text:
    James LATTANZIO, Appellant, v. Thomas JOYCE and Jennifer Joyce, Appellees.
    No. 2009-CA-000569-MR.
    Court of Appeals of Kentucky.
    April 2, 2010.

      James Lattanzio, Harrodsburg, KY, Pro se.
    No Brief for Appellee.
    Before LAMBERT and STUMBO, Judges; WHITE, Senior Judge.

      . Senior Judge Edwin While sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

LAMBERT, Judge.

James Lattanzio appeals the sanctions entered by the Mercer Circuit Court on February 27, 2009. The trial court ordered that Lattanzio could not continue with his lawsuit against the Joyces unless he hired an attorney. Lattanzio was further ordered to pay $350.00 in attorney fees for violating Kentucky Rules of Civil Procedure (CR) 11. For the reasons set forth herein, we affirm in part and reverse in part.

On March 17, 2008, Lattanzio filed a pro se lawsuit against the Joyces for defamation, malicious prosecution, and other intentional torts. Thereafter, various pleadings were filed by both parties, but mostly by Lattanzio. The gist of the Joyces’ defense was that Lattanzio was utilizing this lawsuit as a means of intimidating and harassing them for participating in a criminal investigation involving Lattanzio.

On July 14, 2008, the trial court entered an order ruling that Lattanzio’s lawsuit shall be abated until such time as the criminal matter pending against him was concluded. The trial court found that “the facts in this case are integrally tied to a criminal proceeding pending against [Lat-tanzio] and that the final outcome of that criminal case would be issue preclusive of the pending issues in this litigation.... ”

Two months later, on September 29, 2008, Lattanzio filed a motion to compel the Joyces to respond to his numerous discovery requests. He also filed motions for an injunction hearing and to vacate the abatement. To support his motion to vacate the abatement, Lattanzio alleged that the criminal matter against him had been dismissed.

On November 7, 2008, the Joyces filed a motion for sanctions against Lattanzio. In their motion, they alleged that a letter written by Lattanzio to the Joyce’s attorney was inappropriate. The letter stated as follows:

According to the disclosure from the County Attorney your client, Thomas Joyce was not on the witness list in my criminal matter that was dismissed on September 25.
You also stated (from the transcript) to the Judge in Court in June, “my clients have already been subpoenaed” which was a lie. Your clients were not subpoenaed, so I will be shortly addressing your misconducts in Court.
You have stalled this matter long enough and I will no longer let you come to Court and lie for your clients. I had hoped that the Joyces would have acted much more seriously upfront regarding the issues between us. However, when they chose not to resolve or settle this matter quickly but prolong, stall and continue the fight, I of course responded in kind and have planned to further respond appropriately.
Because of the damages and the Joyces [sic] conduct, I will initiate other actions civil and criminal against “them” to hold “them” accountable and recover full damages. I have already filed initial criminal complaints against them. I have also contacted the special investigator for the Commonwealth Attorney and will meet with her shortly.
If your clients want to settle and I assume the Joyces want a “clean” walk away and do not want to face “any” fallout from these matters, I could move on with my life and recover from damages with a one-time-payment from them of $150,000, which is well below what I will ask and I think a jury trial would award me and considering I would withdraw any criminal potentials.
As this constitutes a settlement proposal, I reserve all rights and hold that no part of this offer will be used in Court or trial as any offsets to any awards, should this offer be rejected by your clients. You may advise or see me in Court.

The Joyces further alleged that the criminal complaint against Lattanzio was dismissed because Lattanzio succeeded in intimidating and harassing the alleged victim and his girlfriend by filing civil lawsuits against them as well. The alleged victim and his girlfriend agreed not to participate in the criminal action in exchange for Lattanzio’s dismissing all of his civil actions against them. The Joyces moved the court for attorney fees incurred in filing the motion and requested that Lattanzio be required to retain an attorney to prosecute the remainder of the action. The Joyces also filed a motion for summary judgment, which was accompanied by affidavits signed by Thomas Joyce, the alleged victim, and his girlfriend.

On November 17, 2008, the trial court’s abatement order was lifted. On December 10, 2008, the trial court granted partial summary judgment to the Joyces, allowing only Lattanzio’s claims for libel and slander to proceed. The trial court then ordered the Joyces to respond to certain discovery requests of Lattanzio. The Joyces’ motion for a protective order regarding all other discovery requests made by Lattanzio was granted. Finally, the trial court took the Joyces’ motion for sanctions under advisement. The case was once again ordered to be abated until such time as the trial court determined whether Lattanzio would be permitted to proceed pro se in the litigation.

On December 30, 2008, the Joyces filed a response to the discovery requests ordered by the tidal court. On January 6, 2009, Lattanzio filed a motion to “reclaim injunction hearing.” He also filed a motion to “set by court order” the following: (1) discovery; (2) “dispositive” motions; (3) pretrial conference; and (4) trial.

Thereafter, the Joyces filed a second motion for sanctions due to Lattanzio’s violation of the trial court’s December 10, 2008, abatement order. Lattanzio then filed two objections to the Joyces’ motion for sanctions and a motion to show cause alleging that the Joyces failed to comply with the trial court’s December 10, 2008, discovery order.

On February 27, 2009, the trial court entered the order that has been appealed to this Court. In that order, the trial court found that Lattanzio willfully disobeyed its December 10, 2008, abatement order; that Lattanzio’s motion to show cause was without merit; and that the Joyces’ motions for sanctions were well-founded. Lattanzio was also found to have “acted in a manner inconsistent with the fair and just administration of the Court by threatening [the Joyces and their counsel] with criminal and professional sanctions unless his demand for settlement [was] met.” The trial court further stated, “[w]hile the Court can control an attorney by reporting such attorney to the Kentucky Bar Association for disciplinary action, the only means by which the Court can control [Lattanzio’s] litigation activities is to require that his litigation activities be under the responsibility of an attorney.” Ultimately, the trial court concluded that Lattanzio had engaged in “vexatious litigation” and that such reckless practice of law was in violation of CR 11. The trial court then ordered Lattanzio to pay the Joyces $350.00 in attorney fees and mandated that any and all further pleadings of Lattanzio must be filed through an attorney.

Lattanzio argues that both of the above sanctions should be set aside. When reviewing a trial court’s issuance of CR 11 sanctions, we review the trial court’s findings of fact under a clearly erroneous standard, the ultimate determination that a violation occurred under a efe novo standard, and the “type and/or amount of sanctions” under an abuse of discretion standard. Clark Equipment Co., Inc. v. Bowman, 762 S.W.2d 417, 421 (Ky.App.1988).

Lattanzio’s only authority in support of his arguments on appeal is the U.S. Constitution. He argues that he has a constitutional right to self-representation in civil cases. He also argues that his right to liberty protects him from being compelled to contract with an attorney. We are unaware of any U.S. Constitutional decision that declares citizens to have a right to self-representation in civil proceedings. Yet, arguing against such a right is nearly frivolous. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (pleadings drafted by pro se litigants shall be held to less stringent standards than pleadings drafted by attorneys); O’Reilly v. New York Times Co., 692 F.2d 863, 867 (2nd Cir.1982) (self-representation in civil cases is a right of “high standing”); see also McBrearty v. Ken tucky Community and Technical College System, 262 S.W.3d 205, 210 (Ky.App.2008) (holding that pro se litigants must follow the Kentucky Rules of Civil Procedure); Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky.App.1987) (encouraging against the sua sponte dismissal of complaints, in part, because such a practice is “particularly prejudicial to pro se plaintiffs, who are generally unskilled in the art of pleading.”) (internal citation and quotations omitted).

In light of the historically “high standing” accorded to a party’s right to plead and conduct one’s own case, we agree that the trial judge abused his discretion in ordering Lattanzio to proceed with his litigation only under the supervision of an attorney. Such an extreme remedy was simply not reasonable, especially in light of the fact that no alternative sanctions were attempted prior to the entry of the trial court’s February 27, 2009, order that barred Lattanzio from self-representation.

There were several other mechanisms available for controlling the “vexatious” conduct of Lattanzio. As held in McBrearty, supra, the trial court was authorized to enforce the Rules of Civil Procedure. Thus, all the powers of sanctioning accorded under CR 11 and CR 37 were fully available to the trial court in this matter. In addition to the sanctions available under CR 11 and CR 37, the trial court was also authorized under CR 41.02(1) to involuntarily dismiss Lattan-zio’s claims if use of CR 11 and CR 37 sanctions failed to engender compliance with the Rules of Civil Procedure or further orders of the court. See Jaroszewski v. Flege, 297 S.W.3d 24, 36 (Ky.2009) (one of the basic purposes of CR 41.02(1) is to provide a mechanism for sanctioning abuse or misuse of the legal system).

In extreme cases where litigants have insisted on repeatedly abusing the legal process despite warnings from the court that such conduct will result in progressively harsher sanctions, courts have resorted to enjoining litigants from future filings. See Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 3, 113 S.Ct. 397, 398, 121 L.Ed.2d 305 (1992); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir.1998). However, we are unaware of any court that has sanctioned a vexatious party by revoking the party’s right to self-representation. Accordingly, we reverse that portion of the trial court’s order which bars Lattanzio from filing any further pleadings without the supervision of an attorney.

