Certain third-party beneficiaries to a contract may sue for breach of contract. This is true even though they are not a signer to the contract. There are three types: donee, creditor, and incidental. Donee and creditor beneficiaries may sue as a third-party for breach of contract, but incidental beneficiaries cannot. There are certain situations when…
Gratuitous Services & Family Relationship Defense
A “family relationship” is an affirmative defense to certain claims. It is rare. It can arise as a defense to claims of unjust enrichment, quantum meruit, or adverse possession. The defense is that services were rendered out of love and affection and that one was not necessarily trying to seek money. “The existence of a…
Amendments to Conform to Evidence
It is common to amend pleadings. The purpose of pleadings are to define the factual and legal issues that are being tried. Generally, judgments which exceed the scope of the claims in a lawsuit and pleadings are improper. Sometimes pleadings may be amended to conform to the evidence presented at trial. Rule 55.33(b) allows the…
LLCs: Personal Use of LLC Property
Limited Liability Companies are perhaps the dominant business entity. They are easy to form and easy to manage. Often times they are manager-managed, which means that managers supervise and control the operations of the company. Managers of a LLC generally owe fiduciary duties to the LLC’s owners/members, subject to the terms of the LLC’s operating…
Explicit and Implicit Credibility
When arguing cases on appeal, it is virtually impossible to overturn a credibility determination made in the lower court. Indeed, appellate courts “defer to the trial court’s credibility determinations.” Federal Nat. Mortg. Ass’n v. Wilson, 409 S.W.3d 490, 494 (Mo. Ct. App. 2013). The reason for this deference is that lower courts in a better position…
Making of a Contract, Long-Arm Statute
Missouri can often (but not always) hear disputes about contracts made within Missouri. Section 506.500, RSMo. Specifically, Missouri’s “long-arm” statute permits the exercise of jurisdiction when the dispute relates to the “making of any contract within this state.” Id. The exercise of jurisdiction must also meet certain federal constitutional requirements. When is a contract made within this…
Work Product Protections
The “work product doctrine” is a defense to pretrial discovery. State ex rel. Malashock v. Jamison, 502 S.W.3d 618, 619-20 (Mo. 2016). It prohibits the disclosure of tangible and intangible work created or commission by counsel in preparation for possible litigation. Id. It consists of materials reflecting an attorney’s efforts at preparing a case — including but…
Sub Silentio Opinions, Appeals
“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…