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in personal injury action, evidence
may be presented on the value
of medical treatment received to
rebut presumption that medical
expenses are limited to the
amount actually paid
BY W. DUDLEY MCCARTER                         cost of providing medical services. Each     value of her medical treatment and that
                                              testified that the amount billed to Ms.      she had rebutted the presumption under
   “Delmar Teasley drove his ve-              Deck for her medical treatment was cus-      § 490.715. Deck v. Teasley.
hicle into the back of a line of vehicles     tomary, fair and reasonable. They also
stopped at a traffic signal, causing the      testified that the face value of the bills     Section 490.715, subsection 5, newly
vehicle behind Edith Deck to collide          was the value of the medical services        enacted in 2005,
with her vehicle. Ms. Deck sustained          provided, not the amount reimbursed
injuries in the collision and underwent       by Medicare.                                     governs the admissibility of
surgery, physical therapy and” other                                                           evidence regarding a specific
medical care.1 “Ms. Deck was billed              “[T]he trial court found that the             type of damages, the value of
$27,991.30 for her treatment. The             presumption in section 490.715 was not           medical treatment rendered to a
amount actually paid for her treatment,       rebutted and determined that the value           party. It provides that evidence
after adjustments, was $9,904.28. Pay-        of [Deck’s] medical treatment was lim-           of the dollar amount necessary
ments were made by Medicare, supple-          ited to the amount actually paid for it,         to satisfy the financial obliga-
mental insurance and Ms. Deck.”2 Be-          together with any amount she still was           tion to health care providers is
fore the trial on her suit against Teasley,   obligated to pay.”4 “During trial, Ms.           admissible at trial and creates
“Teasley filed a motion to determine          Deck made an offer of proof regarding            the rebuttable presumption that
the value of [her] medical treatment …        the value of her medical expenses, again         such amount represents the
pursuant to section 490.715.5.”3 At the       attempting to rebut the presumption of           value of the medical treatment
hearing on Teasley’s motion, Ms. Deck         value under section 490.715.”5                   rendered. On the motion of
presented testimony from three individ-       “[T]he trial court again ruled that Ms.          any party, the court may deter-
uals who previously or currently worked       Deck could not present evidence to the           mine whether other evidence of
in healthcare positions involving the         jury of her medical bills that had not           value is admissible at trial and
                                              been paid by her or on her behalf.”6             delineates that the other evi-
                                              “[T]he jury rendered a verdict in favor          dence may include, but is not
                                              of Ms. Deck and assessed her dam-                limited to: the medical bills
                                              ages in the amount of $42,500.”7 On              incurred; the amount actually
                                              appeal, the Supreme Court remanded               paid for the medical treatments;
                                              the case for a new trial on the issue of         or the amount or estimate of
                    W. DUDLEY MCCARTER        damages only, finding that Ms. Deck              the amount not paid that such
                    behr, mccarter & potter   had presented substantial evidence that          party is obligated to pay in the
                    St. louis                                                                  event of a recovery.8
                                              her total medical bills represented the

312 / Journal of the Missouri Bar
“The rebuttable presumption created             that the value of her medical          the Supreme Court of Missouri reversed
by section 490.715.5 is that the dol-           treatment was $9,904.28, the           in People’s Bank v. Frazee.13
lar amount paid to satisfy the financial        amount that [she], Medicaid
obligation to the healthcare providers          and supplemental insurance                 Generally, when personal
is the value of the medical treatment           actually paid for her treatment            jurisdiction is contested by the
rendered.”9                                     after adjustments. The exclu-              filing of a motion to dismiss a
                                                sion of evidence of the addi-              Missouri action, the plaintiff
    The rebuttable presumption                  tional $18,087.02 in potential             bears the burden of establishing
    in section 490.715.5 requires               damages the jury should have               that the defendant’s contacts
    the trial court to determine if             been allowed to consider, mate-            with the forum state were suffi-
    the party seeking to rebut the              rially affected the merits of the          cient. State ex rel. Ranni Assocs.,
    presumption has presented sub-              action. See Accomac Realty Co.             Inc. v. Hartenbach, 742 S.W.2d
    stantial evidence that the value            v. City of St. Louis, 152 S.W.2d           134, 137 (Mo. banc 1987).
