JASON HARTMAN, ) ) Plaintiff, ) ) v. ) ) RESULTS PROPERTY MANAGEMENT, LLC, ) et al., ) ) Defendants. ) Case No. 1516-CV01981 Division 8 DEFENDANTS’ SUGGESTIONS IN OPPOSITION TO PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL, MOTION TO CONTINUE TRIAL SETTING AND MOTION FOR SANCTIONS Defendants Results Real Estate Services, LLC, Results Property Management, LLC, Results Investments, LLC, Metrowide Services, LLC, Quentin Kearney, and Ken Logan (collectively, the “Defendants”), through counsel, respectfully request that the Court enter its Order overruling Plaintiff Jason Hartman’s (“Plaintiff”) Motions to Disqualify Counsel, Continue the Trial Setting and for Sanctions (collectively, the “Motions”). As has become unfortunately routine in this case, the Motions are fraught with inaccuracies, misstatements of applicable law and downright false statements of fact all done for the sake of dragging out what has become almost a decade-long litigation over a $2,500 small-claims case. For their Suggestions in Opposition (the “Suggestions”) to the Motions, Defendants state as follows: MOTION TO DISQUALIFY During the pendency of this case, Plaintiff, together with Platinum Properties Investor Network, Inc. filed a lawsuit on April 25, 2017, against John Doe and Jane Doe 1 through 99 (the “Doe Lawsuit”) alleging various claims that supposedly arose out of alleged defamatory Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY October 18, 2017, and without any new evidentiary support for additional allegations, Plaintiffs amended the Doe Lawsuit to add Quentin Kearney and Ken Logan, in their individual capacities, as defendants without replacing any of the Doe defendants. The only new allegation in the Doe Lawsuit was that the internet address for the Alleged Defamatory Statements originated from a building that the Defendants own, which is not true. Mr. Hardee even admitted to Mr. Hughes that he had no factual basis for this allegation in the Doe Lawsuit other than the fact that they do business in Blue Springs, Missouri. Mr. Hardee did not attempt service of the Doe Lawsuit for over six (6) months. When he did attempt service, his process server did so by leaving a copy of the Summons and Petition on the windshields of their vehicles. This defective service caused the Defendants to hire counsel and file a motion to quash the void service. As of the date of Mr. Hartman’s deposition on August 2, 2018 (not August 5, 2018, as outlined in the Motions), Plaintiffs had not attempted to serve the named defendants again. It was not until the court in the Doe Lawsuit informed Mr. Hardee that if he did not serve the named defendants by August 17, 2018, that the court would dismiss the Doe Lawsuit for lack of prosecution that he served Ken Logan and Quentin Kearney during the special setting of Quentin Kearney’s deposition that this Court scheduled on August 7, 2018. Moreover, Defendants had tried through discovery and otherwise in the instant case and its predecessor for over seven years to obtain a damages calculation from Plaintiff so that they could evaluate the case and try and reach an amicable resolution. They knew, and Plaintiff admits that the repair and maintenance items that he complained about aggregated in an amount to just $2,500.00 over a four-year span. His demand, however, was in the six figures. In the instant case, Plaintiff refused to participate in Court-ordered mediation with his 2 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM statements posted on various internet sites (the “Alleged Defamatory Statements”). On before this Court, Plaintiff’s counsel informed the Court when discussing discovery problems and scheduling that his client was “unreasonable” to which the Court responded that it was reluctant to go to trial with an unreasonable party. Notwithstanding the Court’s directive, the Plaintiff continued his prosecution against the Defendants. Plaintiff’s counsel admitted that his legal maneuvering had cost Defendants over $100,000 in legal fees and expenses. Plaintiff’s counsel also admitted in open Court that Defendants performed the maintenance work on the Plaintiff’s property. Plaintiff’s counsel also admitted to Defendants’ counsel in this case that he was seeking an inflated damage amount. It is against this backdrop that Ken Logan and Quentin Kearney said enough is enough and made the decision to sue Mr. Hardee. Their decision had nothing to do with litigation strategy in the instant action and everything to do with the Doe Lawsuit and Mr. Hartman’s