I. Introduction
In 2008, St. Louis County (“County”) assumed control of solid waste collection activities in the County’s unincorporated areas. Prior to that, waste collection services in those areas had been provided by private entities. Among them were American Eagle Waste Industries, LLC; Meridian Waste Services, LLC; and Waste Management of Missouri, Inc. (collectively, “Haulers”). Following a 2007 amendment to section 260.247, which extended hauler-protective business regulations to counties that wish to provide trash collection, Haulers sued County in 2008 for a declaratory judgment that County must comply with section 260.247. On appeal, the court of appeals ruled that section 260.247 applied to County, despite its claim’ that its status as a charter county made the statute inapplicable.
The case was remanded to the circuit court for further proceedings, and Haulers added the claims on appeal here, including a claim that they suffered money damages as a result of County’s failure to comply with the statute. The circuit court found County liable to Haulers on the theory of implied in law contract. After determining damages and assuming a 5-percent profit, the circuit court awarded Haulers $1.2 million in damages. This Court reverses the circuit court’s calculation of damages, affirms the judgment in all other respects, and remands the case to the circuit court.
Each group of Haulers, as private entities, had provided trash collection services to clients in parts of unincorporated St. Louis County prior to December 2006. On December 12, 2006, the St. Louis County council enacted Ordinance No. 23,023, which created significant changes to the charter county’s regulation of waste collection in unincorporated areas. Among the changes was the addition of the following two sections:
607.1300 Designation of Collection Areas
1. The County Executive shall, by January 15, 2008, establish areas within the unincorporated County for the collection and transfer of waste and recovered materials. The boundaries of such areas shall be determined after consideration of factors including size, compactness, road system and other relevant considerations.
607.1310 Grant of Contract
1. The County Executive is authorized to advertise for bids or proposals from private or public entities for the provision of services relating to collection and transfer of waste and recovered materials in those areas designated in accordance with Section 607.1300. Such bids or proposals may provide for such services in one or more areas.
2. Contracts shall be awarded by order of the County Council to persons that have submitted the most responsible bids or proposals. Such contracts shall require that the person awarded the contract shall comply with all duties imposed by this Waste Management Code; shall provide for exclusive services in the designated area or areas; shall provide for a term not to exceed three (3) years; and shall contain such other terms and conditions approved by the County Counselor.
(Emphasis added). Haulers admit they had actual notice of Ordinance No. 23,023’s passage on the day it was enacted. Haulers also received letters from County about one month later notifying them of the changes to the waste management code. The letters, dated January 8, 2007, read in pertinent part:
Several of the changes made to the Code will have an immediate effect on all waste haulers that provide residential collection service in St. Louis County.... Some of the highlights of the new Code requirements are:
• Establishing basic level of service for [residences]....
• Basic service level applies throughout St. Louis County.
• Basic service level requirements are to be implemented by January 15, 2007 unless there is a valid contract for service in effect by that date. If a valid contract is in effect, then the implementation date is the later of January 15, 2008 or the expiration of the contract.
• Trash collection districts for unincorporated St. Louis County are to be established and contracts in place by January 15, 2008.
We have scheduled a meeting for Wednesday, January 17, 2007.... Please come with your ideas of how we can better implement these new provisions and any obstacles you foresee....
Haulers’ representatives appeared at several county council meetings in 2007 and 2008 to comment on Ordinance No. 23,023 and how it should be implemented.
On June 26, 2007, after County had begun implementing its trash collection program, but before trash collection districts for unincorporated St. Louis County had been established, the governor signed into law Senate Bill No. 54, titled:
*821 An Act to repeal sections 260.200, 260.211, 260.212, 20.240, 260.247, 260.249, 260.250, 260.330, 260.335, 260.360, 260.470, 260.800, 386.887, 414.420, 444.772, and 643.079, RSMo, and to enact in lieu thereof thirty-nine new sections relating to environmental regulation, with an effective date and penalty provisions.
Section 260.247 sets certain procedural rules for municipalities that expand their municipal waste collection activities into new territory. Prior to the enactment of S.B. 54, section 260.247 applied only to “cities.” S.B. 54 amended section 260.247 to apply to all “cities and political subdivisions.” The revised version of section 260.247, which became effective January 1, 2008, provides:
1. Any city or political subdivision which annexes an area or enters into or expands solid waste collection services into an area where the collection of solid waste is presently being provided by one or more private entities, for commercial or residential services, shall notify the private entity or entities of its intent to provide solid waste collection services in the area by certified mail.
