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Elizabeth V. Grana selected to the 2013 Missouri & Kansas Rising Stars List

Attorney Liz Grana has been selected to the 2013 Super Lawyers® Missouri & Kansas Rising Stars list in the Construction Litigation category.  This is an exclusive list, recognizing no more than 2.5 percent of the lawyers in the state.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a patented multiphase process, which results in a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers and Rising Stars lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country.


Overview of Missouri Judgment Enforcement

By Joel O. Christensen

Having incurred the time and expense of obtaining a judgment, our clients often face a classic quandary: “Now what?” As the adage goes, a judgment is worth no more than the paper on which it’s printed . . . unless you know how to enforce it. The attorneys at Behr, McCarter & Potter, P.C. have extensive expertise in judgment “execution”—the process of enforcing our clients’ hard-earned judgments. Through our Judgment Collection Program,SM we employ innovative and comprehensive strategies to maximize your judgment’s value. Following entry of a judgment, and subject to limited statutory exemptions, Missouri judgment creditors may immediately initiate execution efforts, including seizure and/or sale of judgment debtors’ real and personal property. This article provides a sampling of the tools we employ to facilitate collection of our clients’ judgments.

  • Registration of Foreign Judgments: To multiply a judgment’s impact, particularly where the judgment creditor knows the identity and location of assets, an advisable first step is registration of the judgment in one or more additional jurisdictions. To register a judgment is to imbue it with the same force and effect as if it were initially entered in the registered jurisdiction. For example, a plaintiff who secures a judgment in the City of St. Louis is restricted to executing on assets located within City limits; however, by registering the judgment in St. Louis County, the judgment creditor immediately increases its odds of fruitful execution. Registration may be accomplished quickly and cost-effectively; there is no limit to the number of jurisdictions in which a judgment may be registered, including out-of-state jurisdictions.
  •  Garnishment: As “garnishor,” a judgment creditor may garnish “all goods, personal property, money, credits, bonds, bills, notes, checks, choses in action, or other effects of debtor and all debts owed to debtor.” Garnishments typically assume one of three forms: wage garnishments (a percentage of the judgment debtor’s income, per pay period), bank garnishments (capturing funds held in deposit by a financial institution), or garnishments directed to the judgment debtor’s debtor (such that property, including money, payable to the judgment debtor by the third-party garnishee is instead routed to the judgment creditor/garnishor). Immediately upon service by the sheriff, a garnishment creates a lien on all of the judgment debtor’s non-exempt personal property. The judgment creditor determines the timeline within which the garnishee must respond: 30, 60, 90, 120, 150, or 180 days. The lien created by the garnishment remains in effect for the duration of the response period.
  •  Levying upon Real Property: Entry or registration of a circuit court judgment automatically creates a lien on real estate located within the jurisdiction in which the judgment is entered or registered. In turn, the lien gives the judgment creditor the right to foreclose (“levy”) on the real estate, so as to liquidate the property in satisfaction of the judgment. Through the local sheriff, the judgment creditor may marshal real property for sale at public auction, with the purchaser taking the property subject to any liens senior to that of the judgment creditor. A judgment creditor may pursue multiple levies on multiple properties at any given time.
  •  Levying upon Personal Property: Unlike real property, entry or registration of a judgment does not automatically create a lien on personal property. Instead, the judgment creditor must, through the sheriff, physically seize or exert control over (where seizure is impracticable) the judgment debtor’s personal property. As with real property, the sheriff conducts a public auction of the personal property, with the purchaser taking the property subject to any senior liens.
  •  Judgment Debtor Examination: A judgment creditor who has, even partially, attempted and failed to execute on a judgment by employing any of the above tools may compel the judgment creditor’s attendance at a court-supervised examination. There, the judgment creditor may examine the debtor (under oath) as to the identity and location of assets capable of satisfying the judgment. To the extent the judgment debtor fails or refuses to provide testimony, the court may place the debtor in contempt and order the debtor jailed. With such significant consequences, judgment debtor examinations are effective means both of increasing pressure on debtors and discovering valuable information in aid of execution.

To learn more about Behr, McCarter & Potter’s Judgment Collection Program,SM please call us or visit: http://behrmccarterpotter.com/practice-areas/judgment-collection-programsm/


U.S. News Best Law Firms 2014 – Behr, McCarter & Potter, P.C.

BLF 2014_Silver_GeneralBehr, McCarter & Potter, P.C. has been named a 2014 Best Law Firm in the areas of Commercial Litigation, Construction Law, Litigation-Construction, Personal Injury Litigation-Defendants, and Product Liability Litigation-Defendants by U.S. News & World Report®.

