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

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 […]

Read More

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 […]

Read More

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 […]

Read More

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. […]

Read More

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 […]

Read More

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 […]

Read More

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 […]

Read More

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 […]

Read More

Quantum Meruit versus Unjust Enrichment

Although the two are often confused and melded together, quantum meruit and unjust enrichment are distinct legal theories which can form the basis for a lawsuit. In practice, they are often pleaded and argued together; however, they have different measures of damages.  Quantum meruit requires that the plaintiff prove: (1) he provided the defendant with […]

Read More

Collateral Source Rule

Tort damages are designed to be compensatory in nature and make a party whole. The collateral source rule is an exception to this rule. It provides that a wrongdoer is not entitled to have the damages to which he/she is liable reduced by the fact that plaintiff has received or will receive compensation or indemnity for […]

Read More