2. A city or political subdivision shall not commence solid waste collection in such area for at least two years from the effective date of the annexation or at least two years from the effective date of the notice that the city or political subdivision intends to enter into the business of solid waste collection or to expand existing solid waste collection services into the area, unless the city or political subdivision contracts with the private entity or entities to continue such services for that period. If for any reason the city or political subdivision does not exercise its option to provide for or contract for the provision of services within an affected area within three years from the effective date of the notice, then the city or political subdivision shall renotify under subsection 1 of this section.
3.If the services to be provided under a contract with the city or political subdivision pursuant to subsection 2 of this section are substantially the same as the services rendered in the area prior to the decision to annex the area or to enter into or expand its solid waste collection services into the area, the amount paid by the city shall be at least equal to the amount the private entity or entities would have received for providiny such services duriny that period.
(Emphasis added).
In anticipation of the bidding process to award waste collection contracts for the newly created districts in unincorporated St. Louis County, County held pre-bid meetings on March 6, 2008, and April 21, 2008. Representatives of Haulers attended. Bids for new Trash District 3 opened on March 20, 2008; for new Trash Districts 1, 5 and 7 on May 14, 2008; and for new Trash Districts 2, 4, 6 and 8 on May 28, 2008. Each group of Haulers submitted at least one bid.
Haulers were not awarded any of the contracts. County awarded the contract for District 3 on April 8, 2008, and the remaining contracts were awarded on June 10 and 17, 2008. The winning bidders began providing waste collection services on July 1, 2008, for District 3, and on September 29, 2008, for the remaining districts.
Haulers filed this lawsuit May 29, 2008, before the contracts were awarded. Their first petition sought a writ of mandamus compelling County to comply with revised section 260.247’s notice and two-year waiting period requirements. Alternatively, it sought a declaratory judgment that County’s plan to contract with the companies submitting the winning bids violated sec
Haulers appealed, and the court of appeals reversed the dismissal and remanded the cause to the circuit court for further proceedings. State ex rel. Am. Eagle Waste Indus. v. St. Louis Cnty.,
The Court went on to address the merits of Haulers’ claim and noted that “[t]he fundamental purpose of section 260.247 is to provide an entity engaged in waste collecting with sufficient notice to make necessary business adjustments prior to having its services terminated in a given area.” Id. at 342. The court of appeals found section 260.247 has a general, state wide purpose with which County must comply. The court concluded:
The County is authorized to enter the business of trash collection, and even to take it out of the hands of private collectors. But enacting an ordinance which would allow the County to do so without following the notice requirement and waiting period in section 260.247 would bring it “out of harmony with the general laws of the states” and amount to “[an] attempt to change the policy of the state as declared for the people at large.”.... The County here can both take over trash collection as it wishes while at the same time remaining in harmony with the public policy of the state. Accordingly, we find that the County does not have authority to legislate over the requirements of section 260.247.
Id. at 343 (emphasis added) (internal citations and quotations omitted). The court of appeals issued its opinion in October 2008. In January 2009, this Court declined to accept transfer of the appeal.
Haulers subsequently filed an amended petition in the circuit court, adding claims for breach of implied contract, violation of state antitrust law, violation of the Fifth Amendment’s Takings Clause, and violation of due process under the Fourteenth Amendment. County removed the case to the United States District Court for the Eastern District of Missouri in June 2009. The federal court dismissed both federal law claims and remanded the case to state court in March 2010. Am. Eagle Waste Industries, LLC v. St. Louis Cnty., Mo., No. 4:09-CV-816 CAS,
Back in the circuit court, County again moved to dismiss. The circuit court dismissed Hauler’s antitrust count but overruled the motion as to all other counts. Later, Haulers moved for partial summary judgment as to County’s liability on its implied in law contract count. The circuit court sustained the motion in September 2010, finding that County was “benefited in that it fully implemented its trash collection program without having to pay the existing haulers” and that County thereby was liable to Haulers on an implied in law contract.