Tony Behr has been selected by his peers for inclusion in Best Lawyers in American 2014® in the categories of Commercial Litigation, Personal Injury Litigation-Defendants and Product Liability Litigation-Defendants.

Dudley McCarter has been selected by his peers for inclusion in Best Lawyers in American 2014® in the categories of Commerical Litigation, Construction Law, and Litigation-Construction.  Dudley has been on The Best Lawyers in American since 2001.


Incorporating the Rules of the American Arbitration Association in Your Contract May Have Serious Unintended Consequences

By Andrew J. Kriegshauser

No one wants to find themselves involved in lawsuits over contract disputes. Litigation requires extensive time and the costs associated with litigating the dispute can be high. To avoid the protracted civil litigation process, parties frequently turn to alternative dispute resolution, by including Arbitration Provisions in their contracts. The Construction Industry Rules of the American Arbitration Association (“AAA”) provide that when both disputing parties request attorneys’ fees, the arbitrator may award them. Parties that are unfamiliar with the rule may be surprised when the arbitrator awards attorneys’ fees without a contractual or statutory basis for doing so.

Generally, parties are entitled to recover their attorneys’ fees in litigation only if provided (1) under the contract, (2) by statute, or (3) a court’s finding of bad faith[1]. Under the AAA, however, attorneys’ fees are available to both parties even though the contract is silent on the issue if there is a “mutual request” for attorneys’ fees. “The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties…”[2] Further, under the AAA Construction Rules, should the parties each request that an award of attorney’s fees be made, it is authorized[3]. This “mutual request” acts as consent to allow the arbitrator to award attorneys’ fees, and may therefore present a serious unintended consequence that was never addressed in the contract.

Consider the following; a general contractor enters into a subcontract with a subcontractor. The subcontract includes a provision by which only the contractor is entitled to attorneys’ fees it incurs in the event of dispute, but is otherwise silent on the issue of attorneys’ fees. A dispute arises, and the contractor requests attorneys’ fees pursuant to that provision. When the subcontractor also makes a request for attorneys’ fees, whether subcontractor is entitled to them or not, subcontractor can then also be awarded attorneys’ fees pursuant to AAA rules. This shows the expansion of rights when the AAA rules are incorporated.

There are some simple solutions to avoid the problems created by the AAA’s “mutual request” rule. Parties should clearly address the issue of attorneys’ fees in their contract. Under the AAA, arbitrators may grant relief within the scope of the agreement. Therefore, it is prudent to carefully express the extent to which an arbitrator may grant attorneys’ fees. The parties can, in the contract, expressly limit rights to attorneys’ fees and the scope of the award so that there will be no surprises during the arbitration process.

 Without express limitations on awards of attorneys’ fees, the “mutual request” rule of the AAA applies. Once the AAA rules are incorporated in the contract, on the other hand, if neither party is entitled to attorneys’ fees by statute or the contract and the other party requests attorneys’ fees under the AAA rules, a strategic decision must be made as to whether that request should be opposed or met with a similar request for fees.

 _____________________________________________________________

[1] In re Estate of Cannamore, 44 S.W.3d 883, 885 (Mo. App. E.D. 2001).

[2] Construction Industry Rules for the American Arbitration Association Rule 45(a).

[3] Construction Industry Rules for the American Arbitration Association Rule 45 (d)(ii).


Effective Board of Zoing Adjustment Presentations

By Edward V. Crites

As an attorney and a member of a Board of Zoning Adjustment (Board) I have had the opportunity to see the Board process from both sides. Here are some thoughts as to how to make effective presentations.

1. Know the Board’s Role. The Board grants variance from zoning ordinances where the applicant proves “practical difficulties or unnecessary hardship.” The Board does not make decisions based upon aesthetics, personal preference, or conditions of the current owner. Although a factor, financial hardship alone is an insufficient basis for a variance.  Examples of practical difficulties or unnecessary hardships are topography or irregular shape that makes a reasonable use in accord with the zoning ordinance impracticable.

The Board does not grant a variance because an ordinance is out-of-date. So, even if newer codes allow pool-side water features, it is not the Board’s role to grant a variance from a requirement for a for four-foot wide concrete surfaces completely surrounding pools. Rather, the Board of Alderman needs to amend the ordinance.

Moreover, nor does it matter that the plan is attractive or that neighbors favor it.  Although those factors may play a part, the owner must point to something specific to himself, or the lot, justifying a variance. For example, variances to encroach a set-back would be justified to allow a home addition on an irregularly shaped lot.

