“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…
Legal Articles
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….
Improvement Reimbursements
Joint tenants may bring a partition action for real estate. Clark v. Dady, 131 S.W.3d 382, 386 (Mo. Ct. App. 2004). The property can be sold where partition in kind cannot be “made without great prejudice to the parties.” Id. (citing Rule 96.18 and §528.620, RSMo). From the sale proceeds, parties are entitled to reimbursement…
Constructive Trusts, Specific Property
A constructive trust is not a cause of action. It is a remedy. Specifically, it is a remedy in cases where one who has acquired property under such circumstances as make it inequitable for him to retain it by making him or her a trustee for the person(s) injured. Ralls County Mut. Ins. Co. v….
Leading Questions
A “leading question” is generally one which suggests its own answer. They usually only are permitted on cross-examination. However, whether to allow the use of leading questions otherwise — like on direct examination — is up to the trial judge’s discretion. King v. Copp Trucking, Inc., 853 S.W.2d 304, 309 (Mo. Ct. App. 1993). Even…
Common Fund Exception
The general rule (i.e., the “American Rule”) is that a party to a lawsuit cannot recover attorney fees. This is true even if the party wins the lawsuit. A narrow exception to this rule is the common fund exception. Under this common fund exception to the American Rule, a litigant may recover attorney fees where…
Appeal of Consent Judgments
A consent judgment is where all parties to a lawsuit agree to a judgment that the Court signs and executes. It is not a determination of rights. It is, instead, a recital of an agreement, and thus not ordinarily appealable. Rosemann v. Roto-Die Co., Inc., 947 S.W.2d 507, 510 (Mo. Ct. App. 1997). The only…
Legal Presumptions
Legal presumptions are generally procedural. Michler v. Krey Packing Co., 253 S.W.2d 136, 140 (Mo. 1952). They are usually evidentiary devices used in criminal and civil cases. Tupper v. City of St. Louis, 468 S.W.3d 360, 370 (Mo. 2015). They place the burden upon the party denying their truth to produce evidence. Id.“[T]he facts which…
Evidence: Lack of Foundation
Whether it be at a deposition or at trial, objections for “lack of foundation” are one of the more common objections. But what does it mean? An objection based on lack of foundation usually means that the evidence or document lacks authentication, identification, logical relevance, or legal relevance. Kappel v. Prater, 599 S.W.3d 196 fn…