In December 2010, the circuit court heard arguments about the issue of the measure of damages to which Haulers were entitled. The circuit court issued an order in January 2011 holding that “the
Trial was held May 31, 2011, to determine the amount of Haulers’ damages that County owed for breach of implied-in-law contract. At the outset, County objected to the use of projected gross revenues as the measure of damages. Only one witness testified at trial: a certified public accountant who gave expert testimony on behalf of Haulers. Relying on Haulers’ business records, the accountant testified that, in his opinion, Haulers suffered a combined $28 million in damages. He arrived at this figure by estimating how much gross revenue each Hauler lost by not providing services for the entire two-year waiting period. His calculations were based on estimates of amounts Haulers would have billed rather than amounts Haulers would have received. The number of customers each Hauler would have gained or lost over the 24-month period also figured into his estimates. The accountant admitted he never before had used gross revenues as a measure of business losses. He further testified that he had not audited any of the business records Haulers provided.
The circuit court issued its final judgment, along with findings of fact and conclusions of law, on September 2, 2011. Despite its earlier order that the correct baseline for determining damages was the amount Haulers would have received during the two-year waiting period, the circuit court held that the correct measure of damages was the amount of net profit Haulers would have realized during the period. The circuit court went on to assume that Haulers would have realized a 5-percent profit margin. Applying this 5-percent profit margin to the $23 million figure to which the expert witness testified, the circuit court concluded that Haulers collectively suffered $1.2 million in damages.
County appeals the circuit court’s judgment, and Haulers cross-appeal.
III. Standard of Review
“[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron,
IV. Claims on Appeal and Cross-Appeal
County presents seven claims on appeal and Haulers raise five claims on cross-appeal. These claims can be examined in three groups: threshold issues, substantive appeals from the circuit court, and damage measurements.
County raises four threshold issues, meaning that, if these claims have merit, Haulers’ lawsuit should be dismissed. First, County claims section 260.247 does not apply to its “municipal functions” because it is a charter county. County also argues that S.B. 54, which amended section 260.247, is invalid because it violates article III, section 23 of the Missouri Constitution, which requires a bill
Both County and Haulers appeal substantive rulings from the circuit court’s ruling on County’s motion to dismiss and Haulers’ summary judgment motion in 2010. Haulers argue on cross-appeal that the circuit court erred in dismissing their antitrust claim because County should not receive the “state action” exemption. County claims the circuit court erred in finding County liable on the theory of implied in law contract because, specifically, Haulers failed to show County received a “benefit” from Haulers.
The remainder of both parties’ claims takes issue with the circuit court’s measurement of damages. County first claims that Haulers should not receive damages because Haulers had actual notice of County’s intent to implement a waste collection program on December 12, 2006, and the two-year waiting period began then. County also claims that all of the evidence as to damages provided by Haulers at trial was hearsay and not reasonably reliable. On cross-appeal, Haulers claim that the circuit court erred in declaring the measure of damages under section 260.247 to be profits and that entering judgment for 5 percent of the amount of gross revenue proven at trial was contrary to the law and against the weight of the evidence. Finally, Haulers argue the circuit court should have awarded Haulers prejudgment interest on their damages pursuant to section 408.020, RSMo.
V. Threshold Issues
Haulers argue that each of County’s threshold issues are claims that were raised or should have been raised in the circuit court when County filed its motion to dismiss in 2008. As such, Haulers believe these claims constitute law of the case, and this Court should not allow County to relitigate them here. Law of the case doctrine precludes consideration of the first threshold issue: the application of section 260.247 to County. The other threshold issues, including County’s claims regarding article III, section 23, the retrospective application of 260.247, and waiver and estoppel, are denied on the merits.
A. County’s Claim that Section 260.247is Inapplicable
County argues that, as a charter county, it need not comply with section 260.247’s notice and two-year waiting period requirements. County asserts that sections of its local code supersede section 260.247because both relate to waste management, which is a “municipal function.” County believes waste management regulation is reserved to the political subdivision.
The court of appeals previously considered this argument on the merits and discussed the proper interpretation of section 260.247at length before rejecting County’s position. The court of appeals held:
The County is authorized to enter the business of trash collection, and even to take it out of the hands of private collectors. But enacting an ordinance which would allow the County to do so without following the notice requirement and waiting period in section 260.247 would bring it “out of harmony with the general laws of the states” and amount to “[an] attempt to change the policy of the state as declared for the people at large. A charter county’s exercise of power*825 that produces this result is impermissible.”
County then applied for transfer to this Court — an invitation this Court declined.
