When appealing a judgment in Missouri, the appealing part must demonstrate that he or she raised the relevant issues before the trial court. Indeed, “[a]n issue that was never presented to or decided by the trial court is not preserved for appellate review.” State v. Davis, 348 S.W.3d 768, 770 (Mo. 2011). The reasoning for this…
Legal Articles
Anticipatory Breach by Repudation
A breach of contract occurs when a party fails to adhere to the requirements of a contract. Missouri recognizes the concept of anticipatory breach of contract by repudiation. An anticipatory breach is the equivalent of an actual breach of contract. TDV Transp., Inc. v. Keel, 966 S.W.2d 347, 349 (Mo. App. E.D. 1998). Generally, to establish…
Trustee Abuse of Discretion Factors
Increasingly, trust instruments grant trustees “discretion” to do certain acts. Drafters include this language to account for unanticipated circumstances and make a trustee’s life easier. But even where a trustee has discretion, they can act improperly. “A grant of absolute discretion to a trustee is not a roving commission – the trustee must be guided…
Adequate Remedy at Law, Declaratory Judgments
Declaratory relief is not a “general panacea for all real and imaginary ills.” Missouri Soybean v. Missouri Clean Water, 102 S.W.3d 10, 25 (Mo. 2003). “It is not available to adjudicate hypothetical or speculative situations that may never come to pass.” Id. There are four elements: (1) a justiciable controversy that presents a real, substantial,…
Curative and Cautionary Instructions
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…
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…