2. Make a Clear Presentation. Clearly state you want and the basis for it by using pictures, drawings or diagrams. Invite the Board members for a site inspection. This is especially effective in seeking variances related water run-off issues.

Get your builder/designer/architect to be there either make or to assist in the presentation. They can give details regarding industry-standard our current trends, and answer any technical questions that may arise.

General ideas without specific plans will not likely be favored. Tailor your presentation to explain why the request is based upon practical difficulty or unnecessary hardship.

3. Set the Proper Tone at the Hearing. Know your audience. Board members are fellow citizens from diverse backgrounds who are often performing an unpleasant public service – no one wants disappoint neighbors or friends. In my experience, they want to be reasonable and accommodating, if they can.

This hearing is informal and non-adversarial. Arrive early. Greet the Board members. Be friendly. In making your presentation let them know you appreciate their service to the community. Invite them to ask questions. Let them know that if you do not have an answer, you will get it for them. If needed, you can request a continuance of the hearing to get the added information.

Answer any questions courteously. Members often want to know why alternatives were not considered. Explain the reason: perhaps it is a matter of effectiveness, cost, or a desire to accommodate neighbors. Give a reason.

4. Listen to the Board and Ask Their Concerns. By their questions, Board members may be trying to figure out how to make your plan work. If their questions suggest some reluctance, ask their concerns. Perhaps an agreeable compromise will present itself. Be flexible, willing to work with the Board to find a solution. For example, the Board may reject a 10 foot encroachment on setback but allow 4 foot encroachment that matches a nonconforming use.

5. Use Available Resources. The City inspector, design professionals and contractors likely have insight into how to effectively present your application to the Board. Use them. Also, the City will have instructions for the process. Follow them.

6. Be realistic. It is not uncommon for variance requests to be based on “I prefer this” or “This looks better.” Such applications are occasionally granted even though they lack a sufficient basis. Such applicants should consider themselves lucky.

In most circumstances, however, such requests are denied. If you are one of those, do not take the denial personally or hold a grudge. The Board was merely doing its job. Under the law, variances are to granted “sparingly” to avoid undermining the zoning code.


Vendor: Microsoft Exam Code: 070-410 dumps Exam Name: Implementing a Data Warehouse with Microsoft SQL Server 2012 Version: DemoDEMO

QUESTION 1 You are developing a SQL Server Integration Services (SSIS) package to implement an incremental data load strategy. The package reads data from a source system. Depending on the value in a source column, the package redirects rows to one of five 70-696 dumps different data flow paths. You need to add a data flow transformation to support the package redirection. Which data flow transformation should you use? A. Conditional Split B. pjvot C. Multicast D. Lookup Correct Answer: A

QUESTION 2 You are developing a SQL Server 070-463 dumps Integration Services (SSIS) project that contains a project Connection Manager and multiple packages. All packages in the project must connect to the same database. The server name for the database must be set by using a parameter named ParamConnection when any package in the project is executed. You need to develop this project with the least amount of development effort. What should you do? (Each answer presents a part of the solution. Choose all that apply.) A. Create a package parameter named ConnectionName in each package. B. Edit each package Connection Manager. Set the ConnectionName property to @ [$Project::ParamConnection]. C. Edit the project Connection Manager 70-410 dumps in Solution Explorer. Set the ConnectionName property to @ [$Project::ParamConnection]. D. Set the Sensitive property of the parameter to True. E. Create a project parameter named ConnectionName. F. Set the Required property of the parameter to True. Correct Answer: BEF

QUESTION 3 You develop a SQL Server Integration Services (SSIS) package in a project by using the Project Deployment Model. It is regularly executed within a multi-step SQL Server Agent job. You make changes to the package that should improve performance. You need to establish if there is a trend in the durations of the next 10 successful executions of the package. You need to use the least amount of administrative effort to achieve this goal. What should you do? A. After 10 executions, view the job history for the SQL Server Agent job. B. After 10 executions, in SQL Server Management Studio, view the Execution Performance subsection of the All Executions report for the project. C. Enable logging to the Application Event Log in the package control flow for the Onlnformation event. After 10 executions, view the Application Event Log. D. Enable logging to an XML file in the package control flow for the OnPostExecute event. After 10executions, view the XML file. Correct Answer: B

QUESTION 4 A SQL Server Integration Services (SSIS) 2012 package currently downloads sales data from a Windows Azure SQL Database database. To improve sales data accuracy, exchange rates must be downloaded daily from a public HTTP website instead of from a weekly flat file. The public website hosts a comma- separated values (CSV) file that contains one row per currency. You need to download the CSV file to the environment. What should you use to retrieve the document from the website? A. a Script component B. a Web Service 70-331 dumps task C. a Web Service source D. a Script task Correct Answer: D

