Bringing a civil appeal lawsuit can be risky business. A majority of the cases, about 90%, taken up on appeal are affirmed – that is, the outcome is not changed.

Jayson Lenox and Scott Simpson, of Niedner Law Firm in St. Charles, MO, recently represented a client in an appeal to a successful reversal.

Rollin Moershel owned, with two other gentlemen, stake in a piece of real estate in St. Charles, Missouri. When Mr. Moershel died, his widow – Jane Moerschel – was entitled to a cash payout of 20% of the value of that piece of real estate.

The two remaining owners wanted to pay as little as possible to Mrs. Moershel and tried to convince the court that the appraised value of the building was not its “actual value”. The effect of their argument was to try to keep from Mrs. Moershel $45,000 they owed her.

This $45,000 was important to Mrs. Moershel because the buyout arrangement with the other two owners was to be a form of life insurance for her. When Rollin was alive, he was entitled to receive a portion of the building’s monthly rent. This rent acted as a part of his income stream during retirement.

Mr. Moershel knew that income stream would be cut off when he died. Therefore he wanted to be sure his wife would receive the fair value of his part of building when he died – for her to live on.

Mr. Lenox and Mr. Simpson represented Mrs. Moershel in successfully appealing the original ruling and making sure she received the money she was owed and that her husband had invested for her while he was alive.

The Missouri Court of Appeals

The Missouri Court of Appeals, Eastern District, ruled in favor of Mrs. Moershel, and instructed the original trial to amend their judgment. This ruling was perfect for Mrs. Moershel. Not only will she now receive the funds she is rightfully owed, but she does not have to go back to the original trial court and spend more money and time in a new case.

This outcome puts the issue to rest in favor of Mrs. Moershel.

If you need an attorney to represent you in a civil appeal lawsuit, contact Jayson Lenox or Scott Simpson of Niedner, Bodeux, Carmichael, Huff, Lenox and Pashos in St. Charles, Missouri.

There are important items to consider in filing a medical malpractice case. First, under Missouri law you must have a written opinion from a healthcare provider that the doctor or healthcare provider was negligent and that the negligence caused damage to the patient. There are many doctors who are willing to review cases on behalf of injured parties, but this must be accomplished at or near the time that your lawsuit is filed.

Medical malpractice cases are hot button items in the sense that the law restricts the amount of damages you can recover for non-economic issues. Typically, this is considered to be pain and suffering. There are no limitations on the awards for economic damages such as past and future medical bills and lost wages.

Medical malpractice cases are complex cases and they are generally handled on a contingent fee basis. In addition to the contingent fees, there are the costs of the lawsuit itself which involve the amounts paid to the doctors that testify on behalf of the patient as well as other medical exhibits that are used to explain your case to a jury.

To learn more about medical malpractice in in St. Charles County, St. Louis County, Lincoln County and Warren County, Missouri, contact the law firm of Niedner, Bodeux, Carmichael, Huff, Lenox & Pashos L.L.P. toll free at 1.888.572.2192.

Photo Attribution

The federal Volunteer Protection Act (VPA) grants civil immunity to a volunteer who harms a person while performing services for a nonprofit organization or governmental entity. However, the VPA does not grant immunity to the nonprofit organization or governmental entity. Therefore, the VPA does not prohibit the person who has been harmed by the volunteer from filing a lawsuit against the organization or entity.

Liability of Volunteers to Nonprofit Organizations and Governmental Entities

The VPA does not prohibit a lawsuit against a volunteer by a nonprofit organization or governmental entity. The VPA only applies to lawsuits against a volunteer by a person who has been harmed by the volunteer while the volunteer was performing services for a nonprofit organization or governmental entity.

There are four well-established types of lawsuits for invasion of privacy: appropriation; false light; intrusion; and disclosure. In most states, the rights under these lawsuits are personal. Most end when a person dies, and they do not apply to corporations and other legal entities.

This article discusses the invasion of privacy lawsuit known as disclosure or the public disclosure of private facts.

Your Private Matters Disclosed

People have a general right to freedom from having their private matters disclosed to the public without their consent. Disclosure is defined as revealing private facts that are not matters of legitimate public concern. A disclosure lawsuit is for unreasonably revealing private facts about a person that are not matters of legitimate public concern. One classic example is where, without the consent of the person involved, someone publishes pictures of two people making love in the “privacy” of their own bedroom.

The Elements of Disclosure

The basic elements of disclosure are (1) unreasonably, either intentionally or negligently, (2) revealing private facts about the plaintiff that are not matters of legitimate public concern. Because of the law of standing, generally only the person whose private fact have been disclosed, or his or her guardian, can bring the lawsuit. Special damages and punitive damages, if any, must also be proven.

Defenses to Disclosure

The defendant in a disclosure can challenge the plaintiff’s proof of the basic elements of intrusion. For example, the defendant may be able to show that the facts that the defendant disclosed were matters of legitimate public concern.