    of medical treatment rendered               100, 103 (Mo. 1941). Accord-               When the challenge to personal
    is an amount different from                 ingly, the trial court’s exclusion         jurisdiction arises in the context
    the dollar amount necessary                 of Ms. Deck’s evidence of the              of a motion to register a foreign
    to satisfy the financial obliga-            value of medical treatment was             judgment, however, the strong
    tions to health care providers.             prejudicial … and she is en-               presumption of the validity of a
    If such substantial evidence is             titled to a new trial on the issue         foreign judgment that is regular
    proffered, the statutory pre-               of damages.                                on its face makes the general
    sumption is rebutted. When                                                             rule inapplicable.14
    the presumption is rebutted,
    the party’s other evidence of           Judgment of Foreign                            Frazee defaulted in the Okla-
    value, as well as the amount                                                           homa action … [and he]
    necessary to satisfy the financial
                                            State is Presumed Valid;                       contested the Oklahoma
    obligations is admitted at trial        Burden is on Defendant                         district court’s personal juris-
    as if no presumption exists. If         to Prove Lack of Personal                      diction over him for the first
    the presumption is not rebut-           Jurisdiction by Foreign                        time in the Missouri circuit
    ted, then the only evidence of                                                         court. Because the issue was
    the value of medical treatment          State                                          not litigated in the foreign
    rendered is the dollar amount              People’s Bank obtained a judgment           state, Mr. Frazee had the right
    necessary to satisfy the financial      in an Oklahoma court against Missouri          to attack the judgment for lack
    obligation of the health care           resident H. L. Frazee. People’s Bank           of personal jurisdiction in the
    providers.10                            proceeded to enforce the judgment in           Missouri circuit court. Miller
                                            the circuit court of Wright County, Mis-       v. Dean, 289 S.W.3d 620, 624
   Here, Ms. Deck presented substan-        souri. The circuit court found that the        (Mo. App. 2009). The Okla-
tial , “evidence at the pre-trial hearing   Oklahoma court lacked personal juris-          homa judgment Mr. Frazee was
and the offer of proof that the amount      diction over Frazee and quashed the reg-       contesting is regular on its face,
she was billed is the value of the medi-    istration of the foreign judgment. The         so the judgment was subject
cal treatment rendered to her….”11 “In      judgment was entered in Oklahoma on            to the strong presumption
light of such substantial evidence, the     a guarantee signed by Frazee for a loan        that the Oklahoma court had
trial court misapplied the law in ruling    to his son and his son’s wife. People’s        jurisdiction. As the party as-
that the statutory presumption in sec-      Bank had prepared the guarantee and            serting invalidity of the foreign
tion 590.715.5 was not rebutted….”12        mailed it to Frazee in Missouri. Frazee        judgment, Mr. Frazee bore the
                                            signed the guarantee and mailed it back        burden of establishing that
    Ms. Deck proffered evidence             to People’s Bank. In the suit People’s         the Oklahoma court lacked per-
    that the value of the medical           Bank filed to enforce the guarantee, a         sonal jurisdiction.15
    treatment rendered to her was           summons was mailed to Frazee by certi-
    $27,991.30. However, due                fied mail, but he refused service. The        “Because this jurisdictional challenge
    to the trial court’s exclusion          Oklahoma court entered a default judg-     arises in the context of a motion to
    of that evidence, the jury only         ment against him. The circuit court        register a foreign judgment, this Court
    was permitted to hear evidence          found that the Oklahoma court lacked       must look to the rendering state’s law
                                            personal jurisdiction over Frazee, but     – that is, Oklahoma substantive law –

                                                                                                November-December 2010 / 313
to determine whether the Oklahoma                  and purposely availed himself          received an assignment of Mr. Dell’s
court had personal jurisdiction over               to the protections of Oklahoma         rights….”23 In 2005, Travelers filed suit
Mr. Frazee. See Phillips [ v. Fallen], 6           [and] should not be able to            against Williams-Carver for negligent
S.W.3d at 868 [(Mo. banc 1999)].”16                avoid his interstate obligation        installation of the freezer, alleging that
“[T]he inquiry is whether the Okla-                by asserting lack of personal          Williams-Carver concealed the defective
homa court’s exercise of personal                  jurisdiction.20                        gap at the top of the wall of the freezer.
