrimination and violation of the Missouri Human Rights Act (“MHRA”).
At trial she introduced evidence that the
four oldest applicants (including her)
were not hired, while the four youngest
applicants were hired for the ED positions.
A former principal in the district,
Thomas Levin, testified on behalf of
Hurst. He discussed a draft of the district’s transformation plan, which stated
that the district encourages the retirement of those who know they may not
be able to keep up with the changes necessary to raise student achievement. He
also stated that he had an age discrimination action currently pending against
the district. The jury returned a verdict
in favor of Hurst for $247,083.78 in
actual damages and $200,000 in punitive damages. The district appealed but
the Court of Appeals affirmed in Hurst
v. Kansas City, MO School District.27
[Hurst] alleged that the
District violated the MHRA by
eliminating her SPE position
or by failing to hire her for the
ED position because of her
age. Section 213.055 provides
that an employer commits an
unlawful employment practice
by failing or refusing to hire,
by discharging any individual,
or by otherwise discriminating
“against any individual with
respect to his compensation,
terms, conditions or privileges
of employment, because of such
individual’s race, color,
religion, national origin, sex,
ancestry, age or disability.”
§ 213.055.1(1). A “plaintiff
can prove discrimination by
showing age or any protected
characteristic was a contributing
factor for the employment
action regardless if other factors
also exist.” Stanley v. JerDen
Foods, Inc., 263 S.W.3d 800,
803-04 (Mo. App. W.D. 2008)
(internal quotation omitted).
Thus, in order to make a
submissible age discrimination
claim in this case, [Hurst]
had to present sufficient
confident evidence from which
a reasonable trier of fact could
find: (1) that [Hurst] is in a
protected age classification; (2)
that the District eliminated
her SPE position or failed to
hire her as an ED; (3) that the
District’s consideration of [her]
age contributed to its decision
to eliminate her SPE position
or its failure to hire her as an
ED; and (4) that [Hurst]
was thereby damaged. See
§ 213.055.1; Thomas v.
McKeever’s Enters. Inc., 388
S.W.3d 206, 214 (Mo. App.
W.D. 2012).28
Although “[t]he district had informed
applicants it would consider their past
performance in its hiring decisions,”
the “District ultimately based its hiring decisions solely on scores from the
applicants’ interviews. As a result, …
the four eldest SPEs were not hired for
ED positions” and “[t]he four youngest
applicants were.”29 “[A] reasonable juror
could have found from the evidence
that the District’s proffered explanation
for eliminating the SPE position was
false….”30
“‘[Hurst’s] evidence in support of her
MHRA claim may also meet her burden
for submitting punitive damages to the
jury.’ [Holmes v. Kansas City, MO Bd.
of Police Comm’rs ex. rel. Its Members,
364 S.W.3d 615, 629 (Mo. App. W.D.
2012)].”31 “[V]iewed in the light most
favorable to submissibility, the evidence
indicates the District’s culpable mental
state in that it acted with intentional
disregard for [Hurst’s] rights when it decided, because of her age, to reconstitute
the SPE position and not to hire her as
an ED.”32
“The District contends that Levin’s
testimony was inadmissible because it
constituted improper ‘me too’ evidence
in that Levin also had an age discrimination suit pending against the District.”33
[T]here is no blanket exclusion
in age discrimination cases of
evidence regarding other complaints of discrimination made
against the defendant. Rather,
the relevancy of such evidence
must be reviewed on a caseby-case basis. See Sprint/United
Mgmt. Co. v. Mendelsohn, 552
U.S. 379, 387, 128 S.Ct. 1140,
1147 (2008).34
[T]he majority of Levin’s testimony pertained to the process
of how he, like [Hurst], was
not guaranteed a position with
the District for the 2010-2011
school year and had to go
through an interview process.35
The only testimony regarding
Levin’s age discrimination suit
occurred at the conclusion of
his direct examination. In testifying about the suit, Levin simply answered affirmatively that
he had filed an age discrimination claim against the District
that was currently pending.
Under such circumstances, we
cannot say that any perceived
prejudice resulting from Lev[n’s
testimony was determinative.36
Pursuant to §213.111.2, a
court “may award court costs
and reasonable attorney’s fees to
the prevailing party.” “A prevailing party is one that succeeds
on any significant issue under
litigation which achieves some
of the benefits a party sought
in bringing suit.” Holmes, 364
S.W.3d at 316. (internal quotation omitted). “Where a plaintiff has prevailed in an action
under the MHRA, the court
should award attorneys’ fees unless special circumstances would
render such an award unjust.”
