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Monthly Archives: August 2014

Judicial Estoppel

You can’t have your cake and eat it too. Like with Equitable Estoppel, Collateral Estoppel — Issue Preclusion, and Res Judicata — Claim Preclusion, judicial estoppel is a device designed to protect judicial integrity and resources. Generally speaking, judicial estoppel prevents parties from taking a position in one judicial proceeding, thereby obtaining benefits from that position […]

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Contracts: Condition Precedent

Contractual conditions precedent are not favored in Missouri law but sometimes rear their ugly head in a breach of contract dispute. A condition precedent is a condition that must be fulfilled before the duty to perform an existing contract arises. Bucheit v. Cape Toyota-Suzuki, Inc. 903 S.W.2d 644, 646 (Mo. Ct. App. 1995). Courts will interpret […]

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Default Judgments: Void, Set Aside

A default judgment occurs when a defendant is served with a lawsuit and fails to properly respond. The plaintiff automatically wins by default and usually receives the relief requested in the lawsuit. A default can be interlocutory (non-final and usually as to liability only) or a full default judgment (final as to liability and damages). Missouri […]

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Contracts: Force Majeure

Because contract law is primarily built on case precedent, it is quite vast. Therefore, there are several defenses that exist in a breach of contract action that, while not immediately apparent, are valid. For instance, a rare contractual defense may stem from the existence of a force majeure clause. A force majeure provision — or an escape […]

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Improper Gifts Durable Powers of Attorney

A power of attorney authorizes one person — an attorney in fact — to act on behalf of another person — a principal. When a power of attorney is “durable,” it exists even when the principal lacks legal capacity. Given this relationship, an attorney in fact owes fiduciary duties to the principal. In terms of the […]

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Contesting Validity of Revocable Trust: Time limitation

Like with Limitation Periods for Breach of Trust, the overhaul of the Missouri Uniform Trust Code also shed light on the precise limitations period in which a person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor’s/trust-maker’s death. Generally, under Section 456.6-604, a person must commence […]

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