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Monthly Archives: December 2018

Declaratory Judgment to Challenge Revocable Living Trusts

The use of revocable living trusts in estate planning is extremely common. Along with the rise of their use, challenges to the validity of revocable living trusts have also risen. Trusts may be contested on a number of grounds, the most common of which are lack of capacity, undue influence, fraud or duress. These claims […]

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Offensive Collateral Estoppel

Collateral estoppel prevents the relitigation of any issues necessarily and unambiguously determined in a prior litigation from being relitigated again in a subsequent litigation. It can be used either defensively or offensively. When a defendant attempts to use collateral estoppel, he or she is saying that the plaintiff is precluded from arguing some claim because […]

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Contract Liability and Tort Liability

When there is a contract in play, often times there is confusion when a plaintiff is making a claim whether the claim is for breach of contract or for tort liability. Sometimes a plaintiff will assert both contract liability and tort liability (e.g., fraud, negligence) for failure to perform contract provisions. This is usually impermissible.  […]

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Guarantees: Interpretation, Breach

Personal guarantees or guarantees by another business are commonly required by lenders to provide additional safeguards for a loan.  In litigation, the same rules that apply to contract interpretation apply to guaranty interpretation. Royal Banks of Mo v. Fridkin, 819 S.W.2d 359, 361 (Mo. 1991). Specifically, the language of the guaranty is to be understood in […]

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Strategic Lawsuits Against Public Participation (SLAPP)

Missouri, like most states, has laws prohibiting and/or creating liability for strategic lawsuits against public participation (“SLAPP”).  Under Missouri’s Anti-SLAPP statute in Section 537.528, RSMo, an action seeking money damages against a person for conduct or speech occurring in connection with a public hearing or meeting is subject to special motions to dismiss, for judgment […]

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Real Estate Valuation, Experts

Sometimes it is necessary in real estate disputes to provide the value of real estate. Obviously, opinions and values can vary wildly. The “fair market value” of real estate is generally what a “willing buyer would pay in cash to a willing seller.” Labrayere v. Bohr Farms, LLC, 458 S.W.3d 319, 330 (Mo. 2015). An […]

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