371 S.W.3d 40
Mo. Ct. App.2012Background
- MSD sued St. Ann Plaza and later Tomax Development for wastewater charges, on an account theory, quantum meruit, and unjust enrichment.
- MSD alleged ownership of the properties and that the Defendants owed $5,421.62 plus potential fees under MSD ordinances 12905 and 12906.
- Prior to trial, MSD amended the petition to drop storm-water claims and focus on wastewater charges.
- At trial, MSD offered account statements, ownership records from the St. Louis County Assessor, and water usage data; Defendants did not present evidence.
- The trial court entered judgment for $15,143.05 plus $2,271 in attorney fees; a nunc pro tunc final judgment later added Tomax jointly and severally, which Defendants challenged.
- The appellate court affirmed in part, reversed in part, and remanded for further proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSD needed to prove ordinances at trial | MSD argues ordinances not essential where action on account suffices | Defendants contend ordinances are essential elements and must be proven | Ordinances not essential elements; evidence supported account claim (partial reversal on fees) |
| Whether MSD established ownership and damages by competent evidence | MSD presented owner records and account balances showing damages | Exhibit 4 and balances did not conclusively prove ownership and joint liability | MSD proved damages; ownership and proportional liability between Defendants partly unresolved (remanded) |
| Whether nunc pro tunc order improperly modified judgment | MSD sought to correct clerical error to add Tomax | Modification rather than clerical correction; improper | Nunc pro tunc entry improper; limited to clerical corrections; remand requested |
| Whether joint and several liability was proper | Court could enter joint and several liability | Evidence did not establish Tomax ownership or joint liability | Joint and several liability not properly supported by record; remand required to separate liability |
| Whether attorney-fee award was properly supported | Fees authorized by ordinance; testimony supported figure | Ordinance not introduced into evidence; insufficient basis for award | Attorney-fee award improper as to basis; affirmed only to extent supported by record |
Key Cases Cited
- Wheeler ex rel. Wheeler v. Phenix, 335 S.W.3d 504 (Mo.App. S.D.2011) (ordinance proof and essential elements considerations in trial)
- City of Kansas City v. Carlson, 328 S.W.3d 323 (Mo.App. W.D.2010) (when ordinance is or isn’t an essential element)
- Bd. of Educ. v. Daly, 129 S.W.3d 405 (Mo.App. E.D.2004) (ordinance must be before court when related to proof)
- Stegan v. H.W. Freeman Const. Co., Inc., 637 S.W.2d 794 (Mo.App. E.D.1982) (absence of ordinance evidence not fatal if not essential to claim)
- Helmtec Indus., Inc. v. Motorcycle Stuff, Inc., 857 S.W.2d 334 (Mo.App. E.D.1993) (elements of an action on account)
- City of St. Louis v. Roche, 31 S.W. 915 (Mo. 1895) (early guidance on clerical errors and record correction)
- Consumer Contact Co. v. State, 592 S.W.2d 782 (Mo. banc 1980) (failure to introduce ordinance constitutes foundational defect)
- Schneider v. Housing Bd. of Appeals of City of Bridgeton, 969 S.W.2d 873 (Mo.App. E.D.1998) (absence of ordinance from record; fatal defect absent objection)
- Fredco Realty, Inc. v. Jones, 906 S.W.2d 818 (Mo.App. E.D.1995) (variance between pleadings and proof can be treated as amended)
- Arnold v. Minger, 334 S.W.3d 650 (Mo.App. S.D.2011) (preservation of issues in trial practice)
- Bureaus Inv. Group v. Williams, 310 S.W.3d 297 (Mo.App. E.D.2010) (clerical-error vs. modification distinctions under Rule 74.06)