Litigation | Litigation is our largest practice area. We handle the following types of civil litigation cases:
- Business Litigation;
- Real Estate Litigation;
- Defamation — slander, libel, injurious falsehood;
- Debt collection defense (e.g., credit cards);
- Credit-debtor litigation;
- Temporary Restraining Orders;
- Preliminary Injunctions;
- Permanent Injunctions;
- Property Damage/Destruction/Theft;
- Injury Litigation;
- Landlord-Tenant — Rent & Possession, Eviction;
- Misrepresentation — intentional & negligent;
- Equitable Claims — promissory estoppel, rescission;
- Privacy claims;
- General Tort Litigation; and
- Civil Appeals.
Frequently asked Civil Litigation questions:
I have been served with a summons by a sheriff/process server. What should I do? Contact an attorney. The clock starts ticking right when you receive that summons. If it is a civil lawsuit for damages, you often have thirty (30) days to file a response in the appropriate court. Other matters like a temporary restraining order may only give you twenty-four (24) hours notice.
How long do I have to file a lawsuit? It depends on what the suit is for. The statute of limitations in Missouri is usually five (5) years, but some causes of action accrue in two (2) years and others even in ten (10) years. If you do not file a suit within the time limitations, then your claims is barred and may not be brought again. Other cases, like divorce, child custody, and child support matters, do not have a statute of limitations.
What is negligence? Negligence occurs when an individual owes you a (a) duty of care, the individual acts in a manner (b) inconsistent with the standard of care, and their conduct (c) factually and proximately causes you (d) harm/damages.
What is the difference between a legal remedy and an equitable remedy? A remedy generally refers simply to what a Court can do for an aggrieved/wronged party in Court. A legal remedy is money damages; the court orders the defendant to pay to the Plaintiff a certain amount of compensatory damages in an attempt to return the Plaintiff to the position they were in before the wrong occurred. An equitable remedy is usually appropriate when mere money damages are not sufficient. This is when a court orders a person to act in a certain way or refrain from acting in a certain way.
What does it take to obtain a temporary restraining order or injunction? Under Missouri Supreme Court Rules, and federal law, a party seeking a temporary restraining order or injunction must establish: (a) the threat of irreparable harm to the movant; (b) the balance between the harm and the injury that granting the injunction will inflict on any of the other parties; (c) the probability that the movant will succeed on the merits; and (d) the impact on the public interest. These are factors for the Court to consider, not elements, and the factors are to be weighed equally. Typically it is easier to obtain a temporary restraining order because the standard is lower. A temporary restraining order is usually in effect for around two (2) weeks, but may be continued beyond that time upon a proper showing. It is common practice to have a preliminary injunction heard after the temporary restraining order to have a ruling while the lawsuit is pending. A preliminary injunction is essentially a trial in which the movant has to produce witnesses and provide evidence, except that it is a judge tried matter, not a jury tried matter.
Are bonds required for equitable relief? Yes. A temporary restraining order or injunction will not go into effect unless the movant posts sufficient bond. The Judge ultimately orders the bond amount, but he/she will allow input from the Parties as to what amount is appropriate. The bond is in place so that if the person/entity wrongfully restrained/enjoined later proves that they were improperly subject to the equitable order, there are damages to recover against. If this does not happen, then the bond will be returned to the movant. Courts will require either a cash bond or commercial surety bond, for the most part.
Do you represent landlords in disputes with tenants? Yes. The usual procedure taken by a landlord when a tenant is delinquent on rent payments is to file a rent and possession lawsuit in the applicable associate circuit court. If the landlord prevails, he/she recovers the outstanding rent and possession of the rented premises. The rent & possession claim is statutory, so there are several requirements that need to be followed closely. Similarly, a landlord’s claim for unlawful detainer — when a a tenant willfully holds over and stays beyond the lease term — is also statutory and requires close adherence to the statutory elements.
Do you represent tenants in disputes with landlords? Yes. A tenant’s primary responsibility is to pay rents and forward a security deposit. The tenant must also keep the premises in good repair free from things more than ordinary wear and tear. The landlord has several responsibilities, including honoring the implied covenant of inhabitability, fixing major systems in the property, being responsible for the common area, and being receptive to deficiencies with the property. Although it is much more common to hear of tenant’s breach the landlord-tenant agreement, landlords also do so on occasion.