“The doctrine of law of the case governs successive appeals involving substantially the same issues and facts, and applies appellate decisions to later proceedings in that case.” Williams v. Kimes,
The doctrine of law of the case is necessary to ensure uniformity of decisions, protect the parties’ expectations, and promote judicial economy. Id. The doctrine is “more than merely a courtesy: it is the very principle of ordered jurisdiction by which the courts administer justice.” Davis v. J.C. Nichols Co.,
This Court declines to consider anew this issue that the parties fully litigated to a final judgment three and a half years ago. County cannot have multiple bites at the apple in attempting to determine this issue favorably. Moreover, the parties— and other Missourians — need the ability to rely on appellate court decisions. Indeed, the court of appeals decision in which these claims first were litigated has been cited as law. See, e.g., Weber v. St. Louis County,
The parties had every opportunity at that time to present their strongest argument regarding County’s status as a charter county and the applicability or inapplicability of section 260.247, and the court of appeals fully investigated the arguments and ruled on the issue. This Court holds that it is the law of the case that County was required to adhere to section 260.247’s requirements.
B. County’s Article III, Section 23 Claims
County claims that S.B. 54 violates the requirements in article III, section 23 of the Missouri Constitution that a bill have a single subject and a clear title. Article III, section 23 states that “[n]o bill shall contain more than one subject which shall be clearly expressed in its title.” This constitutional provision limits the legislature in two distinct but related ways by creating a single subject rule and a clear title requirement. See Jackson Cty. Sports Complex Auth. v. State,
S.B. 54 bore the title “[a]n act to repeal sections ... and to enact in lieu
Consistent with this Court’s holding that “environmental control” satisfies the clear title requirement, the title “environmental regulation” of S.B. 54 likewise shows the legislature’s intent to protect or manage environmental resources, and it fairly includes provisions to ensure that its purposes are accomplished. Id. Ensuring these environmental provisions are accomplished includes regulation of the closely connected solid waste management industry. “Environmental regulation” is a sufficiently clear title for this purpose.
A bill will not violate the single subject requirement so long as “the matter is germane, connected and congruous.” Id., citing State v. Mathews,
The original purpose of S.B. 54, and its single subject, is environmental regulation. Therefore, the bill may not include matters not “germane, connected and congruous” to environmental regulation. Hammerschmidt,
Here, County contends that S.B. 54, the purpose of which is environmental
C. County’s Retrospective Application Claim
Next, County argues that Hauler’s attempt to force County to comply with section 260.247 constitutes an impermissible retrospective application of the statute. The statute became effective January 1, 2008, and County modified its waste collection program in 2006.
Article I, section 13 of the Missouri Constitution prohibits the enactment of any law that is “retrospective in its operation.” See Matthew D. Turner, Retrospective Lawmaking in Missouri: Can School Districts Assert Any Constitutional Rights Against the State? Savannah R-III School District v. Public School Retirement System of Missouri, 63 Mo. L.Rev. 833, 837 (1998). Article I, section 13 does not prohibit retrospective laws merely relating to past transactions but rather prohibits laws that operate retrospectively, affecting past transactions “to the substantial prejudice of parties interested.” Fisher v. Reorganized School Dist. No. R-V of Grundy Cnty.,
D. County’s Claims of Waiver and Estoppel
County argues that Haulers waived their right to claim damages under section 260.247 by participating in County’s bidding process before insisting that County follow the requirements of section 260.247. Alternatively, County claims Haulers should be estopped from claiming damages because of the same action.
Waiver is the “intentional relinquishment of a known right.” Richardson v. Richardson,
The elements of estoppel are “(1) an admission, statement, or act inconsistent with the claim afterwards asserted and sued upon, (2) action by the other party on the faith of such admission, statement, or act, and (3) injury to such other
VI. Substantive Appeals
A. Haulers’ Antitrust Claim
In their first amended petition, Haulers claimed that County violated Missouri antitrust law in creating a monopoly trash district in unincorporated St. Louis County. The circuit court dismissed the claim. Haulers argue the dismissal was in error because County’s failure to abide by the notice and two-year waiting period requirements in section 260.247 means that County did not regulate waste collections pursuant to “authorized” monopoly activity and, thereby, no longer falls under the “state action” exemption to Missouri antitrust laws.
Missouri prohibits restraint of trade by monopolization. Section 416.031, RSMo Supp.2010, states that “[e]very contract, combination or conspiracy in restraint of trade or commerce in this state is unlawful.” Further, “[i]t is unlawful to monopolize, attempt to monopolize, or conspire to monopolize trade or commerce in this state.” Sec. 416.031.2. But “state action” is exempted if the arrangements are “expressly approved or regulated by any regulatory body or officer acting under statutory authority of this state or of the United States.” Sec. 416.041.2 (emphasis added).
