When interpreting statutes, Courts follow certain rules or cannons of construction. Generally, the rule is to give effect to legislative intent as reflected in the plain language of the statute at issue. Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. 2009). There are “fancier” rules of interpretation depending on the situation….
“Transfers” Fraudulent Transfer Act
The fraudulent transfer act allows a creditor to unwind property transfers designed to defeat a creditor’s rights. “To set aside a transfer as fraudulent under the [Missouri Uniform Trust Act], it is necessary to show that the transfer was made with an intent to hinder, delay, or defraud creditors.” Birkenmeiner v. Keller Biomedical, LLC, 312…
Probate Exception to Federal Jurisdiction
There are two main ways for a lawsuit to end up in federal court. First, if the lawsuit “arises under” federal law. This is sometimes called federal question jurisdiction. Second, if there is diversity jurisdiction. There are, in turn, two main requirements for diversity jurisdiction: the amount in controversy must exceed $75,000 and all of…
Witness Sequestration Rule
“Witness sequestration” refers to a Court barring witnesses from the court room when a trial is being conducted. The purpose of the rule is two-fold: (1) it prevents a witness from “tailoring” testimony and it (2) aids in detecting testimony that is less than candid. Mitch Crawford Holiday Motors, 987 S.W.2d 359, 365 (Mo. App….
Facial versus As-Applied Challenges
A law is either facially unconstitutional or unconstitutional as-applied to a certain situation. There are significant differences in how the law treats these challenges. A facial challenge to constitutionality is more difficult than an as-applied challenge. With a facial challenge, the Court evaluates the law generally and determines if there should be a “complete invalidation…
Fee & Cost Statutes
Statutes often refer to awards of “costs” or “fees.” “Costs” and “fees,” however, are not synonymous. Smith v. City of St. Louis, 395 S.W.3d 20, 26 (Mo. 2013). Unless there is statutory authorization, or a contract calling for a shift of fees, litigants must generally bear their own attorney fees, win or lose. Clayton Terrace Subd….
Late Notice of Appeals
There is a limited of time to appeal a decision. In Missouri, it is usually ten days after a judgment becomes “final.” When a judgment becomes “final” also varies. There is an exception to the general appeal deadline. A party may seek a special order in the appellate court to file a late notice of…
Two Defendants, Claim Splitting
Claim-splitting often occurs when one party brings successive actions against the same defendant. It is prohibited. “Claims that could have been raised by a prevailing party in the first action are merged into, and are thus barred by, the first judgment.” Chesterfield Village v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. 2002). The reason for…
Statement of Uncontroverted Material Facts, Summary Judgment
Summary judgment procedures are rigid and must be followed. Perhaps the most important part of summary judgment practice is the uncontroverted material facts. This includes both the assertion of the facts and denials. As the Missouri Supreme Court has made clear, facts only come into the summary judgment record via Rule 74.04’s numbered paragraph procedure….
Property Damage: Diminution in Value and Cost of Repair
When there is damage to real property, the ordinary way to calculate the damages is the diminution in value test. While circumstances causing damage can vary, it usually comes up in construction defect or repair cases. The “diminution in value test…is calculated by determining the difference between the fair market value before and after the…