When the statute of limitations expires, claims are time-barred. Different claims have different statutes of limitations. The running of the statute of limitations is an affirmative defense that must be pleaded. City of Ellisville v. Lohman, 972 S.W.2d 527, 530 (Mo. Ct. App. 198). The deadline usually starts running when damages become ascertainable. Failure to plead…
Legal Articles
Motions to Intervene, Final Judgments
In Missouri, a party can intervene in a lawsuit as of right or permissibly. Each has specific requirements. Only “final judgments” — those resolving all issues in a lawsuit — can be appealed. Motions to intervene can affect the finality of judgments in relation to appeals. Judgments do not rule on motions sub silentio. Howe v….
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…
Instructional Error Challenges, Disjunctive Jury Instructions
In jury trials, a challenge to the propriety of a jury instruction is a question of law. First State Bank of St. Charles, Missouri v. Frankel, 86 S.W.3d 161, 173 (Mo. Ct. App. 2002). On appeal, an appellate court will not reverse a jury verdict due to claimed instruction error — unless the error was…
Adequate Period of Time for Discovery, Summary Judgment
A summary judgment is essentially a trial without having to go through the “traditional” in-person trial process. It is typically entered for one party where based on certain undisputed facts that party is legally entitled to a judgment in his, her or its favor. Procedurally, however, a “motion for summary judgment should be denied, or…
“Aggrieved Party,” Appeals
Under Section 512.020, RSMo, a “party to any suit aggrieved by any judgment of any trial court in any civil action” may appeal. There are specific rules addressing what constitutes a final, appealable judgment, as well as specific rules address who is “aggrieved.” As to who is considered “aggrieved” for purposes of an appeal, a…
Unfair Competition
While not a common claim, “unfair competition” is a lawsuit and claim that may be brought in Missouri. “Unfair competition is a species of commercial hiking…[i]t aims to effect honesty among competitors by outlawing all attempts to trade on another’s reputation…it strives to protect the buying public from deception.” Better Business Bureau, etc. v Chappell,…
Not Supported by Substantial Evidence, Against the Weight of the Evidence
When appealing a trial decided by a judge (as opposed to a jury), an appeals court will usually only reverse the trial judge’s judgement if there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30,…
Rule 52.02(k) Guardian Ad Litem Suggestions
What happens when someone is physically or mentally infirm, does not have a guardian/conservator and is a party to a lawsuit? When someone does not have an attorney in litigation, he or she is held to the same standard as a licensed attorney. However, when a physical or mental infirmity exists, that may be impossible. …
Precatory Language
In the context of estates and civil litigation, precatory language is language requesting, recommending, or expressing a desire rather than a command. Precatory words can include “wish,” “will,” “will and desire” and “request.” Rouner v. Wise, 446 S.W.3d 242, 256 (Mo. 2014). In Missouri, courts are reluctant to find the existence of a trust when precatory…