QUESTION 5 You are preparing to install SQL Server 2012 Master Data Services (MDS). You need to ensure that the database requirements are met. What should you install? A. Microsoft SharePoint Server 2010 Standard Edition SP1 B. Microsoft SharePoint Server 2010 Enterprise 070-489 dumps Edition SP1 C. SQL Server 2012 Data Center (64-bit) x64 on the database server D. SQL Server 2012 Enterprise (64-bit) x64 on the database server Correct Answer: D

QUESTION 6 You are designing an Extract, Transform and Load (ETL) solution that loads data into dimension tables. The ETL process involves many transformation steps. You need to ensure that the design can provide: Auditing information for compliance and business user acceptance Tracking and unique identification of records for troubleshooting and error correction What should you do? A. Develop a Master 70-414 dumps Data Services (MDS) solution. B. Develop a Data Quality Services (DQS) solution. C. Create a version control repository for the ETL solution. D. Develop a custom data lineage solution. Correct Answer: D

QUESTION 7 You are designing a SQL Server Integration Services (SSIS) project that uses the Project Deployment Model. The project will contain 10 packages. All the packages must connect to the same data source anddestination. You need to define and reuse the connection 70-486 dumps managers in all the packages by using the least development effort. What should you do? A. Implement parent package variables. B. Copy and paste connection managers from one package to the others. C. Implement project connection managers. D. Implement package connection managers. Correct Answer: C

QUESTION 8 You have a secured database that contains all of the customer data for your company. You plan to use a project deployment model. You need to create a SQL Server 1ntegration Services (SS1S) package that connects to the database by using a dedicated username and password. 70-487 dumps The solution must ensure that the password used for the connection string is encrypted. Which two actions should you perform? (Select Two) A. Select the Sensitive check box for the catalog environment. B. Set the sensitive property of the package parameter to True. C. Modify the set_execution parameter_value stored procedure. D. Set the package protection level to EncrypSensitiveWithPassword. Correct Answer: CD

QUESTION 9 You are developing a SQL Server 1ntegration Services (SS1S) package. The package sources data from an HTML web page that lists product stock levels. You need to implement a data flow task that reads the product stock levels from the HTML web page. Which data flow sources should 70-480 dumps you use? Select Two A. Raw File source B. XML source C. Custom source component D. Flat File source E. script component Correct Answer: CE

QUESTION 10 You develop a SQL Server Integration Services (SSIS) package in a project by using the Project Deployment Model. It is regularly executed within a multi-step SQL Server Agent job. You make changes to the package that should improve performance. You need to establish if there is a trend in the durations of the next 10 successful executions of the package. You need to use the least 70-412 dumps amount of administrative effort to achieve this goal. What should you do? A. Enable logging to an XML file in the package control flow for the Onlnformation event. After 10 executions, view the XML file. B. After 10 executions, view the job history for the SQL Server Agent job. C. After 10 executions, in SQL Server Management Studio, view the Execution Performance subsection of the All Executions report for the package.D. Enable logging to an XML file in the package control flow for the OnPostExecute event. After 10 executions, view the XML file. Correct Answer: C

QUESTION 11 You are editing a SQL Server Integration Services (SSIS) package that contains a task with a sensitive property. You need to create a project parameter and configure it so that its value is encrypted when it is deployed to the SSIS catalog. Which three steps should you perform in sequence? (To answer, move the appropriate actions from the list of actions to the answer area and arrange them in the correct order.) Select and Place: Correct Answer: QUESTION 12 You are building a SQL Server Integration Services (SSIS) package to load data from all files that are automatically copied to a directory each night through an external FTP process. You need to load data from all copied files to a destination table in SQL Server. Which three steps should you perform in sequence? (To answer, move the appropriate actions from the list of actions to the answer area and arrange 70-532 dumps them in the correct order.) Select and Place:Correct Answer:

QUESTION 13 You are creating a sales data warehouse. When a product exists in the product dimension, you update the product name. When a product does not exist, you insert a new record. In the current implementation, the DimProduct table must be scanned twice, once for the insert and again for the update. As a result, inserts and updates to the DimProduct table take longer than expected. You need to create a solution that uses a single 070-413 dumps command to perform an update and an insert. How should you use a MERGE T-SQL statement to accomplish this goal? (To answer, drag the appropriate answer choice from the list of options to the correct location or locations in the answer area. You may need to drag the split bar between panes or scroll to view content.)Select and Place:Correct Answer:

control flow is shown in the answer area.