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Category: Business, Corporate

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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LLC Derivative Lawsuits

Though the cases are not as nearly developed as with corporations, limited liability companies (LLCs) are subject to derivative lawsuits. A typical derivative lawsuit is one in which a member/owner of the company brings a claim on behalf of the LLC against a manager, director or third-party. Usually the manager/director is authorized to bring the […]

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LLC Manager Removal

Unlike with corporations, partnerships and other business entities, there are few statutory provisions addressing the procedures for removing a manager of a limited liability company in Missouri. If a LLC is manager-managed, then management is vested in the manager(s), who has the right and authority to manage the affairs of the LLC and make decisions […]

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Nonprofit Corporation Derivative Actions

A corporate derivative action is one in which a shareholder or member sues on behalf of the corporation and against a director — usually for mismanagement, breach of fiduciary duty and/or some other malfeasance. The reasoning is that the injury is to the corporation and that the corporation, not its members/shareholders, must bring the suit […]

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Regulatory Taking, Eminent Domain, Real Property

Both the Missouri and US Constitutions prohibit the “taking” of private property without just compensation. A “taking” can occur in a variety of situations. It is not just when a government seizes possession of property. A “regulatory taking” occurs when a government regulation goes too far. Clay County ex rel. County Com’n v. Harley and […]

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Offer of Proof, Evidence

Trials require evidence by a party to establish his or her claims or defenses. Only admissible evidence is permitted. Admissible evidence must generally be relevant, legally and logically. “Logical relevance” is the tendency to “make the existence of a material fact more or less probable.” State v. Freeman, 269 S.W.3d 422, 426 (Mo. 2008). “Legal […]

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Medical Testimony, Experts

Depending on the nature of the case (e.g., medical malpractice, trust/will challenges for lack of capacity or undue influence, etc.), medical testimony is often crucial. The qualification of a physician as an expert is generally within the trial court’s substantial discretion. Ponciroli v. Wyrick, 573 S.W.2d 731, 735 (Mo.Ct.App.1978). Generally, a practicing physician, even when […]

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