For a political subdivision to prove its actions should be exempt and assert a successful defense to an antitrust suit, it need show only that it acted pursuant to a “clearly articulated and affirmatively expressed state policy” that is “actively supervised” by the state. L & H Sanitation, Inc. v. Lake City Sanitation, Inc.,
Here, the Missouri legislature affirmatively expressed a policy of allowing cities and counties to regulate waste management through section 260.215. County, therefore, is a regulatory body acting under statutory authority, even if it does not comply fully with section 260.247. County’s noncompliance does not mean its actions fall outside the state action exemption — it only means it may have violated the statute by noncompliance. Instead of arguing County violated antitrust law, Haulers’ claim is that County violated section 260.247.
B. Haulers’ Claim for Breach of Implied in Law Contract
In their first amended petition following remand, Haulers alleged that, by failing to comply with section 260.247’s notice and two-year waiting period requirements, County breached an implied in law contract. It was on this basis the circuit court granted Haulers relief.
“Unlike a contract implied in fact, a contract implied in law is imposed, or created, without regard to the promise of the party to be bound.... Thus, a
County correctly argues that Haulers cannot succeed because there was no “tangible benefit” conferred on County because of its failure to adhere to section 260.247. While Haulers had contracted with clients in unincorporated St. Louis County to provide waste collection services during the two-year period, Haulers never actually provided those services — County allowed another entity to provide them. Haulers did not confer a benefit on County that unjustly enriched County. If Haulers had provided the services and never received compensation from County, Haulers would have an implied in law contract claim. That did not happen here.
C. Implied Private Right of Action
While Haulers have failed to show a claim for implied contract, in determining whether a pleading adequately states a claim for relief on a particular basis, “[t]he rule is well established in Missouri that the character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader.” State ex rel. Conaway v. Consol. Sch. Dist. No. 4 of Iron Cnty.,
“To properly plead a cause of action, the ‘petition must state allegations of fact in support of each essential element of the cause pleaded.’ ” Brock v. Blackwood,
An appellate court is “primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result.” Bus. Men’s Assur. Co. of Am. v. Graham,
For these reasons, it is proper to treat Haulers’ claims as asserting a private right of action for violation of a statute. That raises the legal question of whether a private right of action is created in favor of Haulers under the statute.
By its plain terms, section 260.247 does not provide an express remedy for its violation. Nevertheless, “[w]hen a legislative provision protects a class of persons by the requirement or proscription of certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate to further the purpose and ensure the effectiveness of the enactment, accord to an injured member of the class a right of action.” Jensen v. Feely,
This Court has stated, however, that “[a] private remedy will not be implied when it does not promote or accomplish the primary goals of the statute.” Shqeir v. Equifax, Inc.,
This Court previously has found the purpose of section 260.247 is “to provide an entity engaged in waste collecting sufficient notice to make necessary business adjustments prior to having its services terminated in a given area.” Weber v. St. Louis County,
The reasons for these protections are obvious. County could easily decide to provide waste collection services in unincorporated parts of the county. Then it might agree to hire Haulers for the two-year waiting period but only if they accept a lower contract price. In that situation, Haulers face the risk of losing business or being forced to renegotiate their contract unexpectedly. Subsection 3 also provides Haulers the opportunity to wind up business in the two-year waiting period if they are not chosen to provide services.
Although the facts here are not those specifically contemplated by the statute, they are simply more extreme. Instead of attempting to renegotiate Haulers’ contract for the same services at a lower price and lowering Haulers’ expected profits, County has cut Haulers out completely. Haulers received nothing instead of a forced lower contract price.
Moreover, the clear implication of section 260.247 is that the legislature intended a right to damages in this situation. The legislature intended for Haulers to provide service and receive their contract price for two years following notice. See secs. 260.247.1 — 260.247.3. County cannot bypass the requirements of section 260.247.3 by refusing to hire Haulers completely. The legislature’s intention to protect Haulers’ contracts for two years following County’s notice is clear. Haulers have demonstrated that recognizing an implied private right of action in section 260.247 promotes the primary goal of the statute and is, therefore, clearly consistent with legislative intent.
