Case Elements & Standards of
Proof
Fraudulent Misrepresentation
1)
A false, material representation,
2)
The speaker’s knowledge of its falsity or his
ignorance of the truth,
3)
The speaker’s intent that the hearer act upon the
representation in a manner reasonably contemplated,
4)
The hearer’s ignorance of the falsity of the
representation,
5)
The hearer’s reliance on its truth,
6)
The hearer’s right to rely thereon, and
7)
The hearer’s consequent and proximately caused
injury.
Thoroughbred Ford, Inc. v. Ford Motor
Co., 908 S.W. 2d, 719, 731 (Mo.App.E.D.
1995).
Note: A
party cannot recover for fraudulent misrepresentation if
that party fails to establish any one of the required
elements. Id.
Dismissal Without
Prejudice
Generally, not a final
judgment and not appealable with
2 exceptions:
1)
Where the dismissal has the practical effect of
terminating the litigation in the form cast or in the
plaintiff’s chosen forum, or
2)
Where the dismissal may operate to preclude the party
from bringing another action for the same cause and may be
res
judicata of what the judgment actually decided.
Chromally
Am. Corp v. Elyria Foundry Co. 955 S.W.2d 1, 3 (Mo.banc
1997)
Summary Judgment
1)
Facts that negate any one of the plaintiff’s elements
facts,
2)
By showing that the plaintiff has not, and will not,
be able to produce sufficient evidence to show the existence
of any one of the plaintiff’s elements, or
3)
By showing there is no genuine dispute as to the
existence of each of the facts necessary to support a
properly-pleaded affirmative defense.
ITT Commercial
Finance v. Mid-Am. Marine, 854 S.W.2d 371, 381 (Mo.banc
1993).
Criminal Law
Elements for Stealing
1)
an appropriation;
2)
of property or services;
3)
of another;
4)
with the purpose to deprive the other thereof; and
5)
accomplished either
without the owner’s consent or by deceit or coercion.
Stat v. Chapman, 876 S.W.2d 15, 17
(Mo. App. E.D. 1994)
