Negligence has four elements: (1) a legal duty of the defendant to protect the plaintiff from injury, (2) breach, (3) proximate cause, and (4) injury. Pendergist v. Pendergrass, 961 S.W.2d 919, 923 (Mo. App. W.D. 1998). “Duty is unique among the elements of negligence because the existence of duty is a question of law to…
Relation Back Doctrine
The relation-back doctrine involves both the statute of limitations and the amendment of a lawsuit. To be viable, any lawsuit must be timely filed within the applicable statute of limitations. “Statutes of limitation were never intended to be used as swords. Rather, they are shields, primarily designed to assure fairness to defendants by prohibiting stale…
Judicial Immunity
Missouri and federal courts recognize judicial immunity. Judicial immunity exempts conduct from civil or criminal liability. It is “conduct which is intimately associated with the judicial phase of the judicial process.” White v. Camden Cnty. Sheriff’s Dept, 106 S.W.3d 626, 633 (Mo. Ct. App. 2003). The defense may be invoked by individuals who are not…
Trust Interpretation, Litigation
When interpreting trusts, there are a number of guidelines to keep in mind. The Grantor’s intent – and the specific language utilized – are paramount when interpreting a trust. Matter of TR Potter, Jr. Exempt Trust, 593 S.W.3d 556, 562 (Mo. App. E.D. 2019). In carrying out this objective, the trust instrument is interpreted as a…
Diversity Jurisdiction, Measuring $75,000
One of the ways to get to federal court is if there is diversity jurisdiction. This requires (1) complete diversity of citizenship of the adverse parties and an amount in controversy exceeding $75,000. Lee v. Airgas MidSouth, Inc., 793 F.3d 894, 899 (8th Cir. 2015); 28 U.S.C. § 1332(a). Many lawsuits, however, are coy on whether the…
Discovery Sanctions, Striking of Pleadings
In many civil litigation disputes — particularly factually complex cases — pre-trial discovery is cumbersome. Discovery is the fact-finding process (eg, depositions, interrogatories, requests for production, etc.) in a lawsuit. A lot of gamesmanship and dilatory tactics occur in discovery. In Missouri, “[a] trial court has an obligation to ensure that discovery rules are followed and…
Reimbursement for Trustee Expenses, Unjust Enrichment
A trustee is typically entitled to reimbursement for expenses the trustee advances for the trust. Section 456.7-709, RSMo. Reimbursement is available for “expenses that were properly incurred in the administration of the trust.” Further, to the extent necessary to prevent unjust enrichment, expenses that were not properly incurred in the administration of the trust are…
Peremptory Challenges: Jury Selection
Jury selection is more aptly described as jury elimination. Jurors are struck or eliminated and the remaining jurors often become the jury. The overall purpose of jury selection is to “discover bias or prejudice in order to select a fair and impartial jury.” State v. Leisure, 749 S.W.2d 366, 373 (Mo. 1988). A potential juror…
Statutory Interpretation, Canons of Construction
Statutes are laws passed by the legislature. They often directly affect a given lawsuit. Statutes, however, are often unclear or subject to debate. “The primary rule of statutory interpretation is to effectuate legislative intent through reference to the plain and ordinary meaning of the statutory language.” Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. 2013). “When…
Shareholder Oppression, Corporate Litigation
Under Section 351.494, RSMo, a Court may dissolve a corporation where there is illegality, oppressive conduct, or fraudulent conduct. “Dissolution” — the termination and winding down of a corporation — is considered a drastic remedy. Struckhoff v. Echo Ridge Farm, Inc., 833 S.W.2d 463, 466 (Mo. App. E.D. 1992). Shareholder must be proven by the…