In the Missouri Court of Appeals Eastern District DIVISION THREE
CITY OF ST. LOUIS, MISSOURI, ) No. ED112415 ) Appellant, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) Honorable Jason M. Sengheiser RYAN BERTELS, ET AL., ) ) Respondents. ) Filed: September 17, 2024
Introduction
The City of St. Louis (“the City”) appeals the circuit court’s entry of summary judgment
in Ryan Bertels’ and Dana Hibbs’ (collectively, “Defendants”) favor on its professional
malpractice claim seeking to recoup approximately $1.7 million in damages the City and the Board
of Police Commissioners (“the Board”) were ordered to pay in underlying litigation after a default
judgment was entered. The City raises three points on appeal. In Point I, the City argues the
circuit court erred in entering summary judgment in Defendants’ favor because the official
capacity claim asserted against a police officer constituted a claim against the Board. In Point II,
the City argues the circuit court erred in entering summary judgment in Defendants’ favor because
they are not entitled to official immunity because they had a statutorily-imposed, ministerial duty
to defend the Board. Finally, in Point III, the City argues the circuit court erred in taxing costs to
it, because as a municipality and extension of the State, it is not liable to pay costs, even when it does not prevail. This Court holds even if Defendants had to defend the Board from the entry of
the default judgment, Defendants were officially immune from suit for their actions in determining
if and how to defend the Board. Points I and II are denied. Because there is no statutory authority
to tax costs against the City in this action, Point III is granted. The circuit court’s judgment is
affirmed in part and reversed in part.
Factual and Procedural Background
These parties have been engaged in protracted litigation from actions taken by St. Louis
Metropolitan Police Officers Ryan Cousins (“Cousins”) and Reginald Williams (“Williams”)
against Michael J. Banks (“Banks”) in July 2002, at which time Banks was threatened, robbed,
and falsely arrested. Banks was acquitted of all charges. Williams was prosecuted and convicted
in 2004 of committing similar acts. State v. Williams, 177 F.App’x 513, 514 (8th Cir. 2006)
(affirming conviction and sentence).
Underlying Judgment
In 2005, Banks and his wife (collectively, “Plaintiffs”) sued the Board, naming individual
members in their official capacity, and Williams and Cousins, in their individual and official
capacities, for claims related to Banks’ treatment in July 2002. The Board’s General Counsel
requested the Attorney General’s Office (“AGO”) defend this action on the Board’s and Cousin’s
behalf under the state legal expense fund (“SLEF”) statute.1 Defendants were employed as
assistant attorneys general at this time. The AGO assigned Bertels to represent the Board and
Hibbs to represent Cousins. The Board did not request—and the AGO did not assign—any
assistant attorney general to represent Williams. Before Defendants deposed Williams, they asked
1 Section 105.716.1 states, “[a]ny investigation, defense, negotiation, or compromise of any claim covered by sections 105.711 to 105.726 shall be conducted by the attorney general[.]” All statutory references are to RSMo Cum. Supp. 2005. See also State ex rel. Hawley v. City of St. Louis, 531 S.W.3d 602, 604–05 (Mo. App. E.D. 2017) (providing a detailed history of SLEF and how the City became the successor-in-interest to the Board).
2 their supervisor, the AGO’s Chief Litigation Counsel, what they should do if Williams asked for
representation.2 The Chief Litigation Counsel responded, “If this is a police case, the Board has
to tender for the officers and has not done so.” Bertels explained to Williams on the record before
deposing him he was not represented by either Bertels or Hibbs, to which Williams stated he
understood.
In June 2008, Plaintiffs dismissed the Board as a party without prejudice after the Board
moved for summary judgment. The dismissal indicated Plaintiffs would file an amended petition.
In August 2008, Plaintiffs filed their first amended petition against Williams and Cousins in their
individual and official capacities, raising substantially the same claims as the original petition.
Plaintiffs’ claims against Cousins were dismissed with prejudice after a settlement agreement was
reached.
In January 2009, Plaintiffs filed their second amended petition naming only Williams in
his individual and official capacities. Although not named as a party, the Board was served with
the second amended petition. Defendants, a Board paralegal (“Paralegal”), and the AGO’s Chief
Litigation Counsel communicated by email to determine how to proceed after the Board received
the second amended petition. Paralegal emailed Chief Litigation Counsel stating she was unsure
if the Board had to “re-tender defense … but to be safe” she asked the AGO to represent the Board.
