Investors Title Company, Inc., Plantiff/Respondent/Cross-Appellant v. Janice Hammonds, et al., Defendants/Appellants/Cross-Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Investors Title Company, Inc., Plantiff/Respondent/Cross-Appellant v. Janice Hammonds, et al., Defendants/Appellants/Cross-Respondents. Case Number: ED85951 Handdown Date: 03/21/2006 Appeal From: Circuit Court of St. Louis County, Hon. David Lee Vincent, III Counsel for Appellant: Patricia Redington and Cynthia Lou Hoemann Counsel for Respondent: Nelson Lewis Mitten Opinion Summary: St. Louis County and Janice Hammonds, the county's recorder of deeds (the county), appeal from the judgment of the trial court following a jury verdict in favor of Investors Title Company. Investors cross-appeals from the judgment. AFFIRMED. Division One holds: Investors made a submissible case for an action for money had and received. Investors was entitled to restitution for overpayments it made to the county. Its right to recovery was not diminished by its own negligence in making overpayments where the the county did not so change its position that it would be unjust for Investors to recover. Investors' claim was limited by the three year statute of limitations set forth in section 516.130(1), RSMo. Citation: Opinion Author: Clifford H. Ahrens, Judge Opinion Vote: AFFIRMED. Hoff, P.J., and Cohen, J., concur. Opinion: St. Louis County ("County") and Janice Hammonds, the Recorder of Deeds ("Recorder") for County, collectively

referred to as "Defendants", appeal from the judgment of the trial court following a jury verdict in favor of Investors Title Company ("Investors"). Investors cross-appeals from the judgment. Investors is a title company that routinely records documents related to real property transactions with Recorder for County. Prior to 1995, title companies would file documents with Recorder and pay the filing fees at the same time. Investors, for example, would send an employee over to the Recorder's office typically several times per day during the week to file documents, and the employee would wait while a staff member of the Recorder's office would file the documents and add up the total in filing fees; then the employee would fill out a check from Investors for the amount of the filing fees. The procedures for title companies filing documents to be recorded in County changed in 1995 prior to the Recorder's office increasing automation. Investors was told by Dan O'Leary, the Recorder at that time, that it should deliver the documents to the Recorder to be recorded, along with a signed check made payable to Recorder, but with the amount of the check to be left blank so that someone in the Recorder's office could fill in the total amount at the end of the day. After the end of the day, Investors would receive a computer listing of the documents recorded and the recording information, along with tape from an adding machine in Recorder's office that purported to list the recording charges and the total amount filled in on the blank check. Investors was not informed that it had any other options under the changed system regarding payment for recording documents other than leaving a blank check. However, other title companies were permitted to utilize other methods of payment, such as sending over a check for the total amount incurred each day at the end of the day, or the following morning. Margaret King was employed by County in the Recorder's office as a cashier and later as the lead, or head, cashier. From 1995 to September 2001, King used her position to fill in the blank checks left by Investors with Recorder each day for amounts that exceeded the actual sum due to Recorder for recording documents deposited by Investors. She then removed cash from the cash drawer of Recorder's office such that the sums owed to Recorder and the amount deposited by Recorder matched. King concealed this theft by attaching an adding machine tape to the front of the files given to Investors, where the figures on the tape added up to the amount that she filled in the blank check each day. Recorder's office had a policy according to which the cashier and lead cashier were to check each other's work, but this policy was not followed. Instead the cashier and lead cashier divided the work by title companies. King's subterfuge was discoverable using the computer printouts that Recorder's office provided to Investors at the end of each day. An examination of those records would have revealed the discrepancy between the amount due for the number of pages actually filed and the amount shown on the adding machine tape created by King and attached to the front of those