jurisdiction over Mr. Frazee comports                                                     The trial court granted summary judg-
with federal due process. See Gilbert v.              Because of the strong pre-          ment to Williams-Carver, finding that
SEC. Fin. Corp. of Okla., Inc., 152 P.3d           sumption of validity of foreign        Travelers’ claims were filed beyond the
165, 173 (Okla. 2006).”17 ‘“In some                state judgments, Mr. Frazee had        10-year statute of repose, § 516.097
cases, single or isolated acts by a defen-         the burden to establish that the       RSMo. and further finding that the
dant in a state, because of their nature           judgment was irregular or that         concealment exception of the statute
and quality and the circumstances of               Oklahoma lacked personal ju-           did not apply. The Court of Appeals af-
their commission, provided sufficient              risdiction over him. Every per-        firmed in Travelers Indemnity Co. v. The
                                                                                          Williams-Carver Co.24
minimum contacts to support jurisdic-              sonal jurisdiction case involves
tion for liability arising from those acts.’       a fact-specific inquiry; it does
                                                                                             “The Missouri Supreme Court has
Bryant [v. Smith Interior Design Group,            not lend itself to categorical
                                                                                          defined the phrase ‘sole connection with
Inc.], 310 S.W.3d at 233 [(Mo. banc                determinations. [Mellon Bank,
                                                                                          the improvement’ in Section 516.097
2010)].” 18                                        960 F.2d at 1225]. Under the
                                                                                          as ‘a connection to a defective or unsafe
                                                   facts and circumstances sur-           condition of an improvement or real
    Here, Frazee knew he was deal-                 rounding Mr. Frazee’s execution        estate giving rise to liability.’ Magee v.
ing with an Oklahoma bank when he                  of the guarantee, [he] had the         Blue Ridge Prof ’l Bldg. Co., 821 S.W.2d
signed the guarantee. He also knew that            required minimum contacts              839, 843 (Mo. banc 1991).”25
People’s Bank would not have provided              with Oklahoma. Therefore, the
a loan to Frazee’s son and daughter-in-            Oklahoma court's exercise of               [I]f a defendant has any
law without Frazee’s guarantee. Frazee             personal jurisdiction over Mr.             connection that gives rise to
engaged in telephone conversations with            Frazee comports with Oklaho-               liability with respect to an
People’s Bank and mailed the guaran-               ma’s long-arm statute and due              improvement other than by de-
tee back to Oklahoma after he signed               process.21                                 sign, planning or construction,
it. “Contrary to Frazee’s assertion that                                                      Section 516.097 is not available
a non-resident guarantor must reap a           Defective Construction                         as an affirmative defense.” Lay
pecuniary gain, other courts have found                                                       v. P & G Healthcare, Inc., 37
that a personal financial benefit or pe-
                                               Claim Barred By Ten-Year                       S.W.3d 310, 321 (Mo. App.
cuniary gain by the guarantor is unnec-        Statute of Repose                              2000). The defendant's sole
essary to exercise personal jurisdiction          “In 1987, Mr. Dell Foods hired Den-         connection to the defective or
over the non-resident guarantor. E. G.         nis Watson Construction … as general           unsafe improvement to real
Mellon Bank[, (East) PSFS, Nat’l Ass’n. v.     contractor for the construction of an          property must be as an archi-
Farino], 960 F.2d at 1225 n. 4 [(3rd Cir.      addition to [Mr. Dell’s] production            tect, engineer or builder Id.26
1992)].”19                                     facility. The proposed addition in-
                                               cluded an insulated room to be used as     Here, the sole connection of Williams-
    There are also sound policy rea-           a large walk-in freezer. Watson retained   Carver with the improvement was as the
    sons for exercising jurisdiction           Williams-Carver to plan and construct      builder of the refrigeration system.
                                               a refrigeration system for the freezer
    over non-resident guarantors.