In a later email, Paralegal explained Williams was no longer a police officer, and had been
convicted and incarcerated for crimes committed as a police officer. Paralegal stated, “The Board
will not request legal representation for him if he is served in prison.” Chief Litigation Counsel
expressed confusion as to why the Board was served since it was not named as a defendant, but
2 Three individuals served as the AGO’s Chief Litigation Counsel or Acting Chief Litigation Counsel and supervised Defendants before the default judgment was entered. This Court refers to all three individuals as Chief Litigation Counsel to avoid confusion.
3 responded he did not think there was “anything to defend here” and to let him know if the Board’s
General Counsel “sees something here” he did not. Hibbs stated she was unsure why the Board
was served because it was not a named party nor did Plaintiffs request relief from the Board. Later,
Hibbs stated, “I suggested to [Bertels] earlier, and again this is just my thought, that the Board
does not need to respond to this petition since they are not a named defendant.” No responsive
pleadings to the second amended petition were filed on the Board’s behalf.
On April 3, 2009, Plaintiffs moved for default judgment and set the matter for a hearing on
April 27, 2009. Plaintiffs’ counsel notified Bertels “as a courtesy” of the default and inquiry, along
with the date and time of the hearing, and stated he was “invited to attend.” Bertels provided Chief
Litigation Counsel a memorandum analyzing the default judgment’s implications for the Board
the same day he received notice of the default and inquiry. The memorandum stated, “It would
seem that the [P]laintiff[s are] attempting to get a default judgment against Williams. The issue is
whether [Banks] will then try to collect that default judgment from us.” Bertels discussed his and
Hibbs’ client representations and how neither of them represented Williams. Bertels explained
Williams never requested either the Board or the AGO represent him. Bertels further discussed
when the second amended petition was filed, he spoke with Chief Litigation Counsel who said
“not to worry about it” because Williams was the only named defendant. Chief Litigation Counsel
emailed Defendants, stating, “We intend to take the position that neither the officer nor the Board,
ever tendered defense nor requested the AGO represent Williams (the bad actor) in the underlying
matter…. As such, we do not intend to attend or otherwise participate at the default hearing.”
Chief Litigation Counsel stated he intended to communicate this position to the Board’s General
Counsel.
4 Hibbs was directed to “attend and observe” the default judgment to see what the testimony
entailed. Hibbs sat in the courtroom behind the bar and did not speak. Hibbs emailed Bertels,
Chief Litigation Counsel, Paralegal, and the Board’s General Counsel summarizing the
proceedings. Hibbs stated there was no testimony regarding damages against the Board or the
Board’s status in the second amended petition. The circuit court entered a default judgment against
Williams, in his individual and official capacities, and awarded Plaintiffs $1,487,533.49.
From April 2012 through November 2017, Plaintiffs, the Board, and the City litigated
which entity was obligated to pay the default judgment. The City and the Board argued they were
not liable because the judgment was entered against Williams only or they lacked notice or an
opportunity to be heard before liability was imposed. See Banks v. Slay, 410 S.W.3d 767
(Mo. App. ED. 2013); Banks v. Slay, 9 F.Supp.3d 1069 (E.D. Mo. 2014); Banks v. Slay, 789 F.3d
919 (8th Cir. 2015); Banks v. Slay, 196 F.Supp.3d 1021 (E.D. Mo. 2016); and Banks v. Slay,
875 F.3d 876 (8th Cir. 2017). These arguments were rejected. The City paid approximately $1.7
million to Plaintiffs and their counsel as the Board’s successor-in-interest.
Legal Malpractice Litigation
In April 2018, the City sued Defendants for legal malpractice. In June 2022, the City filed
its first amended petition against Defendants in their personal capacities, alleging they “were
professionally negligent and committed legal malpractice in their representation of the Board and
all of its employees named in the suit.” The City averred Defendants had an attorney-client
relationship with the Board, and, as its counsel, Defendants had a statutorily-mandated duty to
represent and defend the Board at the time the default judgment was entered. The City alleged
Defendants breached their duty of care by: (1) not responding or answering the second amended
petition against the Board, pled as Williams in his official capacity; (2) not moving for summary
5 judgment again on the Board’s behalf; (3) allowing a default judgment to be entered against the
Board; (4) not recognizing or ignoring relevant caselaw; (5) not removing the case to federal court;
and (6) breaching their ministerial duty to represent and defend the Board, pled as Williams in his
official capacity. Defendants moved to dismiss the City’s petition, which was overruled.