As for the $350.00 in attorneys fees ordered to be paid by Lattanzio, we hereby affirm the trial court. Lattanzio does not challenge the trial court’s finding that he violated the court’s second abatement order by improperly filing subsequent motions seeking injunctive relief and to advance the case. He also does not challenge the trial court’s finding that his motion to show cause was without merit as Lattanzio’s discovery requests had been fully answered and filed with the trial court.

Rather, he argues that the December 10, 2008, order was invalid because it was drafted by the Joyces’ counsel and sent to the trial court without first being sent to Lattanzio for his review in violation of local rule (LCRP) 50-2(VII). This rule states as follows:

All attorneys ordered by the Court to prepare an Order shall do so and circulate it to the opposing attorneys within five (5) days. Within three (3) days after receiving said Order, the opposing attorney shall: 1) sign the “Have Seen” certificate and present the Order to the Clerk, or 2) notify the drafting attorney of his or her objection(s) and that the drafted Order does not conform to the instructions of the Court. If the attorneys cannot promptly agree, the non-drafting attorney shall schedule a hearing before the Court to clarify the Order. The Court may assess attorney’s fees if it feels the objection was frivolous, that the drafting attorney has changed the Court Order, or if either attorney has been dilatory.

In its February 27, 2009, order, the trial court found that the local rule was not applicable because Lattanzio was not an attorney. The trial court further found that Lattanzio waited too long to file an objection to the order and that in any event, the order accurately stated the trial court’s ruling.

We agree with the trial court that the perceived injustice in Lattanzio’s not receiving an advanced copy of the proposed order was not grounds for Lattanzio’s improper filings. If Lattanzio wished to challenge the constitutionality of this particular local rule, he should have presented his argument in a timely manner before the circuit court. Lattanzio failed to do so. The objection filed on February 13, 2009, which cited the local rule as grounds for not abiding by the trial court’s order, was not sufficient to preserve such a challenge before this Court. Accordingly, we find no reversible error in the trial court’s entry of a $350.00 sanction against Lattanzio for tendering filings to the court that were not grounded in fact, not warranted by existing law, or interposed for an improper purpose. CR 11.

Accordingly, the Mercer Circuit Court’s February 27, 2009, order imposing sanctions against Lattanzio is affirmed in part and reversed in part.

ALL CONCUR.

      . The contents of the above letter were attached as an addendum to Lattanzio's brief. In its December 10, 2008, order, the trial court ruled that this letter shall be filed “under seal." However, the contents of this letter are explicitly set forth in this record via the motion filed by the Joyces seeking sanctions against Lattanzio. The letter and its contents are also referred to in the trial court’s order sanctioning Lattanzio. In light of these circumstances, we believe that publication of the letter is necessary to a full understanding of this matter.


source: Caselaw Access Project

author: DANIEL E. SCOTT, Chief Judge. NANCY STEFFEN RAHMEYER, Judge,

license: Public Domain

text:
    Russell VAN ELK, Appellant/Cross-Respondent, v. Darlene L. URBANEK, as Trustee of the Darlene L. Urbanek Trust, Dated May 2, 2005, and Darlene L. Urbanek, Individually, and Gary C. Trask, Respondents/Cross-Appellants, and Arvest Bank, Defendant.
    Nos. SD 29364, SD 29412.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 30, 2009.
    Robert W. Evenson, Pineville, for Appellant/Cross-Respondent.
    Abe R. Paul, Pineville, for Respondents/Cross-Appellants.
   DANIEL E. SCOTT, Chief Judge.

This is a case of neighboring landowners and their real estate disputes, mainly about deed restrictions and an easement. The appeal and cross-appeal involve three of the eight counts bench-tried below. We consider the evidence in the light most favorable to the judgment, which we must affirm unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Walsh v. Al West Chrysler, Inc., 211 S.W.3d 673, 674-75 (Mo.App.2007).

Facts and Background

In May 2005, Russell Van Elk conveyed to Darlene Urbanek, as trustee for her revocable trust, a four-acre tract in rural McDonald County. Restrictive covenants were attached to the deed.

Five weeks earlier, the tract had been surveyed to determine its legal description. The survey showed an access easement “of 50 feet equal and uniform width,” the cen-terline of which ran from Highway 90 south through Van Elk’s land, then along the west property line of the four acres. Thus, the east 25 feet of the easement was on the four acres and the other 25 feet was on Van Elk’s land to the west.

At closing, however, the four-acre deed described the easement as being “40 feet equal and uniform width lying 25 feet on each side” of the centerline described in the survey (our emphasis).

Urbanek built a nice home on the four acres, then acquired from Van Elk two more acres west of her four acres. Another survey was done prior to closing which showed the same 50-foot easement and that all 50 feet would be on Urbanek’s land if she acquired the other two acres.

The two-acre closing was in September 2006. The deed restrictions differed slightly from those on the four acres. This deed described the easement as an “unobstructed Utility Easement and Ingress-Egress Easement being a strip of 50 feet equal and uniform width lying 25 feet on each side of’ the same centerline described in the four-acre deed and both surveys.

Van Elk, who lived near Chicago, visited his property in 2007. He saw the Urbanek garden protruding into the easement and a fence being built on the easement. Litigation ensued with Van Elk suing in three counts and Respondents counterclaiming in five. Judgment in the non-jury trial largely favored Van Elk. Although both parties have appealed, most aspects of the judgment are not challenged.

Van Elk Appeal — Waterline Removal

Shortly before the two-acre transaction, Van Elk built a waterline lying partly within and partly west of the easement. The two-acre deed added utilities to the easement’s purpose and confirmed its width as 50 feet, but its legal description was unchanged. Thus, at the time of trial, parts of the waterline were on Urba-nek’s two acres and outside of the easement.

The trial court ordered Van Elk to remove these encroachments, which Van Elk challenges because “ ‘a person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement.’ ” Loumar Development Co. v. Redel, 369 S.W.2d 252, 257 (Mo.1963)(quoting 17A Am.Jur., Easements, § 152).

However, Van Elk did not prove such knowledge or notice as to Urbanek, the landowner, but only as to Trask, her son. Trask may have known where the waterline was, but it was Urbanek’s land. Van Elk questioned both Trask and Urbanek at deposition, and again at trial, but offered no direct evidence that Urbanek knew or should have known the waterline’s location. Whether the trial court might have inferred such notice is not at issue. Since the parties did not request findings or conclusions, Rule 73.01 deems all fact issues as being found in accordance with the judgment. If Van Elk did not prove the factual trigger, he cannot fault the trial court’s failure to apply the rule. Point denied.

Cross-Appeal Points I & II— Deed Reformation

Respondents argue that the first deed’s easement description should not have been reformed since Van Elk failed to plead or prove a right to such relief. Van Elk replies that no reformation was ordered. Thus, the party who sought reformation (Van Elk) denies getting it, but is not complaining, while his opponents (Respondents) say reformation was granted, but in error, and must be reversed. Both positions seem to reach the same result—a judgment denying reformation—which apparently pleases one party and does not bother the other.

We agree with Respondents that a case for reformation was not proven, but we also agree with Van Elk that reformation was not ordered. Since the deed was not reformed, Respondents’ points are moot.

Cross-Appeal Point III— Deed Restrictions

Citing only case law involving platted or formal subdivisions, Respondents argue that their restrictive deed covenants were void and unenforceable since they “were not uniformly applied to the subdivision as a whole” and differed from restrictions upon lots sold thereafter. Yet Respondents concede that Van Elk was selling land piecemeal and “there was no platted subdivision,” so the cited cases are inapposite. Respondents do not claim the restrictions violate public policy, nor do they cite other authority for their argument, which we find unpersuasive in this non-subdivision situation.

Respondents also deny there was mutual consent to the two-acre deed’s restrictions because they were not signed and Urbanek claimed she was unaware of them. Yet the trial court did not have to believe Urbanek’s testimony, and a conveyance “is seldom ever signed by the grantee. A deed, though signed by the grantor only, when delivered to and accepted by the grantee, becomes a contract in writing,” with the grantee’s acceptance of the deed deemed equivalent to her signature to the contract. Young Women’s Christian Ass’n v. LaPresto, 169 S.W.2d 78, 80 (Mo.App.1943). Property and a grantee’s use thereof are bound by a deed’s enforceable covenants if the grantee—signature vel non—accepts the deed. Timothy J. Tryniecki, 18 Mo. Practice, Real Estate Law—Transactions & Disputes § 23:3 (3d ed. & 2009 supp.). Point III fails.

Conclusion

Finding no merit to the points raised on appeal and cross-appeal, we affirm the judgment.

RAHMEYER, J., CONCURS IN RESULT IN SEPARATE OPINION.

LYNCH, P.J., CONCURS.

NANCY STEFFEN RAHMEYER, Judge,

Concurring.

I concur in the result only in the section designated Cross-Appeal Points I & II-Deed Reformation in the majority opinion. I agree with Respondents that a case for reformation was not proven, but I do not agree with Van Elk that reformation was not ordered. Van Elk alleged that the warranty deed reserved in favor of Van Elk an unobstructed and nonexclusive easement of ingress and egress fifty-feet wide; he requested an injunction protecting that easement; and the injunction was granted. The trial court granted Van Elk’s petition for injunction and ejectment and that order was not appealed; therefore, we do not have to reach the issue of whether the deed was reformed. In all other respects, I concur with the majority opinion.