Recognizing an implied private remedy for violations of the statute’s notice provision or its timing requirements naturally serves to advance that goal. Moreover, unlike other cases in which this Court has declined to recognize an implied cause of action,
In sum, while the circuit court took an incorrect route in finding County liable through implied in law contract, the court still reached the correct result in finding County liable. Judgment as to liability is affirmed.
VII. Damage Measurement
The only remaining issues before the Court, raised by either party, are how the circuit court ought to have calculated Haulers’ damages. The circuit court, in its
County claims the circuit court judgment was in error because Haulers are not entitled to any damages as Haulers have no rights under the statute. County also complains that the circuit court chose the wrong date to start the running of damages for the two-year waiting period. Haulers claim on cross-appeal that the circuit court erroneously found damages to be limited to profits instead of awarding total gross revenue lost. Haulers also claim they are entitled to prejudgment interest. To address these claims, this Court first must determine Haulers’ rights and obligations under section 260.247.
A. Haulers’ Rights under Section 260.247
When interpreting statutory law, the court must ascertain the intent of the legislature and give effect to that intent if possible. Greenlee v. Dukes Plastering Serv., 75 S.W.3d 273, 276 (Mo. banc 2002). The intent of the legislature may be determined by considering the “plain and ordinary meaning” of the terms. Id. “The construction of statutes is not to be hyper-technical, but instead is to be reasonable and logical and to give meaning to the statutes.” Lewis v. Gibbons,
Section 260.247, as amended, plainly states that Haulers were entitled to notice, by certified mail, of County’s intent to provide waste collection services in the county. Sec. 260.247.1. Equally clear is County’s prohibition on commencing waste collection in the area for two years, unless it hired Haulers. Sec. 260.247.2. Subsection 3 sets forth further requirements of County and evidences the legislatures’ intent in passing and amending this statute:
If the services to be provided under a contract with the city or political subdivision pursuant to subsection 2 of this section are substantially the same as the services rendered in the area prior to the decision of the city to annex the area or to enter into or expand its solid waste collection services into the area, the amount paid by the city shall be at least equal to the amount the private entity or entities would have received for providing such services during that period.
(emphasis added). In other words, if County chose to contract with Haulers during the two-year waiting period, County cannot contract with Haulers for a lower price than they otherwise would have received in that two-year time frame.
Reading all three subsections together, Haulers were entitled to continue providing waste collection services for two years. County either could have allowed Haulers to provide services directly to clients for that period or could have contracted with Haulers to provide the same services through the County for that period — but only if County’s contract with Haulers was for the same amount.
Haulers have the right to seek damages from County for the violation of section 260.247. To give effect to the legislature’s intent and provide the same recovery intended by subsection 3, County must pay Haulers that to which they were entitled: the amount they “would have received” under their contract during the two-year waiting period. Sec. 260.247.3. Determining this amount requires this Court to interpret the phrase “would have received.”
“[F]or every actionable injury there is a corresponding right to damages, and such injury arises whenever a legal right of plaintiff is violated.” Rusk Farms, Inc. v. Ralston Purina Co.,
Under subsection 3 of 260.247, Haulers, during the two-year waiting period, would have been able to collect “the amount [they] would have received for providing such services during that period.” Sec. 260.247.3 (emphasis added). The amount Haulers “would have received” for that two-year waiting period was their contract price for their services. However, Haulers would have been providing the service of trash collection at the time, so they would have had every normal operating expense and business cost during the two-year time period.
In sum, the amount to which section 260.247 entitles Haulers is their projected receipts from their contract price, minus any business and operational costs Haulers would have incurred while providing waste collection services, considering all the circumstances. In other words, the circuit court correctly concluded that Haulers’ damages are what would have been their net profit during the two-year waiting period.
However, the circuit court was incorrect to exclude discovery or evidence of Haulers’ expenses or net profit. When the measure of damages is net profit, the basis for determining the expected profit should be reasonably certain. “In evaluating the sufficiency of evidence to sustain awards of damages for loss of business profits the appellate courts of this state have made stringent requirements, refusing to permit speculation as to probable or expected profits, and requiring a substantial basis for such awards.” Id. at 54.
On remand, both parties are allowed to discover, present evidence, and cross-examine regarding these subjects. The measure of damages is the net profit the Haulers’ would have realized during the two-year period, considering all the circumstances. Because the parties must present further evidence regarding this issue, the able circuit court can rule on the other evidentiary issues as they arise.