Defendants moved for summary judgment on several grounds, arguing: (1) they did not
have an attorney-client relationship with Williams; (2) they were entitled to official immunity; (3)
the City’s claim was time-barred; (4) the Board ratified Defendants’ decision not to represent
Williams; and (5) the judgment was unenforceable under the Full Faith and Credit Clause. The
City opposed the motion, arguing: (1) Defendants had a duty to represent the Board, pled as
Williams in his official capacity, because the claim against Williams was a claim against the Board;
(2) not representing the Board, pled as Williams in his official capacity, breached Defendants’
statutorily-mandated ministerial duty to represent the Board; (3) Defendants had an attorney-client
relationship with the Board at the time the default judgment was entered against it; (4) the City’s
claim was timely; (5) Defendants’ ratification argument failed as a matter of law; and (6) collateral
estoppel did not bar the City’s claims.
The circuit court sustained Defendants’ motion and entered judgment in their favor. The
circuit court found the City would be unable “to produce evidence supporting its legal malpractice
claim against Defendants based on their failure to represent and defend … Williams in the
[Plaintiffs’ underlying] matter” because “neither Bertels nor Hibbs represented Williams in any
capacity” in the underlying litigation as there was no evidence the Board requested the AGO to
represent him. The circuit court further found even if the statute applied to Williams’ defense
despite the Board’s failure to request representation for him, the statute imposed a duty only upon
the attorney general, not upon Bertels or Hibbs individually. The circuit court taxed costs against
6 the City. The City moved to amend or modify the judgment regarding the taxed costs, which the
circuit court overruled by inaction. Rule 78.06. This appeal follows.
Discussion
Standard of Review for Points I & II
“The standard of review on appeal regarding summary judgment is essentially de novo.”
Kroner Invs., LLC v. Dann, 583 S.W.3d 126, 128 (Mo. App. E.D. 2019) (citing Foster v. St. Louis
Cnty., 239 S.W.3d 599, 601 (Mo. banc 2007)). On appeal, summary judgment will be upheld if
there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of
law. Id. “Because the role of this Court is to determine whether or not the [circuit] court reached
a proper result, we will uphold an order granting summary judgment if it is sustainable on any
theory.” Pecos I, LLC v. Meyer, 655 S.W.3d 579, 585 (Mo. App. E.D. 2022) (quoting Wiley v.
Daly, 472 S.W.3d 257, 261 (Mo. App. E.D. 2015)). Hence, this Court will affirm the circuit court’s
entry of summary judgment “based on any ground raised in the motion and supported by the
accompanying summary judgment record.” Loerch v. City of Union, Mo., 643 S.W.3d 597, 602
(Mo. App. E.D. 2022).
Points I & II: Official Capacity & Official Immunity Party Positions
Because the City’s first two points are interrelated, they will be addressed together. In
Point I, the City argues the circuit court erred in entering summary judgment in Defendants’ favor
because the official capacity claim brought against Williams was a claim against the Board.
Defendants argue they are entitled to absolute immunity because they were acting as assistant
attorneys general defending government officials against 42 U.S.C. § 1983 actions.3 Defendants
3 As conceded during oral argument, Defendants did not argue they were entitled to absolute immunity for their representation of government officials when they moved for summary judgment. “Appellate review of summary judgment is limited to the issues presented before the trial court.” Weber v. Fed. Home Loan Mortg. Corp., 675
7 also argue the circuit court correctly held neither Bertels nor Hibbs had an attorney-client
relationship with Williams as a matter of law.
In Point II, the City argues the circuit court erred in entering summary judgment in
Defendants’ favor because Defendants had a ministerial duty to defend the Board and prevent the
default judgment from being entered. The City contends the Board requested representation and
defense from the AGO under section 105.726.4, and Defendants represented the Board at the time
the default judgment was entered. Defendants argue they are entitled to official immunity because
decisions made during Bertels’ representation of the Board after the second amended petition was
filed were not ministerial and should be afforded immunity if Defendants were acting within the
scope of their authority and without malice.