      . Respondents are Urbanek, individually and as trustee of her revocable trust, and her son, Gary Trask. Arvest Bank also was a defendant below, but is not involved in this appeal.

      . The trial court found, inter alia, that the easement was 50 (not 40) feet wide—a finding facially relevant to the unappealed injunction claims and perhaps others—but it otherwise expressly denied relief on Van Elk’s reformation claim.


author: PATRICIA L. COHEN, Judge.

text:
    FRICK’S MEAT PRODUCTS, INC., Respondent, v. COIL CONSTRUCTION OF SEDALIA INC., Appellant, v. David S. Frick, Cynthia L. Frick, Bluff Road, L.L.C., Woodside Drive, L.L.C., Bank of Washington, Richard F. Mayer, Larry Cook and CNA Manufacturing Systems, Inc. d/b/a CNA Consulting, Respondents, and Fidus Construction A.M., Inc., Intervenor.
    No. ED 92195.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 20, 2010.

      Thomas B. Weaver, St. Louis, MO, for appellant.
    Jeffrey E. Green, Osage Beach, MO, for intervenor.
    Richard F. Huck, III, Clayton, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Coil Construction of Sedalia, Inc. (Coil) appeals from the judgment of the Circuit Court of Franklin County denying its claims for breach of contract, quantum meruit, a mechanic’s lien, and violation of Mo.Rev.Stat. § 436.300 et seq. against Frick’s Meat Products, Inc. (Frick’s) and David S. Frick, Cynthia L. Frick, Bluff Road LLC, Woodside Drive LLC, the Bank of Washington, and Richard F. Mayer as third-party defendants (collectively “third-party defendants”). Coil claims that the trial court erred because: (1) the judgment fails to address the evidence and “merely declares that each party is to take nothing”; (2) the undisputed evidence showed Coil’s entitlement to damages for either breach of contract or unjust enrichment; and (3) Coil’s judgment on Frick’s claims is “inherently inconsistent” with the judgment in favor of Frick’s and the third-party defendants on Coil’s claims. We affirm.

Background

On January 28, 2005, Frick’s, a wholesale process meat supplier, brought a breach of contract action against Coil, a construction company with experience in the “food plant business.” In its petition, Frick’s alleged that Coil submitted a proposal in which it offered to design and construct a new ham processing plant for Frick’s. Frick’s alleged that in its proposal, Coil promised, among other things, to design and construct the ham plant in accordance with “U.S.D.A. and other applicable regulations,” provide design and construction services on a “cost plus fee” basis with a guaranteed maximum price of approximately $6,560,000, subject only to changes agreed upon by the parties, and to complete construction of the ham plant during the fall of 2004 or, at the latest, by December 31, 2004. Frick’s alleged that it accepted Coil’s proposal thereby “forming an enforceable agreement.” Frick’s further alleged that the parties later expanded the project, increasing the guaranteed maximum price to $7,506,062. Frick’s claimed that Coil breached the contract by providing defective work, refusing to provide design and construction services on a “cost plus fee” basis, wrongfully abandoning the project, and failing to complete construction within the agreed-upon time-frame.

In response, Coil filed an answer to Frick’s petition, as well as an amended third-party petition and counterclaim against Frick’s and third-party defendants, seeking damages for breach of contract, recovery under quantum meruit, a mechanic’s lien, and damages under Missouri’s statute on payment of retainage, Mo.Rev.Stat. § 436.300 et seq. In its answer, Coil admitted that the parties entered into an “enforceable agreement.” Coil, however, denied Frick’s allegations regarding the terms set forth in its proposal and the agreed-upon maximum price of the project at $6,560,000 and later $7,506,062. In its amended third-party petition and counterclaim, Coil claimed that Frick’s failed to provide Coil with progress payments for work completed, and that Frick’s had breached the parties’ contract by providing Coil “incorrect, misleading, false, and contradictory directions” regarding the project and “intentionally and purposefully interfering] with, undermining], and subverting] Coil’s relationships with Coil’s subcontractors and suppliers ... and with Coil’s own employees.” Additionally, Coil sought recovery under the theory of quantum■ meruit, claiming that Frick’s had not paid Coil the reasonable value of the material and construction services Coil had contributed to the ham processing plant.

At trial, the evidence showed the following: Coil submitted a proposal whereby it would design and construct a ham processing plant for Frick’s. Frick’s hired Coil for the project, but the parties did not enter into a written contract. Rather, Frick’s and Coil began meeting on a monthly basis where the parties continued to negotiate the “scope” and price of the project. Although the parties had not agreed upon the scope and pricing terms, Coil commenced project design work and later began construction. During construction, Coil proposed several draft contracts setting forth the scope of Coil’s responsibilities and a contract price. Frick’s refused Coil’s proposals, but continued to pay Coil as construction of the project progressed.

After several months of construction, Frick’s and Coil’s working relationship began to deteriorate. On one occasion, Coil “walked off’ the project, but returned the next day. The parties remained unable to decide on the scope and pricing terms of their agreement. At one point, Coil and Frick’s attorneys met in an effort to address “the construction terms, scope of work, and other specific project details that remain[ed] to be resolved.” Further disputes over quality of work, schedule delays, and demands for payment arose between the parties. Finally, after a dispute regarding payment, Coil walked off the project and did not return.

After Coil left the project, Frick’s hired additional contractors to complete construction of the ham plant. Additionally, Frick’s discovered and repaired, at its own expense, a variety of defects in Coil’s work, including inadequate wind and roof loading designs, floor cracks, wall cracks, refrigeration units interfering with the rail system, deficient installation of HVAC units, water leakage throughout the entire plant, etc.

At the close of the evidence, the parties submitted to the trial court a stipulation of facts and a financial report prepared by a special master. In the stipulation, the parties agreed that Coil had paid material, labor, and subcontractor costs totaling $5,129,453.73 and that Frick’s had paid Coil $5,501,246.68. In his report, the special master determined that the balance Frick’s owed to Coil’s subcontractors was $404,632.17, Coil’s unpaid contractor’s fee of 7.5% amounted to $136,138.26, and outstanding interest due on late payments to Coil and interest under a January 22, 2005 lien was $145,248.26, for a total balance of $686,018.69.

After hearing all of the evidence and receiving the parties’ stipulation and the special master’s report, the trial court entered its judgment denying both Frick’s and Coil relief on all of their respective claims. The trial court did not render any findings of fact or conclusions of law or provide an explanation for its decision on the record. Coil appeals.

Standard of Review

A trial court’s judgment will be affirmed unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Where, as here, the trial court rendered no findings of fact or conclusions of law, all factual issues are presumed resolved in accordance with the result reached, and we will affirm the trial court’s judgment if it is correct under any reasonable theory supported by the evidence. Weaks v. Rupp, 966 S.W.2d 387, 392 (Mo.App. W.D.1998).

Discussion

In its first point, Coil contends that the trial court erred in entering its judgment because “rather than addressing the evidence on the claims of any party, the judgment merely declares that each party is to take nothing on the opposing party’s claims.” Moreover, Coil accuses the trial court of “throwing] up its hands in frustration” and failing to perform its “judicial function of hearing and deciding cases.” Coil asserts that the trial court is required to provide an explanation for its decision and that the trial court’s “judgment, which merely directs the parties to go away, is not a proper resolution of the disputes that the parties expended years of time and thousands of dollars in costs and attorney fees to present the trial court.”

With respect to the trial court’s duty to explain the basis for its judgment, Rule 73.01(c) provides in pertinent part:

The court shall render the judgment it thinks proper under the law and the evidence.
If a party so requests, the court shall dictate to the court reporter or prepare and file a brief opinion containing a statement of the grounds for its decision and the method of deciding any damages awarded.
The court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party. Any request for an opinion or findings of fact shall be made on the record before the introduction of evidence at trial or at such later time as the court may allow.

Mo. Sup.Ct. Rule 73.01(c). Consistent with Rule 73.01 (c)’s mandate, courts have routinely recognized that “it is the parties’ duty to specifically request findings of fact and conclusions of law, identifying the issues they wish the court to decide.” Hammons v. Ehney, 924 S.W.2d 843, 849 (Mo. banc 1996); see also Millard Farms, Inc. v. Sprock, 829 S.W.2d 1, 4 (Mo.App. E.D.1991). A party who fails to properly request the trial court to issue findings on specific issues is barred from later claiming error on that basis on appeal. See Sprock, 829 S.W.2d at 4.

Here, Coil readily admits that “the parties to this case did not request findings and conclusions before the trial began.” Nevertheless, Coil asserts that it “is not claiming that the trial court erred in failing to provide detailed findings of fact and conclusions of law as contemplated by Rule 73.01.... The issue in this appeal is more fundamental: Are parties in a significant case entitled to know the basis of a decision against them?” Under Rule 73.01(c), parties in all civil actions, including “significant” ones, are entitled to know the basis of the judgment against them, if the party properly requests the trial court to articulate the basis for its judgment. Specifically, Rule 73.01(c) provides that the trial court shall articulate the “grounds for its decision” or provide “findings on the controverted fact issues” on the record upon a proper request from a party. In construing Rule 73.01(a)(2) (Rule 73.01 (e)’s predecessor), our Supreme Court stated in words clearly applicable here:

When parties desire specific findings ... such findings may be obtained by means of a proper request pursuant to Rule 73.01(a)(2). We are not inclined to impose on trial courts the onerous burden of making detailed findings ... when parties desiring such findings can, with the exercise of a modicum of foresight, obtain them with a simple request made in compliance with Rule 73.01(a)(2).

