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SHANNA PAINTER and LANCE ) PAINTER, ) ) Plaintiffs-Appellants, ) ) vs. ) No. SD33111 ) CITY OF HUMANSVILLE, MISSOURI, ) Filed: February 20, 2015 ) Defendant, ) ) and LEONARD WALBURN, RHONDA ) ROGERS, JOHN HENRY, and DARRELL ) R. LEAN, JR., ) ) Defendants-Respondents. )

APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY Honorable Donald G. Cheever, Special Judge

AFFIRMED Shanna and Lance Painter (collectively, “Plaintiff s”) appeal the trial court’s entry of summary judgment on their Second Amended Petitio n in favor of John Henry (“Henry”), Darrell R. LeAn, Jr. (“LeAn”), Rhonda Ro gers (“Rogers”) and Leonard Walburn (“Walburn”) (collectively, the “Individual Defendants”), and the trial court’s

denial of their motions for leave to file a third a mended petition that sought to add2

allegations that the Individual Defendants acted “w illfully or in bad faith” to overcome public duty and official immunity and “to seek puni tive damages.” Because, under the most recent decision of the Supreme Court of Missou ri, the Individual Defendants were entitled to immunity under the public duty and offi cial immunity doctrines from the allegations in Plaintiffs’ Second Amended Petition, the trial court properly granted summary judgment in favor of the Individual Defenda nts. In addition, the trial court did not abuse its discretion in denying Plaintiffs leav e to file a third amended petition as untimely. The trial court’s summary judgment is af firmed.

Facts The material facts with respect to the Individual D efendants were the following. 1 Tryston Painter, the minor child of Plaintiffs Shan na and Lance Painter, was killed on October 11, 2010 when a free-standing chimney on pr ivate property in Humansville fell on him. Plaintiffs alleged that the Individual Def endants, in their capacities as employees or officers of Humansville, were liable for Tryston ’s injuries based on the Individual Defendants’ negligent failure to enforce, or comply with their duty under, a Humansville ordinance that provided a procedure for abating the nuisance presented by the chimney. Henry was the mayor and an alderperson for Humansvi lle until he resigned on October 13, 2009. LeAn was the chief of police for Humansv ille; Rogers was an alderperson; and Walburn was the mayor of Humansville. On October 1 1, 2010, Humansville had a general liability policy of insurance that insured Humansville. In April 2008, Rogers had determined that the chimn ey in question and other conditions on the property were a nuisance, and not ified the owner of the property that

1 We review the facts and inferences in the light mo st favorable to the party against whom summary judgment was granted. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993).3

the owner had to remove the chimney. The owner did not take any of the actions permitted by the ordinance in response to the notic e. Under the ordinance in question,

once notified that a nuisance must be abated or rem oved, the person notified must within fourteen days (1) abate the nuisance, (2) consent f or Humansville to abate the nuisance, or (3) request a hearing before the mayor. If the person notified does not “exercise one of the[se] alternatives,” “then the Mayor, or his or h er designee, shall confirm the finding that a nuisance exists and proceed with the abateme nt of the nuisance in any reasonable manner . . . .” Henry, LeAn, Rogers and Walburn di d not “abate the nuisance.” Procedural History In April 2011, Plaintiff Shanna Painter filed suit against the City of Humansville and the Individual Defendants among others. Lance Painter, Shanna’s husband, also joined as a plaintiff. On April 17, 2013, the Indi vidual Defendants, along with another defendant, filed a motion for summary judgment with respect to Plaintiffs’ Second

Amended Petition. The Individual Defendants based their motion on the official immunity doctrine and the public duty doctrine. The case was set for trial on December 16, 2013. On September 12, 2013, Plaintiffs filed a motion fo r leave to file a third amended petition that added allegations that the Individual Defendants acted “willfully or in bad faith” to overcome public duty and official immunit y and “to seek punitive damages.”