Analysis
The City frames the issues to be addressed as whether Defendants had an attorney-client
relationship with the Board, pled as an official capacity claim against Williams, and whether
Defendants’ failure to take steps to prevent the entry of default judgment against Williams—which
the City ultimately had to pay as the Board’s successor-in-interest—constituted a ministerial duty
so that Defendants are not entitled to official immunity from legal malpractice. “The elements of
a legal malpractice action are: 1) an attorney-client relationship; 2) defendant acted negligently or
in breach of contract; 3) defendant’s acts were the proximate cause of the plaintiff’s damages; and
4) but for defendant’s conduct the plaintiff would have succeeded in prosecution of their
S.W.3d 728, 733 (Mo. App. E.D. 2023). “Parties are bound by the position they took in the trial court and will not be heard on a different theory on appeal.” Id. (quoting Rapp v. Eagle Plumbing, Inc., 440 S.W.3d 519, 523 (Mo. App. E.D. 2014)). Further, this Court “will generally not convict a lower court of error on an issue that was not put before it to decide.” Clarksboro, LLC v. City of Overland, 678 S.W.3d 139, 144–45 (Mo. App. E.D. 2023) (quoting Smith v. Shaw, 159 S.W.3d 830, 835 (Mo. banc 2005)). This Court finds Defendants waived their absolute immunity argument by failing to present it to the circuit court and declines to review it on appeal. Id.
8 underlying claim.” Juan v. Growe, 547 S.W.3d 585, 591 (Mo. App. E.D. 2018) (citing Nail v.
Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 561 (Mo. banc 2014)).
This Court agrees with the City’s initial contention the official capacity claim against
Williams constituted a claim against the Board. See Brandon v. Holt, 469 U.S. 464, 472, n.21,
105 S. Ct. 873, 878 n.21, 83 L.Ed.2d 878 (1985) (quoting Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035 n.55, 56 L.Ed.2d 611 (1978)) (stating
“official-capacity suits generally represent only another way of pleading an action against an entity
of which an officer is an agent”). Thus, “a judgment against a public servant ‘in his official
capacity’ imposes liability on the entity he represents provided, of course, the public entity
received notice and an opportunity to respond.” Id. at 471–72. The City contends the circuit
court’s “fundamental misunderstanding of the nature of official-capacity claims” resulted in “the
irrelevant finding that the City could not produce evidence of an attorney-client relationship
between Defendants and Williams.” (emphasis in original). The City argues because the Board
requested representation and defense from the AGO, section 105.726.4 applied “to the Board’s
defense and required Defendants to defend the Board.” (emphasis in original).
Section 105.716.1 requires the attorney general to defend any claim covered by
sections 105.711 to 105.726. Section 105.726.4 states in relevant part, “If the representation of
the attorney general is requested by a board of police commissioners, the attorney general shall
represent … [or] defend … all claims under sections 105.711 to 105.726 for the board of police
commissioners [or] any police officer … acting or purporting to act on their behalf.” This statute
also permits the attorney general to “establish procedures by rules promulgated under chapter 536
under which claims must be referred for the attorney general’s representation.” Id. See 15 C.S.R.
9 § 60-14.040 (rules promulgated prescribing the procedures for requesting representation under
section 105.726).
This Court need not resolve if the circuit court erroneously focused on whether an attorney-
client relationship existed between Defendants and Williams or whether a request to represent the
Board constituted a request for the AGO to defend Williams in his official capacity as well. Even
if this Court assumes, without deciding, Defendants had an attorney-client relationship with the
Board such that they had to defend it from Plaintiffs’ official capacity claims against Williams, the
record demonstrates summary judgment was appropriate because Defendants were entitled to
official immunity for their actions.
“‘Immunity’ connotes not only immunity from judgment but also immunity from suit.”
Laughlin v. Perry, 604 S.W.3d 621, 633 (Mo. banc 2020) (quoting State ex rel. Alsup v. Kanatzar,
588 S.W.3d 187, 190 (Mo. banc 2019)). Missouri courts have long held official immunity
“protects a public official from liability if that official acts within the course of his [or her] official
duties and without malice.” Alsup, 588 S.W.3d at 190. “Courts applying the doctrine of official
immunity must be cautious not to construe it ‘too narrowly lest they frustrate the need for relieving
public servants of the threat of burdensome litigation.’” Laughlin, 604 S.W.3d at 625–26 (quoting
Alsup, 588 S.W.3d at 191).
The parties do not dispute Defendants were public officials acting within the scope of their
authority when the Board was served with the second amended petition. Furthermore, the City
does not allege malice. Yet, Defendants “are not entitled to official immunity merely because they
are state or public employees conducting official duties.” Id. at 627. “Official immunity only
‘protects public employees from liability for alleged acts of negligence committed during the
course of their official duties for the performance of discretionary acts.’” Id. (quoting Southers v.