C. When Damages Began to Accrue under Section 260.247
Pursuant to section 260.247, a private entity is entitled to provide services during the two-year waiting period after a political subdivision decides to expand into an area and provide trash collection services. That period begins to run “from the effective date of the notice” by certified mail. Sec. 260.247.2. If the political subdivision fails to give the required notice, then the two-year period, by default, begins “at least two years from the effective date of the annexation.” Id.
The circuit court found that the two-year period began on the dates County awarded contracts to companies to provide waste collection services in the newly cre
County asserts that this was in error and, instead, that Haulers’ dates of “actual notice” were either December 12, 2006, the day County adopted Ordinance No. 23,023, which Haulers learned of the day it was adopted, or January 7, 2007, the date County mailed a letter to the Haulers apprising them that the waste management code had been amended. County argues that under these dates, it is not liable for damages after either December 12, 2008, or January 7, 2009, when the two-year period expired.
The purpose of section 260.247’s notice requirement is different from that of most other notice requirements. Usually, the purpose of a notice requirement is to apprise the recipient that there is a legal action pending and to ensure that the recipient knows when and where the recipient can be heard regarding the matter — in other words, to effectuate due process. Here “[t]he purpose of section 260.247 is to provide an entity engaged in waste collecting sufficient notice to make necessary business adjustments prior to having its services terminated in a given area.” Weber,
County never gave the certified notice required by section 260.247.1 to begin trash collection and did not wait the two-year period to begin trash collection or hire Haulers to continue trash collection. To give effect to the legislature’s intention that the two-year waiting period begins running when County gives official notice, Hauler’s damages must have started accruing when County provided an unequivocal statement that Haulers no longer would be providing trash collection service similar to that provided by certified notice. See Greenlee,
However, when County signed contracts with new haulers to provide trash collection in the new districts, Haulers had an unequivocal statement that County did not intend to comply with the statute. By signing these binding contracts with new haulers on April 8, 2008, for district 3, and June 10 and 17, 2008, for the remaining districts, County manifested its intent to displace Haulers. The circuit court’s judgment as to the date the two-year notice period for determining Haulers’ damages began to run is affirmed. On remand, Haulers may present evidence of their expected revenue, set off by expenses, costs, and other circumstances, for a two-year period beginning April 8, 2008, for district 3, and June 10 and 17, 2008, for the other districts.
Finally, Haulers claim that section 408.020 provides them the right to collect prejudgment interest. Section 408.020 provides that creditors should recover prejudgment interest at the rate of 9 percent 1) “for all moneys after they become due and payable, on written contracts,” 2) “and on accounts after they become due and demand of payment is made,” 3) “for money recovered for the use of another, and retained without the owner’s knowledge of the receipt,” 4) “and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.” Prejudgment interest is awarded when the amount due is liquidated or “readily ascertainable by reference to recognized standards.” St John’s Bank & Trust Co. v. Intag, Inc.,
VIII. Conclusion
The circuit court’s judgment as to the calculation of Haulers’ damages is reversed. In all other respects, the judgment is affirmed. The case is remanded.
All concur.
Notes
. House Bill Nos. 77, 78 and 356 amended, inter alia, sections 292.602 (establishing the Missouri emergency response commission), 292.617 (requiring reports when storing explosives on property), 643.225 (establishing asbestos abatement projects), and 643.228 (requiring training courses for asbestos removers).
. Chronister is particularly instructive, as the plaintiff there had prevailed at the trial court level based on a petition in which the sole count was titled "Conversion.” Memco, Inc. v. Chronister,
On appeal, the defendant argued that the judgment was based on an unavailable remedy because an action in conversion had not been pleaded or proven properly. Id. at 873.
. See Johnson v. Kraft Gen. Foods, Inc.,
. Section 260.249 purports to provide for administrative penalties when section 260.247 is violated, but it does not apply in this situation. See sec. 260.249 (stating that when the director of natural resources determines a provision of sections 260.200 to 260.281 has been violated, he may assess an administrative penalty on the violator). First, the rules used for assessing the penalty clearly contemplate that a violation would cause endangerment to either human health or the environment, whereas here, County’s violation only caused harm to a business entity. See 10 CSR 80-2.040(3). Additionally, any penalty assessed “shall be paid to the county in which the violation(s) occurred.” 10 CSR 80-2.040(4). County has violated the statute in this situation. It makes no sense for County to pay a penalty to itself.
. See section VII.C, below, for a discussion of the date the two-year period began.