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…
Legal Articles
Property Damage: Diminution in Value and Cost of Repair
When there is damage to real property, the ordinary way to calculate the damages is the diminution in value test. While circumstances causing damage can vary, it usually comes up in construction defect or repair cases. The “diminution in value test…is calculated by determining the difference between the fair market value before and after the…
Appellate Briefing, Points on Appeal
Appeals are technically and substantively complicated. With appeals, there is more of an emphasis on what the law is, whereas a trial court is often more focused on what factually occurred. The factual determinations made in the trial court are almost always binding on appeal. The legal effect of those facts are what is disputed…
Gratuitous Services & Family Relationship Defense
A “family relationship” is an affirmative defense to certain claims. It is rare. It can arise as a defense to claims of unjust enrichment, quantum meruit, or adverse possession. The defense is that services were rendered out of love and affection and that one was not necessarily trying to seek money. “The existence of a…
Work Product Protections
The “work product doctrine” is a defense to pretrial discovery. State ex rel. Malashock v. Jamison, 502 S.W.3d 618, 619-20 (Mo. 2016). It prohibits the disclosure of tangible and intangible work created or commission by counsel in preparation for possible litigation. Id. It consists of materials reflecting an attorney’s efforts at preparing a case — including but…
Registration of Foreign Judgments in Missouri
Foreign judgments — those from any other state, federal court, or US territory — are entitled to full faith and credit in Missouri. Section 511.760.1, RSMo. To register a foreign judgment, there must be a petition along with an authenticated copy of the judgment, the date of its entry, and any other subsequent orders affecting…
Statute of Limitations, Jury Question
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…
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…