10 City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008)). “The official immunity doctrine does
not protect public employees for alleged acts of negligence for the performance of ministerial
duties.” Id. The City contends because the Board requested AGO representation,
section 105.726.4 mandated Defendants represent and defend the Board to prevent the default
judgment from being entered. Hence, this Court must determine whether Defendants’ decisions
after the Board was served with the second amended petition were discretionary or ministerial acts.
“Whether an act can be characterized as discretionary depends on the degree of reason and
judgment required.” Southers, 263 S.W.3d at 610. “A discretionary act requires the exercise of
reason in the adaption of means to an end and discretion in determining how or whether an act
should be done or course pursued.” Id. In contrast, a ministerial act is defined as:
Generally, a ministerial act has long been defined as merely clerical. And this Court has noted that a ministerial duty compels a task of such a routine and mundane nature that it is likely to be delegated to subordinate officials. For more than a century, this Court has held that a ministerial or clerical duty is one in which a certain act is to be performed upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority, and without regard to … judgment or opinion concerning the propriety or impropriety of the act to be performed. Thus, the central question is whether there is any room whatsoever for variation in when and how a particular task can be done. If so, that task–by definition–is not ministerial.
Alsup, 588 S.W.3d at 191 (internal citations and quotations omitted). “The central inquiry is not
whether the law confers a duty to act but, instead, whether the public official retains any discretion
in completing an act[.]” State ex rel. Morales v. Alessi, 679 S.W.3d 467, 472 (Mo. banc 2023)
(emphasis in original).
This Court finds Laughlin directly on point to resolve this dispute. In Laughlin, a client
sued his public defenders for legal malpractice when they did not assert a meritorious jurisdictional
defense which he informed them he wished to raise. Laughlin, 604 S.W.3d at 624. After holding
the public defenders were public employees entitled to assert official immunity, id. at 625–27, the
11 Missouri Supreme Court addressed whether the public defenders’ failure to assert the defense was
a discretionary or ministerial act. The public defenders contended “practically any decision or
action taken by an attorney in representing his or her client is discretionary in nature, including
which defenses to assert at trial” while the client “characterize[d] the jurisdictional challenge as a
ministerial task because, once he advised [the public defenders] of his desire to challenge the
circuit court’s jurisdiction, they had no discretion to refuse to explore that defense.” Id. at 628.
The Court held the public defenders “had no clear and unequivocal duty to assert the jurisdictional
challenge” because “[a]s a practical matter, virtually any decision or action taken by an attorney
during trial involves the exercise of professional judgment and is clearly discretionary in nature.”
Id. (quoting Kuehne v. Hogan, 321 S.W.3d 337, 347 n.8 (Mo. App. W.D. 2010) (Ellis, J.,
concurring)). The Court further explained, “[i]t is undisputed attorneys exercise discretion and
judgment in formulating which strategies and defenses to present on their clients’ behalf.” Id.
“[D]ecisions concerning which defenses to raise … ‘requires the exercise of reason in adaption of
means to an end and discretion in determining how or whether an act should be done or course
pursued.’” Id. (quoting Southers, 263 S.W.3d at 610).
The City argues Laughlin is inapposite because Defendants “did not strategically decide to
forego certain arguments in favor of others” but instead, “simply failed” to represent and defend
the Board as section 105.726.4 mandates. This Court disagrees. Section 105.726.4 required the
AGO to represent and defend the Board if it requested representation. However, “[t]he fact that a
statute or regulation may confer authority—or even a duty—to act in a given situation says nothing
about whether the act authorized or compelled is the sort of ministerial or clerical act to which
official immunity does not extend.” Morales, 679 S.W.3d at 472 (quoting Alsup, 588 S.W.3d at
192). “Thus, the relevant inquiry is not whether the law authorizes, regulates, or requires an action.
