One of McDowell Rice’s favorite annual charities is the Salvation Army's Corporate Angel Tree Program.  Local businesses partner with the Salvation Army to provide requested gifts to Kansas City Area children who would otherwise not have a present under their tree.  We take great joy in helping to make Christmas a happy memory for our Kansas City families in need.

Wishing you a healthy winter season filled with happiness, joy and laughter.

McDowell Rice successfully enforced the Missouri Credit Agreement Statute in a guaranty enforcement action to bar a co-guarantor’s counterclaims for fraudulent misrepresentation, negligent misrepresentation, and breach of contract based on an alleged oral agreement by the bank to limit the co-guarantor’s liability to his proportionate share of the debt. Following the Court’s denial of the co-guarantor’s Motion for Leave to Amend Answer and Counterclaims, denial of the co-guarantor’s Motion for Reconsideration, grant of the bank’s Motions in Limine and grant of the bank’s Motion to Strike Jury Demand, a favorable settlement was reached in favor of the bank. Adam Gasper handled the briefing and Kristie Remster Orme handled the oral arguments before Judge Fahnestock in Jackson County Circuit Court. 

FOR IMMEDIATE RELEASE

KANSAS CITY, Missouri (November 21, 2014) – McDowell Rice Smith & Buchanan PC, announced that Hannah K. Hemry has joined the Firm as an Associate.  

Ms. Hemry is a member of both the Construction & Architect/Engineering Law Group and the Litigation & Dispute Resolution Group. She primarily focuses on business, commercial and construction litigation, representing corporate clients in a variety of legal matters, including commercial disputes, contract claims, employment disputes, and construction defect claims. Ms. Hemry represents both local and national clients in Missouri and Kansas and in various jurisdictions across the country. 

Ms. Hemry obtained her J.D. in 2008 from Saint Louis University School of Law and was Editor of the Saint Louis University Law Journal. She holds a B.S. degree from the University of Denver, graduating  magna cum laude, with honors, and is admitted to both the Missouri and Kansas Bar Associations.


Contact:
Sherry Newsom
snewsom@mcdowellrice.com
(816) 753-5400

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Mike Gorman was a speaker at the Missouri Bankers’ Association 2014 Legal Issues Conference. On October 30, 2014, Gormanspoke about “Forbearance Agreements.”

“Creditors often agree to workouts or loan modifications without getting anything in return from their borrowers. I wanted to remind lenders that a forbearance agreement is their chance to do just that,” Gorman said.

Gorman’s Forbearance Agreement presentation focused on releases, additional collateral controls, Missouri Credit Agreement Statute of Frauds and ECOA Defenses, and bankruptcy-related provisions, among other issues. Attendees received a form forbearance agreement and a slide show covering the main points of Gorman’s presentation.

If you would like to receive a copy of the slideshow, please contact Mike Gorman at mgorman@mcdowellrice.com.

Congratulations to the following attorneys who have been selected to the 2014 Missouri & Kansas Super Lawyers® List and Rising Stars® List in their primary practice area and are featured in the 2014 Super Lawyers® Magazine for Missouri & Kansas.

2014 Missouri & Kansas Super Lawyers® List:

R. Pete Smith - Business Litigation
Thomas R. Buchanan - Construction Litigation
Kristie Remster Orme - Business Litigation
Louis J. Wade - Bankruptcy
Michael J. Gorman - Business Litigation
Jonathan A. Margolies - Bankruptcy: Business
Greg T. Spies - Business Litigation

Rising Stars® List:

Tiffany A. McFarland - Family Law

Congratulations to Tiffany A. McFarland on being selected to the Kansas City Business Journal's 2014 Best of the Bar. Ms. McFarlandwas honored in a special section of the Kansas City Business Journal published September 26, 2014.

Ms. McFarland has focused her practice exclusively in the area of domestic relations litigation. Ms. McFarland represents parties in complex divorces and child custody matters in both Missouri and Kansas while also representing parties in non-contested divorces, legal separations, paternity actions, child support and maintenance matters and prenuptial agreements.

Ms. McFarland is active in the legal community by serving as the Chair of the Domestic Law Committee of the Kansas City Metropolitan Bar Association for 2014 and by serving on the Johnson County Bar Association Board of Directors for the 2014-2015 term. Ms. McFarland is also an active member of the Association for Women Lawyers, Missouri Bar Association and Kansas Bar Association.