printouts. King's subterfuge was discovered by Investors in September 2001 when it did check the financial figures and reported a problem to Recorder. The illegal activity by King ceased immediately thereafter. During the period from 1995 to September 2001, however, King misappropriated hundreds of thousands of dollars through filling in inflated amounts on the blank checks provided by Investors to Recorder. King subsequently pleaded guilty to multiple counts of theft. Investors requested a refund of the amounts that it paid to Recorder and County in excess of what it actually owed for recording documents during the period of King's illegal activities. County refused to pay such a refund and Investors initiated litigation against Recorder in her official capacity and against County.(FN1) Defendants filed a motion for summary judgment, which the trial court sustained in part and denied in part, limiting the recovery of damages under Count I (common law refund, i.e. money had and received), to a period of three years, and granting summary judgment in favor of Defendants on Count II (breach of contract), Count III (establishment of prepaid accounts), Count IV (neglect of duty), Count VIII (negligence), and Count IX (conversion). Investors voluntarily dismissed Count VI (RESPA claim). At the close of Investors' evidence, Defendants filed a motion for a directed verdict on the remaining three counts, which the trial court denied, but at the close of all evidence the trial court granted Defendants' motions for directed verdict on Count V (due process claim) and Count VII (equal protection claim). The jury awarded Investors $499,391.00 in damages, and the trial court added an additional sum of $143,701.46 in prejudgment interest to the damages of $499,391.00 for a total of $643,092.46. County and Recorder now appeal and Investors cross-appeals from that judgment. We will address the first and second points relied on by Defendants together as they address fundamentally the same issue. Defendants contend in their first point relied on that the trial court erred in denying their motions for a directed verdict and for JNOV on Count I because Investors failed to make a submissible case in that there was no evidence of a written contract as required pursuant to Section 432.070, and County cannot be liable on an implied contract for money had and received. In their second point relied on, Defendants argue that the trial court erred in denying their motions for a directed verdict and for JNOV because Investors failed to make a submissible case in that the evidence did not establish the essential elements of an action for money had and received. Directing a verdict and granting a JNOV are drastic actions and should not be done unless the facts and inferences therefrom leave no room for reasonable minds to differ as to the correct outcome of the case. See Romeo v. Jones, 144 S.W.3d 324, 334 (Mo. App. 2004); Hogate v. American Golf Corp., 97 S.W.3d 44, 46 (Mo. App. 2002). The principal question in reviewing the trial court's denial of a motion for a directed verdict or JNOV is whether or not the

plaintiff made a submissible case. Steele v. Evenflo Company, Inc., 178 S.W.3d 715, 717 (Mo. App. 2005). Substantial evidence is required for each and every fact essential to liability in order to make a submissible case. Montgomery v. South County Radiologists, Inc., 168 S.W.3d 685, 691 (Mo. App. 2005). We view the evidence in the light most favorable to the jury's verdict, giving the prevailing party the benefit of all reasonable inferences and disregarding the unfavorable evidence. Steele, 178 S.W.3d at 717. This Court will reverse the jury's verdict for insufficient evidence only when there is a total lack of probative fact to support the conclusion of the jury. Id. at 717-18 (quoting Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000)). Defendants contend that Investors' claim is barred because it had no written contract with County and cannot recover without such a contract, asserting that Section 432.070 mandates that contracts with counties be in writing in order to be valid. This situation is similar to that in Karpierz v. Easley, 68 S.W.3d 565 (Mo. App. 2002) in which the appellants, the Chief of Police and the Board of Police Commissioner of Kansas City, Missouri, asserted that a contractual relationship was necessary for the plaintiff to maintain an action for money had and received. The appellate court in that case noted that such an action is proper where "'the defendant received money from the plaintiff under circumstances that in equity and good conscience call for defendant to pay it to plaintiff.'" Id. at 570 (quoting Palo v. Stangler, 943 S.W.2d 683, 685 (Mo. App. 1997)). The appellate court went on to state that: The cause of action for money had and received "'has always been favored in the law, and the tendency is to broaden its scope.'" A suit for money had and received is an action at law founded upon an implied contract created by law. "[A] contract 'implied in law' or 'quasi-contract' 'is not a contract at all but an obligation to do justice even though it is clear that no promise was ever made or intended.'" "It is not necessary that an express promise to pay or privity of contract be pleaded or shown, for the law implies both." "This non-contractual obligation is treated procedurally as if it were a contract, but its principal function is to prevent unjust enrichment." Id. (internal citations omitted). As in the case at hand, the defendants in Karpierz sought to rely on Section 432.070 as a defense, as there was no written contract. The appellate court held that neither that statute nor case law related thereto was applicable because the plaintiff's theory of recovery was not based on a contract implied in fact. Id. at 573. Rather, it rested on "quasi- contract" or a "contract implied at law." Id. The appellate court observed that "'[u]nlike 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.'" Id. (quoting Dailing v. Hall, 1 S.W.3d 490, 492 (Mo. App. 1999). It restated language it had previously used that we have quoted

