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Category: Business, Corporate

Trial Continuances

To obtain a continuance and/or delay of a trial setting in Missouri, a party needs to comply with Rule 65.03. This requires, among other things, that the request be accompanied by the affidavit of the movant or some other credible person setting forth the facts upon which the request for continuance is based. The grant […]

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Breach of Contract Damages: Future Lost Profits

A plaintiff needs to show damages to prevail on a breach of contract claim. In many contracts, and often in business contracts, future lost profits will wholly or partially form the basis of a damages request. To obtain lost profits, a plaintiff needs to prove the facts of damages with reasonable certainty and provide an […]

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Ghost Tortfeasor/Non-Party Liability, Negligence

A negligence case generally requires that a plaintiff prove a (1) legal duty on the part of the defendant to conform to a certain standard of conduct, (2) a breach of the duty, (3) proximate cause between the conduct and the resulting injury and (4) damages. Hoover’s Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426, 431 (Mo. 1985). A defendant […]

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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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Contractual Exculpatory Clauses

Sometimes a point of contention in breach of contract disputes, an exculpatory clause/provision in a contract is one which releases a person from his or her own future negligence. While these provisions are disfavored in Missouri, they are not per se void. Alack v. Vic Tanny Int’l of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. […]

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