Published Quarterly by the Johnson County Bar Association
Volume 23 Number 4
December 2009 Court Bonds: A step ahead.
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Scott Gyllenborg (Editor) In This Issue G. Gordon Atcheson (Co-Editor) Karen Arnold-Burger Linda Coffee President’s Page ...... 4 Jeffrey Deines Kathleen Harvey 2009 Habitat for Humanity ...... 5 Andrew Hennier Christian Kelly 2009 Senior Quest ...... 6 Leo Logan Greg Kincaid - Lawyer & Author ...... 7 Lori Maher Claire McCurdy Kansas Budget Issues...... 10 John Pickett Christine M. Graham Appellate Cases of Interest...... 11 - Articles are Welcome - Internet Access in Heaven?...... 12 Please send to Linda Coffee Address Changes ...... 13 [email protected] the BarLetter, the official pub- Bulletin Board ...... 14 lication of the Johnson County Bar Association, covers legal news Real Estate Law ...... 15 and issues of interest to members. Bankruptcy ...... 16 Articles are intended to generate ideas readers can apply to their New Members ...... 18 own practice. the BarLetter is published bi-monthly and distrib- Classifed Ads ...... 19 uted to approximately 2,000 at- torneys, judges, and legal profes- sionals in Johnson County and the Upcoming Bar Luncheons surrounding county area. Dead- line for submission of articles and advertising is the 10th day of December 2, 2009, 11:45 a.m., Ritz Charles, 9000 W. 137th Street the following months: January, March, May, July, September, The featured speaker at the December 2, 2009 Membership Luncheon meeting is JCBA and November. The publication member and author Greg Kincaid. Greg’s book “A Dog Named Christmas” is a New of any advertisement or product York Times Best Seller and a Hallmark Hall of Fame movie to be broadcast at 8:00 pm information is not to be construed on Sunday, November 29 on CBS Hallmark Hall of Fame channel. as an endorsement of the prod- uct or service offered unless the In this heartwarming novel, Greg Kincaid tells the tender story of how one very special ad specifically states that there is dog changed the lives of his adoptive family – and an entire town – forever. For more such an endorsement or approval. information on Greg’s book, you can visit www.adognamedchristmas.com and www. the BarLetter is a non-partisan hhof.tv. You can pre-order a copy of the book to be signed at the luncheon. Email publication intended to inform [email protected]. our members, provide services to our members, and give members January 6, 2010, 11:45 a.m., Ritz Charles, 9000 W. 137th Street an opportunity to contribute to the association. Statements or ex- February 3, 2010, 11:45 a.m., Ritz Charles, 9000 W. 137th Street pressions of opinions are those of the authors and do not necessar- ily represent those of the Johnson County Bar Association. the BarLetter December 2009 3 President’s Page It’s All About Giving By Christine M. Graham, 2009-2010 JCBA President
s we rapidly approach the with others by helping develop and present your time, talents, and treasures to further A holiday season, I want to take important programs, by writing articles, the mission of the Bar Association and the this opportunity to reflect on all of the by helping develop important legislation, Bar Foundation. giving our members do every year and and by assisting our local charities with to encourage all of you to find a way to various legal issues. Many of our members contribute. There are so many different volunteer their talents by taking on pro Happy Holidays! ways our members contribute to the Bar bono legal matters to assist less fortunate Association, the Bar Foundation and our individuals in our community achieve equal community. This tradition of generosity access to justice. And, our most talented by our mem- party planners bers is one of put on one the things that terrific Charity make me most proud to be a S t a m p e d e member of the year after year Johnson Coun- so that the ty Bar Associa- F o u n d a t i o n tion. has more and The head more resources of my church with which to f r e q u e n t l y help our local thanks our charities. We congregation are lucky to for giving its have so many “time, talents, talented and and treasures.” I’ve always liked this g e n e r o u s phrase and how succinctly it illustrates the individuals in our Bar Association. different ways we can support those causes Last, but certainly not least, the outpouring “The Right Mediator that are important to us. Our members give of financial giving by our members in this Does Make A Difference” their time, talents, and treasures every day, very difficult year has exceeded all of our and in many different ways. expectations. We have all seen how the As time seems to be the resource most downturn in the economy has impacted the valued in our fast paced society, I want to legal profession. Despite these hardships, first recognize our members who donate we have seen tremendous generosity by our hours upon hours of their time to our members, who continue to provide financial Bar Association, Bar Foundation and the support for our many projects. The Bar community. These individuals plan and Foundation continues to grow as a result organize our committee events and CLE of yet another wildly successful Charity programs, attend to the management of Stampede, the addition of new Fellows, the association and foundation by serving and some significant bequests from on the Boards, come out on weekends to members who have recently passed away. help build our annual Habitat for Humanity The continued financial support of our house, devote time to important political members is essential if the Bar Association and the Bar Foundation have any hope of Kansas City issues like the preservation of our judicial Vance C. Preman selection process, spend the day at Senior achieving our mission. Any contribution, Mediation & Arbitration Quest answering questions and helping big or small, will help further our goals. seniors, and countless other activities. The So, if you haven’t joined the Foundation, Service (KCMAS) devotion of our members to these tasks is please consider doing so. If you haven’t what makes the Bar Association so strong attended the Charity Stampede, put it on (816) 756.2323 and our members an important force in our your calendar for next year. And, if you are community. working on your personal estate planning, The talents our members possess and consider a bequest to the Bar Foundation. [email protected] While I thank those of you who have given 4330 Belleview freely share is also reflected in these and Kansas City, MO 64111 other giving opportunities. Our members so much already, I really want to encourage who have developed special expertise in all of our members to find a way to become their area of practice share their knowledge a part of this tradition of giving by lending OCertifiedut of Area in Call Missouri (800) & 245.8731 Kansas (816) 756.3389 (fax) 4 the BarLetter December2009 2009 Habitat for Humanity Project THANK YOU to our Sponsors!
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the BarLetter December 2009 5 2009 Senior Quest Johnson County Bar Association & Tenth Judicial District Participate in “Senior Spooktacular” By Chuck Andres
n September 27, 2009, fifteen OJCBA members, along with Linda Coffee and paralegal volunteers, participated in the 2009 Senior Quest “Senior Spooktacular!” This year’s Hal- loween themed event brought together many Johnson County government agen- cies, businesses and organizations in the county’s biggest, most comprehensive annual information fair for older adults, with more than 125 exhibitors. It is the only senior event in the metro area which attracts more than 2,500 seniors to a sin- gle location. The JCBA’s involvement started as “El- der Law Day” to acquaint senior citizens with the court system and to raise public awareness of the need to plan for health care decisions at the end of life. A plan- ning committee adopted Senior Quest as its annual community outreach program under the theme of “Legal Professionals Serving Seniors, the Heart of our Commu- nity.” Judge Gerald T. Elliott again chaired this committee on behalf of the JCBA, the Tenth Judicial District and the Kansas Para- legal Association. Other longtime commit- tee members include Ina Kay Zimmerman, Michael McLain, Linda Coffee, Gordon Davis, Cheryl Pittman, Thomas Mitchel- son, Jon Gilchrist, and Chuck Andres. This was the ninth such outreach event planned. Volunteer lawyers from the Probate Law Everyone has rights. Bench Bar Committee staffed the “2009 Senior Spooktacular!” The lawyers dis- Everyone! tributed KBA and other elder law materials as well as provided seniors with a free legal Criminal litigation on behalf of non-citizens is complex. The law “checkup” with an opportunity to ask ques- firm of Sharma-Crawford in Kansas City is deeply experienced tions about these materials. In addition, se- niors were given the opportunity to execute in the complexities of immigration law and the rights of non- Durable Powers of Attorney and Living citizens. Whether it’s criminal or civil litigation in state, federal or Wills at the event. The following lawyers immigration court; Sharma-Crawford is uniquely positioned to support participated: Chuck Andres, Leslie Byram, you and your clients. Raylene Crozier, Mike Dreiling, Jon Gil- christ, Lori Gregory, David Hughes, Stacey Janssen, Kelly Jurgensen, Cheryl Kessler, Learn more, including a view of recent cases Kris Kuckelman, Mike Pener, Matt Warren, and rulings at www.Sharma-Crawford.com, Nancy Woodworth, and Cathy Zumbehl. or call 913.385.9821 Big thanks to due to all persons involved in this community outreach event for a job Sharma-Crawford / Attorneys at Law well done on behalf of the seniors. 7208 W 80th Street, Suite 202 / Overland Park, KS 66204
The choice of a lawyer is an important decision and should not be based solely upon advertisements.