above regarding the nature of a contract implied in law and how such a "non-contractual obligation" is treated. Id. (quoting Westerhold v. Mullenix Corp, 777 S.W.2d 257, 263 (Mo. App. 1989)). While the factual situation in the case at hand is somewhat different from that in Karpierz, the result is the same. There is no need for a written contract for Investors to have an action for money had and received against County. To hold otherwise would require anyone paying money to an agency of the County for services rendered by that agency to enter into a written contract, no matter how trivial or great the amount or how rare or frequent such transactions might be, in order to ensure that any overpayment or payment made in error or under protest be recoverable. Defendants also aver that the evidence did not establish the essential elements of an action for money had and received, in that there was no evidence that County gained anything from the overpayments by Investors and thus there was no evidence of a "benefit conferred" or of an appreciation of the fact of such benefit. They also argue that even if these elements were met, the evidence did not establish that the enrichment was unjust and that their duty of restitution was terminated "pro tanto." The Missouri Supreme Court has held that "an action 'for money had and received is proper where the defendant received money from the plaintiff under circumstances that in equity and good conscience call for defendant to pay it to plaintiff.'" Kubley v. Brooks, 141 S.W.3d 21, 32 (Mo. banc 2004) (quoting Palo, 943 S.W.2d at 685)). See also Karpierz, 68 S.W.3d at 570. The evidence shows that Investors left checks payable to the Recorder with the amounts left blank and that an employee of the County, King, filled in inflated amounts on those checks and removed corresponding amounts from cash received by Recorder from others who recorded documents. The checks left by Investors were deposited by Recorder's office for the full, inflated amount filled in by King, and while the books may have balanced at the end of each day because King removed equivalent amounts of cash, Recorder and County received excess money with each inflated check from Investors deposited by Recorder's office. It is clear that Recorder and County received money from Investors, a "benefit conferred" and appreciated the fact of receiving such a benefit when the checks from Investors were deposited in a financial institution. The more significant issue is whether County's retention of the overpayments by Investors was unjust and inequitable under the circumstances. The general rule in cases of mistaken payments is that restitution will be granted when such payments are made under mistake of fact, but not under a mistake of law. Western Casualty & Surety Co. v. Kohm, 638 S.W.2d 798, 800 (Mo. App. 1982). However, restitution will not be granted if the payee has so changed his position that it would be unjust to require such restitution. Id. Restitution ought to be granted whenever a person or entity has received money that in equity and conscience belongs to and should be repaid to another. Id. It is still necessary to examine the nature of the

mistake, the circumstances under which it occurred, the conduct of the payee, etc., insofar as such factors indicate whether it would be unjust to permit the payee to retain the money. Id. In determining whether restitution is proper in a given case, the payor's lack of care or negligence does not diminish his right to recover mistaken payments or overpayments, and is not a sufficient reason to deny recovery. See American Nursing Resources, Inc. v. Forrest T. Jones & Co., Inc., 812 S.W.2d 790, 797 (Mo. App. 1991); Blue Cross Health Services, Inc. v. Sauer, 800 S.W.2d 72, 75 (Mo. App. 1990); Kohm, 638 S.W.2d at 801; Dobson v. Winner, 26 Mo. App. 329 (Mo. App. 1887) (action for money had and received). The "mistake" that resulted in overpayments by Investors was in leaving blank checks with employees of Recorder's office, which it had been told to do by the holder of that office in 1995. The overpayments would still have occurred given that King had the opportunity to insert inflated amounts once she had possession of a check, although such overpayments would have been stopped much sooner had Investors periodically checked the amounts filled in on its checks by County's employee, King, against the actual number of documents and pages filed on a particular day. However, as noted above, such carelessness does not diminish Investors' right to recover. The overpayments were made possible by Recorder's change in policies in 1995 and the request that Investors leave