Dardick v. Dardick, 670 S.W.2d 865, 868 (Mo. banc 1984). Coil admittedly failed to request the trial court to articulate grounds for its decision or issue findings. Consistent with Dardick, we decline to require a trial court to issue findings or articulate the grounds for its decision in the absence of a Rule 73.01(c) request. Point denied.

In its third point, Coil contends that the trial court erred in entering its judgment in favor of Frick’s and the third-party defendants on Coil’s claims because “the undisputed and stipulated facts show that (a) Coil was entitled to recovery for breach of contract because a contract existed between Coil and [Frick’s], [Frick’s] violated the contract, and Coil was thereby damaged or, in the alternative, (b) Coil was entitled to recovery for unjust enrichment [quantum meruit ] because Coil provided construction services that were of value to [Frick’s] for which [Frick’s] failed and refused to compensate Coil.” We disagree.

First, Coil argues that the undisputed evidence shows that it is entitled to damages for breach of contract. Coil asserts that “[t]here can be no dispute that Coil and [Frick’s] had a contract” because both parties alleged in their respective pleadings that they entered into an “enforceable agreement.” Coil further argues that “[t]here is no doubt that [Frick’s] breached the agreement to pay Coil for the work.”

To establish a claim for breach of contract, a party must first establish the existence of a valid contract. Gateway Exteriors, Inc. v. Suntide Homes, Inc., 882 S.W.2d 275, 279 (Mo.App. E.D.1994). “In order for a contract to be formed, the parties must mutually assent to its terms.” Id. In particular, the parties must agree on a definite price in order for a contract to be binding. Olathe Millwork Co. v. Dulin, 189 S.W.3d 199, 204 (Mo.App. W.D.2006). Additionally, there is no enforceable contract when the parties reserve essential terms for future determination. Gateway Exteriors, Inc., 882 S.W.2d at 279.

Here, the trial court reasonably could have denied Coil’s breach of contract claim, having found that the parties never entered into a valid and enforceable contract. Coil asserts that “[t]he evidence shows that an oral contract was entered into between the pai'ties.” Coil, however, cites no record evidence in support of its assertion, but rather relies on Frick’s allegation of the existence of an “enforceable agreement” in its petition. Coil’s reliance on Frick’s petition is misplaced because an allegation of a legal conclusion in a pleading, such as the existence of a valid and enforceable contract, is not an admission of fact that is binding on the party. See Sayers v. Bagcraft Corp. of Am., Inc., 597 5.W.2d 280, 283 (Mo.App. S.D.1980). More importantly, however, even though Coil admitted in its answer the existence of an “enforceable agreement”, it denied all of Frick’s allegations regarding the terms of the agreement, notably the price.

Consistent with the disagreement evident in the parties’ pleadings, there was substantial evidence at trial from which the trial court could have found that the parties failed to form a valid contract. Specifically, the evidence showed that, despite several attempts, the parties failed to settle on the essential terms of the agreement, including the scope of the project and the price. Without a contract, the parties’ relationship deteriorated and Coil eventually walked off the job after a dispute regarding payment. From this evidence, the trial court could have concluded that the parties failed to agree on the essential terms of the agreement and therefore no enforceable contract existed between Coil and Frick’s.

Second, as an alternative to its breach-of-contract claim, Coil argues that it is entitled to recovery under quantum meru-it for the work it provided to Frick’s. Specifically, Coil asserts that the undisputed evidence shows that it provided materials and construction services that added value to Frick’s ham processing plant. Coil claims that, based on the special master’s valuations, the reasonable value of the materials and construction services provided that remained unpaid totaled $686,018.69.

“A quantum meruit claim is based on a promise implied by the law that a person will pay reasonable compensation for valuable services or materials provided at his request or with his approval.” Moran v. Hubbartt, 178 S.W.3d 604, 615 (Mo.App. W.D.2005) (quotation omitted). Under quantum meruit, “the measure of recovery is the reasonable value of the goods or services furnished to the benefited defendant.” Johnson Group, Inc., 939 S.W.2d at 30 (quotation omitted). Failure to prove reasonableness of costs is fatal to a quantum meruit claim. Bldg. Erection Serv’s. Co. v. Plastic Sales & Mfg. Co., Inc., 163 S.W.3d 472, 481 (Mo.App. W.D.2005). Additionally, a showing that the goods or services provided have a diminished value may decrease or even extinguish a claim under quantum meruit. Bruce v. Spillman, 497 S.W.2d 196, 201 (Mo.App.1973).

Here, even assuming the trial court found that Coil added value to Frick’s project, the trial court also could have found that Coil was not entitled to recovery under quantum meruit because Frick’s had already paid Coil the reasonable value of the material and construction services Coil provided. Specifically, the evidence showed that Coil paid material, labor, and subcontractor costs totaling $5,129,453.73, and Frick’s paid Coil $5,501,246.68. As evidence of the value of the goods and services provided, Coil relies on the $686,018.69 figure calculated by the special master, which includes money owed to Coil’s subcontractors, Coil’s contractor’s fee of 7.5%, interest due on late payments, and interest due on unpaid amounts under lien. The special master’s calculations are not alone sufficient to prove the “reasonable value” of the uncompensated work performed by Coil. See, e.g., St. Charles Floor Co. v. Hoelzer, 565 S.W.2d 844, 847-48 (Mo.App.1978) (hourly wage figures not recoverable under quantum meruit theory without evidence relating it to the reasonable value of work performed). Furthermore, the special master’s figures do not take into account the evidence of the numerous defects in Coil’s work, which the trial court could have determined diminished or extinguished Coil’s recovery under quantum meruit. See Bruce, 497 S.W.2d at 201.

Given the evidence in this case, the trial court reasonably could have concluded that Coil and Frick’s did not enter into a valid contract and that Coil was not entitled to recovery under quantum meruit. Because the trial court’s judgment is supported by the evidence, we decline to disturb it. Point denied.

In its second point, Coil contends that the judgment in favor of Frick’s and third-party defendants on Coil’s claims is “inherently inconsistent” with the judgment in favor of Coil on Frick’s claims. Specifically, Coil claims that because it prevailed on Frick’s claims, the trial court necessarily found either that: (1) Coil and Frick formed a contract that Frick breached first, thereby entitling Coil to damages; or (2) there was no contract, and Coil is therefore entitled under quantum meruit for the reasonable value it added to the project.

In support of its point, Coil relies on the general rule that “[a] judgment based on inconsistent and ambiguous findings does not allow for adequate appellate review and must be reversed and remanded.” McGahan v. McGahan, 237 S.W.3d 265, 272 (Mo.App. E.D.2007). The cases cited by Coil applying the above rule, however, are not directly applicable because in those cases, the trial court’s factual findings were either inconsistent with the trial court’s other findings or with the trial court’s judgment. See id.; Klinkerfuss v. Cronin, 199 S.W.3d 831, 842 (Mo.App. E.D.2006); In re Marriage of Maninger, 106 S.W.3d 4, 12 (Mo.App. E.D.2003); Main Street Feeds, Inc. v. Hall, 975 S.W.2d 227, 234 (Mo.App. S.D.1998). Here, the trial court did not issue findings and thus all factual issues are presumed consistent with the result reached. Weaks, 966 S.W.2d at 392. Accordingly, the rule regarding inconsistent and ambiguous findings is inapplicable in this case.

Additionally, we find that the trial court’s judgment is not inherently inconsistent. As described in our resolution of Coil’s third point, the trial court reasonably could have concluded that the parties failed to form an enforceable contract and, consequently, denied both Frick’s and Coil’s breach of contract claims. Consistent with that finding, and under the circumstances present here, the trial court also could have found that Coil was not entitled to relief under quantum meruit. Point denied.

Conclusion

The trial court’s judgment is affirmed.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., J., Concur.

      . Frick's identifies several failures in Coil's brief to comply with the requirements of Rule 84.04. Specifically, Frick's points out that, among other things, Coil provided an insufficient statement of facts, advanced arguments not set forth in the points relied on, offered conclusory propositions without referencing specific testimony or evidence, and failed to state the applicable standard for each point relied on. "While it is within our discretion to dismiss an appeal for failure to comply with Rule 84.04, we will not exercise our discretion to dismiss an appeal for technical deficiency under Rule 84.04 unless the deficiency impedes disposition of the merit s." Hudson v. Behring, 261 S.W.3d 621, 623 n. 1 (Mo.App. E.D.2008). The deficiencies in Coil's brief do not impede our ability to dispose of Coil's assertions of error on the merit s, and therefore, we decline to dismiss Coil’s appeal.

      . Coil also sought relief for fraudulent misrepresentation, tortious interference with business relationships, defamation, and civil conspiracy against two other third-party defendants, Larry R. Cook and CNA Manufacturing Systems, Inc., d/b/a CNA Consulting. These claims, however, are not the subject of this appeal.

