In jury trials, attorneys will sometimes push the envelope and saying something legally improper that should not be considered by a jury. It is not uncommon for the judge to issue a curative or cautionary instruction asking the jury to disregard the objectional material. Cautionary or curative instructions are accepted and well-respected in Missouri. French…
Legal Articles
Motions for Judgment on the Pleadings
Though they are not nearly as common as “ordinary” motions to dismiss or a motion for summary judgment, motions for judgments on the pleadings are occasionally filed. They usually only occur when a party admits certain facts in the pleadings and those admissions are conclusive. Under Rule 55.27(b), any party may move for a judgment…
Punitive Damages in Breach of Contract Cases
Punitive damages are “imposed for the purpose of punishment and deterrence.” Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. 1996). As a general matter, punitive damages may not be awarded to a plaintiff in a breach of contract case. Peterson v. Continental Boiler Works, Inc., 783 S.W.2d 896, 902 (Mo. 1996). But there…
Reasonable Reliance: Fraud and Intentional Misrepresentation
Fraud has nine (9) elements. A plaintiff’s failure to establish any of these elements is fatal to the claim. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. 1988). Reliance is one of the nine elements of fraud, and thus a plaintiff cannot prevail on a fraud claim unless he or she proves that…
Credit and Offset Affirmative Defense
“Credits and offsets are affirmative defenses” to a lawsuit asking for damages. Echols v. City of Riverside, 332 S.W.3d 207, 210 (Mo. Ct. App. 2010). In other words, it is a request by a defendant to minimize the amount of damages being requested by a plaintiff. By way of example, if a plaintiff stands to…
Personal Guaranty, Separate Consideration
A personal guaranty is a type of document in which a guarantor agrees to become secondarily liable for the obligation of a principal debtor if the principal debtor does not perform its obligations. Jamieson-Chippewa Inv. Co., Inc. v. McClintock, 996 S.W.2d 84, 87 (Mo. Ct. App. 1999). The liability of a guarantor is strictly construed…
Offensive Collateral Estoppel
Collateral estoppel prevents the relitigation of any issues necessarily and unambiguously determined in a prior litigation from being relitigated again in a subsequent litigation. It can be used either defensively or offensively. When a defendant attempts to use collateral estoppel, he or she is saying that the plaintiff is precluded from arguing some claim because…
Jointly Owned Bank Accounts; Joint Tenancy
Joint ownership of bank accounts — i.e., where more than one person is designated as an owner — is a common form of ownership. It is usually done out of convenience or as a basic form of estate planning to ensure that any funds in the jointly owned bank account pass to a surviving co-owner….
Contract Liability and Tort Liability
When there is a contract in play, often times there is confusion when a plaintiff is making a claim whether the claim is for breach of contract or for tort liability. Sometimes a plaintiff will assert both contract liability and tort liability (e.g., fraud, negligence) for failure to perform contract provisions. This is usually impermissible. …