6 the BarLetter December2009 Greg Kincaid | Lawyer & Author Johnson County Lawyer & Best Selling Author to Have Book Premiere on CBS in November By Hon. Karen Arnold-Burger
reg Kincaid is a Johnson Coun- er. And then, against that backdrop, came grown as well. What’s happened with our Gty lawyer by profession, but he a theme that had lingered in the back of my farm is fairly common. I’m a lawyer by has always loved writing, and Random mind for a long time. Sure, it’s great that day, so the farming we do is really limited. House, Inc. published his first book, we humans tend to treat each other with a But at least we’ve kept the farm in our fam- A Dog Named Christmas, in 2008. By little more kindness at Christmastime, but ily. For an individual family, dependent on December 2008, it had made it on to the what about the millions of animals sit- farm income, it’s getting harder and harder New York Time’s Non-Fiction Best Sell- ting in animal shelters every Christmas? to make any money. Small farms just can’t er List. Couldn’t they be the beneficiaries of some make it. Greg’s book was born as a slim bed- human kindness, too? So I added that ele- side story, shared with his children on their ment, shook up all the ingredients, and out K: So what you’re describing is not just farm. A Dog Named Christmas – starring came A Dog Named Christmas! a fantasy. Bruce Greenwood, Linda Emond and Noel Fisher – premieres as a Hallmark Hall of G: Absolutely not! I’ve talked to people Fame presentation on CBS Sunday, who’ve read my book who tell me November 29, 2009. they’re sure the world of the McCray Hon. Karen Arnold-Burger sat family and their farm and Crossing down with Greg for an interview: Trails, Kansas, doesn’t really exist – except in the author’s mind. They’re KAREN: How did this book hap- wrong, and I tell them they’re wrong. pen? There are hundreds of great rural communities across America that re- GREG: It started out as a story I ally are communities, where people wrote and shared with my five kids are kind to each other, where they at Christmastime. That first version watch out for their neighbors, where had a bit of a sad ending and not all they pitch in to help when problems the kids loved it, so the next Christ- arise. Sadly, many of those commu- mas I changed the ending to the way nities are on life-support now. I hope it reads now. Everybody loved that with my book – and now with this version, and they all said, ‘It’s a great movie – to remind people just how story, Dad! You ought to get it pub- valuable that vital rural legacy is. lished.’ I took their advice and sent it off to a magazine. With the help K: Your writing is really beautiful, of an agent, the magazine article was and this story lends itself to read- sent to a book publisher. The rest, as ing it out loud to your children, just they say, is history. as it originated as a bedtime story.
K: Would it be fair to say it’s the G: There is not a lot of stuff out little bedtime story that grew? Greg and his wife with the movie cast there that you can sit down with your kids and read aloud and be entertaining to G: Absolutely! The very first version was K: Would it be fair to describe the farm you too, at least when I had kids that age probably only about five pages long. The as a character in your story? I didn’t think there was. I felt like I was second, happier-ending version was about writing to a need and I thought it would be 20 pages. When it got to the magazine, G: Absolutely. One of my goals in writing fun around Christmas time to have a book it was maybe 30 pages. When the book A Dog Named Christmas was to show that you could pull out to read as a family. publisher got it, it had grown to 60 pages. farms and farming are so much more than After a few rewrites and the storyline deep- milking cows, or gathering eggs, or bring- K: How did you make the connection ened, it was 120 pages. So, yes, it’s the ing in crops. It’s a whole way of life, and with Hallmark? little story that grew! it’s disappearing. The notion of a family coming together, of mom and dad and the G: A lot of people said this book “feels” like K: Where did the idea for the story come kids all working together in the same busi- a Hallmark movie. We were approached by from? ness, that lifestyle is disappearing because five different people that wanted to buy the now we have more and more of these great movie options. My agent figured out that G: Well, I knew my audience! Some of big corporate owned farms. The farm that they were all just going to turn around and the kids were really into animals; others re- I live on was carved out of land bought go to Hallmark. So we figured, why don’t ally loved life on the farm and their Dad’s from the Shawnee Indians five generations we just go to Hallmark ourselves. Writers history with the farm. So I wanted a story ago, on my mother’s side of the family. It that weaved both of those elements togeth- was run as a dairy farm, with a lot of crops KINCAID (Continued on page 8) the BarLetter December 2009 7 G: There were a lot of reasons. Since the novel pleasantly surprised with what I found. Yes, the KINCAID (Continued from page 7) is set in winter, there is a lot of work that goes histories of many of the animals that are there don’t get paid that much anyway and the into making an outdoor winter set in the middle are sad, sometimes tragic. But in the shelters I more people you put in the middle, the less of summer. The landscape was so flat there and visited, the animals are very well cared for by there is to go around. I have two or three they just have grain, so they could mow the people who are really dedicated, really selfless. friends that work at Hallmark. Hallmark grain, put down vegetation killer, and make it Hall of Fame is a part of Hallmark, and look like winter easier. They literally had to K: Have you had a dog, or dogs, in your they have two offices: one in L.A. and one handpick every leaf off every tree to make sum- life? in Kansas City. Both offices got the book mer look like winter. It was a lot of work, but independently, started talking to each other easier there than here. Also, I think Canada of- G: Many! That said, I have to admit there’s a about it, and realized they had the same fered some financial benefits for them. fair amount of Greg Kincaid in the character of book. They got excited about the book George! There have been times when my wife from the very beginning. K: What was it like watching your story or my kids have been after me to get another come to life for the cameras? dog, and I’ve resisted. Frankly, I’ve been a cur- K: I remember seeing you in April at the mudgeon, focusing on the vet bills, the carpet Herbert Walton Bench Bar Conference. G: It was unbelievable. My jaw was pretty stains, and the chewed furniture. But my wife You had just made the connection with much hanging the whole time. I didn’t know and kids always prevail. They remind me – as Hallmark, and they had expressed an what to expect. I thought that when I got up if I needed reminding – of all the love and affec- interest in making a movie out of your there they would say, “Oh, yea, Greg I know tion an animal bestows upon human beings who book. From agreement, to pre-produc- who you are, go stand over there in the corner, care for him or her. You know, what a lot of tion to finished product, it’s been less be quiet and stay out of the way.” It wasn’t like people really don’t get is that adopting a dog is than 6 months. When did they start that at all. It was more like, “Here is command 99 percent for you and one percent for the dog -- filming the movie? central, here is the director, here’s the actor’s because they inevitably bring so much joy into chair. You sit right down with us, and watch our lives! G: I think they started around June 2009 and tell us what you think.” They made me and in Canada. It was a rush project. When my wife both feel like we were part of the pro- K: What’s the difference between adopting they first talked to me, they were estimat- cess. They appreciated anyone that was part of and fostering? ing that it would be the fall of 2010 before the creative part behind the story. As lawyers, they filmed it. They had three movies that we are rarely appreciated. We are considered a G: Adoption is a commitment to own a dog or were ahead of me and they decided to bump necessary evil in a lot of transactions. It was fun cat for its lifetime. Fostering is a commitment to all of them and do mine. It was really fortuitous to be appreciated at that level. take home a dog or cat for a period of time. Al- for me. though some shelters have long-term foster care K: Have you seen the finished production? programs, there are none that I am aware of that K: Did you write the screenplay for the mov- What did you think? allow short-term holiday fostering. Our hope ie too? with this movie is to start a nationwide fostering G: Yes, I have, and it is wonderful. I am very program, and that many families who agree to G: They hired a person do write an “adapta- very pleased with how it turned out. It is a very “foster” an animal for the holidays will decide to tion.” Although I helped, I was clearly second- family-centered film. You can sit down with “adopt” the animal for its lifetime. As a result, ary. She did most of the work. your grandmother, or your 9-year-old, and ev- Petfinder, Hallmark, and Random House have eryone can find something in it he or she will collaborated to start such a program. I just got K: Did you have the ability to veto anything enjoy. The acting is wonderful. off a conference call where I learned that in the she wrote? first week after announcing the program, we’ve K: Will it be available in DVD? had 600 shelters around the country sign-up! I G: I wouldn’t say I had veto power. I worked am pretty excited about that. At any point in with the producer and director and others with G: Yes. It will be available on DVD in all Hall- time, there are about four million dogs in shel- Hallmark who all have an opportunity to com- mark stores the day after it airs. And I think you ters throughout the country. Our expectations ment on the script. My comments were a part will be able to get it on www.hallmark.com too. with the fostering program are modest. If just of that process. one percent of those four million dogs found K: How have your kids reacted to all this? loving homes, we’d be saving 40,000 dogs. K: Was it a pleasant experience? That would make a difference. And as the pro- G: Well, I think they are like me; they are still gram grows, the number of animals we could G: It couldn’t have been better. Hallmark was sort of pinching themselves. I don’t think it will save would really make a difference! This book phenomenal and continues to be phenomenal to sink in to any of us until we turn on the TV and will run its course, but this is something that will work with. All the things you hear about them it starts playing. live long after this particular story. being an A+ company, I experienced. K: How familiar were you with animal shel- K: Any more dog stories lurking in your K: Were you present for the filming in Can- ters before you began writing the story? mind that you think might end up in story ada? form? G: I had never been inside one. To tell you the G: My wife and I were there for three days. truth, I was afraid. I always thought they’d be G: I love to write; and I loved writing this story, pretty scary. But when I started doing research, in particular. There’s a scene where George K: Why Canada? I had to go visit some animal shelters – and I was KINCAID (Continued on page 9) 8 the BarLetter December2009 to myself, “in ten years I ought to be out of the KINCAID (Continued from page 8) law business one way or another,” that would be flashes back to when he’s a 12-year-old. His a true statement. What this does for me is to al- father is the country road maintainer – which is low me to work ¾ time or ½ time. Like a lot of what my grandfather was – and George gets a us, the practice of law is probably off 10-15% in dog named Tucker. It’s 1962, a fascinating time, this economy anyway. So it lends itself nicely and I’ve decided to explore that further. I’m to what I’m doing. I’m a little too young to re- also intrigued by the character of Todd. What tire, and quite frankly I’m not making enough would it be like for him, working at the shelter? money off my writing yet to quit the practice. There you go: a prequel and a sequel! I think Even extraordinarily successful writers don’t it’s fair to say you haven’t seen or heard the last make that much money. of George McCray and his family. Random House has bought the rights to the prequel, ten- K: What have you learned from this whole tatively titled Tucker’s Christmas, and it should experience that you would like to pass on to be released in October or November 2010. your fellow Johnson County lawyers?
