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

Continuing Wrong Exception to Statute of Limitations

Failure to bring a claim within the applicable statute of limitations means that the claim is time-barred. The best lawsuit in the world cannot be brought out of time. The clock starts ticking on when to bring the claim when the cause of action has “accrued” — i.e., usually when the damages are reasonably ascertainable. […]

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Special Fiduciary, Trust Litigation, Breach of Trust

In breach of trust litigation, the plaintiff can request a variety of remedies against the trustee. The remedies include, among other things, damages, removal and/or suspension. In more contentious situations, a probate court does have the authority to appoint a “special fiduciary” to administer the trust, in whole or in part, while the suit is […]

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Breach of Contract: Specific Performance Versus Damages

When a breach of contract occurs, the general rule is that, in certain cases, the remedy is either a suit for damages or a suit for specific performance of the contract. Magruder v. Pauley, 411 S.W.3d 323, 331 (Mo. Ct. App. 2013). The suit for damages would provide the non-breaching party with money, whereas the […]

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Public Duty Doctrine, Negligence

To prevail on a negligence claim, a plaintiff needs to plead that a defendant owed the plaintiff a (1) duty, the (2) defendant breached the duty, and the (3) defendant caused the plaintiff harm/damages. The public duty doctrine usually protects a public officer from negligence claims. Benson v. Kansas City, Bd. of Police Com’rs, 366 […]

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Offsets, Equity, Damages

“Off-setting” judgements is well established in Missouri. It generally arises when there are competing claims made by different parties against each other in a lawsuit. For example, if party A wins on a $50k claim against party B, and party B wins on a counterclaim of $60k against party A, a court may enter an […]

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Prudent Investor Rule, Asset Management, Fiduciary Litigation

A fiduciary (e.g., trustee, personal representative, etc.) has an obligation to invest and manage assets as a “prudent investor” would. When making investment and management decisions, the fiduciary should consider the purposes, terms, distribution requirements and other circumstances of the trust or fiduciary relationship.¬†O’Riley v. US Bank, NA, 412 S.W.3d 400, 414 (Mo. Ct. App. […]

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Right to Jury Trial; Jury Trial Waiver

Both the Missouri Constitution and US Constitution guarantee the right to trial by jury in certain cases. In Missouri, the right to a jury trial is “implied in all cases in which an issue of fact, in an action for the recovery of money only, is inolved, whether the right is one at common law […]

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Lost Profits, Income, Consequential Damages

Lost profits, income or revenue often form a major component of a plaintiff’s damages in business disputes, contract disputes and employment disputes. Loss of profits generally means the amount of money a plaintiff would have realized but for the Defendant’s conduct.¬†Meridian Enters. Corp. v. KCBS, Inc., 910 S.W.2d 329, 331 (Mo. Ct. App. 1995). For […]

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Trade Secret Disputes, Damages, Misappropriation

Trade secret litigation (often used interchangeably with confidential information) usually centers on an individual misappropriating and/or unfairly using a businesses trade secret to the detriment of a business. A “trade secret” can include “any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain […]

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Contribution, Joint Liability

A common defense of a defendant in a civil lawsuit is that another third-party is partially responsible for any harm caused. Defendants, therefore, will often plead and argue for “contribution” when more than one person is potentially at fault. Missouri law is clear that when “two or more persons become liable in tort to the […]

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