What is a tort? A tort is a civil wrong committed by one person(s)/entity against another person(s)/entity. The wrong is not necessary illegal (and perhaps criminal), but a harmful action which allows an aggrieved party to seek redress by seeking through court certain remedies. Torts are generally private actions in that they are often between two individuals, as opposed to criminal actions which are initiated by the State/city/municipality, by and through the prosecuting attorney/district attorney. Tort law is also distinct from contract law, which — although it is a type of civil law — is a different strand of law and focuses on just the legal rights and obligations present in a given contract. Tort law furthermore, may be furthermore subdivided into two distinct categories: negligence and intentional torts. Negligence is discussed above. Intentional torts are when an individual acts for the purpose of or substantial certainty to do something which ultimately causes harm (e.g., assault, battery, invasion of privacy, slander, defamation, tortious interference with business expectancy/contractual relations).
What is litigation? Litigation is the court process that occurs after a lawsuit is filed by the plaintiff(s) against the defendant(s). There are a few dominant stages of litigation: pleadings stage (where the factual allegations are made), discovery stage (where the facts are discovered), motions stage (where a party requests that the Court do something), trial stage, and, if necessary, appeals.
How long does litigation last and cost? From beginning to end, litigation is going to last at least a year and often times several years (particularly in the case of appeals). Litigation can, moreover, be quite costly between attorney fees (handled on a flat fee, hourly fee, or contingency fee basis), court costs and discovery costs.
What is mediation/arbitration and should I go this route instead of litigation? Mediation and arbitration are forms of alternative dispute resolution. They are becoming more and more popular ways of avoiding the time and expense of litigation. Saint Charles County even has an opt-in form that accompanies most types of lawsuits upon filing which seems designed to persuade litigants to resolve things out of court. A mediation is where a neutral, third-party mediator sits down with all of the litigant and attempts to settle the dispute. An arbitration, on the other hand, is where the neutral, third-party arbitrator actually makes a decision after each side presents their case. The decision to proceed with mediation/arbitration must often be consensual, but sometimes it is court ordered.
What is a subpoena? A subpoena is a Court order which requires that you either produce documents or testify. Failure to comply with a subpoena is the equivalent of violating a Court order. A subpoena requiring that documents be produced is called a subpoena duces tecum. A subpoena requiring that testimony be provided is called a subpoena ad testificandum. The subpoena power is not unlimited. It may be modified or quashed if it is unreasonable or unduly oppressive.
How much is my case worth? This is nearly impossible to determine, particularly when the case is submitted to a judge/jury. General parameters of what may be expected can be discussed, but it would be hazardous to predict or promise a specific outcome.
What is an affidavit? An affidavit is a written statement that is sworn under oath. Missouri law requires affidavits to be used in support of several motions or petitions. In certain cases, affidavits are used as evidence on motions. A motion/petition which is “verified” generally means that it supported by an affidavit by a person with first-hand knowledge of the events/facts described.
I have been sued by a collection company for an allegedly past due debt. What should I do? Contact us. What makes these cases often very confusing is that the company filing suit against you is one you have never heard of — National Credit Adjusters, Gamache & Meyers, Midland Funding, Kramer & Frank, Portfolio Recovery Associates, etc. What often happens is that purported debts are often bought and sold. The company suing you is alleging that they purchased an outstanding debt from the initial debt holder and are now trying to enforce the debt against you in litigation. If/when you are served with a lawsuit for an alleged past due debt, you must appear in court on the time designated therein. Failure to do so will result in a default judgment, meaning that the company will be entitled to the monetary compensation they are seeking and will usually begin taking steps to garnish and collect immediately. Do not let this happen. You should, instead, speak with an attorney about defending the matter.
A default judgment has been entered against me. What should I do? A default judgment occurs when you do not respond within the time specified by law and the plaintiff/petitioner is automatically award the relief they are seeking. Although it is a judgment, a default judgment may be set aside and nullified within a certain time frame under Missouri Law upon an adequate showing of cause. The long you wait the more difficult it becomes to set aside the default judgment. Further, at a certain time, the default can no longer be set aside; thus, it is imperative that you act swiftly.
What type of privacy claims are cognizable in Missouri courts? Invasion of Privacy — False Light; Invasion of Privacy — Intrusion upon Seclusion; and Invasion of Privacy — Publication of Private facts. Defamation is also a quasi-privacy claim in certain situations and may often overlap with false light invasion of privacy. These claims are nuanced and an attorney should be consulted to properly determine if these are feasible.