blank checks with employees of Recorder's office. The Recorder's office failed to follow its own policies of having the cashier and lead cashier check each other's work, failed to follow policies for handling cash, and merely checked to see that the total deposited each day matched the total that the Recorder's office should have received. Recorder's office routinely deposited the overpayments by Investors. Recorder could have discovered the malfeasance of King. The evidence does not show that Defendants so changed their positions in reliance upon the mistaken overpayments by Investors that it would be unjust to require repayment. Points denied. In their third point relied on, Defendants argue that the trial court erred in giving Instruction No.8 concerning the withdrawal of evidence because Investors' failure to examine the receipts provided to it each day by County concerned an issue that was still before the jury, that being whether the overpayments by Investors were made under circumstances in which retention of such overpayments by County would be unjust. Whether or not a jury has been properly instructed is a question of law. City of Sullivan v. Truckstop Restaurants, Inc., 142 S.W.3d 181, 197 (Mo. App. 2004). Under Rule 70.02(a), the trial court shall give or refuse an instruction according to the law and evidence in the case. Id. The trial court has discretion to determine whether or not a withdrawal instruction should be given. Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 133 (Mo. App. 2003). This Court reviews for abuse of discretion. Id. An abuse of discretion occurs when the decision of the trial court is clearly against the logic of the

circumstances and is so unreasonable and arbitrary as to shock the sense of justice and indicate a lack of careful consideration. Id. (quoting Shady Valley Park & Pool, Inc. v. Weber, Inc., 913 S.W.2d 28, 36 (Mo. App. 1995)). If reasonable persons could differ about the propriety of the trial court's decision, there is no abuse of discretion. Stevens v. Craft, 956 S.W.2d 351, 355 (Mo. App. 1997). Withdrawal instructions may be given when evidence on an issue has been received, but there is inadequate proof for submission of the issue to the jury; when there is evidence presented which might mislead the jury in its consideration of the case as pleaded and submitted; when there is evidence presented directed to an issue that is abandoned; or when there is evidence of such character that might easily raise a false issue. A withdrawal instruction is also appropriate for clarifying damages for the jury. Id. (internal citations omitted). The Committee Comment to MAI 34.02 states that "While MAI 34.02 is called a 'withdrawal' instruction, its use is not limited to withdrawing evidence improperly admitted. It is intended rather to clarify what the jury is to consider in assessing damages." As previously noted, the payor's lack of care or negligence does not diminish his right to recover mistaken payments or overpayments, and is not a sufficient reason to deny recovery. See American Nursing., 812 S.W.2d at 797 (Mo. App. 1991); Sauer, 800 S.W.2d at 75; Kohm, 638 S.W.2d at 801; Dobson, 26 Mo. App. 329. Investors' failure to discover the overpayments, while not common-sense business practice, does not affect its right to recover the overpayments made to County. While it was possible for the trial court to have given an instruction that would have allowed the evidence at issue to remain before the jury but indicating that such evidence did not alter Investors right to repayment or diminish the appropriate amount of damages, the potential for such an instruction to confuse or mislead the jury is significant. Reasonable persons could differ over the propriety of the trial court's decision to give Instruction No. 8. Accordingly, the trial court did not abuse its discretion in giving that instruction. Point denied. Defendants aver in their fourth point relied on that the trial court erred in refusing to give their Instruction C that addressed their "change of circumstances" defense because there was sufficient evidence for the jury to decide that they were no more at fault than Investors in failing to discover that King was inflating the blank checks given to Recorder by Investors, and the offered instruction correctly stated the applicable law. This fourth point relied on, which is based on section 142 of the Restatement of Restitution, is a non-MAI instruction.(FN2) Rule 70.02(b) provides that a non-MAI instruction be "simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts." See City of Sullivan, 142 S.W.3d at 197. A