K: What about other books in the works? G: This should encourage people to believe in themselves and their hobbies in the face of years G: I have lots of various things from a few notes of rejection. Whether you are a golfer, a writer, on a piece of paper to pages, hundreds of pages, a painter, or whatever, stick at it. I’m no dif- but I don’t know which one I will turn to next. ferent than anyone else. I’ve been playing at There are a couple more I’m thinking about, but writing down my stories for over 25 years. It I can’t decide if I need to get this series done, has been fun. And if I had never sold a book, I which I envisioned to be three books, or take a wouldn’t say that I was a failure at it. There is break and work on something else. I’m trying always that chance that you may sell your book, not to think about it until I finish the one I’m or win the golf tournament, or whatever your currently working on. hobby is. Take them seriously, but enjoy them.
K: At some point do you want to, or do you K: Will you sign my book? think you will, stop practicing law and write full-time? G: I would be happy to.
G: Well, I’m not getting any younger. If I said
KINCAID (Continued on page 9) the BarLetter December 2009 9 Kansas Budget Issues Chief Justice Davis Addresses Budget Issues for m e d i a t i o n The Experience You Need, To Make State Judicial Branch Settlement Happen By Scott Gyllenborg, the BarLetter Editor
t the Johnson County Bar Lun- couraging Consensus Revenue Estimates Acheon meeting on Nov. 4, Chief released recently exert counter pressure on Justice Robert Davis gave a sobering re- our legislative representatives.” port on budget issues facing the State Ju- Johnson County District Court Chief dicial branch and Courts across the state. Judge Stephen Tatum is hopeful the leg- Johnson County has also been affected, islature will move quickly in January to and will continue to feel the impact. replace the $8 million shortfall, thereby Given a total budget shortfall of $15.9 eliminating the need for furloughs. If it million to this year’s Supreme Court bud- does not, Judge Tatum said, “We will have get, cost-saving measures have been in- court employees who will lose 25% of their Henry Cox Mediator stituted, with the possibility of more dra- salary for the first half of the year of 2010. Arbitrator conian measures to follow. Cost-saving This will create an undue hardship on our Trial Lawyer over 27 Years Mediator/Arbitrator 15 years measures so far include: many loyal and committed court employ- Mediator Instructor 15 years “Best of the Bar” 2002 - 2008 • Hiring freeze. This measure has offset ees. Moreover, the ability of the Johnson “Super Lawyers” Kansas/Missouri $365,000 of the $15.9 million shortfall. If County District Court to provide services vacancy rates for the first half of the fiscal to the citizens of Johnson County will be Commercial Law, Personal Injury, Employment, Civil Rights, year are maintained, the Judicial Branch affected. We pride ourselves on the ac- Construction, Land Use, Estates, will have saved a total of $1.2 million by cessibility of our courts to citizens, attor- Professional Malpractice, Abuse, Debtor/Creditor, Business Dissolution June 30, 2010. neys, and litigants, and losing these weeks • Elimination of Temporary Part-time through furloughs will be difficult to over- (913) 707-0331 or (816) 268-1022 Hours. This measure has offset $800,000 come.” hcoxlaw @ aol.com of the shortfall so far. There were 93 of our As a large and growing urban county, 4310 Madison Ave. employees left without jobs by this mea- the ongoing Judicial Branch budget issues Kansas City, Missouri 64111 sure. will particularly affect Johnson County. • Significant reduction of the use of retired Everyone is urged to cooperate and work judges. This measure has offset $96,000 of together to move through this difficult and the shortfall so far. As a practical matter, challenging time. this measure means that district courts are In anticipation of potential furloughs, not able to look to retired judges to help the district courts are adjusting their sched- keep pace with their dockets. Any excep- ules to work around those weeks designat- tions are limited to extreme circumstances. ed as furlough weeks. If you have matters These measures have already had an im- scheduled during those weeks, please con- Chris Cagle pact on the Johnson County District Court. tact the division where the case is set. And as the population of Johnson County Real Estate Broker (2008 population of 534,093) continues to grow at the rate of 10,000 new residents Somerset Realtors, LLC per year, the need for more services to be 302 S. Clairborne provided by fewer employees has impact- Olathe, KS 66062 ed the Johnson County clerk’s office, the (816) 589-6932 Johnson County court services office, and [email protected] the court’s administrative assistants. However, the prospect of the remain- Serving Johnson County for ing budget deficit detailed by Chief Justice over 30 years! Davis is even bleaker. If $8 million is not restored to the Supreme Court budget early Providing personal real estate next year when the state legislature con- venes in January, there will be statewide service for lawyers to effectively furloughs of courthouse employees for the market and sell real estate whether weeks of February 15, March 15, April 5, brought about by divorce, May 10, May 24, and June 7, 2010. ligitation or by liquidating real Chief Justice Davis stated in a recent estate in probate. letter to court employees, “We remain hopeful that the Legislature will replace the $8 million shortfall, eliminating the ChrisCagleRealtor.com need for any involuntary unpaid leaves by our employees. However, the new and dis-
10 the BarLetter December2009
JOHNSON COUNTY BAR ASSOCIATION FAMILY LAW BENCH/BAR COMMITTEE Cordially Invites all Family Law Practitioners, Paralegals, Support Staff and Service Providers to Their Annual Holiday Party
December 9, 2009 4:00 P.M. TO 7:00 P.M.
