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Category: Civil Litigation, Real Estate

Measuring Damages to Real Property

In tort cases dealing with injuries to real estate (e.g., trespass, nuisance, inverse condemnation, etc.), the measure of damages is the difference in the fair market value of the property before and after the injury or the cost of restoring the property — whichever is the lesser amount. Farmer’s Mut. Fire Ins. Co. v. Farmer, 795 S.W.2d […]

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Refusal to Answer Deposition Questions in Federal Court

Rule 26(b)(1) permits parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense” and proportional to the scope of the case. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.“[T]rial courts retain […]

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Photographic Evidence, Admissibility

Visual aides are often very persuasive with judges and juries at trial. To that end, parties will sometimes use photographs and videos as evidence at trial.  In determining whether a photograph is legally relevant, material and admissible as evidence, a court has discretion. McCutcheon v. Cape Mobile Home Mart, 796 S.W.2d 901, 907 (Mo. Ct. App. […]

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Default, Notices

A party is in default when the party fails to make a response to a petition/lawsuit in Missouri. Other than the obvious downside of a default judgment, a defaulting party is not entitled to all notices when in default, either. Under Rule 43.01(a), parties are to be served with every pleading subject to the original […]

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Covenant Not to Sue, Releases

While not as common as a contractual release of claims, a contract may contains a covenant not to sue. Despite it being technically different, Missouri courts generally consider a covenant not to sue a release for purposes of determining its legal effect. Montrose Sav. Bank v. Landers, 675 S.W.2d 668, 670-71 (Mo. Ct. App. 1984). […]

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Real Estate Descriptions in Quiet Title Judgments

In quiet title lawsuits, Missouri requires that the judgment describe the affected real estate with reasonable certainty. Patterson v. Harrison, 46 S.W.3d 580, 581 (Mo. Ct. App. 2001). Every party to a quiet title suit has a right to have their respective titles affirmatively adjudged and declared. Turkey Mountain Airport, Inc. v. Estate of Faler, […]

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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 […]

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Dead Man’s Statute

Section 491.010, RSMo contains Missouri’s version of the so-called “Dead Man’s Statute.” It provides, in relevant part, that “in any…suit…where one of the parties…or his agent…is dead or is shown to be incompetent…then any relevant statement or statements made by the decedent party or agent or by the incompetent prior to his incompetency, shall not […]

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Substantial Evidence

“Substantial evidence” is a legal requirement that comes up in certain circumstances, particularly when appealing a case or when arguing over a motion for directed verdict. Substantial evidence exists when there is believable, credible evidence that has “probative force on each fact that is necessary to sustain” a judgment. Ivie v. Smith, 439 S.W.3d 189, […]

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Justiciability, Mootness

A court can only entertain a case if there is “justiciability.” A justiciable controversy exists where the (1) plaintiff has a legally protectable interest at stake, (2) a substantial controversy exists between parties with genuinely adverse interests, and (3) the controversy is ripe for judicial determination. Mo. Health Care Ass’n v. Attorney Gen. of Mo., […]

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