                                               room.”22 In 2001, a fire was intention-        Traveler’s … lawsuit against
    "[T]he Due Process Clause may
                                               ally set by a Mr. Dell employee in a           Williams-Carver was filed
    not readily be wielded as a ter-
                                               room adjacent to the freezer. A concrete       more than ten years after the
    ritorial shield to avoid interstate
                                               block wall separated the room from the         improvements to Mr. Dell’s
    obligations that have been
                                               freezer, but there was a gap of between        production facility were
    voluntarily assumed." Mellon               16 to 24 inches above the concrete wall.       completed in 1988. Williams-
    Bank, 960 F.2d at 1222. In this            The fire spread from the adjacent room         Carver properly invoked the
    case, Frazee voluntarily assumed           to the freezer by going over the top of        affirmative defense of the
    the obligation of guaranteeing             the concrete wall. “As the insurer for         ten-year statute of repose in
    [the] note…. [He] purposely                Mr. Dell, Travelers paid in excess of          Section 516.097 by presenting
    directed activity into the forum           $5,000,000 for the [fire damage] and           uncontroverted evidence that
314 / Journal of the Missouri Bar
    its sole connection with the im-     culty breathing.”32 Within a short time,   one that requires “the exercise
    provements was to perform or         an ambulance unit from the Commu-          of reason in the adaptation of
    furnish construction services.27     nity Fire Protection District arrived at   means to an end and discretion
                                         his home. “The unit was manned by          in determining how or whether
   The concealment exception in          Michael Brandt, a licensed emergency       an act should be done or course
§ 516.097 does not apply. “As used in    medical technician, and James Loehrer,     pursued.” Id. A ministerial
the statute, the term ‘conceals’ means   a licensed paramedic.”33 Upon arrival,     act is a clerical duty performed
‘an affirmative act, something actu-     Brant and Loehrer examined Thomas          pursuant to a mandate with no
ally done directly intended to prevent   and collected his vital signs. They        exercise of judgment involved.
discovery or to thwart investigation.’   diagnosed his problem as acid reflux and   State ex rel. Eli Lilly & Co. v.
Magee, 821 S.W.2d at 844….”28 “[D]       recommended over-the-counter medica-       Gaertner, 619 S.W.2d 761, 765
eposition testimony … established that   tion. Believing he was in no immedi-       (Mo. App. E.D. 1981). The
the gap between the top of the con-      ate medical danger, they left his home     doctrine is intended to encour-
crete wall and the roof was open and     15 minutes after arriving. The next        age a “vigorous and effective
obvious….”29                             morning, Thomas again called 9-1-1,        government” where public
                                         still complaining of chest pains and       officials can make decisions
    To rebut the evidence of             difficulty breathing. An ambulance unit    free of fear of personal liability.
    openness, Travelers alleges the      from Community Fire Protection Dis-        Southers, 263 S.W.3d at 611;
    defective nature of the gap          trict, manned by a different two-person    Eli Lilly, 619 S.W.2d at 763.
    was “latent” and, therefore, its     team, arrived at his home. That team
    significance should have been        began administering emergency medi-        When the issue of official
    disclosed by Williams-Carver.        cal care and transported him to DePaul     immunity involves a publicly-
    However, latent defects are not      Health Center, where he died later that    employed medical professional,
    the same as concealed defects.       day from cardiac arrest. The spouse and    there is a second step to the
    Fueston v. Burns & McDonnell         son of Thomas filed a wrongful death       analysis.34
    Eng’g Co., 877 S.W.2d 631, 638       suit against Community Fire Protec-
    (Mo. App. 1994). “Conceals”          tion District, Brandt and Loehrer. The     In Richardson [v. City of St.
    means more than a failure to         trial court granted summary judgment       Louis, 293 S.W.3d 133 (Mo.
    reveal information allegedly
                                         to Grant and Loehrer, finding that they    App. E.D. 2009)], this Court
    known. Butler [v. Mitchell-
                                         were entitled to official immunity. The    held that whether the actions of
    Hugeback, Inc.], 895 S.W.2d
                                         Court of Appeals reversed, however, in     emergency medical responders
    at 19-20 [(Mo. banc 1995)].
                                         Thomas v. Brant.                           are protected turns on the cir-
    Rather, it carries the “implica-
                                                                                    cumstances of the situation….
    tion of intentional conduct
                                             Official immunity is a judicial-       When emergency responders
    designed to prevent discovery.”
                                             ly-created doctrine designed to        are acting in a rapidly-evolving
    Id. at 19.30
                                             protect public employees from          emergency situation with
                                             liability for allegedly negligent      limited information, they are
“There is no evidence that Williams-
Carver acted affirmatively to prevent        acts committed during their            protected by official immunity.
the discovery of the gap in the wall.        performance of official duties.        Id.35
Given the open and obvious nature of         [Southers v. City of Farming-
the alleged defective condition, there       ton, 263 S.W.3d 603, 610               Without commenting on the
is no factual dispute as to whether          (Mo. banc 2008).] Generally,           vitality of Eli Lilly, [this court]
the concealment exception in Section         whether public employees are           reaffirms the approach ad-
516.097.4(2) could be applied.”31            protected turns on the type of         vanced in Richardson.