Hors D’oeuvres Provided • Cash Bar Available
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Please R.S.V.P. by December 4, 2009 to Linda Coffee at [email protected] or call (913) 780-5460
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Appellate Cases of Interest Pretrial Disclosure of Witnesses By Leo L. Logan, Coates & Logan, LLC
laintiff claimed that several years activity for the final pretrial conference, and REFERRAL FEES/ Pearlier, a person who had been the Rule expressly addresses a procedure DEPARTING ATTORNEY his teacher, counselor and coach, sexu- for disclosure of additional witnesses after ally abused him while he was a student the final pretrial conference. Rule 140(g) While Oliver was an attorney and director in the Midway School District. Plaintiff (5) (witness finalization) and (b) (supple- for the firm, he signed up medical malprac- filed an action against the abuser and the mentation) (2008 Kan. Ct. R. Annot. 220). tice plaintiffs and referred those clients to school district. At the conclusion of dis- Even if there had been a violation of the another firm. The firm to whom the clients covery, the school district filed a motion case management order, the district court were referred agreed to pay Oliver’s firm a for summary judgment concerning notice was limited in the procedure for imposing contingent referral fee. Part of the referral by the district of the predispositions of the available sanctions by K.S.A. 2008 Supp. fee agreement was that Oliver would con- abuser. After the school district filed the 60-216(f), which provides that upon viola- tinue to provide legal services to the cli- motion for summary judgment, plaintiff tion of a "pretrial order" (broadly defined ents after the referral. Before the medical filed an amended witness list adding sev- by subsection [e]), the court "may make malpractice claim was resolved, Oliver left eral witnesses not included in plaintiff’s such orders with regard thereto as are just," the firm and executed a deferred compensa- original list, and included an affidavit but the statute requires that the party to tion agreement (“DCA”) with his firm, in from one of the witnesses in opposition be sanctioned have an "opportunity to be which the DCA measured a departing at- to the motion for summary judgment. heard." Here, the court entered its order torney's share of the value of the firm by The trial court, relying on deadlines in striking witnesses in connection with a res- utilizing a fixed rate of $150 for each and the case management order, granted the olution of the summary judgment motion, every work-in-process file, including those district’s motion to strike the plaintiff’s but absent any opportunity for plaintiff's retained by the firm with a contingent fee witnesses added in the amended list, and counsel to be heard in the matter. arrangement. The DCA made no provision granted the district’s motion for summary In exercising sound discretion in such for treating a withdrawn file with a refer- judgment. matters, the district court is obligated to ral fee arrangement any differently. Oliver The district court may, in its sound dis- weigh the relative prejudice to each party, paid the agreed-upon value for the referred cretion, take reasonable steps to enforce and here the prejudice to plaintiff was po- medical malpractice file under the DCA. any and all aspects of such a case manage- tentially fatal to his case, but the prejudice There was an attorney/client relationship ment order, pursuant to K.S.A. 2008 Supp. to the defendant was one or more belated between Oliver and the clients, and vicari- 60-216(e) and (f), but the statutory scheme depositions. The Court of Appeals applied ously between Oliver’s firm and the clients. recognizes a distinction between the "order the following factors: (1) the prejudice or The firm to which the clients were referred following a final pretrial conference" and surprise in fact of the party against whom had an attorney/client employment agree- any prior pretrial orders, in that the former the excluded witnesses would have testi- ment with the clients, and a referral agree- may be modified only by "agreement of the fied, (2) the ability of that party to cure the ment with Oliver’s firm and/or Oliver. parties or by the court to prevent manifest prejudice, (3) the extent to which waiver of Apparently, the district court viewed the injustice," but the latter may be modified the rule against calling unlisted witnesses referral agreement as a stand-alone con- "by a subsequent order." This distinction would disrupt the orderly and efficient trial tract for the sale of the medical malpractice has been recognized and may be a deter- of the case or of other cases in court, and claim, and determined that Oliver’s firm minative factor on issues related to en- (4) bad faith or willfulness in failing to had completed its performance, and earned forcement. See, e.g., Gates v. Goodyear, comply with the court's order. its referral fee, when the client was deliv- 37 Kan. App. 2d 623, 630-31, 155 P.3d The problems encountered in this case ered to the firm to which the client was re- 1196 (2007). If "manifest injustice" is the could have been avoided by the inclusion ferred. The Court of Appeals does not ac- standard to modify the final pretrial order, in the case management order of a date cept that characterization. "A client is not something less than manifest injustice must certain for final identification of witnesses, an article of property in which a lawyer can be shown to modify prior case management or by deferring resolution of the summary claim a proprietary interest, which he can orders. judgment motion until after the final pre- sell to other lawyers expecting to be com- Where the case management order has trial conference, at which all parties would pensated for the loss of a property right." provided no specified date for a "final" have been required to finalize all aspects of Palmer v. Breyfogle, 217 Kan. 128, 142, identification of witnesses prior to pretrial their respective cases, including witnesses. 535 P.2d 955 (1975). The referral agree- procedures, perhaps the better practice is to Finding an abuse of discretion, the order ment must be viewed in the context of the amend one's list of witnesses when addi- striking plaintiff’s witnesses and the dis- duties which are owed to the client. tional witnesses become known. But, in the trict’s summary judgment were reversed. Generally, an attorney who is discharged absence of an order expressly requiring the before the occurrence of the contingency finalization of proposed witness lists, and Canaday v. Midway Denton U.S.D. No. provided for in a contingency fee contract prior to the final pretrial conference and or- 433, Kansas Court of Appeals Opinion No. may not recover compensation on the ba- der that inherently finalizes such matters, a 101,015, filed October 30, 2009. sis of the contract, but rather the attorney party should not be subject to severe sanc- is entitled only to the reasonable value of tions for failure to amend a witness list. the services rendered based upon quantum Supreme Court Rule 140 contemplates that finalization of witnesses is an express APPELLATE (Continued on page 12) the BarLetter December 2009 11 APPELLATE (Continued from page 11) Is There Internet Access meruit. Madison v. Goodyear Tire & Rub- ber Co., 8 Kan. App. 2d 575, Syl. & 1, 663 P.2d 663 (1983). in Heaven? The referral agreement was part of Oli- By Mike Sears ver's fee arrangement with the clients and, accounts arrive that reveal assets of which accordingly, was inextricably tied to the nternet use continues to grow at the executor or trustee was not aware. As clients' file. When Oliver took the clients' Ia staggering and exponential rate. more bills are being sent and paid online, file, he not only assumed the obligation to For example, in 2006, there were 2.7 bil- and more account statements are received complete the performance that was due the lion Google searches a month; in 2008, online, it will become increasingly difficult clients, but he also received the benefits of there were 31 billion. The use of social for an executor or trustee to ensure that all the fee arrangement that was tied to that and business networking sites like Face- of the estate’s assets are being marshaled, performance. book® and LinkedIn® is gaining popu- and all of the bills are being paid. On the other hand, part of the perfor- larity at an extraordinary rate. Consider Similarly, without a list of bills being mance on the clients' file was effected these statistics: it took television 13 years paid online, a conservator or agent under a while Oliver was an agent of his firm. Ac- to achieve an audience of 50 million, but power of attorney may have a difficult time cordingly, the firm was entitled to that part it took Facebook® only two. Facebook® determining what bills need to be paid. If of the compensation the clients consented now has 300 million users, and 2 billion bank statements are being sent via email, to be paid to Oliver that was earned during pictures are uploaded to Facebook® each the guardian may not know what assets are his employment. Cf. Tucker v. Rio Optical month. In 2006, 43 percent of Internet available. Without access to the decedent’s Corp., 20 Kan. App. 2d, 233, 236, 885 P.2d users (63 million Americans adults) used email and online accounts, bills may go 1270 (1994) (generally, attorney