      .We note that Coil analogizes this case to our decision in King v. Bullard, 257 S.W.3d 175 (Mo.App. E.D.2008), where we criticized the trial court, which “seem[ed] to have thrown up its hands in frustration," for failing to render an accounting of a partnership. Id. at 184. King is inapposite because there the trial court had a statutory duty under Mo.Rev. Stat. § 358.220 to render an accounting. Id. In contrast, the trial court here did not have a duty to render findings explaining its judgment because neither party requested such findings as required by Rule 73.01(c). Moreover, contrary to Coil's claim that the trial court "threw its hands up in frustration,” Coil points to nothing in the instant record and we do not find anything suggesting that the trial court failed to adequately assess the parties’ claims and reach an informed judgment.

      . We have rearranged Coil's second and third point for continuity in our analysis.

      . In its point on appeal, Coil uses the terms "unjust enrichment” and “quantum meruit" interchangeably. The terms, however, are not synonymous. See Johnson Group, Inc. v. Grosso Bros., Inc., 939 S.W.2d 28, 30 (Mo.App. E.D.1997) (explaining the distinction between recovery based on unjust enrichment and quantum meruit). Because Coil sought recovery under the theory of quantum meruit and generally uses case law discussing quantum meruit in its brief, we limit our analysis under that theory of recovery.

      . We also note that Coil’s assertion that ”[t]here can be no dispute that Coil and [Frick’s] had a contract” is disingenuous because Coil recognized the possibility that the trial court might find that no. contract existed when the stipulation between Frick's and Coil provided: "if the Court finds that no contract existed between the parties.... ”

      . We note that in the argument section of its third point. Coil also contends that it is entitled to relief under Missouri's statute on payment of retainage, Mo.Rev.Stat. § 436.300 et seq., and Missouri's Private Prompt Pay Act, Mo.Rev.Stat. § 431.180 et seq., as well as a mechanic’s lien. We agree with Frick’s that Coil failed to identify these assignments of error in its point relied on and, therefore, Coil abandoned the point. See Richey v. Philipp, 259 S.W.3d 1, 18 (Mo.App. W.D.2008) (quoting Brizendine v. Conrad, 11 S.W.3d 587, 593 (Mo. banc 2002)). In any event, Coil’s claims under the statute on payment of retainage, the Private Prompt Pay Act, and for a mechanics lien are without merit in light of our determination that the trial court reasonably could have found that Coil and Frick's did not form a valid contract and that Coil was not entitled to recovery under quantum meruit.

      . We note that Coil also relies on Reinbott v. Tidwell, 191 S.W.3d 102, 112 (Mo.App. S.D.2006), where the court reversed the trial court's judgment because, among other things, the award of damages was inconsistent with the judgment. Reinbott is inappo-site because, here, the trial court awarded no damages to either Coil or Frick's which is consistent with its judgment against Coil and Frick's on all of their respective claims.


author: ALOKAHUJA, Judge.

text:
    Daniel HENDRICKS and Katherine Hendricks, Appellants, v. The CURATORS OF the UNIVERSITY OF MISSOURI, et al. Respondents.
    No. WD 70398.
    Missouri Court of Appeals, Western District.
    April 27, 2010.

      Kathleen A. McNamara, Esq., and Frederick G. Thompson, IV, Esq., Kansas City, MO, for appellant.
    Susan F. Robertson, Esq., Kansas City, MO and Wade H. Ford, Jr., Esq., Columbia, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOKAHUJA, JJ.
   ALOKAHUJA, Judge.

Plaintiffs-Appellants Daniel and Katherine Hendricks filed a petition seeking damages from the Curators of the University of Missouri, among others, for alleged negligence relating to medical care provided to Daniel Hendricks when he was a patient at the University Hospital in Columbia. The circuit court dismissed the Hendrickses’ claims against the Curators on the basis of sovereign immunity, and certified its judgment as final.

The Hendrickses appeal. In their first Point Relied On, they argue that the Curators waived sovereign immunity by adopting a self-insurance plan which provides coverage for the Hendrickses’ claims. In their second Point, the Hendrickses contend that the court erroneously treated the Curators’ motion to dismiss as a motion for summary judgment, and that the motion to dismiss should have been overruled under the standards applicable thereto. We affirm.

Standard of Review

We review a trial court’s decision to grant a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

“A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition. It assumes that all of plaintiffs averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.”

State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (citation omitted).

Analysis

I.

Under § 537.600, sovereign immunity generally protects public entities from liability for negligent acts. “The Curators of the University of Missouri ‘is a public entity with the status of a governmental body and, as such, is immune from suit for liability in tort in the absence of an express statutory provision.’ ” Langley v. Curators of the Univ. of Mo., 73 S.W.3d 808, 811 (Mo.App. W.D.2002) (quoting Brennan ex rel. Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App. W.D.1997)).

Two exceptions to sovereign immunity exist, neither of which is applicable under these facts. §§ 537.600.1(1), (2). Besides the exceptions to sovereign immunity contained in § 537.600.1, § 537.610.1 provides that a public entity may waive sovereign immunity for tort claims by the purchase of liability insurance, or the adoption of a self-insurance plan, to the extent of the coverage provided in the insurance policy or self-insurance plan.

At the time of the alleged injury to Mr. Hendricks, the Curators had adopted a self-insurance plan which provided, subject to the limits of liability and other conditions of the plan, that:

The Employer ... will pay on behalf of the covered person all sums which the covered person shall become legally obligated to pay as damages because of injury to the person or property of a patient arising out of the operations of a medical facility or because of injury arising out of the rendering of or failure to render, while the Plan is in effect, professional services by the covered person, or by any person for whose acts or omissions such covered person is legally responsible, performed in the practice of the individual covered person’s profession including service by the individual covered person as a member of a formal accreditation or similar professional board or committee of a medical facility or professional society.

The plan defined “Employer” to mean “The Curators of the University of Missouri, a public corporation, including all its campuses, divisions, branches and parts.” “Covered persons” was defined to include “[t]he Employer,” “[individual members of the Board of Curators of the University of Missouri and the Board of Curators of the University of Missouri,” as well as “[a]ll employees.” The self-insurance plan also expressly provided, however, that it not be construed as a waiver of sovereign immunity:

Nothing in the Plan shall be construed as a waiver of any governmental immunity of the Employer, the Board of Curators of the University of Missouri nor any of its employees in the course of their official duties.

Although the Curators had adopted a self-insurance plan whose coverage clause is apparently broad enough to apply to the Hendrickses’ claims, the express proviso that the plan would not waive the Curators’ sovereign immunity defeats any waiver argument. Numerous cases have applied such non-waiver provisions in governmental entities’ insurance policies, and held that immunity was preserved despite the existence of insurance coverage which might otherwise fall within § 587.610.1. Thus, in State ex rel. Board of Trustees of City of North Kansas City Memorial Hospital v. Russell, 843 S.W.2d 353 (Mo. banc 1992), a city-owned hospital had purchased liability insurance which contained an endorsement explicitly disclaiming coverage for “any claim barred by the doctrine!] of sovereign immunity,” and declaring that “[njothing in this policy ... shall constitute any waiver of whatever kind of the[] defense!] of sovereign immunity.” Id. at 360. The Supreme Court held that “[t]he endorsement disclaiming coverage of any claim barred by the doctrine of sovereign immunity avoids any waiver of sovereign immunity” which might otherwise have resulted from the purchase of liability insurance. Id.

Later decisions have followed Russell and held that an express non-waiver provision in a liability insurance policy purchased by a governmental entity defeats any waiver of sovereign immunity under § 537.610.1. See, e.g., Topps v. City of Country Club Hills, 272 S.W.3d 409, 417-18 (Mo.App. E.D.2008); Conway v. St. Louis County, 254 S.W.3d 159, 167 (Mo.App. E.D.2008); Parish v. Novus Equities Co., 231 S.W.3d 236, 246 (Mo.App. E.D.2007); State ex rel. Ripley County v. Garrett, 18 S.W.3d 504, 508-09 (Mo.App. S.D. 2000); Casey v. Chung, 989 S.W.2d 592, 594 (Mo.App. E.D.1998).

In Langley, we applied these cases to hold that the very self-insurance plan at issue here did not effect a waiver of the Curators’ sovereign immunity:

A public entity does not waive its sovereign immunity by maintaining an insurance policy where that policy includes a provision stating that the policy is not meant to constitute a waiver of sovereign immunity. Since the Curators’ self-insurance plan contains such language, Appellant cannot establish that the self-insurance plan gives rise to a waiver of their sovereign immunity.