The trial court denied Plaintiffs’ motion on Octobe r 7, 2013. Subsequently, on November 15, 2013, Plaintiffs filed a second motion for leave to file a third amended petition that added allegations that the Individual Defendants acted “willfully or in bad4

faith” to overcome public duty and official immunit y. 2 The trial court overruled Plaintiffs’ second motion with respect to these all egations on December 4, 2013. The trial court found the motion to be “fairly late in the game” and causing a “substantial change in strategy” that could prejudice defendants

. After having initially denied the Individual Defend ants’ motion for summary judgment on May 17, 2013, the trial court then reco nsidered the motion in a hearing on December 4, 2013, and granted the motion as to the Individual Defendants on December 5, 2013. The court found the individual employees had immunity and the purchase of the insurance policy by the city did not waive immunity as to the individual employees. The judgment granting the motion included a determinati on pursuant to Rule 74.01(b), 3 that “there exists no just reason for delay.” At that t ime, the trial court continued the trial of the case to permit Plaintiffs to appeal the grant o f the Individual Defendants’ motion for summary judgment.

Point I In Plaintiffs’ first point, Plaintiffs’ argue that the trial court erred in granting summary judgment to the Individual Defendants becau se Humansville’s “purchase of liability insurance that insures public employees” and does not include an endorsement that preserves the insureds’ immunities waived the employee-insureds’ immunity under the public duty and official immunity doctrines. O ur review then is a question of law. Our review is essentially de novo. The criteria o n appeal for testing the propriety of summary judgment are no di fferent from those which should be employed by the trial court to dete rmine the propriety of sustaining the motion initially. E.O. Dorsch Electric Co. v. Plaza Const.

2 The proposed third amended petition again included a request for “punitive damages” against the Individual Defendants as well.

3 All rule references are to Missouri Court Rules (2 015), unless otherwise specified.5 Co. , 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary judgment is purely an issue of law. As the trial c ourt’s judgment is founded on the record submitted and the law, an app ellate court need not defer to the trial court’s order granting summary j udgment. Elliott v. Harris , 423 S.W.2d 831, 834 (Mo. banc 1968); Swink v. Swink , 367 S.W.2d 575, 578 (Mo.1963). ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Plaintiffs’ principally base their claim on two the ories: (1) sections 71.185, RSMo 2000, and 537.610, RSMo Cum.Supp. 2009, and (2 ) our high court’s statement in Kunzie v. City of Olivette , 184 S.W.3d 570 (Mo. banc 2006). Turning first to sections 71.185 and 537.610, we n ote that by their terms neither statute purports to waive any immunity of any indiv idual. Section 71.185.1 as relevant here states, “[a]ny municipality” (1) “may carry li ability insurance . . . to insure such municipality and their employees . . ., and [(2)] s hall be liable as in other cases of torts . .

. to the extent of the insurance so carried.” The phrase “shall be liable as in other cases of

torts . . . to the extent of the insurance so carri ed” clearly refers to “[a]ny municipality” -- not “such municipality and their employees.” Section 537.610.1 as relevant here provides: The commissioner of administration . . . may purcha se liability insurance for tort claims, made against the state or the poli tical subdivision, . . . . Sovereign immunity for the state of Missouri and it s political subdivisions is waived only to the maximum amount of and only fo r the purposes covered by such policy of insurance . . . . By its terms, the waiver under section 537.610 is l imited to a waiver of sovereign immunity for the state and its political subdivisio ns. As a result, the language of sections 71.185 and 537.610 does not support Plaintiffs’ arg ument. Further, our high court, in the context of discussing sections 71.185 and 537.610, most recently stated “[t]he6