continued pattern of harassment by bringing baseless, frivolous lawsuits against them. This fact was born out during the deposition of Mr. Hartman when he testified under oath that he had no evidentiary support for any of the factual allegations in the Doe Lawsuit against either Ken Logan or Quentin Kearney. The fact that the Doe Lawsuit might create a conflict in Mr. Hardee’s mind never crossed their minds. In the minds of Mr. Logan and Mr. Kearney (and for that fact even Mr. Hardee as late as 4:00 p.m. the day after Mr. Zeiler provided him with a courtesy copy of the abuse of process petition), the case was moving forward to trial on Monday, August 6, 2018, at 9:00 a.m. Counsel for both sides was prepared to begin the trial, exhibits were marked, and but for Mr. Hardee’s sudden hospitalization and withdrawal, the parties would have begun to pick a jury that morning. With this background, Defendants direct the Court’s attention to the outright false statements in the Motion to Disqualify. Mr. Zeiler never threatened Mr. Hardee with the filing of 3 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM counsel stating that mediation would be useless because his client was “nuts.” In one hearing of Mr. Hartman during his deposition or demanded that Mr. Hardee dismiss the Doe Lawsuit. See Affidavit of David L. Zeiler, at ¶¶ 3 through 8 (the “Zeiler Affidavit”). Attached as Exhibit A to these Suggestions and incorporated by reference is a true and correct copy of the Zeiler Affidavit. More importantly, and as the Court’s file in the Hardee Lawsuit reflects, Mr. Zeiler did not file the Hardee Lawsuit on August 2, 2018, the date of Mr. Hartman’s deposition. The Defendants filed that petition on August 5, 2018. Mr. Zeiler provided Mr. Hardee with a courtesy copy of the petition during a break of the deposition but said nothing about the petition to Mr. Hardee. See Zeiler Affidavit, at ¶ 3. Mr. Hardee scanned the Hardee Lawsuit during the break and then slid it into a stack of papers he had on the conference room table. See Zeiler Affidavit, at ¶ 6. Contrary to the assertion of Plaintiff’s counsel in the Motions and following the completion of Mr. Hughes’ questioning of Mr. Hartman, Mr. Hardee conducted his cross-examination of Mr. Hartman on August 2, 2018, after receiving the courtesy copy of the Hartman Lawsuit and the deposition concluded. See Zeiler Affidavit, at ¶ 8. The following day, August 3, 2018, Quentin Kearney sat for his deposition. Mr. Hardee conducted the deposition on behalf of the Plaintiff, which began at approximately 12:00 p.m. See Zeiler Affidavit, at ¶ 9. At that time, Mr. Hardee never mentioned that the threat of the Hardee Lawsuit was affecting his hypertension medical condition or might cause him a conflict in the instant action. He proceeded to question Mr. Kearney and continued questioning him until approximately 4:00 p.m. when he brought up the subject of settlement. Mr. Hardee floated a settlement amount for the Defendants to consider. When the Defendants authorized a counteroffer, Mr. Hardee announced, more than a full day after receiving the courtesy copy of the Hardee Lawsuit, that the threat of that lawsuit was causing an exasperation of his hypertension and that he was going to have to withdraw as Mr. Hartman’s counsel due to a possible conflict of interest. Mr. 4 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM the abuse of process lawsuit (the “Hardee Lawsuit”) just before he began his cross-examination stopped due to Mr. Hardee’s condition. Moreover, at no time during either Mr. Hartman’s deposition or Mr. Kearney’s deposition, or at anytime thereafter for that matter, has Mr. Zeiler made any demand on Mr. Hardee to dismiss or take any other action relating to the Doe Lawsuit. See Zeiler Affidavit, at ¶ 10. Counsel met with the Court on Monday, August 6, 2018 (the morning of trial) at which time Mr. Hardee explained that he was going to file a motion to withdraw. The Court, at Mr. Hartman’s request, agreed that he could take Mr. Kearney’s deposition for a time certain on August 7, 2018, to conclude the deposition and reset the trial setting. Neither party requested additional depositions as discovery closed under this Court’s Scheduling Order on January 31, 2018. Plaintiff was not trying to schedule the depositions of Mr. McDaniel or Mrs. Garlett. That statement in the Motions is a flat-out misrepresentation to the Court. The Court sanctioned the eleventh-hour depositions of Mr. Hartman and Mr. Kearney before trial. This case was set