As a pre-requisite to prevailing on a breach of contract or breach of lease claim, one must first prove the existence of a valid contract. The elements of a contract are (1) the competency of the parties to contract; (2) proper subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Competency generally…
Legal Articles
Prejudgment Interest: Liquidated Claims, Tort Claims
After a Judgment is obtained against a Defendant in Missouri, 9% interest per annum generally accrues on the Judgment (tort cases have a different interest rate). Is there a situation in which the interest can be retroactive before the Judgment was entered? Yes, pursuant to the Missouri prejudgment interest statutes. Under Section 408.020, prejudgment on liquidated claims…
Petition to Determine Heirship: Property & Probate After 1 Year
A probate estate must be opened in the county of the decedent’s domicile within one (1) year after the decedent’s death. This usually means that an applicant must apply for Letters Testamentary or Letters of Administration within that time and administer the estate consistent with the Will’s directives and/or with the statutory intestacy scheme. What…
Blue Pencil, Contracts, Restrictive Covenants, Non-Compete
A non-solicitation agreement generally means that an employee cannot, after the term of his/her employment, induce his/her former employer’s co-workers to leave, or solicit the former employer’s customers/clients. A non-compete agreement usually means that the ex-employee cannot go work for a competitor, directly or indirectly. A confidentiality agreement refers to an obligation of the…
Judicial Exception to Statutory Guardianship
Letters of Guardianship of the person of a minor may generally be granted (1) where a minor has no parent living, (2) where the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship, (3) or where the parents or the sole surviving parent…
Contract Amendments Need to be in Writing?
Although most attorneys shrink away in terror when hearing that a supposedly breached contract was oral, MO law does honor certain oral contracts. Under the statute of frauds in Missouri, contracts generally must be in writing if they relate to (1) contracts which take in excess of a year to complete, (2) contracts for marriage,…
Probate Bonds & Estate Administration
One of the more unfavorable aspects of probate in Missouri is the bond requirement. In short, before an applicant receives Letters of Administration or Letters Testamentary to become personal representative of a decedent’s estate, Missouri law requires that ” [the personal representative] shall execute and file a bond […] procured at the expense of the…
Statutory & Equitable Redemption for Deeds of Trust, Foreclosures
Redemption refers to the ability of a mortgagor to stop a foreclosure after a default. Missouri almost uniformly uses a deed of trust arrangement to handle real estate financing. Under this arrangement, a trustee holds legal title title to the property while equitable title remains with the borrower/mortgagor — i.e., the person(s) generally living on…
Subpoenas for Production of Documents, Testimony
A subpoena (“under penalty”) is an order from a Court to a third party to either produce documents or give testimony/deposition regarding facts in litigation. If A and B are embroiled in a lawsuit, and C has either documentation or firsthand knowledge of facts critical to the lawsuit, either A or B may subpoena C…
Member/Manager Fiduciary Duties in a Limited Liability Company (LLC)
A member and/or manager of a LLC is obligated by law to operate the LLC with the care a corporate officer of like position would exercise under similar circumstances, in the manner a reasonable person would believe to be in the best interest of the LLC. See Mo. Rev. Stat. 347.088.1. Further, a member and/or manager may…