101 South Hanley, Suite 1280 Clayton, MO 63105
314.283.8930; henry@elsterlaw.com

Category: Business, Corporate

Specific Performance, Contract Tender

In breach of contract suits, a plaintiff may, if appropriate, elect for an equitable remedy and ask the court to order specific performance. Specific performance is basically where a plaintiff requests that the Court order a defendant to perform the contract, in contrast to a request for damages for breaching the contract. Specific performance is […]

Read More

Unpaid Commissions

Missouri has specific statutes relating to claims for unpaid commissions. Under Section 407.913, RSMo: Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative in a civil action for the actual damages sustained by the sales representative and an additional amount as […]

Read More

Promissory Note Enforcement

Promissory notes are a common legal instrument used in connection with the lending and borrowing of money. They are typically “black and white” cases when it comes to enforcement when there is a breach. To make a prima facie case on breach of promissory note, there needs to be a showing that the (1) maker(s) […]

Read More

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 […]

Read More

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 […]

Read More

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 […]

Read More

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 […]

Read More

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.  […]

Read More

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 […]

Read More