to go to trial two days after these depositions concluded. Discovery was concluded. Saying otherwise peels back the layers of the onion to reveal the true motive behind the Motions – further delay in this action and adding to the Defendants’ cost and expense in defending a small-claims case. The Motion to Disqualify Counsel also misses the mark on the law. Plaintiff’s counsel must be confused in which case he is filing the instant motion. He appears to be arguing that counsel should be disqualified in the Hardee Lawsuit when discussing the standard for disqualification under the “necessary witness rule.” Nowhere does the Plaintiff’s counsel suggest that either of Defendants’ counsel are necessary witnesses in the instant case. The rule that a lawyer is a “necessary witness,” as applied in State ex rel Wallace v. Munton, 989 S.W.2d 641 (Mo. Ct. App. 1999), deals with the situation where an attorney is a necessary witness in the case being tried while representing a party in that case. Such is not the case here. Neither Mr. Hughes nor Mr. 5 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM Hartman agreed he wanted to take over the questioning of Mr. Kearney, but the deposition was standard is inapposite. Moreover, whether either counsel will be necessary witnesses in the Hardee Lawsuit is irrelevant to Plaintiff’s Motion to Disqualify Counsel in this case. Opposing counsel mixes apples and oranges trying to support his effort to disqualify Defendants’ counsel. Additionally, Plaintiff’s counsel offers no Missouri law to support his proposition that disqualification of counsel is an appropriate remedy due to Mr. Hardee’s withdrawal from this action. Defendants will not belabor the Court with a legal analysis of the Idaho case or the Los Angeles County Bar article that Plaintiff’s counsel relies on in the Motions. Suffice it to say that whether the factual allegations made in the Hardee Lawsuit support the stated cause of action is an issue for the Hardee court to determine. Regardless of whether the Hardee court would accept Plaintiff’s “cross-jurisdictional analysis” of the Idaho case when there is on-point Missouri case law concerning abuse of process claims against attorneys, this analysis is irrelevant and offers no guidance on whether this Court should disqualify counsel. Further, and as conceded in the Motions, the Hardee Lawsuit arose primarily out of an unrelated lawsuit to the instant action, i.e., the Doe Lawsuit. See Motions, at p. 1. Accordingly, counsel’s contention that the Hardee Lawsuit was an improper litigation tactic is nothing more than unsupported rhetoric. Without any legal authority to support the Plaintiff’s disqualification position, the Court should overrule the Plaintiff’s Motion to Disqualify Counsel. MOTION TO CONTINUE TRIAL SETTING Again, Plaintiff attempts to obfuscate the facts in seeking a continuance of the trial set in this case on February 11, 2019. First, and as noted above, there is no further discovery permitted or necessary in this case. Plaintiff’s counsel ignores the fact that Plaintiff took Mr. Kearney’s deposition during the first part of this decade and that this Court entered a Protective Order in this case that any subsequent deposition could not retread old ground. That exactly is what happened 6 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM Zeiler is a necessary witness in the case at bar. Therefore, application of the “necessary witness” properly objected and, at times, specific references to the prior deposition were given to Mr. Hartman. Additionally, other than attaching the wholesale transcript of Mr. Kearney’s August 7, 2018 deposition, Plaintiff does not set forth what questions he asked that were not subject to a proper objection, were not answered because of that objection, what objections were improper and what questions he seeks answers if the Court grants his request to depose Mr. Kearney again. So far, the deposition of Mr. Kearney has been nothing more than a fishing expedition into everything but the $2,500 small-claims case, including, without limitation, seeking discovery in the Doe Lawsuit. In fact, Plaintiff insisted not once, but twice in playing a defamatory video that was the subject of a settlement in a defamation action and insisted on asking questions about it after it played. This video has nothing to do with the instant action and the mere playing of the video before third parties such as the videographer and court reporter subjects Mr. Kearney to new damages and the Plaintiff to new defamation