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…
Unfair Prejudice, Evidence
Evidence is inadmissible if it is “unfairly prejudicial.” Stated differently, if the “prejudicial effect substantially outweighs the probative value, the evidence is unfairly prejudicial…and must be excluded.” Shallow v. Follwell, 554 S.W.3d 878, 885 (Mo. 2018). When is evidence “prejudicial”? “Evidence is prejudicial if it tends to lead the jury to decide the case on some basis…
Avoidances: Affirmative Defense to an Affirmative Defense
In civil litigation, defendants often plead affirmative defenses. An affirmative defenses is an additional fact which, if true, defeats a plaintiff’s claim. For example, the statute of limitations is an affirmative defense. A plaintiff may allege, then, that because plaintiff’s claim is untimely the lawsuit fails. The most meritorious claim in the world will be…
Statutory Interpretation Canons
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…