“Sub silentio” means “without notice being taken or without making a particular point of the matter in question.” Badahman v. Catering St. Louis, 395 S.W.3d 29, 49 fn 10 (Mo. 2013). This term is used to refer to the practice of appellate courts overturning cases without explicitly stating so. Although this is possible, it is…
Legal Articles
General Remand versus Remand With Instructions
If an appeal is successful, then a court of appeals will often remand the case back to the trial court. To “remand” generally means to send something back. There are two types of remand: (1) a general remand and a (2) remand with instructions. A general remand provides no specific directions to the trial court…
Acquiescence & Claim-Splitting
Courts generally prohibit “claim-splitting.” Claim splitting occurs when a single cause of action is “split and filed or tried piecemeal.” G.B. v. Crossroads Acad.-Cent. St., 618 S.W.3d 581, 591 (Mo. Ct. App. 2020). When more than one lawsuit is filed, and the first results in a judgment, claims that could have been raised by the prevailing…
Material Breach, Substantial Performance
There’s a distinction between a breach of contract and a material breach of contract. Depending on the legal situation, the distinction is quite significant. For example, if a party first materially breaches the contract, the party may not be able to sue subsequently to enforce the contract. The reasoning is that if they don’t follow…
Outbound and Inbound Forum Selection Clauses
A forum selection clause is where a contract picks the place where any disputes must be litigated. There are outbound and inbound clauses. An outbound clause provide for venue in a different state. An inbound clause provides for venue within Missouri, usually in a particular county. Missouri law favors forum selection clauses and presumes them…
Appealing Denial of Motion for Summary Judgment
A summary judgment is when one party prevails in a lawsuit without going through a trial. There are two general requirements. First, there must be no dispute over materials facts. Second, based on those undisputed material facts, one party must legally be entitled to judgment. When a motion for summary judgment is denied, a trial…
Prima Facie Tort
The “prima facie tort” claim is incredibly vague and confusing. It has four elements: (1) an intentional, lawful act by the defendant; (2) an intent to cause injury to the plaintiff; (3) injury to the plaintiff; and (4) absence of any justification or an insufficient justification for the defendant’s act. Porter v. Crawford & Co.,…
Proving Intent
It is difficult to prove intent, knowledge, and any other condition of mind. The reason is that litigants rarely admit to things. Likewise, direct evidence is often rare. In the context of a plaintiff pleading a lawsuit, “intent…and any other condition of mind may be averred generally.” Clark v. Olson, 726 S.W.2d 718, 719 (Mo….
Contract: Time for Performance
Written contracts often include precise language covering when certain acts must be done. For example, contracts often include provisions as to when payment should be made and when parties are obligated to perform their contractual duties. What happens when a contract is silent on timing? When a contract does not specify a time for performance,…
Constructive Trusts, Specific Property
A constructive trust is not a cause of action. It is a remedy. Specifically, it is a remedy in cases where one who has acquired property under such circumstances as make it inequitable for him to retain it by making him or her a trustee for the person(s) injured. Ralls County Mut. Ins. Co. v….