withdraw- the Internet for banking and bill paying. unpaid, resulting in fees and interest, and ing for good cause entitled to compensa- In 2008, 76 percent of working adults some assets may go undiscovered. tion, even if attorney had been working un- used email. Even if an executor or family member der a contingent fee contract). Arguably, in More people have more types of ac- could be allowed access to a person’s email such circumstances, an allocation between counts online than ever before. We com- or other accounts, without an accurate list the firm and departing attorney could be municate online, bank online, pay bills of those accounts it may be nearly impos- made on the basis of quantum meruit. Oli- online, share and store photos online, and sible to locate them. People often create ver’s firm did not seek a quantum meruit buy and sell our junk online. Most people user or login names that bear little or no recovery, but rather sought the entire refer- are very careful about taking steps to en- resemblance to their actual name. Typical- ral fee and sought to avoid the terms of the sure that their passwords are protected and ly, little information is given to the online DCA with Oliver. that no one has access to those accounts service provider. (To open a Gmail® ac- Oliver paid the agreed-upon value for the -- which is good. But what happens, and count, for instance, you need only provide clients' file under the DCA, and he, like- who has access to those accounts, when an your first and last name, and a login name.) wise, was entitled to the future fees gener- online account holder dies? When additional information is requested ated by that file. The district court's grant Many people assume that a family (such as a date of birth), it may be falsified of summary judgment to Oliver’s firm and member will be able to get access to the in order to help prevent identity theft, or it denial of summary judgment to Oliver were deceased account holder’s information, may not be given at all. So even if a death reversed, and the matter was remanded to but this may not be the case. According certificate and court authorization is sent to the district court with directions to grant to Yahoo!®’s terms of service, a person’s an e-mail provider, it may have no way of summary judgment in favor of Oliver. Yahoo!® account, including e-mail, is not transferrable. Upon receipt of a death cer- identifying to which “John Smith” email account it relates. Shamberg, Johnson & Bergman v. Oli- tificate, Yahoo!® may close the account In addition to traditional estate issues ver and Wallace, Saunders, Kansas Su- and delete all the information. In fact, like paying bills and gathering assets, Inter- OSTETLER preme Court Opinion No. 97,584, filed Oc- there was a recent case in which the family & ASSOCIATES net accounts have created new issues, like H tober 30, 2009. of a Marine killed in Iraq had to go to court Certified Court Reporters in order to get access to his Yahoo!® e-mail who controls the items that have been listed ien account. Facebook®’s policy is to “memo- to sell on eBay®; how is money retrieved Exper ce • R • eli rialize” the account, which removes certain from a PayPal® account; or who owns the ity ab al il u it y information but still allows people to leave content on someone’s blog? Not only are Q posts in remembrance. However, Face- there financial and property questions, but also issues regarding personal items, such Since 1963 book® will not allow anyone access to the account. Enter the search “what happens to as gaining access to pictures, movies, or 8001 Conser, Suite 200 my account at death” in the PayPal® web- podcasts that are stored online must be ad- Overland Park, Kansas 66204 site and no answer will be provided. dressed. Additionally, some people must www.kcreporters.com When an executor is appointed for an es- also consider planning for personal items (913) 262-0100 tate, or a successor trustee takes over upon like email or other correspondence that the death of a trust maker, he has the abil- they do not want discovered by the family ity to receive the decedent’s mail (regular after they are gone. paper mail, that is – “snail mail”). Bills Attorneys and other advisors should dis- arrive that need to be paid, and occasion- ally statements from banks or investment INTERNET (Continued on page 13) 12 the BarLetter December2009 Address Changes INTERNET (Continued from page 12)
John P. Gerstle Stacey Schlimmer cuss these issues with their clients and, to 130 N. Cherry Schlimmer Law, LLC the extent possible, incorporate this infor- Suite 201 115 E. Park Street mation in their clients’ estate plans. Per- Olathe, KS 66061 Suite C haps the simplest way to plan for a client’s (913) 780-6666; Fax: (913) 780-6565 Olathe, KS 66061 online information is to have the client Email: [email protected] (913) 219-5424; Fax: (913) 390-9511 provide a list of accounts and passwords Email: [email protected] to a family member or trusted advisor. Of Steven D. Henry course, this violates the advice every Web The Henry Law Firm, P.A. Lewis D. Gregory site gives to keep all passwords secret and 130 N. Cherry Midwest Trust never share them with anyone. A list of Suite 105 5901 College Boulevard passwords could be kept in a safety-deposit Olathe, KS 66061 Suite 100 box, with access only to be given upon (913) 381-5020; Fax: (913) 627-9900 Overland Park, KS 66211 death or disability. However, clients will Email: [email protected] (913) 319-0317 need to make sure the list is kept up to date, Email: [email protected] as accounts and passwords change. Special Amy S. Merritt instructions concerning online accounts can Merritt Law Office Teague Pasco be incorporated into a power of attorney, a 7111 W. 151st Street Pasco Law Office, LLC will, or a trust. Some online services allow Suite 358 4800 Rainbow Boulevard for storage of login and password informa- Overland Park, KS 66223 Suite 200-B tion for online accounts, and arrange for (913) 387-4887; Fax: (913) 825-4474 Westwood, KS 66205 sending it to the appropriate people upon Email: [email protected] (913) 384-0034; Fax: (888) 400-7611 death. Email: [email protected] There is no doubt that the Internet con- Matthew C. Miller tinues to bring change in many areas of life at a seemingly ever-increasing speed. As Assistant Regional Counsel Mick Lerner more and more information is put online, Social Security Administration Office Douthit Frets Rouse Gentile & Rhodes, LLC it becomes increasingly important to plan 601 E. 12th Street 903 E. 104th Street for how this information should be handled Room 965 Suite 610 upon a client’s disability or death. Planning Kansas City, MO 64106 Kansas City, MO 64131 should also be in place for the professional (816) 936-5770 (816) 941-7600; Fax: (816) 941-6666 advisor, should someone need to take over Email: [email protected] Email: [email protected] his or her practice in the event of death or disability. Failure to plan properly might Dana Shannon Patrick Copley not only result in the loss of important in- U.S. Department of Labor Law Offices of Patrick Copley, LLC formation, but may also cause unnecessary Office of the Solicitor 601 N. Murlen complications, difficulty, and expense. 2300 Main Street Olathe, KS 66062 Suite 1020 (913) 390-1800; Fax: (913) 390-8101 Kansas City, MO 64108 Email: [email protected] (816) 285-7260 Email: [email protected]
Judd Herbster Herbster Law Firm, LLC 6750 Antioch Road Suite 301 Overland Park, KS 66204 (913) 669-7379; Fax: (888) 373-0513 Email: [email protected]
William G. Hammond • HP Authorized Technicians The Elder & Disability Law Firm, P.A. • We Guarantee Our 9225 Indian Creek Parkway Remanufactured HP Toners Suite 1100 Overland Park, KS 66210 • Complete Line of Of ce Supplies (913) 338-5713; Fax: (913) 498-0184
3123 Merriam Lane • Kansas City, KS 66106 Charles Kemp x13 Tel: (913) 362-5151 • Fax: (913) 362-5199 [email protected] • www.bbpi.net
the BarLetter December 2009 13
1.BBP.Ad.2.375x2.25 1 5/30/07 3:08:31 PM Bulletin Board
Joshua Hill has Attorney General attorneys in Wichita and Overland Park, joined Foulston Steve Six is forming Kansas, Martin Pringle provides creative, Siefkin as an Asso- an advisory council cost-effective solutions for its clients’ le- ciate in its Overland to study ways to gal problems. Martin Pringle offers a full- Park office. protect older Kan- range of legal services including, Adop- sans against com- tion, Appellate Practice, Aviation Law, Mr. Hill focuses his sumer fraud. Banking, Bankruptcy, Business Practice, practice on employ- Civil Litigation, Construction Law, Credi- ment and labor and The Democratic at- tor’s Rights, Elder Law, Employment Law, torney general has Environmental Law, Estate Planning, Im- general business. Bob Stephan Joshua Hill Hill received a J.D., named a former at- migration Law, Insurance Defense, Medi- Order of the Coif, from the University of torney general, Republican Bob Stephan, cal Malpractice Defense, Oil & Gas Law, Kansas, in 2009, where he was Editor of to chair the council. Personal Injury/Wrongful Death, Products the University of Kansas Law Review; and Liability, Real Estate Law, Taxation, Tech- a B.A., Economics and Political Science, Spokeswoman Ashley Anstaett says that nology & Computers and Workers Com- Graduate of Highest Distinction, from the Six is concerned because older people are pensation. University of Kansas, in 2005. targeted more than other groups by scam artist.
