Samples of Our Work
I. BREACH OF CONTRACT
A. Competency to Contract
1. Issues: (a) evidence necessary to establish that a party lacked capacity to sign a release, (b) evidence necessary to prove fraud, (c) waiver of suretyship defenses in a guaranty of bank debt and contribution among co-guarantors, (d) ratification of agreement originally executed by a party with diminished capacity.
B. Contract Interpretation
1. Issues: (a) use of parol evidence to show amendment, mutual mistake, waiver, estoppel, or fraud, (b) use of parol evidence to establish ambiguity.
2. Issues: (a) the enforceability of an absolute, unconditional guaranty, (b) what constitutes a required counterclaim, (c) effect of a lender's failure to follow regulations on enforceability of guaranty, (d) does the implied duty of good faith require a lender to deviate from the express terms of loan documents.
3. Issues:(a) enforcement of stock redemption agreement, (b) implied duty of good faith, (c) statute of limitations for fraud claims, (d) prediction of future conduct cannot be fraud, (e) alleged oral misrepresentation as contradicted by writing, (f) required mutuality in contracts, (g) authority of corporate agents.
C. Adequacy of Consideration
1. Issues: (a) contract required consideration, (b) Kentucky presumption that an executed contract is supported by legal consideration, (c) mutuality of obligation, (d) promise for benefit received, (e) pensions and severance agreements form a special class of cases.
D. Duty of Good Faith
1. Issues: (a) contractual waiver of claims, (b) bad faith or lack thereof as a matter of law, (c) gross negligence or lack thereof as a matter of law, (d) burden of proof of bad faith or negligence.
II. CORPORATIONS AND LIMITED LIABILITY COMPANIES
A. Piercing the Corporate Veil
1. Issues: (a) Kentucky law requires owner misconduct and causal connect between misconduct and the loss before the corporate veil can be pierced, (b) holding of White v. Winchester Land, (c) extraordinary circumstances must exist to justify veil piercing.
B. Officer Liability
1. Issues: (a) complaint must show legal entitlement to relief to survive Rule 12(b)(6) motion to dismiss, (b) Owners, officers and directors of corporation are not personally liable for actions taken on behalf of corporation, (c) plaintiffs must plead a theory of liability that would allow the veil to be pierced in their complaint.
III. INSURANCE COVERAGE
A. Duty of Insurers to Pay for Independent Counsel
1. Issues: (a) insurance companies are required to pay for independent counsel chosen by insured, (b) Kentucky law on subject, (c) majority rule on subject, (d) independent counsel is in best interest of insured and insurance company
B. Insurance Coverage - General
1. Issues: (a) duty to indemnify and duty to defend, (b) duty to provide coverage, (c) duty to pay independent counsel, (d) interrelated alleged wrongful acts
2. Issues: (a) reformation of a contract by claiming mutual mistake, (b) bad faith failure to settle, (c) unfair claims settlement practices
C. Policy Cancellation/Disability Premium Waiver
1. Issues: (a) termination of policy without notice or grounds, (b) claim for determination of disability, (c) unfair claims settlement practices
A. Limits to Discovery
1. Issues: (a) waiver of standing, (b) significant harm to appellants because of their duties to company, (c) close relationship of officers assures they will be effective proponents of rights of company
B. Abuse of Discovery
1. Issues: (a) discovery abuses, (b) motion for default, dismissal or sanctions, (c) attempts to conceal evidence, (d) failure to disclose damages, (e) making false statements while under oath, (f) repeated failures to answer discovery requests, (g) court's authority to dismiss and/or order sanctions
2. Appendix to IV.B.1 - a more complete explanation of discovery abuses
3. Issues: (a) further rebuttal of discovery abuses, (b) continued failure to answer discovery requests
4. Issues: (a) relevance of information, (b) factual statements made in affidavits, (c) allegations of false or misleading statements
5. Issues: (a) unreasonable and vexatious conduct of opposing counsel, (b) motion for costs and fees, (c) requirements of 28 U.S.C.§1927
6. Issues: (a) claims that witnesses were unreliable, (b) false claims of failure to timely produce evidence, (c) how to determine what evidence is "material"
7. Issues: (a) requirements of the competition in contracting act, (b) delivery orders are not contracts, (c) whether statements are misleading or not
C. Limits on Amendments to Complaint
