Section 10 Burden of Proof and Standard of Review

• Library: Remedies 2006

At the trial court level, the burden of proof is on the party seeking cancellation or rescission to prove by “clear, cogent and convincing” evidence the right to maintain the suit, the invalidity of the instrument, and the right to relief. See:

• Davis v. Pitti, 472 S.W.2d 382, 387 (Mo. 1971)
• Peterein v. Peterein, 408 S.W.2d 809, 813 (Mo. 1966)
• Cull v. Pfeifer, 307 S.W.2d 424 (Mo. 1957)
• Hawkins v. Allison, 764 S.W.2d 719, 728 (Mo. App. S.D. 1989)
• Bolin v. Anders, 559 S.W.2d 235, 241 (Mo. App. W.D. 1977)
• Polette v. Williams, 496 S.W.2d 340, 342 (Mo. App. E.D. 1973)

Cancellation or rescission will be ordered only when clearly justified by a consideration of all the evidence and circumstances of the case. Martin v. Norton, 497 S.W.2d 164, 167 (Mo. 1973). And, even though such evidence is often circumstantial, substantial evidence is required beyond mere suspicion. In re Estate of Stanley, 655 S.W.2d 88, 91 (Mo. App. W.D. 1983).

If a party claims mistake, the court will presume that the party read and understood the document, and the presumption must be overcome by substantial evidence. Stringer v. Reed, 544 S.W.2d 69 (Mo. App. S.D. 1976).

In the context of an appeal, the standard of review on a court-tried claim for rescission is governed by the Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), standard, i.e., “the trial court’s judgment will be sustained unless there is no substantial evidence to support it; it is against the weight of the evidence; or it erroneously declares or applies the law.” Evergreen Nat’l Corp. v. Carr, 129 S.W.3d 492, 495 (Mo. App. S.D. 2004) (citing Murphy, 536 S.W.2d at 32; Droz v. Trump, 965 S.W.2d 436, 440 (Mo. App...