Are there any claims I can have against someone else for property damages, interference, or destruction? The principal civil claims that exist are trespass to chattels and conversion. Trespass to chattels is actionable when someone uses or intermeddles with your property; Missouri courts generally require that some damage to the property arise out of the use and intermeddling. Conversion is the much more common claim. If a third-party takes control of your property with an intent to exercise some control over it, then a conversion claim likely exists. Conversion claims are favored in Missouri because the plaintiff may be entitled to the fair market value of the property.
When does Fraud/Intentional Misrepresentation exist? Intentional misrepresentation consists of: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or his/her ignorance of the truth; (5) the speaker’s intent that his/her representation should be acted on by the hearer in the manner reasonable contemplated; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation being true; (8) the hearer’s right to rely thereon; and (9) the hearer’s proximately caused injury. This is very difficult to prove at times because of the number of things which need to be shown by the evidence, and the specific nature of what needs to be shown. While on the subject, negligent misrepresentation is a related claim, which is also difficult. Unlike intentional misrepresentation, negligent misrepresentation exists when a party has a duty to speak and to disclose, and fails to disclose material information.
When does Defamation or Injurious Falsehood occur? Defamation occurs when statements are published to third parties which are of or concerning the plaintiff, the statements are false, the declarants/speakers knew the statements were false, and the statements damaged plaintiff’s reputation. Slander is spoken defamation. Libel is written defamation. There are additional elements in a defamation claim if the plaintiff is a public figure. Injurious falsehood is similar to defamation, but instead of harm to reputation, the plaintiff must demonstrate that the harm sustained was in the form of pecuniary harm.
Should I appeal my case? The appeals process is very expensive an can usually take a year. The reason that it is expensive is because appeals are conducted primarily through legal briefing, as opposed to in person oral arguments at the trial level. There is no trial at the end; rather, the case is primarily handled through legal memoranda, and in more difficult cases, an oral argument in front of the court of appeals. Cases worth appealing are those which economically justify the cost of the appeal and have a reasonable likelihood of success.
How does the appeal process work? To start, if you’re wanting to appeal a small claims decision, you can do so by applying for a trial de novo in the county’s associate circuit court. This is basically a re-hearing. For associate and circuit court claims, you have to usually file a notice of appeal forty-five (45) days after a Judgment is entered. Within ninety (90) days after the notice of appeal is filed, the appellant must file the record on appeal in the court of appeals. The record of appeal consists of a transcript and/or legal file. Within sixty (60) days after the record on appeal is filed, the Appellant needs to file the appellate brief. The Respondent has thirty (30) days to file the Respondent’s brief. The Appellant, in turn, may file a reply brief. A decision from the court of appeals usually takes several months to be issued. It is not uncommon for the Court to set the matter for a settlement conference in an effort to have the parties reach a resolution before going through the entire appeal process.
What are my chances on appeal? It truly depends on the nature of the cases and the applicable standard of review in the court of appeals. It is infinitely easier to prevail in the court of appeals if there is an error of law in the trial court, as opposed to an error of fact or an abuse of discretion. Appeal courts need not defer to a trial court’s legal analysis, but they are very deferential to a trial court’s factual analysis and exercise of discretion.
What is a class action? When most people hear of a class action they think of a form they signed one year and then a check for $0.42 they receive 4 years later. Class actions are when a common pool of individuals have a similar grievance against the same defendant. The grievance has common fact questions a typical legal questions. Because of the extraordinary amount of people that are almost always involved in a class action, the case takes several years.
What county will my case be heard in? It depends on the nature and claims of the case. As a result of Missouri’s tort reform efforts in 2005, the Missouri venue statute’s biggest factor is whether the claim contains a tort. If any claim in the suit contains a tort, then the suit must be filed in the county where the plaintiff(s) first sustained the alleged injury. Claims involving non-torts are a little more flexible. Residency and domicile are usually used to determine venue in these types of cases.
Will my case be heard in small claims court, associate circuit court, or circuit court? The answer to this simply concerns the amount in controversy. Small claims courts relate to claims of $5,000 or less. Associate circuit courts are for claims of $5,000-$25,000. Circuit Court claims are for amounts in excess of $25,000. Small claims courts is very informal. You will have a very limited amount of time to present your side of the story (5-15 minutes), and the Judge will either rule on the spot or mail his/her decision to you a few weeks later. If you lose a small claims court decision, you can apply for a trial de novo in the associate circuit court. Associate circuit courts are more formal and have monthly docket calls. Courts, particularly Saint Louis County, make a conscious effort to expedite associate circuit court cases because of the amount of cases. Circuit cases do not typically have monthly docket calls. Generally, circuit court cases take the longest to resolve.