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…
Statute of Limitations, Jury Question
When the statute of limitations expires, claims are time-barred. Different claims have different statutes of limitations. The running of the statute of limitations is an affirmative defense that must be pleaded. City of Ellisville v. Lohman, 972 S.W.2d 527, 530 (Mo. Ct. App. 198). The deadline usually starts running when damages become ascertainable. Failure to plead…
Motions to Intervene, Final Judgments
In Missouri, a party can intervene in a lawsuit as of right or permissibly. Each has specific requirements. Only “final judgments” — those resolving all issues in a lawsuit — can be appealed. Motions to intervene can affect the finality of judgments in relation to appeals. Judgments do not rule on motions sub silentio. Howe v….
Outbound and Inbound Forum Selection Clauses
A forum selection clause is where a contract picks the place where any disputes must be litigated. There are outbound and inbound clauses. An outbound clause provide for venue in a different state. An inbound clause provides for venue within Missouri, usually in a particular county. Missouri law favors forum selection clauses and presumes them…
Appealing Denial of Motion for Summary Judgment
A summary judgment is when one party prevails in a lawsuit without going through a trial. There are two general requirements. First, there must be no dispute over materials facts. Second, based on those undisputed material facts, one party must legally be entitled to judgment. When a motion for summary judgment is denied, a trial…
Breach of Trust, Sole Discretion
Fiduciary and trust litigation can be very complex. In certain trust instruments, a trustee is granted “sole discretion” to do certain things. This language, however, can be very misleading. Even when a trustee is granted “sole discretion,” a trustee may be liable if the trustee willfully abuses his discretion, acts arbitrarily, fraudulently, dishonestly, or with…
Waiver Defenses
“Waiver” is a common defense raised in many civil lawsuits. It generally, however, has fairly precise requirements. Specifically, it requires an “intentional relinquishment or abandonment of a known right or privilege, and no one can be bound by waiver unless it was made with full knowledge of the rights intended to be waived.” Fed. Nat’l…
Prima Facie Tort
The “prima facie tort” claim is incredibly vague and confusing. It has four elements: (1) an intentional, lawful act by the defendant; (2) an intent to cause injury to the plaintiff; (3) injury to the plaintiff; and (4) absence of any justification or an insufficient justification for the defendant’s act. Porter v. Crawford & Co.,…
Proving Intent
It is difficult to prove intent, knowledge, and any other condition of mind. The reason is that litigants rarely admit to things. Likewise, direct evidence is often rare. In the context of a plaintiff pleading a lawsuit, “intent…and any other condition of mind may be averred generally.” Clark v. Olson, 726 S.W.2d 718, 719 (Mo….
Contracts, Agreements to Agree
Breach of contract requires: (1) existence and terms of a contract, (2) plaintiff fully performed under the contract, (3) breach by defendant, and (4) damages. Keveney v. Missouri Military Academy, 304 S.W.3d 98, 104 (Mo. 2010). To prove the existence and terms of a contract, there must be: (1) competency of the parties to contract;…