legislature’s waivers of immunity applicable to def endant municipalities and political subdivisions do not abrogate the immunity protectio ns afforded to public employees.” Southers v. City of Farmington , 263 S.W.3d 603, 609 (Mo. banc 2008). Plaintiffs attempt to overcome the plain language of sections 71.185 and 537.610 by asserting that our high court in its 2006 opinio n in Kunzie specifically held that a municipality’s purchase of liability insurance waiv ed all the municipality’s immunities and that, as a matter of policy, this same principl e should be extended to the immunities of the municipality’s employee-insureds. To suppor t their assertion, Plaintiffs point to the Supreme Court’s statement in Kunzie that a municipality’s purchase of liability insurance “constitutes an absolute and complete wai ver of all immunities” and then in a footnote, our high court’s further statement that “ [t]his absolute waiver includes governmental function immunity, the discretionary i mmunity doctrine, and the public duty doctrine.” Kunzie , 184 S.W.3d at 574 & 574 n.4. Plaintiffs complete their argument by claiming that the phrase in the footnot e “the discretionary immunity doctrine, and the public duty doctrine” refers to t he “municipal equivalent[s]” of the official immunity and public duty doctrines applica ble to the municipality’s employeeinsureds with the result that, as a matter of polic y, the waiver described in Kunzie should be extended to the employee-insureds’ immunities. We are bound by the most recent decision of our Su preme Court. T.Q.L. ex rel.

M.M.A. v. L.L. , 291 S.W.3d 258, 266 (Mo.App. S.D. 2009). In Southers , 263 S.W.3d at 609, the court stated “[t]he legislature’s waivers of immunity applicable to defendant municipalities and political subdivisions do not ab rogate the immunity protections afforded to public employees.” The only defendant in Kunzie was a municipality. At the7

time Kunzie was decided, the law was that a municipality (sepa rate and apart from its employees) was entitled to three types of immunity – immunity for “governmental functions” and immunity under the “discretionary im munity” and “public duty”

doctrines. See Jungerman v. City of Raytown , 925 S.W.2d 202, 204-06 (Mo. banc 1996), abrogated in part by Southers , 263 S.W.3d at 613-14 & 614 n.13. Consequently,

Kunzie does not support Plaintiffs’ position. Kunzie was addressing a municipal

defendant’s immunities and not the immunities of th e municipal defendant’s employeeinsureds. 4 Plaintiffs’ Second Amended Petition alleged that t he Individual Defendants were negligent in failing to enforce, or to comply with their duty to abate the nuisance presented by the free-standing chimney under, a Hum ansville ordinance that provided a procedure for abating the nuisance. Enforcement of , or compliance with, an ordinance is a duty owed to the general public rather than a par ticular individual. See Berger v. City of University City , 676 S.W.2d 39, 41-42 (Mo.App. E.D. 1984) (“[e]nfo rcement of the law and keeping of the peace are duties which a mun icipality and its employees owe to the general public but a breach of which is not act ionable by a citizen” and, “similarly,” the city and its employees were not liable because “they failed to comply with [city] ordinances” because they are not liable for a failu re to enforce city ordinances (internal citations omitted)). Because the duty owed by the Individual Defendants under the

4 Plaintiffs in their reply brief also referred us t o the Western District’s opinion in Newson v. City of Kansas City , 606 S.W.2d 487, 489, 490-91 (Mo.App. W.D. 1980), as support for the proposition that a municipality’s purchase of liability insurance waiv es the immunities of the municipality’s employeeinsureds. In Newson , the trial court dismissed a petition against a ci ty employee for the negligent operation of a fire truck. The Western District reversed and remanded with the direction that Newson “will have opportunity to amend the petition” as to the city e mployee to allege that the city employee waived immunity under section 71.185. We are not persuade d by the Western District’s view of the scope of section 71.185 in light of the plain language of se ction 71.185 and Southers ’ admonition that “[t]he legislature’s waivers of immunity applicable to def endant municipalities and political subdivisions do not abrogate the immunity protections afforded to publi c employees.” Southers , 263 S.W.3d at 609.8

ordinance at issue was to the general public, the I ndividual Defendants were entitled to immunity under the public duty doctrine. See Southers , 263 S.W.3d at 611-12. 5 Summary judgment in favor of the Individual Defend ants on Plaintiffs’ Second Amended Petition was proper. Plaintiffs’ first poi nt is denied.