McCrainey v. Kansas City, MO
Sch. Dist., 337 S.W.3d 746,
756 (Mo. App. W.D. 2011)
(internal quotation omitted).37
Here, Hurst is the prevailing party
and her motion for costs and attorney’s
fees on appeal is sustained. The case is
remanded to the trial court to enter an
appropriate award.
Municipal Seat Belt Ordinance Did
Not Conflict With State Law
Thomas Brockus was stopped by a
police officer for the City of St. John
while driving his car. The sole reason
for the stop was that Brockus was not
wearing a seat belt in violation of St.
John ordinance § 375.030. As a result
of the traffic stop, Brockus was subsequently charged with driving without a
seatbelt, driving while revoked, possession of marijuana and possession
of drug paraphernalia. Brockus filed a
motion to suppress all evidence arising
out of the traffic stop, alleging that the
stop was unlawful because the city’s seat
belt ordinance conflicted with the state
law and was, therefore, invalid. He was
found guilty of violating four municipal
ordinances and appealed. The Court of
Appeals affirmed in City of St. John v.
Brockus.38
Because the state statute
addressing the wearing of seat
belts contained self-limiting
language that does not extend
beyond the enforcement of the
July-August 2014 / 183
state statute, … the municipal ordinance at issue is valid
and enforceable. As a result,
the stop of [his] car by City
police was not unlawful, and
the trial court properly denied
[his] motion to suppress
evidence.
Municipal ordinances are
generally presumed to be
valid and lawful. McCollum
v. Director of Revenue, 906
S.W.2d 368, 369 (Mo. banc
1995). If, however, an ordinance conflicts with the general laws of the state, the ordinance is void and unenforceable. Id.; Underferth v. City
of Florissant, 419 S.W.3d 76,
97 (Mo. App. E.D. 2013).
“The test for determining if a
conflict exists is whether the
ordinance ‘permits what the
statute prohibits’ or ‘prohibits
what the statute permits.’”
Page W. Inc. v. Community
Fire Prot. Dist. of St. Louis
County, 636 S.W.2d 65, 67
(Mo. banc 1982) (internal
citation omitted). “The ordinance should be construed
to uphold its validity unless
the ordinance is expressly
inconsistent or in irreconcilable conflict with the general
law of the state.” McCollum,
906 S.W.2d at 369. Additionally, it is not necessary for an
ordinance to follow the exact
language of the statute on the
same subject to avoid invalidity. Id.39
“[H]ere, the ordinance and state
law prohibit the same conduct but
differ in language relating to enforcement of the prohibited conduct.”40
“[T]he clear and unambiguous language of Section 307.170 limits its bar
on primary enforcement to its own
provisions.”41 “[T]he limiting language
of Section 307.178 has no application
to traffic stops predicated on munici184 / Journal of the MISSOURI BAR
pal ordinances. See Strode [v. Director
of Revenue], 724 S.W.2d at 247 [(Mo.
banc 1987)]. Accordingly, no conflict
exists between City seat belt ordinance
and Section 307.178.”42
Missouri municipalities
may enact ordinances to
create additional rules of the
road or traffic regulations to
meet their needs and traffic conditions provided the
ordinances are not contrary
to or in conflict with state
statutes. Section 304.120;
City of Creve Coeur v. Nottebrok, 356 S.W.3d 252,
258 (Mo. App. E.D. 2011)
(overruled on other grounds).