claims. The other reasons that Plaintiff’s counsel asserts for the requested continuance are disingenuous at best. The fact that he entered his appearance on September 5, 2018, but just recently received the case file appears to be a problem between him, his client, and Mr. Hardee and does not rest at the feet of the Defendants. A previously scheduled trial is something that he should have disclosed to his client and something that his client should have considered before hiring him. Moreover, if Plaintiff’s counsel had a previously scheduled trial when he entered his appearance on September 5, 2018, why is he waiting until now to request a continuance of the trial setting? It also should be pointed out to the Court that Plaintiff has at least two other lawsuits pending in Jackson County, Missouri, with different attorneys on each one. See Case Nos. 1818CV28693 and 1816-CV01782. 7 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM during Mr. Kearney’s depositions on August 2, 2018, and August 7, 2018, to which counsel after nearly a decade of litigation are extremely narrow. First, were there repair and maintenance services performed on Plaintiff’s property? Second, did the contract Plaintiff signed obligate him to pay for these repair and maintenance services? Third, was the Plaintiff responsible for paying for these repair and maintenance services? Fourth, did the Defendants or their vendors perform these repair and maintenance services? Fifth, were the amounts that Defendants charged Plaintiff fair and reasonable? How long can it take Plaintiff’s counsel to get up to speed on these issues that have a value of $2,500? As noted, by the time this case goes to trial, it will have been going on in one phase or another for nearly a decade. It is time to bring it to a conclusion by having the trial, as scheduled, on February 11, 2019. The Court should overrule the Plaintiff’s Motion to Continue the Trial Setting. MOTION FOR SANCTIONS The Court should overrule the Plaintiff’s motion for sanctions out-of-hand based on his failure to comply with Local Rule 33.5(4). This rule requires that a party confer in good faith with opposing counsel in writing before filing a motion for sanctions under Mo. R. Civ. P. 61. Additionally, a copy of this writing must be attached to the affidavit of the movant in support of the motion. In this instance, neither the Affidavit of Plaintiff nor his counsel contain a statement of the good-faith written conferral with opposing counsel concerning the alleged sanctionable conduct or a copy of the written conferral. Accordingly, and as a matter of law, the motion for sanctions is deficient and, therefore, the Court should overrule the motion. Notwithstanding Plaintiff’s continued blatant disregard for the rules of this Court, the Motion for Sanctions further is deficient in that it fails to state what questions Mr. Hartman asked during the Kearney deposition that were not subject to a legitimate objection and that Mr. Kearney failed to answer. Again, if there is no question left to ask that is relevant or germane to the 8 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM Additionally, regardless of how voluminous the case file may be, the issues in this case subjecting Mr. Kearney to continued questioning is pure harassment, which the Court should not countenance. Plaintiff has had three (3) bites at the apple in deposing Mr. Kearney. He deposed Mr. Logan over eight (8) days. Plaintiff also deposed nearly all the vendors and subcontractors who defendant Metrowide Building Services, LLC claims performed the third-party vendor work on Plaintiff’s property. He deposed Elaina Garlett who testified that she knew nothing about the repairs and maintenance to his property or the billing for such services, yet Plaintiff wants to depose her again. At some point, the harassment must stop, the trial must proceed, and the case must come to a resolution by a jury of the parties’ peers. In this instance, if the Court should award any sanctions, it should be to Defendants’ counsel for their costs in responding to these frivolous Motions, as provided under Rule 61.01(g). The Court should overrule the Plaintiff’s Motion for Sanction. WHEREFORE, Defendants Results Real Estate Services, LLC, Results Property Management, LLC, Results Investments, LLC, Metrowide Services, LLC, Quentin Kearney, and Ken Logan respectfully request that the Court enter its Order overruling a) Plaintiff’s Motions to Disqualify Counsel; b) Plaintiff’s Motion to Continue the Trial Setting; c) Plaintiff’s Motion for Sanctions; and d) for such other and further relief as the Court deems just and proper. 