“Sub silentio” means “without notice being taken or without making a particular point of the matter in question.” Badahman v. Catering St. Louis, 395 S.W.3d 29, 49 fn 10 (Mo. 2013). This term is used to refer to the practice of appellate courts overturning cases without explicitly stating so. Although this is possible, it is…
General Remand versus Remand With Instructions
If an appeal is successful, then a court of appeals will often remand the case back to the trial court. To “remand” generally means to send something back. There are two types of remand: (1) a general remand and a (2) remand with instructions. A general remand provides no specific directions to the trial court…
Registration of Foreign Judgments in Missouri
Foreign judgments — those from any other state, federal court, or US territory — are entitled to full faith and credit in Missouri. Section 511.760.1, RSMo. To register a foreign judgment, there must be a petition along with an authenticated copy of the judgment, the date of its entry, and any other subsequent orders affecting…
Standing for Breach of Contract
“[O]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” Verni v. Cleveland Chiropractic Coll., 212 S.W.3d 150, 153 (Mo. 2007). It is difficult to prove that you are a third-party beneficiary. The reasoning for this high hurdle is that courts are reluctant to spread breach of…
Permissive Counterclaims
As a plaintiff, it is a good rule of thumb to expect a defendant to file a counter-lawsuit. Strategically, defendants employ counterclaims to put a plaintiff on the defensive and create risk for the plaintiff. Substantively, a counterclaim sometimes must be asserted or else it is lost/waived. Rule 55.32(a) requires a defendant to assert, as…
Reliance on Trust Instrument
A trustee who reasonably relies on the language of a trust is not liable for breach of trust if the breach resulted from the reliance. Section 456.10-1006, RSMo. A court may, for example, modify, reform, or construe the trust in a way that it deviates from the plain language of the trust. If this is…
Acquiescence & Claim-Splitting
Courts generally prohibit “claim-splitting.” Claim splitting occurs when a single cause of action is “split and filed or tried piecemeal.” G.B. v. Crossroads Acad.-Cent. St., 618 S.W.3d 581, 591 (Mo. Ct. App. 2020). When more than one lawsuit is filed, and the first results in a judgment, claims that could have been raised by the prevailing…
Material Breach, Substantial Performance
There’s a distinction between a breach of contract and a material breach of contract. Depending on the legal situation, the distinction is quite significant. For example, if a party first materially breaches the contract, the party may not be able to sue subsequently to enforce the contract. The reasoning is that if they don’t follow…
Guardianship and Conservatorship: Reasonable Choice?
When picking a guardian or conservator, the Court must appoint the must “suitable” person. The Court must also follow a hierarchy in making its choice. At the top of this list, the Court must consider “any eligible person nominated” by the allegedly incapacitated person, provided the person can “make and communicate a reasonable choice.” Section…
Pleading and Proving Intent, State of Mind
Some claims require proof of a person’s intent and state of mind. Unless someone admits to something, how do you get in there head and prove intent? For pleading purposes, “intent, knowledge and any other condition of mind of a person may be averred generally.” Rule 55.15. In an evidentiary context, “an admission of specific intent…