Failure to State a Claim, Appeals

A lawsuit fails to state a claim when assuming all of its ultimate factual allegations are true a plaintiff still fails. The argument that a lawsuit fails to state a claim is waivable. Before 2012, a failure to state a claim argument could be raised for the first time on appeal. After 2012, the defense must now be asserted in the trial court. Without asserting a failure to state a claim argument, it is waived. Main v. Farris, 561 S.W.3d 104, 106 (Mo. App. S.D. 2018) “due to the amendment of Rule 55.27(g), the defense of failure to state a claim is waived when not presented to the trial court and cannot be raised for the first time on appeal”). So, it is now more common to see answers to lawsuit assert, without any details, that a petition fails to state a claim.

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