non-MAI instruction must follow the substantive law and be understandable. Id. We review a refusal to submit an instruction for abuse of discretion. Id. An instruction must be supported by substantial evidence. Id. Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case. Id. When reviewing a claim that a proposed instruction was improperly refused by the trial court, we view the evidence and the reasonable inferences therefrom in the light most favorable to the submission of the instruction and disregard contrary evidence. Id. We will not reverse for instructional error, including the refusal to give an instruction, unless the error is prejudicial. Id. In our analysis of the third point relied on by County and Recorder, we held that the trial court did not err in submitting Instruction No.8 and reaffirmed the principle that the lack of care of the payor, in this case Investors, does not diminish its right to recovery. Instruction C incorrectly states the law by providing for a comparative fault analysis, which is not the applicable rule. On that basis alone, the trial court properly refused the offered instruction. In addition, even viewing the evidence and reasonable inferences therefrom in the light most favorable to the submission of the instruction, the record does not show that there was such a change of circumstances that would render requiring repayment to Investors unjust. Point denied. In their fifth point relied on, Defendants contend that the trial court erred in refusing to give Instruction D(FN3) that they offered because the evidence supported their consent defense in that there was sufficient evidence for the jury to decide that Investors permitted County to take possession of the funds, and the offered instruction correctly stated the applicable law. Defendants correctly assert that a plaintiff's consent may be a defense to a claim for money had and received, at least to the extent that such a defense shows that the plaintiff in equity and good conscience is not entitled to recover. See L & W Engineering Co., Inc. v. Hogan, 858 S.W.2d 847, 851 (Mo. App. 1993). The appellate court in that case held that "[i]f there is evidence to support a hypotheses of plaintiff's consent [to the exercise of dominion over plaintiff's funds], defendant is entitled to have the issue submitted to the jury." Id. at 849. In that case, however, there was a great deal of evidence that the plaintiff was aware that the defendant was making expenditures of his money and for what, as well as testimony that the plaintiff knowingly acquiesced to the payments. Id. at 250. There is no evidence of similar consent by Investors in the present case. Investors left blank checks with Recorder because it was a policy established by the Recorder's office in 1995, although there was evidence that Recorder permitted other methods of payment as well by title companies. Investors did not fill in the inflated amounts on the checks and did not know about them until September 2001. Investors' lack of care in checking the adding machine tapes against

the records indicating how many documents and pages were recorded is not a basis for diminishing its right to recovery. See American Nursing., 812 S.W.2d at 797 (Mo. App. 1991); Sauer, 800 S.W.2d at 75; Kohm, 638 S.W.2d at 801; Dobson, 26 Mo. App. 329. In addition, each day King filled out the amounts on the blank checks prior to Investors' receipt of the records for the filings for the day. This is neither overt nor tacit approval of the overpayments to County made by the actions of King, and is not evidence of consent sufficient to submit Instruction D to the jury. Point denied. In their sixth point relied on, Defendants argue that the trial court erred in refusing to give their proposed Instruction B(FN4) in that Investors' claim for a refund of overpayments made prior to 2001 is time-barred in that Investors did not request the return of such payments in the same calendar year in which the payments were due, and the offered instruction correctly stated the applicable law. Defendants rely on the principles stated in Koehr v. Emmons. 55 S.W.3d 859 (Mo. App. 2001). In that case, this Court held that claims for refunds for taxes collected in violation of the Hancock Amendment were time-barred if they were not asserted before the taxes become payable, i.e., before December 31 of the tax year at issue. Id. at 863-64. Defendants argue that this principle should be extended to actions for money had and received on the basis that such a cause of action is based on equitable principles, and [I]t would be fair and just to apply the time limit set forth in Koehr to Investors' belated refund request because Investors is seeking to impose a severe after-the-fact financial burden on the County treasury based on voluntary payments that alleged to have reached the County treasury many years before Investors notified County that there was any dispute about the charges. The present case does not involve tax refunds, tax statutes, or the Hancock Amendment. The principles of Koehr are not readily applicable to this case without a tremendous broadening of the scope of those principles, which is more appropriately a matter for the legislature. The trial court did not abuse its discretion in refusing to submit the offered Instruction B. Point denied. We turn now to Investors' cross-appeal. In its first point relied on, Investors contends that the trial court erred in giving Instruction No. 10, which limited Investors' recovery to three years prior to the date that it filed suit. Investors claims that it is entitled to damages for five years prior to filing suit under section 516.120, in that the litigation was against County. Investors argues further that the matter should be remanded for entry of judgment as there is sufficient evidence to ascertain damages for the five year period. The three-year statute of limitation in Instruction No. 10 was given pursuant to section 516.130(1), which states