After a person becomes a public official or public figure, many of the matters of that person which would otherwise be private, become matters of legitimate public concern. In Sidis v. F-R Publishing Corp., for example, the defendant published an article recounting that the plaintiff, a famous child prodigy, had become an eccentric recluse Although the disclosure of the plaintiff’s whereabouts and activities disturbed the plaintiff, the court ruled in favor of the defendant. The court ruled that the defendant had not disclosed any details about the plaintiff’s life to which a normal person could reasonably object.

A common defense to invasion of privacy is consent, express or implied. A person who accepts money or other considerations in exchange for the invasion of privacy is said to have sold his or her “rights.” Also, some defendants, such as prosecutors, have immunity if they are acting within the scope of their authority.

Privacy is the general right to be left alone and free from unwanted publicity. There are four well-established lawsuits for invasion of privacy: appropriation, false light, intrusion, and disclosure. This article gives examples of appropriation lawsuits. Appropriation is defined as the use of a person’s name, likeness, or personality for the benefit of another. Defenses include that the matter is public or that the person who’s privacy was invaded gave consent.

Flake v. Greensboro News Co.

In this case, the first defendant mistakenly put a photograph of the plaintiff in her bathing suit in the second defendant’s advertisement. The court declared that “the unauthorized use of one’s photograph in connection with an advertisement or other commercial enterprise gives rise to a cause of action.” The court ruled that the plaintiff could recover nominal damages if she could not prove actual damages.

Hinish v. Meier & Frank Co.

In this case, the defendant used the plaintiff’s name in a telegram to a governor urging the governor to veto a bill. The use of the plaintiff’s name was in a matter of politics, not a commercial situation, but that did not stop the court from ruling that the defendant had wrongfully appropriated the plaintiff’s name.

“Selleck v. Rolling Rock”

Based on changes made in advertisements for Rolling Rock beer, an invasion of privacy lawsuit may have been threatened by actor Tom Selleck, star of the television series “Magnum, P.I.” Apparently knowing that a celebrity may sue a brewery advertiser for using the celebrity’s voice in a radio advertisement for beer, the advertisers of Rolling Rock apparently hired Joe Garvey to narrate Rolling Rock advertisements. Interestingly, Joe Garvey’s voice was very similar to Tom Selleck’s voice. Again, based on changes made in the advertisements, Tom Selleck apparently reached an agreement with the advertisers of Rolling Rock that Joe Garvey would clearly identify himself in each advertisement for Rolling Rock beer.

A power of attorney is a legal document in which a person (called the principal) delegates legal authority to another person (called the agent). The power of attorney gives the agent authority to make decisions for the principal in financial, property, and legal matters. Most states specify the proper legal form for a power of attorney, and some legislatures have approved statutory forms for powers of attorney. Generally the principal’s signature on a power of attorney form must be witnessed by a Notary Public.

Are there different types of powers of attorney?

There are three basic types of powers of attorney: nondurable, durable, and springing. A nondurable power of attorney is a power of attorney given to an agent to handle a specific transaction, such as the sale of real estate. A durable power of attorney permits the agent to act on behalf of the principal until the principal revokes the power or until the principal’s death. Durable powers of attorney continue in effect even if the principal becomes incompetent (unable to conduct his or her own affairs). A springing power of attorney becomes effective at a future date when a specific event occurs, such as the principal’s illness or disability. A springing power of attorney is effective until the principal’s death or until it is revoked by a court.

Who should be appointed as agent under a power of attorney?

Under a power of attorney, the agent has legal authority to act on behalf of the principal regarding the principal’s personal and financial affairs. Consequently, a trustworthy person should be selected to serve as agent. Generally, the best choices for agents are a close family member, a trusted friend, or a professional.

Can multiple agents be appointed?

It is possible to appoint multiple agents. The principal can require the agents to act jointly in making any decisions involving the principal’s affairs or can permit them to act separately.

What is the agent’s legal authority under a power of attorney?

The principal can continue to act while legally competent to make decisions, and the agent can only perform the duties specified by the principal. Under a power of attorney, the agent may be given legal authority to buy or sell the principal’s real estate, manage the principal’s property, and handle the principal’s bank accounts. The agent can also make gifts on behalf of the principal, deal with the principal’s tax issues, make legal claims, and supervise litigation.

What are the agent’s duties to the principal?

The agent is the representative of the principal and is required to act in the best interest of the principal. The agent is a fiduciary of the principal and must maintain standards of honesty, loyalty, and fairness to the principal. The agent must keep the principal’s property separate from the agent’s own property and must maintain separate bank accounts for the principal’s assets. The agent is also required to keep financial records of any activity on behalf of the principal and to provide an accounting of the principal’s property.

Is it possible to revoke a power of attorney?

The principal can revoke a power of attorney at any time by informing the agent of the revocation in writing. A power of attorney also can be revoked if the agent fails to act in the best interest of the principal.

In a lawsuit, both the plaintiff (the party suing) and the defendant (the party being sued) introduce evidence during the trial. Evidence refers to something submitted to the court to prove or disprove the truth of a factual matter being considered by the court. A case is decided using the evidence made available to the court.