Sanders, Warren & Russell, LLP is pleased to announce the addition of Neil C. Gosch as an As- sociate. Neil re- ceived his J.D. from the University of Brian C. Boos Aaron E. Schwartz Missouri – Kansas City School of Law Wallace, Saunders, Vaughn Burkholder William P. Trenkle, Jr. Neil C. Gosch in 2009, his MPA Austin, Brown from Kansas State University in 2004, and & Enochs, Char- his B.S. from Kansas State University in tered is pleased to 2001. Mr. Gosch will focus his practice on announce the ad- insurance law as well as construction and dition of Brian commercial litigation. G. Boos, Aaron E. Schwartz and Carol A. Krstulic Martin Pringle is to its Overland Park proud to announce Carol A. Krustulic office. that Thomas Ha- Wyatt M. Wright Toby Crouse mill was recognized Mr. Boos earned his law degree from Wash- by Best Lawyers in burn University School of Law in 1988 and Three Foulston Siefkin attorneys in Over- America for 2009. received his undergraduate degree from land Park were selected as Missouri & Mr. Hamill has Missouri Western State University in 1984. Kansas Super Lawyers in 2009: Vaughn more than 35 years His primary practice area will be tort litiga- Burkholder, William P. Trenkle, Jr., and experience han- tion defense. Wyatt M. Wright. Toby Crouse was dling litigation of selected as a Missouri and Kansas Rising Thomas Hamill commercial cases, Mr. Schwartz earned his law degree from Star. including both complex and routine cases. University of Missouri School of Law in He has been recognized by Best Lawyers in 2006 and received his undergraduate de- the area of business litigation. gree from University of Wisconsin-Madi- son in 2002. His primary practice area will Inclusion in Best Lawyers is based on a be employment law. peer-review survey of 1.8 million confi- dential evaluations by the top attorneys in Ms. Krstulic earned her law degree from the country. Washburn University School of Law in 2009 and received her undergraduate de- Founded in 1951, Martin, Pringle, Oliver, gree from The University of Kansas in Wallace & Bauer, L.L.P is one of the larg- 2005. Her primary practice area will be est law firms in Kansas. With nearly 40 tort litigation defense. 14 the BarLetter December2009 Current Topics in Real Estate Law Two Lawyers and a Real Estate Agent Walk into a Bar... By Christian J. Kelly & Claire K. McCurdy
oth real estate industry insiders Specifically, single taxpayers with adjusted always measured from the date of purchase Band those even remotely connect- gross incomes up to $125,000 (previously of the subsequent principal residence, and ed with housing were elated and relieved $75,000) or married taxpayers filing jointly the taxpayer does not need to be a current with Congress’s most recent passage of a with incomes up to $225,000 (previously homeowner if she otherwise meets the re- bill1 extending the homebuyer tax cred- $150,000) are eligible. The tax credit de- quirement of prior home ownership for the its, originally included in the American creases for single buyers who earn between consecutive five-year duration. Like the Recovery and Reinvestment Act of 2009. $125,000 and $145,000, and for married first-time homebuyer tax credit, to claim The bill, signed into law by President buyers who earn between $225,000 and the tax credit a purchaser must have signed Obama on November 6, 2009, is seen by $245,000 and file jointly. Homebuyers a purchase agreement by April 30, 2010 its proponents as an important step in the whose incomes are beyond these limits are and must close on the property no later than continuing efforts to stabilize the nation’s not eligible for the tax credit. Anti-fraud June 30, 2010. For those military families housing market and the economy in gen- measures have also been incorporated into in which a member has served outside the eral. Under the bill, the existing tax this new legislation to prevent any on-go- United States for at least 90 days, both the credit for first-time homebuyers, which ing abuses detected by the IRS. tax credit for first time and existing home- is set to expire on November 30, 2009, buyers may be claimed through July 1, is extended to include those transactions Expansion of Homebuyer Tax Credit to 2011. where a purchase contract is entered into Existing Homeowners Taxpayers seeking to claim either of the by April 30, 2010 and closed by June two tax credits should work closely with 30, 2010. The extension benefits those In addition to the extension of the first- their real estate professionals and tax con- homebuyers that may have postponed a time homebuyer tax credit, the bill signed sultants, as the IRS requires the inclusion of potential purchase due to a perceived in- into law expands the homebuyer tax credit a properly executed copy of the settlement ability to close before the prior deadline to certain individuals and married persons statement (typically, the HUD-1 form) with of December 1, 2009. who do not otherwise qualify as first-time the tax return submitted for the year the A first-time homebuyer may claim the homebuyers. The maximum available tax property was purchased. It is expected that tax credit on any property occupied as a credit for existing homeowners is $6500 the extension and expansion of the home- primary residence, including single-family and they share some of the same limita- buyer tax credit equates to approximately homes, townhomes, condominiums, or co- tions as first-time homebuyers regarding $10.8 billion in unrealized tax revenue, but op properties. Although the current tax the taxpayer’s eligibility to claim one of the expansion of the tax credit to existing credit does not have to be paid back, as was the credits. homeowners was viewed as a method of the case with the $7500 credit enacted in As with the first time buyer tax cred- stimulating the normal cycle of buying and 2008, the tax credit is subject to recapture it, the availability of the tax credit phases selling. Nearly 1.4 million homebuyers by the Internal Revenue Service if the tax- out for individual taxpayers having an qualified for the first-time homebuyer tax payer sells the property within three years. adjusted gross income between $125,000 credit in 2009, and a target of the expanded While the first-time homebuyer tax credit and $145,000, and for joint filers, between tax credit theoretically includes the sellers is commonly referred to as having a value $225,000 and $245,000. Neither tax cred- from those transactions seeking to purchase of $8000, the bill provides that a tax credit it is available if the purchase price of the a subsequent primary residence, typically may be claimed for 10% of the property’s property exceeds $800,000, even if the at a price point exceeding customary first- value, up to a maximum amount of $8000. homebuyer otherwise meets the income time homebuyer ranges. Since the stabili- Perhaps one of the most important, yet thresholds. The property must be used as zation and recovery of home values contin- most overlooked, aspects of the first-time the taxpayers’ primary residence and, to ues to be viewed as the central component buyer tax credit is the definition of first- be eligible for either of the tax credits, the for long-term recovery in the housing mar- time buyer. The law defines a first-time property may not be acquired from a per- ket, Lawrence Yun, Chief Economist at the buyer as anyone who has not owned a pri- son related to the homebuyer. National Association of Realtors, believes mary residence in the past three years. For In order to qualify for the $6500 credit both aspects of the tax credits help increase example, if an individual has been living as an “existing” homeowner, the taxpayer demand and reduce inventory, thus en- in a rental home or apartment for at least must have maintained the same principal abling sellers to get higher prices than they three years due to a divorce, he qualifies. residence for any five-consecutive-year would have otherwise. (Assuming all other requirements are met.) period during the last eight years. The Additional information may be Thus, the tax credit is appealing not only to eight years is measured back from the date found at http://www.irs.gov/newsroom/ younger first-time homebuyers who typi- of settlement on the purchase of the new article/0,,id=204671,00.html and http:// cally buy at a lower price point, but also to residence. For example, if a person closes www.federalhousingtaxcredit.com/ those persons who do not own their current on a purchase of a residence on February residence, yet may be in a position to pur- 1, 2010, that person would qualify for the chase a property at a higher price point. $6,500 tax credit as long as for any five- 1The Worker, Homeownership, and Business Assis- There are also income limits on the avail- consecutive-year period dating back to tance Act of 2009 ability of the credit, but these have been February 1, 2002 that person owned her expanded from the previous legislation. primary residence. The eight-year period is REAL ESTATE (Continued on page 16) the BarLetter December 2009 15 REAL ESTATE (Continued from page 15) Bankruptcy Law Christian J. Kelly serves as Vice President and General Counsel of Reece & Nichols Equitable Tolling in Chapter 13 Realtors, a role held since 2007. Chris- By Andrew D. Hennier & Jeffrey A. Deines tian is responsible for Reece & Nichols’ Lentz Clark Deines legal department and oversees operations of Reece & Nichols, Kansas City Title and here are many legitimate purposes fied period of time within which to pursue its other affiliated