73 S.W.3d at 811-12 (citing, inter alia, Russell, Ripley County, and Casey).

The Hendrickses argue that we should disregard Langley’s holding and address the effect of the non-waiver provision in the Curators’ self-insurance plan anew, because the appellant in Langley apparently did not seriously contest whether the self-insurance plan waived the Curators’ sovereign immunity, but instead focused her arguments on the Curators’ purchase of a separate excess liability insurance policy. See id. at 812 (“Recognizing that sovereign immunity was expressly retained by the Curators in their self-insurance plan, thereby defeating her claim, Appellant seizes on the Curators’ purchase of an excess liability insurance policy as a basis for claiming waiver.”). We are not persuaded, however, that we can dismiss Langley’s explicit holding that the self-insurance plan was ineffective to waive sovereign immunity as mere dictum. First, it arguably would have been unnecessary for Langley to even address the appellant’s arguments as to the effect of the separate excess policy if it had found that the self-insurance plan itself waived immunity to the extent of its coverage. Moreover, the proper interpretation of the self-insurance plan’s non-waiver clause was essential to Langley’s interpretation of the excess policy on which the appellant there principally relied. Langley noted that the excess policy provided that its coverage was generally “ ‘subject to the same terms, conditions, agreements, exclusions and definitions’ as the underlying self-insurance plan,” id., and that the excess insurer’s payment obligation was contingent on the fact “ ‘that the underlying insurance also applies, or would apply but for the exhaustion of its applicable limits of insurance.’ ” Id. at 813 (footnote omitted). Thus, the Court’s conclusion that the Curators’ excess insurance policy did not waive immunity depended in significant degree on the Court’s interpretation of the self-insurance plan: “The self-insurance plan expressly retains the Curators’ sovereign immunity, and the language of the excess liability insurance policy incorporates that provision by reference.” Id.

The Hendrickses also argue that Langley’s interpretation of the non-waiver provision of the Curators’ self-insurance plan was erroneous, and that we should therefore disregard (or, more properly, overrule) it. First, the Hendrickses argue that the phrase “in the course of their official duties” in the non-waiver clause limits the scope of the Curators’ preservation of sovereign immunity. We cannot agree that the phrase “in the course of their official duties” applies to all three categories of insureds listed in the non-waiver provision: “the Employer,” “the Board of Curators,” and “its employees.” To the contrary, the phrase appears directly after the reference to “employees,” and is properly interpreted to apply only to them under “the long recognized ‘last antecedent rule,’ which instructs that: ‘relative and qualifying words, phrases, or clauses are to be applied to the words or phrase immediately preceding and are not to be construed as extending to or including others more remote.’” Rothschild v. State Tax Comm’n of Mo., 762 S.W.2d 35, 37 (Mo. banc 1988) (citation omitted); see also Thompson v. Comm. on Legislative Research, 932 S.W.2d 392, 395 n. 3 (Mo. banc 1996). The Hendrickses’ argument based on the phrase “in the course of their official duties” fails, as that phrase is inapplicable to the Curators, who are the only insureds at issue in this appeal.

The Hendrickses also argue that Langley “does not correctly apply the law of the cases it relied upon.” They argue that the cases upon which Langley relies are distinguishable because, in each of them, the “non-waiver” language appeared in an endorsement to an insurance policy, rather than — as here — “buried” in a “Miscellaneous” section of the self-insurance plan itself.

The Hendrickses are correct that rules of insurance policy interpretation provide that, “[i]f the language of the endorsement and the general provisions of the policy conflict, the endorsement will prevail, and the policy remains in effect as altered by the endorsement.” Abco Tank & Mfg. Co. v. Fed. Ins. Co., 550 S.W.2d 193, 198 (Mo. banc 1977). Unlike the prior cases involving non-waiver clauses in endorsements, here the Hendrickses’ argue that the non-waiver provision creates a conflict or ambiguity within the self-insurance plan itself, which must be resolved in favor of coverage (and thus in favor of a waiver of immunity).

If we were to find an ambiguity in the self-insurance plan, there might be some question as to whether that ambiguity should be resolved in favor of coverage (and immunity waiver) under rules of construction applicable to insurance policies generally, or instead resolved against finding a waiver of immunity. The general rule is that “[w]aivers of sovereign immunity” — at least as they appear in statutes — “are ... strictly construed.” Richardson v. State Highway & Transp. Comm’n, 863 S.W.2d 876, 882 (Mo. banc 1993). Although Richardson applied the strict construction rule to a statutory waiver provision, this Court has apparently applied this principle to the interpretation of insurance policies alleged to waive sovereign immunity. See Casey v. Chung, 989 S.W.2d 592, 594 (Mo.App. E.D.1998). There may also be a question whether the rules governing interpretation of standard-form policies issued by insurance companies apply to self-insurance plans like the one at issue here. See, e.g., Anderson v. Nw. Bell Tel. Co., 443 N.W.2d 546, 549 (Minn.App.1989) (“The rules of insurance policy interpretation are not applicable in the context of self-insurance.”); McClain v. Begley, 457 N.W.2d 230, 232 (Minn.App.1990) (“a self-insurance plan is not construed strictly against the drafter, as insurance policies are”), rev’d on other grounds, 465 N.W.2d 680 (Minn.1991).

We need not resolve these issues, however, because we find no ambiguity in the self-insurance plan. The Hen-drickses argue that the plan is ambiguous because its coverage clause promises coverage for medical negligence, but the non-waiver clause then takes that coverage away. “ Tf a contract promises something at one point and takes it away at another, there is an ambiguity.’ ” Burns v. Smith, 303 S.W.3d 505, 512 (Mo. banc 2010) (citation omitted). Contrary to the Hendricks-es’ repeated assertions, however, the non-waiver clause does not remove all coverage, even for the Curators themselves. It is at least conceivable that the plan provides protection to the Curators for claims that “aris[e] out of the operations of a medical facility” within the meaning of the insuring clause, but which might at the same time fall within one of the two unconditional waivers of immunity found in §§ 537.600.1(1) and (2). The plan also provides coverage for acts of employees. Despite the fact that the plan is inapplicable in this case, it offers coverage in other circumstances, and so the non-waiver clause does not render the self-insurance plan meaningless as the Hendrickses contend.

II.

The Hendrickses also argue that the trial court erroneously treated the Curators’ motion to dismiss as a motion for summary judgment.

“[B]efore a trial court may treat a motion to dismiss as one for summary judgment, when matters outside the pleadings are presented and not excluded, it must notify the parties that it is going to do so and give the parties an opportunity to present all materials pertinent to the motion for summary judgment.” ... “A trial court’s order will constitute a dismissal, and not a summary judgment, where the record contains no evidence that the court notified the parties that it intended to review pleadings and documents as a summary judgment motion, nor that the court considered matters outside the pleadings.”

Pikey v. Bryant, 203 S.W.3d 817, 820-21 (Mo.App. S.D.2006) (citations omitted).

Although the trial court’s Judgment referred to the Curators’ motion as one for summary judgment, and stated it was granting that motion, the label the circuit court used is not dispositive. The court did not consider any documents outside the pleadings, nor did it advise the parties that it would be treating the motion as one for summary judgment. Although the court’s judgment necessarily addressed the Hendrickses’ contentions as to the effect of the self-insurance plan, the Hendrickses’ amended petition specifically recites that the plan “is attached hereto as Exhibit A and incorporated by reference as though fully set forth herein.” (Emphasis added.) Under Rule 55.12, “[a]n exhibit to a pleading is a part thereof for all purposes.” When considering a motion to dismiss for failure to state a claim, “[w]e also consider exhibits attached to the petition ... as part of the allegations.” Armistead v. A.L.W. Group, 155 S.W.3d 814, 816 (Mo.App. E.D.2005). The fact that the trial court considered the terms of the Curators’ self-insurance plan did not convert their motion into one for summary judgment.

The Hendrickses also argue that, to the extent the trial court intended to rule on a motion to dismiss, it improperly failed to assume that the allegations of their petition were true. In particular, they point to their allegation “[t]hat at all times herein pertinent the Defendants, and each of them, were either not entitled to or waived the application of sovereign immunity in that each of them was covered by the University of Missouri Medical Professional and Patient General Liability Plan.” However, although we treat all of the factual allegations in a petition as true, and liberally grant to plaintiffs all reasonable inferences therefrom, “[c]onclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted.” Willamette Indus., Inc. v. Clean Water Comm’n, 34 S.W.3d 197, 200 (Mo.App. W.D.2000).

The allegation in the Hendrickses’ amended petition that the defendants had waived their sovereign immunity because of the self-insurance plan was a legal conclusion that the circuit court was not required to accept as true. The circuit court’s dismissal was fully consistent with the procedures and standards applicable to a motion to dismiss.

Conclusion

The circuit court’s judgment, dismissing the Hendrickses’ claims against the Curators of the University of Missouri, is affirmed.

All concur.

      . All statutory references are to the RSMo 2000 updated through the 2009 Cumulative Supplement unless otherwise indicated.

      . Section 172.020 provides that “the state university is hereby incorporated and created as a body politic and shall be known by the name of 'The Curators of the University of Missouri/ and by that name shall have perpetual succession, power to sue and be sued, complain and defend in all courts.”

      .The exceptions relate to injuries caused by a public employee’s use of a motor vehicle and to injuries directly resulting from the dangerous condition of a public entity's property.

      . While Russell involved a possible waiver of the immunity of a municipal entity under § 71.185, the Court held that the language of §§ 71.185 and 537.610.1 did not materially differ. 843 S.W.2d at 360; see also Conway v. St. Louis County, 254 S.W.3d 159, 167 n. 5 (Mo.App. E.D.2008) (holding Russell applicable to case involving § 537.610); Brennan, 942 S.W.2d at 436 (same).