[There is] no conflict between
[the] St. John Ordinance …
and Missouri law. Because
City’s seatbelt ordinance is
valid and enforceable, the …
traffic stop did not constitute
an unlawful search and the
trial court did not err in overruling Brockus’s motion to
suppress evidence.43
No Duty to Warn Invitee of
Dangerous Condition That is
Open and Obvious
John Rapp was a masonry worker
on a construction site at Washington University. Eagle Plumbing was
installing drainage pipes in a trench
that was approximately 36 inches
deep, two feet wide, and 30 to 40 feet
long. While Rapp was working on the
joints of a masonry wall, he stepped
on the edge of the trench and the
trench wall collapsed; Rapp fell and
tore his rotator cuff. The trench had
been dug several days before Rapp fell
and he admitted that he was aware
of its location. Rapp filed suit against
Eagle Plumbing alleging that it was
negligent for failing to warn of the
trench or barricade it. Eagle Plumbing’s motion for summary judgment
was granted and the Court of Appeals
affirmed in Rapp v. Eagle Plumbing.44
In a premises liability case,
a defendant may be liable
for injuries suffered by an
invitee due to a dangerous
condition of the land only if
the defendant: (a) knows or
by exercise of reasonable care
would discover the condition, and should realize that it
involves an unreasonable risk
of harm to the invitee; (b)
should expect that the invitee
will not discover or realize the
danger or will fail to protect
himself against it; and (c) fails
to exercise reasonable care
to protect the invitee against
danger. Holzhausen v. Bi-State
Dev. Agency, 414 S.W.3d 488,
494 (Mo. App. E.D. 2013).45
Missouri courts recognize
that “[w]hen the dangerous
condition is so open and
obvious that an invitee should
reasonably be expected to
discover it and realize the
danger, a possessor of land
does not breach the standard of care owed to invitees
unless the possessor should
anticipate the harm despite
such knowledge or obviousness.” Harris [v. Niehaus],
857 S.W.2d at 226 [(Mo. banc
1993)]. “[W]here the danger is
open and obvious as a matter of law and a risk of harm
exists only if the plaintiff fails
to exercise due care, the case is
not submissible to the jury....”
Harris, 857 S.W.2d at 227.46
“[Rapp] claims the trial court erred
in granting Defendant summary judgment because, even if the open and
obvious doctrine applies,” defendant
should have anticipated that a worker
might step on or near the edge of the
trench wall and cause it to collapse.47
Under this rule, a possessor’s duty to protect invitees
from dangers that are open
and obvious as a matter of
law arises only when the possessor should anticipate the
harm despite the obviousness
of the risk. Huxoll v. McAlister’s Body & Frame, Inc., 129
S.W.3d 33, 35 (Mo. App.
W.D. 2004). Accordingly,
a defendant in a premises
liability action is entitled to
summary judgment when
there is no evidence from
which a jury could find that
the defendant should have
expected that persons such as
the plaintiff “will not discover
or realize the danger, or will
fail to protect themselves
against it.” Becker [v. Setien],
904 S.W.2d at 348 [(Mo.
App. W.D. 1995)].48
before he stepped on it, and
was not distracted – would
deliberately, despite his awareness of the hazardous condition, step on the trench. See
Becker, 904 S.W.2d at 348.
Under these circumstances,
“a possessor of land is entitled
to expect that its invitees will
exercise ordinary perception,
intelligence, and judgment....”
Crow v. Kansas City Power &
Light Co., 174 S.W.3d 523,
524 (Mo. App. W.D. 2005)
(quoting Harris, 857 S.W.2d
at 226). Based on the facts
in the summary judgment
record, we conclude that the
trial court did not err in determining that the trench was
open and obvious and the risk
arose only because Plaintiff,
with full knowledge of the
existence and location of the
trench, placed his foot on the
trench’s edge. See Becker, 904
S.W.2d at 348.49
Here, according to his testimony,
plaintiff knew about the existence of
the trench because he had observed
it being dug a day or two prior to his
injury. There was no evidence in the
record
from which a jury could find
that Defendant should have
expected that persons such
as Plaintiff – who admitted
he observed the trench being
dug and was aware of the
trench for several days before
the incident, saw the trench
Endnotes
1 Rolwing v. Nestle Holdings, Inc., No.
SC93756 (Mo. banc 2014).
2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 State ex rel. Schwarz Pharma, Inc. v. Dowd,
No. SC93516 (Mo. banc 2014).
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 Allen v. Continental Western Insurance
Company, No. SC93502 (Mo. banc 2014).
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Seck v. Department of Transportation, No.
SC93628 (Mo. banc 2014).
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Hurst v. Kansas City, MO School District,
No. WD76534 (Mo. App. W.D. 2014).
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 City of St. John v. Brockus, No. ED99644
(Mo. App. E.D. 2014).
39 Id.
40 Id.
41 Id.
42 Id.
43 Id.
44 Rapp v. Eagle Plumbing, No. ED10042
(Mo. App. E.D. 2014).
45 Id., quoting Harris v. Niehaus, 857
S.W.2d 222, 225-26 (Mo. banc 1993).
46 Id.
47 Id.
48 Id.
49 Id.
July-August 2014 / 185