JASON HARTMAN,

)
)
Plaintiff,
)
)
v.
)
)
)
RESULTS PROPERTY
)
MANAGEMENT LLC,
)
et. al.,
)
)
Defendants.
)
____________________________________

Case No: 1516-CV01981
Division 08

PLAINTIFF’S MOTION TO DISQUALIFY DEFENDANTS’ COUNSEL; MOTION TO
CONTINUE TRIAL SETTING; MOTION FOR SANCTIONS
COMES NOW the Plaintiff Jason Hartman by and through his new attorney Kenneth N.
Caldwell, of Caldwell Law Firm, P.C., and moves this court to continue the trial setting currently
scheduled for February 11, 2019. These motions are necessitated by extraordinary circumstances
and is made pursuant to Missouri Supreme Court Rules 4-3.7, 55.03(c), 57.03(e), 61.01(g), 65.03,
and Local Rule 34.1.
A.

BACKGROUND

The Plaintiff brings this motion based on the following extraordinary circumstances:
On August 5, 2018 during the deposition of Plaintiff Jason Hartman (“Hartman”) by
Defendants’ co-counsel, Michael Hughes, something extraordinary occurred.

Just before

Plaintiff’s counsel, Lee Hardee (“Hardee”) was to ask follow up questions of his client, Hartman,
Defendants’ co-counsel David Zeiler (“Zeiler”) threatened Hardee personally with a lawsuit, if
Hardee did not dismiss Hartman’s claims against his clients in another unrelated case. At the same
time, Zeiler handed Hardee a copy of the lawsuit that he intended to file against Hardee for Abuse

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IN THE CIRCUIT COURT OF THE COUNTY OF JACKSON COUNTY, MISSOURI
KANSAS CITY

 subsequently filed the lawsuit against Hardee the same day. (See the Petition for Abuse of Process
styled as Ken Logan and Quentin Kearney v. Lee Hardee and is Case No. 1816-cv-19956, attached
hereto as Exhibit A.)
Zeiler’s threat of, and subsequent action of filing a lawsuit, against Hardee (who was
Hartman’s agent by virtue of the attorney-client relationship) by any definition was an abusive
litigation tactic and seriously rattled Hardee and interfered with Hardee’s ability to finish the
Hartman deposition. It likewise interfered with his ability to take the Kearney deposition on
August 7, 2018. Zeiler intentionally used this abusive litigation tactic to gain an unfair litigation
advantage in this case.
The filing of the lawsuit by Zeiler, on behalf of his clients, immediately created a conflict
of interest for Hardee and Hardee had to file a Motion to Withdraw from the case after being
Hartman’s counsel of record on the case since its inception in January 2015. He filed his Motion
to Withdraw on August 9, 2018. His Motion to Withdraw was granted on September 7, 2018.
Hardee’s withdrawal was the natural and anticipated consequence of Zeiler’s filing.
According to David Grossbaum’s article, Suing Opposing Counsel for Bad Behavior During
Litigation (2002), attached hereto as Exhibit B, suing opposing counsel “will always compromise,
and in most cases, preclude the attorney’s ability to continue representing the client in litigation.”
The filing by Zeiler, and Hardee’s subsequent withdrawal caused and will continue to cause
Hartman to incur the costs of educating a new attorney to pursue his claims, and if the trial is not
continued, it will be under severe time constraints because of the impending trial date. Hartman
may now have a claim against Logan, Kearney and their attorneys for recovery of those costs to

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of Process. Hardee had no authority to dismiss his client’s lawsuit in the other case and Zeiler

 Exhibit B article.
B.

PLAINTIFF’S MOTION TO DISQUALIFY PLAINTIFFS’ COUNSEL

The undersigned counsel entered his appearance on September 20, 2018 but just recently
received Hardee’s voluminous file. As far as the undersigned can gather from a brief review of
the lengthy history of the case, depositions remain to be taken, there are hundreds of files to pore
through, there are numerous deposition transcripts to review, pre-trial proceedings are just around
the corner, and a trial is scheduled to begin on February 11, 2019.
Zeiler, Kearney, and Logan obviously knew and intended that their lawsuit against Hardee
put Hartman at a serious disadvantage in preparing for trial. Lawsuits against opposing counsel
are rare and there is limited case law discussing the topic, however, the court in Taylor v.
McNichols, 243 P.3d 642, 652-655 (Id. 2010) presents a good cross-jurisdictional analysis,
including a citation to Missouri law.