"The best advice I have received is to find a niche area of practice and then make sure everyone knows who you are and what you do by getting involved in the legal and greater community."

—Tiffany A. McFarland

Midwest Innocence Project (“MIP”) President, Pete Smith (center), hosted a “Happy Hour” to welcome the 2014 UMKC Law MIP Student Organization. Mentoring and volunteer opportunities for these leaders of tomorrow are an important part of the MIP Board’s mission.

Rob Maher filed a receivership and foreclosure lawsuit on behalf of both a bank in its capacity as trustee under certain industrial development bonds and the industrial development bondholders against a borrower in Wyandotte County, Kansas. Mr. Mahersuccessfully moved for the immediate appointment of a receiver to supplant the borrower controlled entity managing the property. Mr. Maher obtained judgment for the trustee and bondholder against the borrower, the managing entity and various other defendants for both the foreclosure of the real and personal property as well as a money judgment in the amount of $11.58 million.

Hugh Marshall, Jim Daniels and Mike Gorman recovered for Client bank a confidential settlement from Defendant on allegations of fraud, conspiracy and aiding and abetting fraud. A borrower who had defaulted on a multi-million dollar loan confessed that he never owned any of the collateral he had pledged to secure Client bank’s loan. Client bank subsequently learned that the Defendant, borrower’s prior lender, knew that the fraudulent borrower did not own all the collateral he had pledged to Defendant and that Defendant encouraged the borrower to pursue alternative financing despite that knowledge. Plaintiff sued Defendant for fraud, conspiracy to commit fraud and aiding and abetting fraud. After heated pre-trial litigation, the parties agreed to settle for a confidential sum.

The recent decision in Oakdale Mall Associates vs. Cincinnati Insurance Company, 702 F3d 1119 (8th Cir. 2013) reminds landlords to check their insurance coverage, especially for vacant buildings.  Oakdale shows that determining whether your building is vacant is a technical task.  “Vacancy” may permit your insurance carrier to assert reduced coverages or deny claim payment altogether.  The terms of your insurance policy control whether “vacant” buildings are covered.  You must understand the policy’s definition of “vacant”.

Many insurance policies contain exclusions for buildings vacant for more than 60 consecutive days before the loss, unless the policy contains the appropriate endorsement.   A typical list of exclusions includes:

• Glass breakage
• Vandalism
• Fire loss
• Water damage
• Sprinkler leakage
• Theft/Damage caused by attempted theft
• 15% reduction in payment for loss or damage caused by other insured perils.

Oakdale Mall Associates shows the importance of technical policy definitions.  Oakdale Mall had a total area of 180,000 sq. ft. The owner’s insurance policy required occupancy of at least 55,800 sq. ft. to avoid the loss of insurance coverage because of vacancy. The policy defined “occupancy” as space used by either a tenant or the Owner in their “customary operations.”

After a copper theft, the Owner filed a claim with its Insurer.  The Owner claimed 58,741 sq. ft. occupied, consisting of (a) four operating tenants totaling 18,715 sq. ft., (b) two tenants not operating but with valid leases totaling 3,931 sq. ft., (c) Owner’s rental office totaling 1,500 sq. ft., and (d) necessary common areas totaling 34,595 sq. ft.

The insurance carrier denied coverage for the copper theft, because the Owner incorrectly counted the two tenants who had nominal leases but had not occupied their premises for more than a year. The Court held that coverage for the loss was excluded under the policy’s vacancy provisions. Excluding the two nominal tenants reduced the mall’s occupancy to 54,810 sq. ft., slightly below the policy’s full coverage threshold of 55,800 sq. ft.  The Owner then tried to reach the threshold by arguing that the “occupied space” should include vacant space that the Owner was actively trying to lease.  The Court rejected the argument, based on policy language.

The lesson to be learned is that landlords should work with their insurance agents and attorneys to understand the vacancy provisions in their building insurance policies, and obtain a “vacancy endorsement” if appropriate.

Submitted by Stuart Bodker, a member of McDowell Rice’s Real Estate Law, Corporate & Business Transactions and Banking & Financial Services Groups, and Mike Gorman,  a member of McDowell Rice’s Banking & Financial Services, Bankruptcy, Workouts & Financial Restructuring and Litigation & Dispute Resolution Groups.

*This information is intended only to provide general information in summary form on legal and business issues. The contents do not constitute legal advice and should not be relied on as such.