Purpose and Construction of Federal Rules of Evidence

The goals of the Federal Rules of Evidence are to ascertain the truth and provide just determinations of legal disputes. The Federal Rules are to be construed to assure fairness in the administration of justice, reduce expenses, and eliminate delay.

Admissibility of Evidence

The Federal Rules of Evidence are the rules by which courts determine what evidence is admissible at federal court proceedings. There are four types of evidence: real (for example, a written contract in a civil trial or a murder weapon in a criminal trial), demonstrative (such as exhibits, photographs, maps), documentary (public records or other writings), and testimonial (a witness’s testimony at trial). The Federal Rules control what evidence can be admitted at trial. Generally, all evidence that is relevant (tends to prove or disprove the factual matter at issue) is admissible at trial.

Witness Testimony

The Federal Rules specify the proper form of examining and cross-examining a witness. The rules also provide for the testimony of expert witnesses.

Evidentiary Privileges

The Federal Rules of Evidence cover matters such as evidentiary privileges. An evidentiary privilege provides that a confidential communication made by a person in a protected relationship (such as a client to an attorney or a husband to a wife) does not have to be revealed in a lawsuit.

Hearsay

As a general rule, a statement made by a person out of court, which is being repeated by another person in court to prove the truth of the statement, is hearsay and will not be admitted by the judge. Such statements are considered unreliable because they are secondhand. There are various exceptions to the general rule that hearsay evidence is not admissible. The following are some exceptions to the rule against hearsay: dying declarations, declarations against interest, business records, spontaneous statements, certain public records, and prior testimony from a trial or deposition.

Burden of Proof and Burden of Persuasion

Other key provisions of the Federal Rules cover which party has the burden of proof or burden of producing evidence on a particular matter. The rules also specify which party has the burden of persuading the court or jury.

The U.S. Congress passed a law authorizing the Supreme Court of the United States to adopt rules of practice and procedure for federal court proceedings. Congress also created a body called the Judicial Conference of the United States to administer the federal courts. The Judicial Conference has authority to make recommendations to the Supreme Court for amendments or changes to the rules. Proposed amendments are published, and the general public is allowed to comment on the proposals. The Judicial Conference then submits final recommendations to the Supreme Court. By law, any rules or amendments adopted by the Supreme Court are subject to Congressional review. If Congress fails to take action on the rules within seven months, the rules or amendments automatically become law.

Adoption of Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure first took effect in 1946. They govern the practice and procedure in all criminal proceedings in the federal court system. The goal of the rules is to assure the just determination of all criminal proceedings. The rules specify that they are to be interpreted to afford simplicity in procedure and fairness in administration. The rules are intended to prevent unnecessary delay and expense. The Federal Rules of Criminal Procedure have been amended several times.

Procedural Rules Must Be Nonsubstantive

Rules of procedure may not reduce, enlarge, or modify any substantive right. A rule of procedure that amends or expands a substantive right is considered void.

Provisions of the Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure cover preliminary proceedings in criminal matters, including the filing of criminal complaints, the issuance of arrest warrants, and the initial appearances before the magistrate judge. The rules also deal with indictments by the grand jury and arraignments, pleas, defenses, and pretrial discovery. The Federal Rules of Criminal Procedures specify where the trial should take place and provide for transfer of the case in certain circumstances. The rules also regulate the proceedings at trial and at sentencing. Post-trial motions, such as a motion for a new trial, and a motion to correct or reduce the sentence, are allowed after judgment.

Local Procedural Rules

Local federal courts have authority to adopt procedural rules that regulate their own criminal proceedings. However, any local court rule must be consistent with the Federal Rules of Criminal Procedure.

The Freedom of Information Act (FOIA) is a federal law that was passed in 1966. It ensures government openness and accountability. The FOIA gives a person access to federal agency records. However, agencies are allowed (but not required) to withhold records that fall within nine categories.

What categories of information are exempt under the FOIA?

The FOIA exempts nine categories of information from disclosure:

1. Classified records, whose release would “damage” national security.
2. Internal agency records that relate to personnel rules and practices and to internal “insider” information, such as law enforcement manuals and computer security codes.
3. Agency records that are exempt by law from disclosure.
4. Trade secrets, commercial information, and financial information if disclosure would cause competitive harm to a company.
5. Material that is normally privileged in civil litigation, including agency memoranda or letters.
6. Individual personnel and medical records in order to protect personal privacy.
7. Law enforcement records.
8. Bank records.
9. Oil and gas well information.

What is the procedure for making a FOIA request?

The FOIA requires a person to submit a written request for the release of agency records. After the request is made, the agency must either release the documents promptly or show that they are covered by one of the FOIA exemptions. The agency may charge a reasonable fee for providing the requested documents. However, some individuals or groups may be entitled to reduced fees or fee waivers. Agencies cannot charge media representatives any costs for agency searches of records.

Expedited Review

An expedited review is available if a person has an urgent need for the information, such as information that relates to a health or safety issue. Agencies may also grant expedited review in special circumstances. For example, the Department of Justice grants expedited review if a delay might result in the loss of substantial due process rights.

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