that certain actions must be filed within three years.(FN5) Investors asserts that the five-year statute of limitations set forth in section 516.120 is the proper period.(FN6) Section 516.120 sets a general statute of limitations for certain actions, while section 516.130 applies to more specific situations. This Court has addressed a similar situation previously in City of Ellisville v. Lohman et al., 972 S.W.2d 527 (Mo. App. 1998). That case involved a suit against the Director of Revenue of the State of Missouri regarding motor vehicle sales and use tax distribution. Id. In Ellisville, we held that: The dispositive issue is which statute of limitations is applicable. Statutory construction is a question of law, not fact. When construing statutes, courts must endeavor to ascertain the intent of the legislature from the language used and, if possible, give effect to that intent. Legislative intent should be determined by considering the plain and ordinary meaning of the terms in the statute. Each word, clause, sentence, and section of a statute should be given meaning wherever possible. Where two separate statutes deal with the same subject matter, the two must be read together and harmonized and force must be given to the provisions of each. The provisions of a more specific statute should be applied rather than the provisions of a more general statute. The plain language of Section 516.120.1 demonstrates that it is a general statute in that it applies to "All actions upon contracts, obligations or liabilities, express or implied ... except where a different time is herein limited", whereas Section 516.120.2 is more specific in that it applies to "an action upon a liability created by statute other than a penalty or forfeiture." However, Section 516.130.1 is the more specific statute in this particular factual situation as it applies to an action against a "sheriff, coroner or other officer upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise. Id. at 534 (internal citations omitted). This Court further held that the Director of Revenue was "an other officer" within the meaning of section 516.130(1). Id. at 534-35. The phrase "an other officer" also encompasses local officials, not merely officers of the State. In State ex rel School District of Sedalia v. Harter, 188 Mo. 516, 87 S.W. 941 (Mo. 1905), which this Court discussed extensively in Ellisville, the Missouri Supreme Court first addressed the meaning of the phrase "or other office" in the context of section 516.130.1 (formerly Rev. St. 1899, section 4274). The Missouri Supreme Court held that Harter, the treasurer of the School District of Sedalia, was an "other officer" within the meaning of the statute, as the

treasurer of a school district performed "some portion of the sovereign functions of the government, to be exercised for the benefit of the public" and accordingly the position was that of a public officer within the meaning of the law. Id. at 943-44. As a result, the action against Harter was barred by the three-year statute of limitations. Id. at 945. Recorder is similarly "an other officer." The proper statute of limitations to apply is determined by a fair reading of the complaint in its totality. Id. at 535 (quoting Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 796 (Mo. App. 1996)). Recorder is an "officer" within the meaning of section 516.130(1), and Investors pleaded that she was being sued in her official capacity for her own actions and inactions, and those of her predecessors in that office. In Count I of its petition, which is the sole count submitted to the jury, Investors alleged that it made demand on Recorder for a refund or repayment of the amounts in issue on several occasions. Section 516.130(1) is the applicable statute of limitations. Nothing indicates that the claim against Recorder is for anything other than her actions or inactions in her official capacity. To apply the greater statute of limitations of section 516.120 would be to hold section 516.130(1) meaningless whenever a government official is sued for actions or omissions in her official capacity, as such a lawsuit can always include the governmental entity for which the official works. The trial court did not abuse its discretion in submitting Instruction No. 10. Point denied. Investors in its second point on cross-appeal argues that the trial court erred in granting the motion of Defendants for a directed verdict on Count V of its amended petition because it introduced sufficient evidence to support a judgment on that claim under 42 U.S.C. section 1983 for violation of Investors' due process rights in that County "overcharged Investors for recording services, the overcharging resulted from County's deviation from its own established policies and practices, and County failed and refused to refund such overcharges." In reviewing