                                             act involved; the court must
                                             determine whether the chal-            When publicly-employed
Official Immunity is                         lenged act was discretionary or        emergency medical person-
Available to Publicly-                       ministerial. Davis v. Lambert-         nel are treating patients, their
Employed Emergency                           St. Louis Intern. Airport, 193         negligent acts are protected by
                                             S.W.3d 760, 763 (Mo. banc              official immunity only if they
Responders Only in a True                    2006). Acts which are discre-          are acting in a true emergency
Emergency Situation                          tionary are protected, while           situation. This true emergency
  “Anthony Thomas … called 9-1-1             acts which are ministerial are         situation is a strict require-
complaining of chest pains and diffi-        not. Id. A discretionary act is        ment. A true emergency is one
                                                                                         November-December 2010 / 315
    involving rapidly-evolving              Union Elec. Co., 766 S.W.2d 80, 89              attorney fees, as long as the
    circumstances where the                 (Mo. banc 1989). Attorney fees are              party has pleaded the neces-
    medical personnel have lim-             recoverable in two situations: when a           sary elements of the act and
    ited information. The court             statute specifically authorizes recovery        has requested that relief in the
    should determine whether                and when the contract provides for              prayer.
    the situation involved a true           attorney fees. Essex Contracting, Inc. v.
    emergency on a case-by-case             Jefferson County, 277 S.W.3d 647, 657           By alleging in the petition all
    basis by evaluating the totality        (Mo. banc 2009).”41 The Missouri                of the elements necessary to
    of the circumstances.36                 Private Prompt Payment Act, Section             bring a claim under the act,
                                            431.180,                                        Contractor met the pleading
Here, the two-person team that re-                                                          requirements of the statute,
sponded to the first 9-1-1 call was not         provides that “[a]ll persons                such that a specific request for
acting in a true emergency situation.           who enter into a contract for               “reasonable attorney fees” in
“The time and information avail-                private design or construc-                 the prayer may be granted.44
able to [them] was more like that of a          tion work…shall make all
doctor treating a patient in a hospital         scheduled payments pursuant
than that of an emergency responder                                                     A Municipality or Other
                                                to the terms of the contract.”
arriving to find a patient in critical …        Section 431.180.1. Any                  Public Corporation May
condition.”37 “Responders acting in             person who fails to make such           Bring a Declaratory
non-emergency situations will be held           payments may be subject to
to the same standard of care as their
                                                                                        Judgment Action to
                                                an action under the stat-
privately-employed counterparts.”38             ute. Section 431.180.2. In              Determine a Boundary
“Official immunity is available to pub-         resolving the action, “[t]he            Dispute
licly-employed emergency responders             court may[,] in addition to                The City of Lake St. Louis filed a
only if they are acting in a true emer-         any other award of damages,             declaratory judgment action against
gency situation. In this case, [the first       …[award] reasonable attor-              the City of O’Fallon, seeking to invali-
two responders] were not acting in a            ney fees [ ] to the prevailing          date O’Fallon’s annexation of certain
true emergency situation.”39                    party.” Id. Although the                disputed property. The suit alleged
                                                issue in this case is one of first      that “Lake St. Louis had a legally
Contractor May Recover                          impression, Vance Brothers,             protectable interest in enforcing its or-
Attorney’s Fees Under                           Inc. v. Obermiller Construction         dinances, collecting and administering
                                                Services, Inc., 181 S.W.3d 562          taxes, and protecting the rights of the
Private Prompt Payment Act                      (Mo. banc 2006), discussed              city and its residents in the disputed
   “Lucas Stucco & EIFS Design,                                                         area, and asked the trial court to enter
                                                the pleading requirements of
LLC (Contractor) and Loren Lan-                 the act. Vance concluded that           judgment declaring that … O’Fallon
dau (Owner) entered into a contract             there are two requirements              had not legally annexed” the prop-
for the installation of a stucco finish         for pleading a violation of the         erty that Lake St. Louis claimed to
on Owner’s building.”40 After the               act: (1) the parties entered            be within its boundaries.45 O’Fallon
project was completed, Owner still              into a private construction             filed a motion to dismiss, asserting
owed Contractor a balance of $4,900.            contract; and (2) one or more           “that Lake St. Louis was not entitled
Contractor filed suit for breach of             payments were not made                  to bring a declaratory judgment action
contract, action on account, quantum            pursuant to the contract. Id.           to determine its boundaries.”46 The
meruit, and unjust enrichment. In               at 564.42                               trial court granted O’Fallon’s motion,
the prayer to each count of Contrac-                                                    but the Supreme Court of Missouri
tor’s petition, Contractor requested          Here, “Contractor pleaded these           reversed in City of Lake St. Louis v.