businesses and services. Tin filing a Chapter 13 bankruptcy. a claim in order to preserve a remedy; and Prior to his appointment as General Coun- Although the “super discharge” is not (2) such period begins when the plaintiff/ sel, Christian served as an attorney with the quite as super as it used to be, Chapter creditor has or discovers he has a complete Kansas City law firm of Polsinelli Shugart 13 still allows a time period of protec- and present cause of action.” in its Financial Services Department. He tion to pay back certain debts, such as a The Young court equitably tolled the three- may be contacted at ckelly@reeceandnich- mortgage arrearage or a tax debt, without year lookback period of 11 U.S.C. section ols.com. suffering many of the problems associ- 507(a)(8)(A)(I) during the pendency of the ated with dealing with these debts out- debtor’s Chapter 13 case. Section 507 was Claire McCurdy is a lawyer and has been a side of bankruptcy. Chapter 13 also al- found to be a limitation period because it sales executive with Reece & Nichols Real- lows a debtor to cram down certain debts defines the period in which the IRS must tors since 2001. She is a former Chairman and, of course, allows for the retention act before its claim can be discharged in of the Kansas City Regional Association of of various non-exempt assets that would bankruptcy. Similarly, the lookback period Realtors (KCRAR) Forms Revision Com- otherwise be liquidated in a Chapter 7. of Section 727(a)(2) related to fraudulent mittee and has taught continuing education Based on recent case law, Chapter 13 can transfers, and the 180-day period of section courses on contracts for KCRAR. Prior to also be a valuable tool in simply offer- 109(g) are both limitations periods that beginning her real estate career Claire was ing your clients protection until certain have been found to be subject to equitably a lawyer in Sprint’s Litigation Department, time periods expire, at which point there tolling. See, Pher Partners v. Womble, 289 and before that was Of Counsel at Shook could be a tremendous advantage for the B.R. 836 (Bankr. N.D. Tex. 2003), and In re Hardy & Bacon. She may be contacted at client acting in good faith to get out of Bowman, 2004 WL 1083256 (Bankr. W.D. [email protected]. the Chapter 13 and get into a Chapter 7 Mo. May 11, 2004), respectively. or a new Chapter 13. This article points Judge Berger’s opinion in Maas, howev- out two instances in which time periods er, was specific to the 910-car-claim provi- are not tolled by the filing of a Chapter sion in the “hanging paragraph” of section 13, thus allowing for significant benefit 1325. That provision says that a debtor is in bankruptcy even in light of a failed restricted from cramming down the value Chapter 13 case. of a car lender’s claim to the value of the For an outstanding primer on this topic, I vehicle unless the vehicle was purchased Legal Writing suggest taking a look at a very recent opin- more that 910 days before the bankruptcy ion by the Honorable Robert D. Berger in was filed. Under state law, the lender’s briefs, motions, research, In re Maas, __ B.R. __, 2009 WL 3246697 power is limited to repossession of the ve- editing, case consultation (Bankr. D. Kan. September 30, 2009) (NO. hicle and filing suit for the deficiency. The 09-21053). The opinion thoroughly de- 910 provision of the Bankruptcy Code al- scribes the concept of “equitable tolling.” lows the full contractual liability to be G. Gordon Atcheson In very broad terms, equitable tolling al- secured as opposed to just the fair market The Atcheson Law Office lows for the tolling of a statute of limita- value of the vehicle. Judge Berger found (913) 362-8650 tion for a creditor that is frustrated by the that the 910-car-claim provision actually automatic stay associated with the filing expanded the car lender’s state law rights of a bankruptcy. In other words, a creditor as opposed to limiting them. And since the KU Law honors grad • award will argue that since the automatic stay pre- provision was not a statute of limitation, eq- winning writer • 25 years vented the prosecution of a remedy avail- uitable tolling was not appropriate in such experience •civil and criminal able to it under state law, the time period a circumstance. The result of the ruling is should be tolled during the pendency of that someone who files a Chapter 13 can Briefed and argued cases in Kansas the bankruptcy. Indeed, the United States use the pendency of the bankruptcy to wait Supreme Court and Court of Supreme Court has spoken to the issue in out the 910 days. If the case is dismissed Appeals; U.S. Courts of Appeals; Young v. U.S., 535 U.S. 43 (2002), and has and re-filed after 910 days have passed, the amicus counsel in Kansas and U.S. ruled that equitable tolling only applies to pendency of the case will not have tolled Supreme Courts limitation periods. Id. at 49. “Equitable the time period and the secured claim of the tolling is appropriate where the claimant car lender can be crammed down to the fair I can handle complete motions has diligently pursued his remedies but market value of the vehicle. or briefs for you or provide some action on the defendant’s part frus- One other situation related to this con- more limited support to trated his efforts.” Id. at 50. In short, as cept that comes up rather regularly is when supplement your work on a flat Judge Berger explained in Maas, “a statute a debtor has previously filed a Chapter 7 fee or hourly basis. of limitation subject to equitable tolling has case and encounters more financial diffi- two common characteristics: (1) the statute provides a plaintiff/creditor with a speci- BANKRUPTCY (Continued on page 17) 16 the BarLetter December2009 Event Calendar BANKRUPTCY (Continued from page 16) culty that necessitates another bankruptcy. January 6, 2010 Section 727(a)(8) requires an 8-year period December 1, 2009 Membership Luncheon Meeting between Chapter 7 bankruptcy filings. It JCBA Board of Directors Meeting 11:45 am – 1:00 pm has been found that this period is also not a 12:00 – 1:00 pm Ritz Charles limitation period subject to tolling. Tidewa- Bar Association Office 9000 W. 137th Street ter Finance Co. v. Williams, 498 F.3d 249 Overland Park, KS (4th Cir. 2007). This means it is possible December 2, 2009 for a debtor to wait out the 8-year period in Membership Luncheon Meeting a Chapter 13 and enjoy the protections of 11:45 am – 1:00 pm January 14, 2010 the bankruptcy umbrella during that time. Ritz Charles Probate Law Committee Keep in mind, however, that these situa- 9000 W. 137th Street Meeting/CLE tions require good faith on the part of the Overland Park, KS 11:45 am – 1:00 pm debtor, as do all bankruptcies. Olathe Medical Center December 9, 2009 20333 W. 151st Street WE HAVE AN UPDATE FROM A PRE- Family Law Bench/Bar Olathe, KS VIOUSLY REPORTED TOPIC IN THE Committee Holiday Party BARLETTER. THE UNITED STATES 4:00 – 7:00 pm February 3, 2010 SUPREME COURT HAS ACCEPTED Doubletree Hotel Membership Luncheon Meeting CERT IN THE LANNING CASE. Overland Park, KS 11:45 am – 1:00 pm Ritz Charles We previously reported to you a signifi- December 10, 2009 9000 W. 137th Street cant issue brewing across the country as to Annual Holiday Party Overland Park, KS what a debtor should be required to pay in 5:30 pm a Chapter 13 case. Are we restricted to the Callahan’s Pub & Grill February 17, 2010 “mechanical approach” of the Means Test 12843 W. 87th Street Bar Foundation Board Meeting formula, or is that a rebuttable presump- Lenexa, KS 12:00 – 1:00 pm tion and should we use a “forward look- Bar Association Office ing” approach to determine the amount of December 16, 2009 a debtor’s disposable income? Well, the Bar Foundation Board Meeting Check the Calendar on the Supreme Court may provide guidance in a 12:00 – 1:00 pm Topeka bankruptcy case. Arguments will Bar Association Office website likely be heard in March and we will pro- – www.jocobar.org – vide you with an updated analysis at that January 5, 2010 time. Specifically, the court will decide the JCBA Board of Directors Meeting for additional events following issue: 12:00 – 1:00 pm Whether, in calculating the debtor's "pro- Bar Association Office including CLE’s! jected disposable income" during the plan period, the bankruptcy court may consider evidence suggesting that the debtor's in- come or expenses during that period are likely be to different from her income or expenses during the pre-filing period." This case will have a tremendous impact in the bankruptcy world and all eyes will be
focused on our colleagues in Topeka. www.crashforensics.com
CrashForensics.Com
www.crashforensics.com
BANKRUPTCY (Continued on page 17) the BarLetter December 2009 17
New Members
Andrea R. Nourie Erica N. Perkin Eunice C. Peters 1007 W. Gambrell Street Mustoe Carter, LLC Ellis, Zolotor & Peters Law Office LLC Greenwood, MO 64034 Suite 260 703 N. Webster (816) 820-0737 5100 W. 95th Street P. O. Box 394 Email: [email protected] Prairie Village, KS 66207 Spring Hill, KS 66614 Law School: Washburn University (913) 712-9503; Fax: (913) 341-2293 (785) 592-2029 Yr. Graduated: 2007 Email: [email protected] Email: [email protected] Law School: UMKC Law School: Washburn University Michael J. Fleming Yr. Graduated: 2008 Yr. Graduated: 2006 The Healy Law Firm, LLC 1100 Main Street Jordan O. Schwartz Liz Rogers Suite 2600 Law Offices of Jordan Schwartz, P.A. Manson & Karbank Kansas City, MO 64105 31555 W. 95th Street 10801 Mastin (816) 472-8800; Fax: (816) 472-8803 DeSoto, KS 66018 Suite 430 Email: [email protected] (954) 554-0929 Overland Park, KS 66210 Law School: Washburn University Email: [email protected] (913) 498-8080; Fax: (913) 498-8079 Yr. Graduated: 2001 Law School: Washburn Email: [email protected] Yr. Graduated: 2007 Law School: University of Kansas Matthew D. Stromberg Yr. Graduated: 2007 Foulston Siefkin LLP 9200 Indian Creek Parkway Phillip M. Murphy, II Suite 450 Law Office of Phillip M. Murphy, II Overland Park, KS 66210 4800 Rainbow Boulevard (913) 498-2100; Fax: (913) 498-2101 Suite 100 Email: [email protected] Westwood, KS 66205 Law School: Washburn University (913) 362-8560; Fax: (913) 362-5480 Yr. Graduated: 2008 Email: [email protected] Law School: University of Kansas Yr. Graduated: 2008