1. Issues: (a) proposed amendments neither add nor subtract claims, (b) addition of new allegations of fact do nothing to clarify case, instead only increase discovery cost, (c) legal standard of amendments to complaints
1. Issues: (a) specific personal jurisdiction of District Court of KY, (b) cause of action arises from conduct enumerated in KRS 454.210, (c) Exercise of jurisdictional rights does not deprive defendant of federal due process rights, (d) appropriateness of KY jurisdiction, (e) policy considerations supporting jurisdiction in KY, (f) convenience of forum
E. Conduct of Trials
1. Issues: (a) error in denying directed verdict motion, (b) mental competency to sign contracts, (c) error in allowing recovery on claim in excess of amount paid to settle claims, (d) suretyship defenses, (e) application of KRS 412.080, (f) dispute regarding settlement agreement
2. Issues: (a) jurisdiction of court, (b) trial court's instruction regarding proper jury instructions, (c) insurance coverage exclusions, (d) bifurcation of insurance issues
F. Motions to Set Aside Verdicts
1. Issues: (a) mental competency, (b) errors of lower court in denying directed verdicts, (c) errors of lower court in allowing recovery on claim in excess of amount paid to settle claims, (d) economic reality and suretyship, (e) fraud and lower court treatment of fraud
2. Issues: (a) authority of court to reopen judgment under CR 55.02 and 60.02, (b) court's inherent equity authority to reopen judgment, (c) proper exercise of court's equity authority
G. Expert Witnesses - Daubert
1. Issues: (a) uncertain, contingent and speculative damages cannot be recovered under KY law, (b) use of unreliable data for expert analysis, (c) duty of expert to verify data he is provided, (d) expert ignores contrary facts, (e) fundamentally flawed methodology, (f) burden of proof in recovering lost profits damages
V. UCC AND SECURED LENDING ISSUES
A. Issues: (a) difference between ownership and security interest, (b) subordination of multiple security interests in piece of collateral, (c) right to possession of collateral, (d) burden of proof in conversion claims, (e) tortious interference, (f) perfection of security interests
B. Issues: (a) transfer of ownership, (b) properly perfected security interests, (c) claiming depreciation of assets, (d) good faith transfer of assets
C. Issues: (a) good faith lending practices, (b) USDA lending regulations, (c) enforceable guaranties, (d) pre- and post-judgment interest, (e) court's discretionary powers
VI. FRAUD AND BREACH OF FIDUCIARY DUTY
A. Issues: (a) fraud, (b) breach of fiduciary duty, (c) at-will employment, (d) oral agreements, (e) failure to disclose fraud, (f) defamation
B. Issues: (a) breach of fiduciary duty, (b) termination of party's rights as a remedy, (c) quantum meruit, (d) joint venture agreement, (e) fraud, (f) failure to disclose
VII. BUSINESS VALUATIONS
A. Issues: (a) dissenters' rights, (b) net-asset valuation method, (c) value of a business should be determined independently of any concern to deter misconduct, (d) use of marketability discounts at the corporate level, (e) valuation starting points
VIII. REAL ESTATE
A. Adverse Possession
1. Issues: (a) requirements for adverse possession, (b) adverse possession requires hostility, (c) in KY law, occupation of land by permission cannot ripen into adverse possession
1. Issues: (a) trespass, (b) value of property, (c) expert witness testimony, (d) standing to bring lawsuit, (e) statute of limitations in KRS 413.120, (f) equitable power of the court to bring a permanent injunction
C. Partition of Jointly Owned Property
1. Issues: (a) valuation of jointly owned property, (b) loan obligations held by one party but secured by jointly owned property, (c) jointly owned property that cannot be divided without materially impairing value must be sold, by KY statute, (d) proper matter of disposition of assets
D. Regulatory "Takings"
1. Issues: (a) Rooker/Feldman doctrine, (b) Williamson requirements for ripeness, (c) res judicata, (d) Eleventh Amendment
IX. LEGAL MALPRACTICE DEFENSE/DIVORCE
A. Issues: (a) elements of legal malpractice, (b) valuation of marital assets, (c) disagreements about trial tactics cannot create a viable malpractice action, (d) negligence, (e) statute of limitations
B. Issues: (a) elements of malpractice, (b) attorney negligence in selection/supervision of expert witnesses, (c) valuation of assets, (d) determination of material issues of fact, (e) proximate cause, (f) damages caused/not caused by alleged malpractice
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