      . Overruled on other grounds, Amick v. Pattonville-Bridgeton Terr. Fire Prot. Dist., 91 S.W.3d 603 (Mo. banc 2002).

      . Although frequently used in statutory construction, the last antecedent rule also has been used in contract interpretation. See e.g., Boatmen's Trust Co. v. Sugden, 827 S.W.2d 249 (Mo.App. E.D.1992); Reddi-Wip, Inc. v. Lemay Valve Co., 354 S.W.2d 913 (Mo.App.1962). Rules of contract construction generally apply to insurance policies. Blair by Snider v. Perry County Mut. Ins. Co., 118 S.W.3d 605, 606 (Mo. banc 2003).

      . Because we find the self-insurance plan unambiguous, there is no justification for resorting to extrinsic evidence to interpret it.
      We recognize that the non-waiver provision appears in an Article of the self-insurance plan titled “Miscellaneous Provisions,” in a section entitled "Actions against the Plan.” However, while the placement of the non-waiver provision could have been more prominent, we cannot agree with the Hendrickses that this fact alone creates an ambiguity, or would justify our disregard of the non-waiver provision’s plain meaning. As with statutes, we must interpret all provisions of an insurance policy together, and adopt a construction which gives meaning to all of the policy’s provisions, if possible. Topps v. City of Country Club Hills, 272 S.W.3d 409, 416 (Mo.App. E.D.2008). We believe the construction adopted by this Court in Langley, and reaffirmed today, does just that.


author: SHERRI B. SULLIVAN, P.J.

text:
    In re The Creation of the CLARKSON KEHRS MILL TRANSPORTATION DEVELOPMENT DISTRICT, Lawrence F. Behymer, Sr. Marital Trust Dated June 7, 1994 and Schnuck Markets, Inc., Petitioners/Respondents, v. City of Ballwin, Missouri and St. Louis County, Missouri and Missouri Highways and Transportation Commission, Respondents/Respondents, v. Robert Minbole, et al., Movants/Appellants.
    No. ED 93691.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 27, 2010.

      James E. Merlo, St. Louis, MO, for Petitioners/Respondents.
    Robert E. Jones, St. Louis, MO, for Respondent/Respondent, City of Ballwin, Missouri.
    Stephanie L. Hill, St. Louis, MO, for Respondent/Respondent, St. Louis County.
    Ardita Roark, Jefferson City, MO, for Respondent/Respondent, Missouri Highways and Transportation Commission.
    Michael P. Stephens, Sarah J. Swoboda, Stephen L. Kling, Jr., St. Louis, MO, for Movants/Appellants, Robert Minbole, et al.
   SHERRI B. SULLIVAN, P.J.

Introduction

Appellants, Robert Minbole, et al. (Mov-ants), appeal from the trial court’s judgment denying their Motion to Intervene and their Motion to Set Aside Judgment. We affirm in part, and dismiss in part.

Factual and, Procedural Background

The Lawrence F. Behymer, Sr. Marital Trust (the Trust) is the owner of approximately 4.26 acres of land (the Property) located at the intersection of Clarkson and Kehrs Mill Roads in Ballwin, Missouri. Schnuck Markets, Inc. (Schnuck) has a contract to purchase the Property from the Trust and anticipates constructing a supermarket on the Property.

On July 15, 2009, the Trust and Schnuck (collectively Petitioners) filed a Petition in the Circuit Court of St. Louis County seeking to create a Transportation Development District (TDD) under the Missouri Transportation Development District Act (TDD Act), Sections 238.200 through 238.275 RSMo 2006. The TDD, known as the Clarkson Kehrs Mill Transportation Development District (the District), is comprised exclusively of the Property. The Trust is the owner of all of the real property in the District and there are no persons eligible to be registered voters residing within the District’s boundaries.

The City of Ballwin (the City), St. Louis County (the County), and the Missouri Highways and Transportation Commission (the Commission) were named as respondents to the Petition. The City and County are necessary parties under the TDD Act as local transportation authorities, and the Commission is a necessai’y party as the authority responsible for constructing and maintaining the Missouri highway system. Section 238.202.1(4), Section 238.207.4(2).

Petitioners sought to create the District for the purpose of funding a transportation project (Transportation Project). The proposed Transportation Project activities include:

(a) construction of a dedicated northbound right-turn lane (deceleration lane) on Clarkson Road in advance of the proposed right-turn only drive;
(b) construction of a raised median within Clarkson Road to restrict the driveway to right turns only and still allow left turns into and out of the existing National City Bank driveway;
(c) provision of dual southbound left-turn lanes on Clarkson Road at Kehrs Mill Road and the widening of Kehrs Mill Road to West Par Drive to provide two eastbound lanes;
(d) extension of the northbound right-turn lane on Clarkson Road at the Kehrs Mill Road signal;
(e) implementation of a crosswalk and pedestrian signal on the south leg of the intersection of Clarkson and Kehrs Mill Road so as to accommodate pedestrians between Marquette High School and the proposed store;
(f) construction of sidewalks along those portions of Clarkson Road and Kehrs Mill Road that are adjacent to the boundaries of the District; and
(g) construction of related curb cuts, road and landscape improvements within and adjacent to the boundaries of the District along Clarkson Road and Kehrs Mill Road.

The estimated cost of the Transportation Project is approximately $2 million, for which the Petitioners sought to be paid through the imposition of a TDD sales tax (Sales Tax). Upon authorization by the District’s qualified voters, the District’s Board of Directors, comprised of three representatives of the developer and two city officials, could adopt a resolution imposing a Sales Tax between one-eighth of one percent and one percent in the District. Sections 238.235.1(1), 238.235.1(7). Since no persons eligible to be registered voters live within the District’s boundaries, the Trust, as the sole owner of land in the District, is the only qualified voter. Section 238.202.2(2). The Sales Tax could be levied on the receipts from the retail sales of all tangible personal property or taxable services within the District. Section 238.235.1(7).

The City, County, and Commission filed separate answers to the Petition, each stating it did not oppose the creation of the District. On August 11, 2009, the trial court held a hearing on the Petition, and entered its Judgment and Order (the TDD Judgment) organizing the District. The parties did not appeal the Judgment.

On August 14, 2009, Movants filed a Motion to Intervene in the action as a matter of right under Rule 52.12(a). Movants also filed a Motion to Set Aside Judgment, arguing the trial court should set aside the TDD Judgment and order a public hearing to give Movants an opportunity to voice their concerns with the proposed District and the Sales Tax. Petitioners and the City filed memoranda in opposition to the Movants’ motions. After a hearing, the trial court entered its Judgment and Order denying Movants’ motions. This appeal follows.

Points Relied On

In their first point on appeal, Movants argue the trial court erred in denying their Motion to Intervene as of right because the denial is unsupported by substantial evidence, is against the weight of the evidence and/or erroneously declares the law, in that Movants established: (1) their interest in the underlying action, (2) that the disposition of the underlying action impaired or impeded Movants’ interest, and (3) that no party to the underlying action was adequately protecting Movants’ interest, thereby establishing their absolute right to intervene pursuant to Rule 52.12(a)(2).

In their second point on appeal, Movants argue the trial court abused its discretion in denying their Motion to Set Aside Judgment and for Public Hearing, in that Mov-ants established that good cause existed for the trial court to set aside the TDD Judgment and that no inconvenience to the court or unfair advantage to any party would result from the trial court granting their motion to hold a public hearing to allow the introduction of material evidence.

Standard of Review

This Court will affirm the trial court’s denial of a motion to intervene unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. State ex rel Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122, 126 (Mo. banc 2000). In reviewing the denial of intervention, we consider the facts in the light most favorable to the trial court’s judgment. Kinney v. Schneider Nat. Carriers, Inc., 200 S.W.3d 607, 610 (Mo.App. W.D.2006).

Discussion

Point I — Motion to Intervene

To intervene as a matter of right under Rule 52.12(a)(2), the intervenor must show: (1) an interest in the subject matter; (2) disposition of the action may impede its ability to protect that interest; and (3) the applicant’s interest is not adequately represented by the existing parties. Rule 52.12(a)(2); Ring v. Metropolitan St. Louis Sewer Dist., 41 S.W.3d 487, 491-92 (Mo.App. E.D.2000). The trial court may deny the applicant’s motion to intervene if any one of these requirements is not met. LeChien v. St. Louis Concessions, Inc., 33 S.W.3d 602, 603-04 (Mo.App. E.D.2000). However, if the interve-nor meets all of the requirements, the right to intervene is absolute. Borgard v. Integrated Nat. Life Ins. Co., 954 S.W.2d 532, 535 (Mo.App. E.D.1997).

Interest in the Underlying Action

Movants contend that the trial court erred in denying their motion to intervene because they established all the required elements, including their interest in the underlying action.