Laura E. Lane Martin, Pringle, Oliver, Wallace & Bauer, L.L.P. IMMIGRATION ATTORNEY 6900 College Boulevard Suite 700 Overland Park, KS 66211 Kathleen A. Harvey, J.D., PA (913) 491-5500; Fax: (913) 491-3341 Attorney at Law Email: [email protected] Member, American Immigration Lawyers Association Law School: University of Kansas
Yr. Graduated: 2009 Specializing in immigration matters for
employers and individual clients: Tracey D. Johnson Law Office of Tracey D. Johnson • Business Visas (immigrant and non-immigrant) 6939 Constance Street • I-9 Training & Audits Shawnee, KS 66216 • International Adoption (913) 499-0422; Fax: (913) 371-6716 • Family Immigration Law School: Washburn University • Naturalization and Citizenship Yr. Graduated: 2007 • Green Cards for Undocumented CINC Juveniles Lebert D. Shultz 4507 W. 89th Street Prairie Village, KS 66207 Law Office of Kathleen Harvey (816) 223-3060 Email: [email protected] Corporate Lakes on Metcalf Law School: University of Kansas 7011 West 121st Street, Ste. 102 Yr. Graduated: 1967 Overland Park, KS 66209 Phone: (913) 491-6331 Fax: (913) 491-6318 E-mail: [email protected] Web: www.lawyers.com/kharveylaw
18 the BarLetter December2009 Classifed Ads Office near Johnson County Courthouse - Departure-Procedure & Defendant Rights; Large, totally furnished, 240 square foot Voluntary Intoxication Defense Allowed office available. Access to equipment, in Rape Cases; Juror Misconduct; Lesser reception, kitchen and conference room. Included Crime Instructions; Admission of $500 per month. If interested contact Clark other crimes pursuant to KSA 60-455; Suf- Office Space Davis at (913) 764-6879. ficient of Evidence; Ineffective Assistance of Counsel; Prosecutorial Misconduct; Office Space Available Immediately. Pres- Denials of Motions to Suppress and Drug tigious Leawood, Kansas location at the Forfeiture-Procedure & 8th Amendment Executive Office Suites Available in corner of College and Roe. Three (3) At- Excessive Fines. I remain committed to Leawood - Full-service executive offices torney offices with space available for sup- preserving defendants’ rights in Kansas and are available in Leawood within one block port staff. Free parking included. Use of will be traveling back to take care of my cli- of College and Nall. Please contact Glen reception area, kitchen, conference room ents and make oral arguments. If you know Beal at (913) 387-3180 or gbeal@dunnda- and receptionist included. For more infor- someone who needs appellate assistance, I vison.com mation, contact Joyce Smith at (913) 469- will be happy to give a free consult. 2904. Leawood Law Office. Premium location Attorney with practice focused on IRS con- with large offices and lots of windows. troversy and litigation. Experienced with One block off of 115th and Roe. Includes Office Space in College Boulevard/Metcalf Audits, Installment Agreements, and Of- shared conference room, copier/fax and Corridor. Includes furnished office, sup- fers-In-Compromise. L.L.M. in Taxation kitchen. Currently three attorneys with two port staff, parking, 9th Floor of Commerce from U.M.K.C. Law School - 2001. Con- more offices available. Room for one more Plaza I, immediately West of Overland tact Mark Zinn, (913) 563-7945 or mark@ virtual attorney. Call Paul at Hentzen Law Park Marriott. Contact Stephanie at (913) zinnlawfirm.com Firm (913) 451-7900. 498-1911 for more information. Cost-Effective Mediation - Get your Westwood Office Space. Two-room suite Law offices located in downtown Overland money’s worth. Gordon Atcheson, KBA- or single offices. Straight lease or full Park, in remodeled historic building, free trained mediator with extensive litigation executive suite services including phone parking, reception area, kitchen, confer- experience. Reasonable hourly rates for answering, voice mail, receptionist, sec- ence room, fax, scanner, copier, phones, employment, business, personal injury, and retarial services, conference room, copier, voice mail, high speed internet access. The other civil cases. Contact The Atcheson kitchen, free parking & paid utilities. Sev- offices are in walking distance of coffee Law Office at 913-362-8650. eral attorneys in the building. Centrally and shops, restaurants and retail stores. Four- conveniently located just west of the Plaza teen highly respected attorneys in an office- Experienced attorney with excellent work at 4800 Rainbow, Westwood, KS. Contact sharing /networking arrangement. Contact history (both small and big firm), now Jeff Jones (913) 362-8990. Jim Shetlar at (913) 648-3220. an at-home mom, seeks part-time work DRAFTING documents and/or pleadings, Office Building - 1200 sq ft - ½ block from Virtual office - Work from home but need a DOCUMENT REVIEW for document Johnson County Courthouse. 3 offices, 1 nice conference room for client meetings? production or otherwise, possibly COURT conference room, 1 secretarial room, break Let’s talk. (913) 706-9336. APPEARANCES. Flexible terms - on room, large storage room, on-site parking, contract basis or otherwise. Experience in- internet/cable system. $500 per month for Single Office Space: Lenexa - near 87th & cludes litigation, wills/trusts, probate, con- single office or $1,250 per month for en- I-435. $800/month includes client recep- tracts. 913-254-1728 or 913-940-4521, tire building. Owner will sell and provide tion. Also available: phone w/voice mail, [email protected] financing with payments under $1,000 per fax, copier, postage, Internet access, com- month including taxes & insurance. Joe puter research, and backups. Call Jeff Kin- Qualified Domestic Relations Orders. Ex- Vader (913) 764-5010. caid or Terry Rees at (913) 888-9696. perienced attorney will assist you on a flat fee basis with preparation and qualification Office space near Johnson County Court- of QDROs. Contact Frank Taylor at 913- house at Chestnut & Loula. Three offices 782-2350. are available which includes bi-lingual re- ceptionist, conference room and kitchen- Attorney Former 8th Circuit Court of Appeals law ette. Please contact Carl Cornwell at (913) Services clerk with 15+ years civil litigation expe- 254-7600. rience with two of Kansas City’s largest law firms is available for appellate referrals 115 East Park Street, Suite C: Elegant of- Criminal Appeals - Jessica Travis - (913) or consultation. Licensed in Kansas and fice available within feet of Johnson Coun- 782-8200 - www.kansascitydefenselaw. Missouri. Contact Thomas Sheehan, The ty Courthouse. Library paneled walls and com - Some of you have heard that I am Sheehan Law Firm, at (913) 461-3648 or hardwood floors in main area with two large moving but I’m keeping my criminal ap- [email protected] offices wired for telephone, cable and inter- pellate practice alive and kicking! I have net access. Professional atmosphere. Re- written and argued appeals before the Kan- ception and kitchenette available. $550.00 sas appellate courts, Missouri and Federal per month, first month free. Contact Wil- on criminal issues including: Jury Upward liam David Langston at (913) 205-5717. the BarLetter December 2009 19 Johnson County Bar Association 130 North Cherry, Ste. 202 Olathe, Kansas 66061 (913) 780-5460 FAX: (913) 780-5480 Website: www.jocobar.org
OFFICERS
No Short Cuts. President - Christine Graham President-Elect - Roger Stanton At First Eagle Financial Services, we don’t just provide top-quality insurance Vice President - Jason McClasky products, annuities and pension programs — we use these tools to help build Secretary/Treasurer - Leonard Hall Executive Director - Linda Coffee long-term financial solutions to suit your needs. BOARD OF DIRECTORS You can’t predict the Michael Middleton, CLTC, RHU Past President future, but you can 444 E. Santa Fe Street, Olathe, KS 66061-3446 Christopher Reecht prepare for it. (913) 791-9333 For help contact: [email protected] Senior Lawyers Section President Lawrence Ferree • Insurance Young Lawyers Section President • Investments Katie McClaflin
• Financial Planning 10th Judicial District Court Representative Hon. Thomas Sutherland Members may receive association discounts on selected insurance products Elected Director I Michael Middleton is a registered representative of and offers securities, investment adviso- ry and financial planning services through MML Investors Services, Inc. Member SIPC. Timothy McCarthy 10740 Nall Avenue, Suite 100, Leawood, KS 66211, (913) 234-0300. First Eagle Financial Services LLC is not a subsidiary or affiliate of MML Investors Services, Inc. Elected Director II Insurance offered through Massachusetts Mutual Insurance Company and other fine companies. CRN200910-095720 Donald Hymer
Elected Director III Keven O’Grady
Appointed Directors Jay Heidrick
PRSRT FIRST CLASS Mira Mdivani U S POSTAGE PAID BOELTE HALL 66205
130 N. Cherry, Ste. 202 Olathe, KS 66061