the judgment of a trial court granting a motion for directed verdict, this Court must determine whether the plaintiff made a submissible case, which is whether the plaintiff introduced substantial evidence at trial that tends to prove the essential facts required for his recovery. Dunn v. Enterprise Rent-A-Car Company, 170 S.W.3d 1, 3 (Mo. App. 2005). We view all of the evidence and all of the reasonable inferences therefrom in the light most favorable to the plaintiff, disregarding evidence to the contrary. Id. Federal courts have held that unauthorized intentional deprivations of property by a state employee do not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment, provided that a meaningful post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984); Clark v. Kansas City Missouri School District, 375 F.3d 698, 702-03 (8th Cir. 2004) (holding that Missouri provided an adequate post-deprivation remedy of replevin, and that Missouri law also allowed for the

recovery of damages for the injury, taking, or detention of property). Assuming arguendo that there was a deprivation within the meaning of the Fourteenth Amendment, it is clear that it was an unauthorized deprivation stemming from King's inflating the amounts on the blank checks left by Investors. There is no evidence that there was not an adequate post-deprivation remedy available. As Defendants point out, Investors had the option of suing King, who pleaded guilty to multiple counts of theft from Investors. We also observe that Investors could and did sue Defendants for money had and received, obtaining a verdict and judgment for damages, which this Court is affirming. Certainly this constitutes an adequate post-deprivation remedy. The trial court did not err in granting Defendants' motion for a directed verdict on Count V. Point denied. In its third point on cross-appeal, Investors asserts that the trial court erred in granting Defendants' motion for a directed verdict on Count VII because it introduced sufficient evidence to support a claim brought under 42 U.S.C. section 1983 for violation of Investors' rights under the Equal Protection Clause of the U.S. Constitution in that County unlawfully and intentionally discriminated against it when County violated its established policies and procedures by refusing to issue Investors a refund for overpayments, thereby treating it differently from others similarly entitled to refunds. Investors concedes that it is not a member of a suspect class and does not otherwise assert that examination of its treatment requires heightened scrutiny. Accordingly, Investors must establish that it was treated differently from others situated similarly and that there was no rational reason for the difference in treatment by County. See Hosna v. Groose, 80 F.3d 298, 304 (8th Cir. 1996). A "class of one" may make an equal protection claim for discrimination. Barstad v. Murray County, 420 F.3d 880, 884 (8th Cir. 2005) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). Such a claimant may prevail by showing that it has been intentionally treated differently from others similarly situated with no rational basis for the difference in treatment. Id. (quoting Olech, 528 U.S. at 564). "Identifying the disparity in treatment is especially important in class-of-one cases." Id. Dissimilarity in treatment of dissimilarly situated persons does not violate the equal protection clause. Anderson v. Cass County, Missouri, 367 F.3d 741, 747-48 (8th Cir. 2004). Investors contends that it is a member of the class of individuals and firms that made payments to the Recorder's office that exceeded the proper cost for services rendered and who met the criteria for receiving refunds for overpayments according to County's policies and procedures. It also asserts that unlike those other individuals and firms, Investors did not receive a refund for the hundreds of thousands of dollars that it was overcharged. Investors is not similarly situated with other individuals and firms that received refunds from County for overpayments to the Recorder's office. There is no evidence that anyone or any business entity other than Investors ever

requested a refund for overpayments made thirty days or more prior to the demand for the refund, or made a request for more than a day's overpayment. Investors, in contrast, requested a refund for overpayments made over a five year period and for the full amount of overpayments made over five years. There is no evidence that anyone else ever requested, much less received, a refund for overcharges due to deliberate criminal actions by a County employee. Investors was not treated differently from others similarly situated. Assuming arguendo that Investors was treated differently by County from others similarly situated, Investors must still, as the challenging party, prove that the disparity in treatment has no rational basis, but rather is not reasonable and purely arbitrary. See Eastern Missouri Laborers' District Council v. City of St. Louis, 5 S.W.3d 600, 604 (Mo. App. 1999). If it is possible to conceive of any state of facts to justify a classification, it will be sustained. Id. (quoting