9 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM remaining issues in this case that Mr. Kearney already has not answered, the sole purpose of McCORMICK GORDON BLOSKEY & POIRIER, PA By: /s/Michael L. Hughes Michael L. Hughes MO #52163 6300 W. 143rd Street, Suite 140 Overland Park, KS 66223 Telephone: (913) 322-4061 Facsimile: (913) 322-4374 mhughes@mgbp-law.com and ZEILER LAW LLC By: /s/ David L. Zeiler__________ David L. Zeiler MO #46806 325 NE Hidden Valley Way Lee’s Summit, Missouri 64064 Telephone: (816) 721-4691 Telecopier: (877) 517-2615 (toll free) dzeiler@zeilerlawfirm.net ATTORNEYS FOR DEFENDANTS 10 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM Respectfully Submitted, I hereby certify that I electronically filed the above document on November 19, 2018, with the Clerk of the Court via the Missouri e-filing system, which automatically transmits a Notice of Electronic Filing to all counsel of record. ___/s/ David L. Zeiler__________ An Attorney for Defendants CERTIFICATION UNDER RULE 55.03(a) Pursuant to Rule 55.03(a), I certify that I signed an original of this pleading and that I maintain the signed, original pleading at my office. /s/_David L. Zeiler______________ 11 Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM CERTIFICATE OF SERVICE Exhibit A Electronically Filed - Jackson - Kansas City - November 19, 2018 - 04:45 PM EXHIBIT A IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY JASON HARTMAN, Plaintiff/Counterclaim Defendant, Case No. 1516-CV01981 v. Division 8 RESULTS PROPERTY MANAGEMENT, et (11., Defendants/Counterclaimants/ Third-Party Plaintiffs. AFFIDAVIT OF DAVID L. ZEILER IN SUPPORT OF DEF SUGGESTIONS IN OPPOSITION TO PLAINTIFF MOTION TO DISQUALIFY COUNSEL, MOTION TO CONTINUE TRIAL SETTING AND MOTION FOR SANCTIONS David L. Zeiler, being ?rst duly sworn, upon his oath states: I. I am over twenty?one (21) years of age; I have personal knowledge of, and I am competent to testify to the matters outlined in this Af?davit. 2. I am one of the attorneys for Party Plaintiffs Results Property Management, LLC, Results Real Estate Services, LLC, Metrowide Services, LLC, Results Investments, LLC, Quentin Kearney, and Ken Logan (collectively, the ?Defendants?). 3. On August 2, 2018, I provided a courtesy copy of a petition for abuse of process, without comment, to Lee Hardee during a break of the deposition of Jason Hartman, the Plaintiff in the captioned action. 4. This break occurred during the direct examination of Mr. Hartman. 5. The plaintiffs in that petition are Quentin Kearney and Ken Logan, and Mr. Hardee is the defendant. 917:170 8Loa JeqwerN - uosxoer? - pend 6. Mr. Hardee browsed through the petition and then placed it in a stack of papers sitting on the conference room table in the room where the deposition of Mr. Hartman was taking place. 7. After reviewing the petition, Mr. Hardee did not comment on the allegations contained therein, and I made no demand on him concerning the claims in the petition or any actions he needed to take to keep the plaintiffs from ?ling the petition. 8. The deposition of Mr. Hartman continued and an hour or two later Mr. Hardee cross?examined Mr. Hartman. The next day, August 3, 2018, Mr. Hardee took the deposition of Mr. Kearney, which began at approximately 12:00 pm. 10. At no time during either deposition or at any time since these two depositions have I had any discussions with or made any demands on Mr. Hardee relating to the abuse of process petition or the Doe Lawsuit. 11. I ?led the petition against Mr. Hardee on August 5, 2018, three (3) days after providing him a courtesy copy of the petition. AF IANT FURTHER SAITH NAUGHT 917:170 8Loa ?eL JeqwerN -A1!o - uosxoer? - pend STATE OF MISSOURI ss. COUNTY OF JACKSON On this 19th day of November 2018, before appeared David L. Zeiler, to me personally known, who being by me duly sworn, did state that the statements made in this Af?davit are two to the best of his lmowledge and belief. IN TESTIMONY WHEREOF, I have hereunto set my hand and af?xed my of?cial seal in the County and State aforesaid? aid/ear last above written. MM JESSICA LARSON Notary Public New), Sea; ota Public in and for Said County State of Missouri and ate Commissioned for Jackson County 7' 2?22 Jam 64 0 tau/mm (Type, print or stamp the Notary?s name below his or her signature.) My Commission Expires: 9 2'0 wa 917:170 8LOZ JeqwerN -/i1!o SBSUBM - uosxoer? - pel!:l