In Taylor the court concluded that even in the narrow

circumstances where a claim can be made against the “opponent's attorney in litigation, based on
conduct the attorney committed in the course of that litigation, it may not be properly instituted
prior to the resolution of that litigation, even where the allegedly aggrieved party believes that the
attorney in question has been acting outside the legitimate scope of representation and solely for
his own benefit. Allowing such a claim while litigation is pending, for good reason goes against
the public policies of: (1) protecting attorneys from the threat of retaliatory litigation, in order to
ensure that they may zealously advocate for their client without fear of reprisal; and (2) protecting
judicial economy, are magnified when confronted with not only the threat of retaliatory litigation,
but the reality of it while the underlying suit is ongoing.” Id. at 658. Assuming the Idaho court’s
view is accepted here, the initiation of the lawsuit against Hardee during this litigation was at best

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the extent such a claim would be recognized in Missouri as suggested by David Grossbaum in his

 during an important deposition was both unethical and indefensible.
Zeiler and Hughes, Defense counsel herein, and Plaintiffs’ counsel in the case against
Hardee, have also interjected themselves as key witnesses in the case against Hardee, which in
large part relates to conduct by Hartman. Many of the allegations in the Exhibit A Petition against
Hardee will necessitate Zeiler’s testimony. In paragraph 51 of the Petition, the Plaintiffs accuse
Hardee of violating his “professional ethical canons under Missouri law” by continuing to
prosecute the Doe lawsuit against the Plaintiffs.” In paragraph 52, the Plaintiffs’ allege that
Defendant “inflated the alleged damage amount” which allegedly demonstrates a collateral
purpose in this litigation. In paragraph 53, the Plaintiffs allege that Defendant Hardee’s “use of
the legal process for the above collateral purposes is an illegal, improper, and perverted use of the
process.” It would seem that Zeiler’s and Hughes’ testimony rather than Logan and Kearney’s
will be necessary to support these allegations thus making Zeiler and Hughes key witnesses in the
litigation against Hardee. In addition, the claims against Hardee will no doubt to seek to invade
the attorney-client privilege between Hardee and Hartman. Hartman may be asked to be a witness
in the case brought against his own attorney.
An attorney or attorney(s) may be disqualified under the attorney-witness rule for acting as
an advocate at a trial if: the lawyer will be a necessary witness, his/her testimony will relate to
contested issues, and disqualification will not work substantial hardship on his or her client.
Supreme Ct. Rule 4-3.7; Wallace v. Munton, 989 S.W.2d 641 (Mo. App. 1999); Senu-Oke, v.
Modern Moving Systems, Inc, 978 S.W.2d 426 (Mo. App. 1998) (the opposing party has proper
objection where the combination of roles may prejudice that party's rights in the litigation."
Comment to Rule 4-3.7.)

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premature, if not totally frivolous, and the intentional presentation of the lawsuit against Hardee

 highly unusual fact situation, dictates that Defendants’ current counsel be disqualified. First, Zeiler
and Hughes will likely be called as necessary witnesses at the Hardee trial on the Abuse of Process
claim against him. 1 Second, their testimony will relate to, among other things, contested
procedural, discovery, and substantive issues about this case. Finally, whether disqualification
will work a substantial hardship on their clients, normally a concern, became a non-issue and was
waived by Logan and Kearney when they authorized the filing of a lawsuit directly against Hardee,
before this lawsuit was fully adjudicated. Under the circumstances, the disqualification of Zeiler
and Hughes, and the postponement of the trial date is necessary to mitigate the Defendants’ unfair
litigation tactics. 2
C.

MOTION TO CONTINUE TRIAL SETTING
Local rule 34.1 requires that “all applications for continuance in civil cases shall conform

to Supreme Court Rule 65 and contain the following information: “(a) the date the case was
initially filed with the court, (January 23, 2015), (b) the number of prior continuances requested
and on whose behalf the request(s) were filed (c) and the nature of the cause(s) of action.
Plaintiff’s former counsel, Lee Hardee, provided the court with detailed information about prior
continuances in his Motion to Continue the Trial Setting filed on March 30, 2018. That Motion is
attached as Exhibit C and is incorporated by reference herein. Since that time, the Defendants
moved to continue the trial on May 4, 2018 and then withdrew the motion on May 22, 2018. By
Order dated August 6, 2018, the court continued the trial until February 11, 2019. The claims
remain the same as previously reported, to wit: 1) Breach of Contract; 2) Breach of the Implied