Point II In Plaintiffs’ second point, Plaintiffs contend th at the trial court abused its discretion in denying their motions for leave to fi le a third amended petition. The first of Plaintiffs’ motions was filed slightly more than th ree months before trial in a case that had been pending more than two years. 6 The proposed amended petition sought to add allegations that the Individual Defendants acted “w illfully or in bad faith” to overcome public duty and official immunity and “to seek puni tive damages.” The denial of a motion for leave to amend a petiti on “lies soundly within the trial court’s discretion,” and will not be disturbed unle ss the denial is an abuse of the trial

court’s discretion. Lunn v. Anderson , 302 S.W.3d 180, 193 (Mo.App. E.D. 2009); see

also Concerned Citizens for Crystal City v. City of Crys tal City , 334 S.W.3d 519, 526 (Mo.App. E.D. 2010). A trial court abuses its disc retion “when a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful considera tion.” Wheeler ex rel. Wheeler v.

Phenix , 335 S.W.3d 504, 510 (Mo.App. S.D. 2011) (internal citation and quotation

5 We also believe the ordinance may require the exer cise of discretion in confirming the existence of a nuisance and in abating the confirmed nuisance “in any reasonable manner.” For that reason, the Individual Defendants may also have been entitled t o immunity under the official immunity doctrine. See Southers , 263 S.W.3d at 610-11.

6 Plaintiffs are not clear in their briefs if they a re appealing the denial of one or both motion for l eave to file a third amended petition. We assume Plaintiffs int ended to appeal the denial of both motions.9

marks omitted). In determining whether the trial c ourt abused its discretion, we should consider a number of factors including: 1) the hardship to the moving party that a denial w ould cause; 2) the reasons for the moving party’s failure to include t he matter in the original pleadings; 3) the timeliness of the application for leave to amend; and 4) the hardship or injustice that granting leave to am end would cause to the non-moving party. See Lester v. Sayles , 850 S.W.2d 858, 869 (Mo. banc 1993). The most common reason for denying leave to amend is the resultant prejudice to the non-moving party. Western Casualty and Surety Co. v. Kansas City Bank and Trust Co. , 743 S.W.2d 578, 582 (Mo.App.1988). Concerned Citizens for Crystal City , 334 S.W.3d at 526-27.

Southers makes clear that official immunity will not protec t a public employee “if the conduct is willfully wrong or done with malice or corruption,” and the public duty doctrine will not protect a public employee if the employee acts “in bad faith or with

malice.” Southers , 263 S.W.3d at 610, 612. Plaintiffs’ knew early i n the lawsuit that the Individual Defendants asserted they were immune fro m liability under the official immunity and public duty doctrines. To wait until slightly more than three months before trial to first attempt to amend the petition to add factual allegations that, if proven, would negate the availability to the Individual Defendant s of the official immunity and public duty doctrines and expose the Individual Defendants to punitive damages caused the proposed amendment to be untimely and prejudiced th e Individual Defendants in the presentation of their defenses. In these circumsta nces, the trial court’s denial of Plaintiffs’ request to file a third amended petitio n was not clearly against the logic of the circumstances and not so arbitrary and unreasonable as to shock our sense of justice and

indicate a lack of careful consideration.10

Plaintiffs’ second point is denied. 7 The trial court’s summary judgment is

affirmed.

Nancy Steffen Rahmeyer, J. - Opinion Author Gary W. Lynch, J. - Concurs Don E. Burrell, J. - Concurs

7 In their brief, Plaintiffs indicate that they beli eve the trial court’s denial of their motion for le ave to file a third amended petition is moot because the trial ha s been continued to allow this appeal and Plaintiff s intend again to ask the trial court for leave to fi le an amended petition following the completion of this appeal. We express no opinion on the merits of a p ost-appeal motion for leave to file an amended peti tion. We simply state that the trial court did not abuse its discretion in denying the earlier motions.