A. The Proposed Improvements

First, Movants argue they have an interest in the underlying action because, as the residents closest to the District, they will be affected by the Transportation Project improvements to be constructed by the District. Schnuck argues that Movants may not raise this issue on appeal because they failed to advance this purported interest in the trial court. In their reply brief, Movants contend they asserted this interest in their Motion to Intervene by alleging, in one paragraph of their motion, that they were seeking to intervene “due to their interest as neighboring residents of the Proposed District and their interest as the taxpayers who ultimately will be required to fund the District.” This allegation, however, makes no mention of opposition to the proposed improvements but is just an allegation that Movants have an interest as a neighboring resident and as a potential taxpayer. Movants also contend they raised the issue by stating in their Memorandum in Support of their Motion to Intervene that “Movants do not desire and have not requested any such improvements and oppose all of them.” However, this is the only statement of this kind in any of Movants’ filings and was made only in reference to Movants’ argument that the proposed District was unjust or unreasonable. It cannot be said that these sort of vague, passing, and unrelated references suffice to raise Movants’ specific interest in the proposed Transportation Project before the trial court. Movants never presented to the trial court their claimed interest in the improvements proposed as part of the Transportation Project and we will not review a matter that was not presented to the trial court. Woods v. Friendly Ford, Inc., 248 S.W.3d 699, 704 (Mo.App. S.D.2008).

B. Potential Taxpayers

Next, Movants argue that they have an interest in the TDD Judgment in the underlying action because, as the residents closest to the District, they will be the ones most likely to pay a Sales Tax levied in the District.

To intervene as a matter of right, Movants’ interest in the action must be “a direct and immediate claim to, and have its origin in, the demand made or the proceeds sought or prayed by one of the parties to the original action.” LeChien, 33 S.W.3d at 604. “[T]he interest must be so immediate and direct that the would-be intervenor will either gain or lose by the direct operation of the judgment that may be rendered therein.” Borgard, 954 S.W.2d at 535. It does not include a consequential, remote or conjectural possibility of being affected as a result of the action. American Tobacco Co., 34 S.W.3d at 128.

Here, the TDD Judgment organized the Property into a TDD, a political subdivision. Movants concede that the TDD Judgment does not impose or set the rate of a sales tax. Therefore, it cannot be said that the Movants, as taxpayers, gain or lose by the direct operation of the TDD Judgment and the formation of the District.

Movants’ alleged taxpayer interest is speculative and based on conjecture. Their interest as potential taxpayers will only come to fruition if, and when, the qualified voters authorize the District’s Board of Directors to levy a Sales Tax; the District’s Board adopts a resolution to impose a Sales Tax; the proposed transportation improvements are constructed; the proposed commercial development is constructed; and Movants utilize the proposed improvements to access the development to purchase goods, which are then taxed.

Notably, Movants concede that the proposed Sales Tax would not affect their property or the City as a whole. Instead it is a Sales Tax placed only on those items sold in the District, which is to be used to pay for improvements to the transportation infrastructure to accommodate the development in the District. Movants premise their alleged taxpayer interest on the fact that they are in close proximity to the District, yet they provide this Court with nothing more than proximity to support their assertion that they are the group most likely to be affected by the proposed Sales Tax. Quite simply, Movants will only have to pay the Sales Tax if they choose to utilize the improvements to access the development of which they complain.

We find that Movants, as future potential taxpayers, do not have an interest constituting a direct and immediate claim to the subject of the underlying action, the formation of the District into a political subdivision by the TDD Judgment, to implicate intervention as a matter of right.

C. Public Hearings Pursuant to Section 238.212

Movants also argue that the TDD Act establishes that they have an interest sufficient to support their right to intervene because Section 238.212 provides for public hearings.

At the time of the TDD Judgment, Section 238.212 allowed the circuit court to order a public hearing on the creation and funding of a proposed district, if the court deemed a hearing appropriate. Section 238.212.2. In 2009, the legislature amended the statute to include a requirement that the court order at least one public hearing on these issues when the TDD is proposed by only the record property owners. Section 238.212.2 RSMo Supp.2009.

Movants contend that Section 238.212.2 establishes that they have an interest in the underlying action, in that the 2008 version allowed for public hearings and the newly revised version requires a hearing when, as in this case, a TDD is proposed by only the record property owners. Here, it is clear that the 2008 statute was in effect when the TDD Judgment was entered and, therefore, a public hearing was only discretionary. However, regardless of whether a public hearing is discretionary or required, we find that Section 238.212.2 does not vest Movants with an interest in the underlying action sufficient to support a right to intervene.

Movants’ bald assertion that the public hearing provisions vests them with an interest in the action seemingly suggests that “the public,” ie. anyone and everyone, is vested with an “interest” in the TDD, no matter how remote or attenuated an individual’s actual interest in the action. Nothing in Section 238.212.2 suggests that an intervenor should not have to meet the requirements of Rule 52.12, including the requirement that the would-be intervenor establish that he have an interest in the action in which he seeks to intervene.

Movants’ contention that Section 238.212.2 is an explicit recognition that they have standing to appear and be heard on the formation of a TDD is without support, and is inconsistent with Movants’ position at trial and on appeal. Rule 52.12(a)(1) provides for intervention as of right when a statute confers an unconditional right to intervene. Movants do not seek to intervene on this basis most likely because it is clear that Section 238.212.2 does not confer a statutory right to intervene; a right which the legislature could have conferred had it so desired. Instead, Movants attempt to circumvent this logistical hurdle by arguing that, instead of providing a statutory right to intervene, the statute explicitly provides an interest to certain unnamed members of the public sufficient to warrant intervention as a matter of right. Movants assert that the required public hearings are intended to increase public awareness and involvement, yet provide no support for their assertion that this translates into a personal interest in the formation of the TDD sufficient to justify then* intervention.

D. Hancock Amendment

Finally, Movants argue that they have an interest in the TDD Judgment because it violates the Hancock Amendment as a tax levied without voter approval, and Article 10, Section 23 of the Missouri Constitution grants taxpayers the authority to bring a private right of action for enforcement of the Hancock Amendment. We disagree.

Article 10, Sections 16 through 24 of the Missouri Constitution are better known as the Hancock Amendment. Mo. Const, art. X, sec. 16-24. Section 22 provides that:

Counties and other political subdivisions are hereby prohibited from levying any tax ... or from increasing the current levy of an existing tax ... above that current levy authorized by law or charter when this section is adopted without the approval of the required majority of the qualified voters of that county or other political subdivision voting thereon. Mo. Const., art. X, sec. 22(a).

The purpose of the amendment is “ ‘to limit taxes by establishing tax and revenue limits and expenditure limits for the state and other political subdivisions which may not be exceeded without voter approval.’ ” Rohrer v. Emmons, 289 S.W.3d 600, 603-04 (Mo.App. E.D.2009), quoting Buchanan v. Kirkpatrick, 615 S.W.2d 6, 13 (Mo. banc 1981).

Article 10, Section 23 of the Constitution gives taxpayers standing to enforce the Hancock Amendment in the courts. Mo. Const., art. X, sec. 23; Buchanan, 615 S.W.2d at 13. However, enforcement of the Hancock Amendment is subject to the procedures established by statute. Koehr v. Emmons, 98 S.W.3d 580, 582 (Mo.App. E.D.2002). Taxpayers must follow the statutory mechanisms for protesting taxes when a tax is challenged on a constitutional basis. Id. at 583. Generally, to enforce the Hancock Amendment a taxpayer may (1) seek an injunction, enjoining the collection of the challenged tax until the constitutionality of the tax is determined; or (2) seek a refund of a tax increased and collected in violation of Hancock through a timely action. Id. at 582-83.

Here, Movants seek to intervene in the underlying action creating the District because the District may, at some point in the future, impose a sales tax on items sold inside the District. Movants neither seek to enjoin the District from implementing a sales tax, nor seek a refund of a tax collected illegally. Movants have not complied with the statutory procedures required for enforcement of the Hancock Amendment. See Koehr, 98 S.W.3d at 582-83.

In sum, Movants have failed to show that they have a direct and immediate interest in the underlying litigation. Because Movants have not established an essential element for intervention in the action as a matter of right, we need not address whether Movants’ alleged interest was impaired or impeded or whether a party to the action adequately represented Movants’ alleged interest. The trial court’s judgment denying Movants’ Motion to Intervene is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Movants’ Point I is denied.

Point II — Motion to Set Aside Judgment

In their second point, Movants argue the trial court abused its discretion in denying their Motion to Set Aside Judgment and for Public Hearing pursuant to Section 238.212. Having affirmed the trial court’s denial of Movants’ Motion to Intervene, Movants are not parties to the underlying litigation and, therefore, lack standing to appeal from the trial court’s judgment denying their Motion to Set Aside Judgment and for a Public Hearing. Gene Kauffman Scholarship Foundation, Inc. v. Payne, 183 S.W.3d 620, 627-28 (Mo.App. W.D.2006) (finding a party has no standing to sue and no standing to appeal when the trial court properly denies the party’s motion to intervene); see Eckhoff v. Eckhoff, 242 S.W.3d 466, 468-69 (Mo.App. W.D.2008) (“Where a movant’s motion to intervene is denied, the movant lacks standing to appeal from any subsequent order or judgment in the proceeding.”). Movants’ Point II is dismissed.

Conclusion

The judgment of the trial court denying the Motion to Intervene is affirmed and Movants’ appeal of the judgment denying their Motion to Set Aside Judgment is dismissed for lack of standing.

ROBERT G. DOWD, JR., and PATRICIA L. COHEN, JJ., concur.

      . All statutory references are to RSMo Supp. 2008, unless otherwise indicated.

      . All rule references are to Mo. R. Civ. P.2009, unless otherwise indicated.