The new lawsuit is directly against Hardee, but much of Hartman’s conduct is also at issue, and Hardee’s
testimony, to the extent it is not privileged, could put Hartman at risk of being joined in the lawsuit.
2
Serious sanctions should also be imposed upon Zeiler and Hughes under Supreme Court Rule 55.03(c).
1

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In this case, an analysis of the three factors in Wallace, if they are even applicable in this

 and 5) Accounting. Admittedly this case has a long and contentious history but the Defendants
should not be allowed to place the Plaintiff at such a disadvantage just prior to the scheduled trial.
The Plaintiff was attempting to schedule the depositions of Pat McDaniel (“McDaniel”)
and Elania Garlett (“Garlett”) (both of whom worked with or for Defendants) when Hardee was
forced to withdraw. Due to the disruption, those depositions have still not been taken by Plaintiff
and the Plaintiff needs additional time to schedule and take these thwarted depositions.
Finally, the change in trial date is further justified by undersigned counsel’s schedule, as
the date overlaps with a previously scheduled trial. The affidavit of counsel for Plaintiff, Kenneth
N. Caldwell, is attached hereto as Exhibit E and is incorporated by reference herein in support of
this motion.
D.

MOTION FOR RELIEF UNDER SUPREME COURT RULE 61.01(g)
Hardee had to go to the hospital over the events referenced herein and although the

deposition of Kearney was attempted directly by Jason Hartman pro se (because of Hardee’s
absence) Kearney’s counsel, Hughes, substantially interfered with the deposition by repeatedly
answering deposition questions for Kearney and by Kearney’s refusal to answer many. (See
Affidavit of Jason Hartman attached hereto as Exhibit D and the Deposition Transcript as
Exhibit D-1.) Supreme Court Rule 61.01(g) provides that if a witness fails or refuses to testify in
response to questions propounded on deposition, the proponent of the question may move for an
order compelling an answer. The proponent of the question may complete or adjourn the deposition
examination before applying for an order. In ruling upon the motion, the court may make such
protective order as it would have been empowered to make on a motion pursuant to Rule 56.01(c).
If the motion is granted, the court, after opportunity for hearing, shall require the party or deponent

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Covenant of Good Faith and Fair Dealing; 3) Theft/Embezzlement; 4) Breach of Fiduciary Duty

 them to pay to the moving party the reasonable expenses incurred in obtaining the order, including
attorney's fees, unless the court finds that the opposition to the motion was substantially justified
or that other circumstances make an award of expenses unjust.
Because of the present circumstances and Defendant’s counsel’s interference as supported
by the Affidavit of Jason Hartman, Plaintiff’s counsel requests the right to take (re-take) Kearney’s
deposition (to supplement the deposition attempted by Hartman.) The Plaintiff requests that
Defendant Kearney and his counsel Hughes be ordered to pay the reasonable costs of obtaining
this order as allowed by 61.01(g).
WHEREFORE, for the foregoing reasons, Plaintiff prays that the Court enter its Order: (1)
continuing the case from the February 11, 2019 trial docket, (2) disqualifying Defendants’ counsel,
(3) allowing the depositions of at least McDaniel, Garlett and Kearney to move forward (delayed
if Defendant’s counsel is disqualified), rescheduling the case for trial, reasonable attorney’s fees,
sanctions as appropriate, and for such other and further relief as the Court finds fair, just and
equitable under the circumstances.
The information in this Motion is accurate to the best of Counsel’s knowledge and belief.
Respectfully Submitted,

CALDWELL LAW FIRM, P.C.
By: _/s/ Kenneth N. Caldwell
Kenneth N. Caldwell MO #65443
1201 NW Briarcliff Pkwy, 2nd Floor
Kansas City, MO 64116
Tel. (816) 535-1001
Fax. (702) 548-9796
ATTORNEY FOR PLAINTIFF

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whose conduct necessitated the motion or the party or attorney advising such conduct or both of

 I hereby certify that I electronically filed the above document on November 13, 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/ Kenneth N. Caldwell
Kenneth N. Caldwell
CERTIFICATION UNDER RULE 55.03(a)
Pursuant to Rule 55.03(a), I hereby certify that I signed an original of this pleading and
that I maintain the signed, original pleading at my office.
_/s/ Kenneth N. Caldwell
Kenneth N. Caldwell

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CERTIFICATE OF SERVICE