12 Instead, it is whether the action itself is ministerial or clerical.” Id. “And, even when a clerical or
ministerial act appears to be authorized or required by statute, official immunity will still apply if
the official retains authority to decide when and how that act is to be done.” Id. (quoting Alsup,
588 S.W.3d at 193).
The record does not support a finding Defendants declined to represent or defend the Board
as mandated by section 105.726.4. To the contrary, Defendants, acting at the direction and behest
of their supervisors, exercised discretionary, professional judgment in deciding when and how to
respond when the Board was served with the second amended petition.4 Defendants’ supervisor,
the AGO’s Chief Litigation Counsel, spoke to Paralegal after the Board was served with the second
amended petition. Chief Litigation Counsel expressed confusion as to why the Board was served
since it was not named as a defendant, but responded he did not think there was “anything to defend
here” and to let him know if the Board’s General Counsel “sees something here” he did not. Hibbs
emailed, “I suggested to [Bertels] earlier, and again this is just my thought, that the Board does not
need to respond to this petition since they are not a named defendant.” After this discussion, a
decision was made to not file responsive pleadings to the second amended petition on the Board’s
behalf. Later, when Bertels received the “courtesy” notice of Plaintiffs’ default and inquiry
hearing, he immediately provided Chief Litigation Counsel a memorandum analyzing the default
judgment’s implications for the Board, specifically raising the issue of who would be liable for
any default judgment against Williams. Chief Litigation Counsel responded, “We intend to take
the position that neither the officer nor the Board, ever tendered defense nor requested the AGO
represent Williams (the bad actor) in the underlying matter…. As such, we do not intend to attend
or otherwise participate at the default hearing.” Thus, the record clearly demonstrates Defendants
4 Defendants both testified they had no authority to make final decisions regarding the underlying litigation.
13 exercised discretion and judgment in formulating strategies regarding the second amended petition
and did not breach a merely ministerial duty to defend the Board under the statute. Defendants
were entitled to official immunity from suit for these discretionary actions. The circuit court did
not err in entering summary judgment in Defendants’ favor.
Points I and II are denied.
Point III: Costs Taxed Against the City Party Positions
In Point III, the City argues the circuit court erred in ordering it to pay Defendants’ court
costs. The City asserts a municipality is an extension of the State, and the State is not liable for
costs even when it does not prevail. Defendants did not respond to Point III in their respondent’s
brief.
Standard of Review
“Courts possess ‘no inherent power to award costs.’” State ex rel. Merrell v. Carter,
518 S.W.3d 798, 800 (Mo. banc 2017). “Costs may by awarded only pursuant to express statutory
authority.” Wilson v. City of Kan. City, 598 S.W.3d 888, 894 (Mo. banc 2020). “Express statutory
authority must be clear, definite, and unambiguous.” Id. (quoting State v. Richey, 569 S.W.3d 420,
423 (Mo. banc 2019)). Statutes conferring the power to tax costs are construed strictly. Merrell,
518 S.W.3d at 800. “Whether a statute authorizes an award of costs is a question of statutory
interpretation.” Wilson, 598 S.W.3d at 894. Questions of statutory interpretation are reviewed de
novo. Roesing v. Dir. of Revenue, 573 S.W.3d 634, 637 (Mo. banc 2019).
“Absent statutory authority, costs cannot be recovered in state courts from the state of
Missouri or its agencies or officials.” Planned Parenthood of St. Louis Region v. Dep’t of Soc.
Serv., Div. of Med. Servs., 602 S.W.3d 201, 212 (Mo. banc 2020) (quoting Richardson v. State
14 Highway & Transp. Comm’n, 863 S.W.2d 876, 882 (Mo. banc 1993)). “When the legislature
waives sovereign immunity regarding costs, it does so explicitly.” St. Louis Cnty. v. State,
482 S.W.3d 842, 849 (Mo. App. W.D. 2016). “A municipality is created by the state sovereign
and is an extension of the state.” State ex rel. RAS Inv., Inc. v. Landon, 75 S.W.3d 847, 850 (Mo.
App. W.D. 2002)). “Numerous cases hold that neither the state nor its agencies may be assessed
court costs even [when] the state agency does not prevail in the litigation.” Id. (citing Mauer v.
Bd. of Trs. of Mo. State Emp. Ret. Sys., 762 S.W.2d 517, 521 (Mo. App. W.D. 1988) (collecting
cases)).
The City, as a municipality, is an extension of the State. The City contends—and
Defendants conceded at oral argument—no statutory authority authorizes the awarding or taxing
of costs against the City in this case. Because no statute authorizes the circuit court to tax costs
against the City in this action, it was reversible error to tax costs against it. Planned Parenthood,
602 S.W.3d at 213. The judgment taxing costs against the City is reversed. Point III is granted.
Conclusion
The circuit court’s judgment is affirmed in part and reversed in part.
_______________________________ Philip M. Hess, Presiding Judge
Gary M. Gaertner, Jr., J. and Renée Hardin-Tammons, J. concur.