Burgdorf v. Board of Police Commissioners, 936 S.W.2d 227, 233 (Mo. App. 1996)). Investors has not shown that the County's refusal to refund multiple years of overpayments totaling hundreds of thousands of dollars resulting from the criminal actions of a County employee is unreasonable, lacking any rational basis, and purely arbitrary. Point denied. In its fourth point relied on, Investors argues that the trial court erred in granting County's motion for summary judgment on Count VIII and Count IX, negligence and conversion respectively, of its first amended petition on the grounds that County did not waive sovereign immunity because County did have insurance coverage for torts of this nature that applied to these counts. Our review of a grant of a motion for summary judgment is essentially de novo. ITT Commercial Finance v. Mid- America Marine, 854 S.W.2d 371, 276 (Mo. banc 1993). This Court reviews "the record in the light most favorable to the party against whom judgment was entered[,]" and accords that party the benefit of all reasonable inferences that may be drawn from the record. Id. Facts set forth by affidavit or otherwise in support of a party's motion for summary judgment are taken as true unless contradicted by the non-movant's response to the motion. Id. Investors correctly asserts that, pursuant to section 537.610.1, when a public entity purchases liability insurance or self-insures for tort claims it waives sovereign immunity to the extent of the amount provided and for the specific purposes as set forth in the insurance plan.(FN7) Section 537.610.1 "provides an independent basis for waiving sovereign immunity--a basis cemented in the existence of coverage for the damage or injury at issue under the language of the insurance policy." State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621, 624 (Mo. banc 1990)). However, statutory provisions that waive sovereign immunity must be strictly construed, because sovereign immunity is the rule rather than the exception. Benoit v. Missouri Highway and Transportation Commission, 33 S.W.3d 663, 673 (Mo. App. 2000).

The trial court found that County did not waive sovereign immunity. We agree. County's purchase of the Commercial Crime Policy ("Policy") was not a purchase of liability insurance pursuant to section 537.610.1. The Policy is effectively an employee dishonesty policy, such as that in Lynch Properties, Inc. v. Potomac Insurance Company of Illinois, 140 F.3d 622 (5th Cir. 1998), which insures against risk of loss to the named insured, in this case County, rather than to a third party, through employee dishonesty. See also City of Burlington, Iowa v. Western Surety Company, 599 N.W.2d 469 (Iowa 1999). Point denied. The judgment of the trial court is affirmed. Footnotes: FN1.Norris Acker, the Director of Revenue of County initially was a defendant in the case, but Investors ultimately dismissed all claims against him. FN2.Defendants' Instruction C is as follows: If you find in favor of plaintiff Investors Title Co., Inc., your verdict must be for defendants St. Louis County and Janice Hammonds if you believe: First, that circumstances have so changed that it would be unjust to require defendants to make restitution; and Second, that defendants were no more at fault than was plaintiff. i0 If any party has failed to use care to ascertain relevant facts, such party is at fault within the meaning of this instruction. FN3.The proposed Instruction D reads as follows: Your verdict must be for defendants St. Louis County and Janice Hammonds if you believe that plaintiff Investors Title Co., Inc. by words or conduct permitted St. Louis County to take possession of the funds. FN4.Defendants' proposed Instruction B stated as follows: "If you find in favor of the plaintiff Investors Title Co., Inc., you must not include those damages that occurred before January 1, 2001." This proffered instruction is a non- MAI approved instruction. FN5.Section 516.130(1) states that a three-year statute of limitations applies to "[a]ny action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise[.]" Section 516.120 provides, in part, that the following actions be brought within five years: "(1) All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110, and except upon judgments or decrees of a court of record, and except where a different time is herein limited[.]" FN7.Section 537.610.1 provides that: The commissioner of administration, through the purchasing division, and the governing body of each political subdivision of this state, notwithstanding any other provision of law, may purchase liability insurance for tort claims, made against the state or the political subdivision, but the maximum amount of such coverage shall not exceed two million dollars for all claims arising out of a single occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, RSMo, and no amount in excess of the above limits shall be awarded or settled upon. Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance

purchased pursuant to the provisions of this section and in such amount and for such purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.