State of Missouri, Missouri Department of Natural Resources, Division of State Parks, Plaintiff/Appellant, v. Larry D. Fitzgerald, Defendant/Respondent.

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: State of Missouri, Missouri Department of Natural Resources, Division of State Parks, Plaintiff/Appellant, v. Larry D. Fitzgerald, Defendant/Respondent. Case Number: ED77603 Handdown Date: 10/24/2000 Appeal From: Circuit Court of St. Charles County, Hon. Ellsworth Cundiff Counsel for Appellant: Jeremiah W. (Jay) Nixon Counsel for Respondent: Leonard Komen Opinion Summary: Plaintiff-State appeals from the trial court's judgment dismissing with prejudice its breach of contract action against defendant and ordering the State to pay defendant's court costs. AFFIRMED IN PART AND REVERSED IN PART. Division Two holds: The trial court erred in assessing court costs against the State. Citation: Opinion Author: William H. Crandall, Jr., Judge Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Ahrens, P.J. and J. Dowd, J., concur. Opinion: Opinion modified by Court's own motion on October 31, 2000. This substitution does not constitute a new opinion. Plaintiff, State of Missouri, Missouri Department of Natural Resources, Division of State Parks (hereinafter State), appeals from the trial court's judgment dismissing with prejudice its breach of contract action against defendant, Larry D. Fitzgerald, and ordering the State to pay Fitzgerald's court costs. Affirmed in part and reversed in part. In its first point, the State challenges the trial court's dismissal of its action with prejudice. We have reviewed the

record on appeal with regard to the dismissal and find that no error of law appears. An opinion would have no precedential value. Point denied. Rule 84.16(b). In its second point, the State charges error in the trial court's assessing "costs" against plaintiff." Absent statutory authority, costs cannot be recovered in state courts from the State or its agencies or officials. Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 882 (Mo. banc 1993). In addition, attorney's fees may be awarded to a successful litigant only where they are provided for by statute or by contract, where very unusual circumstances exist so it may be said equity demands a balance of benefits, or where the attorney's fees are incurred because of involvement in collateral litigation. Lett v. City of St. Louis, 24 S.W.3d 157, 162 (Mo. App. E.D. 2000). Although it is unclear whether the court included attorney's fees in its assessment of "costs," no statute or contract authorized the award of attorney's fees and none of the recognized exceptions of unusual circumstances or collateral litigation applied. The trial court erred in assessing costs, including attorney's fees, against the State. State's second point is granted. That part of the judgment dismissing the State's action with prejudice is affirmed; that part of the judgment assessing costs against the State is reversed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.