an award of attorney’s fees. After a        two act requirements.”43                    City of O’Fallon.
bench trial, the trial court awarded
Contractor $4,900, plus attorney’s fees         Contractor requested rea-                  “[W]hile O’Fallon is correct that
of $10,567. The Supreme Court of                sonable attorney fees in the            individuals are not permitted to bring
Missouri affirmed in Lucas Stucco &             prayer. The act does not                declaratory judgment actions seeking
EIFS Design, LLC v. Landau.                     require specific reference to           to determine boundaries or to oust a
   “The general rule in Missouri is             the statute in the petition             municipal or other public corporation
that attorney’s fees are not awarded            as a requirement to seek the            from disputed territory, municipali-
to every successful litigant. Harris v.         relief it affords. Instead, a           ties, school districts and other public
                                                court may award any relief              corporations are permitted to bring
                                                a statute provides, including
316 / Journal of the Missouri Bar
such actions.”47 ‘“A declaratory judg-       to act. While this is appro-                 12 Id.
ment provides guidance to the parties,       priate where an individual                   13 No. SC 90536 (Mo. banc 2010).
                                                                                          14 Id.
declaring their rights and obligations       litigant is involved, to avoid               15 Id.
and otherwise governing their rela-          the multiplicity of suits that               16 Id.
tionship.…” Shipley v. Cates, 200            otherwise would ensue and                    17 Id.
S.W.3d 529, 534 (Mo. banc 2006)              to ensure that spurious claims               18 Id.
                                                                                          19 Id.
….”48                                        are not asserted in an effort
                                                                                          20 Id.
                                             to adversely affect the public               21 Id.
    While the attorney general               body, such reasoning does                    22 Travelers Indemnity Co. v. The Williams-
    and prosecutor may … bring               not apply to the municipality              Carver Co., No. WD 71181 (Mo. App. W.D.
    a suit in quo warranto [when             or other public corporation                2010).
                                                                                          23 Id.
    two governmental entities                itself, as it has a direct and               24 Id.
    assert claims over a disputed            vital interest in determining                25 Id.
    area], whether they choose to            its own boundaries.49                        26 Id.
    do so is within those officials’                                                      27 Id.
    discretion. The governmental         While a quo warranto action may be               28 Id.
                                                                                          29 Id.
    entity, therefore, as the party      brought by the attorney general or               30 Id.
    directly affected, should have       prosecuting or circuit attorney at the           31 Id.
    the right instead to bring a         relation of the public corporation to            32 Thomas v. Brandt, No. ED 94414 (Mo.
    declaratory judgment action          determine a boundary dispute, a de-            App. E.D. 2010).
                                                                                          33 Id.
    in its own name to vindicate         claratory judgment action may also be            34 Id.
    its directly affected interest in    brought directly by the municipality             35 Id.
    the … territory.                     or other public corporation itself.              36 Id.
                                                                                          37 Id.
         To require a directly af-                                                        38 Id.
                                         Endnotes                                         39 Id.
    fected municipality or other           1 Deck v. Teasley, SC90628 (Mo. banc, Oct.     40 Lucas Stucco & EIFS Design, LLC v. Lan-
    similar public corporation           26, 2010).                                     dau, No. SC90771 (Mo. banc 2010).
    to rely on a third party – the         2 Id.                                          41 Id.
    attorney general or a county           3 Id.                                          42 Id.
                                           4 Id.                                          43 Id.
    prosecutor – to bring suit             5 Id.                                          44 Id.
    over its very boundaries               6 Id.                                          45 City of Lake St. Louis v. City of O’Fallon,
    would risk leaving it with-            7 Id.                                        No. SC 90790 (Mo. banc 2010).
    out a remedy if the attor-             8 Id.                                          46 Id.
                                           9 Id.                                          47 Id.
    ney general and prosecutor             10 Id.                                         48 Id.
    exercise their discretion not          11 Id.                                         49 Id.

                                                                                                 November-December 2010 / 317

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