- Posted March 9, 2020 at 2:53 PM
- Categories Press, Litigation, Eminent Domain and Condemnation, Featured Events
Miller, Miller & Canby Condemnation Attorney, Joseph (Joe) Suntum, has been elected Board Chair of the Owners’ Counsel of America (OCA) Board of Directors.
The OCA is a network of highly-skilled eminent domain attorneys dedicated to defending the rights of private property owners across the country. OCA condemnation attorneys represent landowners in cases against local and state governments, the federal government, transportation departments, utilities, energy companies, redevelopment authorities, and other agencies.
The eminent domain attorneys affiliated with OCA have experience representing landowners – including owners of homes, commercial buildings, undeveloped land and industrial real estate -- in eminent domain, inverse condemnation, regulatory takings claims, property rights litigation, and complex real estate valuation matters.
“I am honored by the Board’s trust and look forward to working with the Board…to continue moving OCA forward and building upon the foundation of our predecessors. With everyone’s support we will continue OCA’s growth and stature as a strong voice for private property rights and an invaluable supporting organization for all our members,” said Mr. Suntum.
OCA member attorneys are advocates for property owners across the country. Membership is selectively restricted to one member attorney from each state. Mr. Suntum is the member attorney for the state of Maryland.
To learn more about the Owners’ Counsel of America, click here.
Joe Suntum is Miller, Miller & Canby’s Eminent Domain/Condemnation practice group leader. He brings more than 30 years of trial experience and in-depth knowledge of real property valuation and eminent domain law to effectively protect the rights of his clients. In 2020, Miller, Miller & Canby’s Eminent Domain practice was awarded a U.S. News – Best Lawyers ® First Tier ranking in the Washington, DC region for the fourth year.
To learn more about eminent domain and Miller, Miller & Canby, contact Joe Suntum at 301-762-5212, or via email.
If you live in Montgomery or Prince George’s Counties, or you regularly commute into Washington D.C. or Northern Virginia, you are likely already aware of plans to widen the I-495 Beltway and I-270 to make way for new toll lanes. Miller, Miller & Canby’s eminent domain and condemnation attorneys are closely tracking this major infrastructure project.
This project is a priority of Governor Hogan, which is emerging out of the I-495 & I-270 Managed Lanes Study launched in March 2018 by Maryland Department of Transportation’s State Highway Administration (MDOT SHA). A Public-Private Partnership (P3) has been established to manage and indeed fund the project’s development, design and construction. The P3 releases periodic newsletters and info on their website.
On January 8, 2020, Maryland’s Board of Public Works (BPW), comprised of the Governor, Treasurer and Comptroller, voted 2-1 to approve Phase-1 of the project. On February 7th the P3 posted an announcement on its website clarifying that the BPW’s vote “only allows the solicitation process to move forward for a Phase Developer to assist the MDOT SHA with preliminary development and design activities, which is allowable under federal regulations.” (Click here for full anouncement) Once the project’s new toll lanes are constructed, the P3’s development contractor will retain some level of ownership interest in those lanes while operating and maintaining them for a given time period – purportedly 50 years.
Prior to January’s BPW vote, the National Environmental Policy Act (NEPA) process was already well underway for the I-495 & I-270 Managed Lanes Study. In fact, the P3’s most recent September 2019 Newsletter noted that the Draft Environmental Impact Statement (DEIS) was scheduled to be released later this Winter 2020 for public review and comment, followed by public hearings in the Spring. However, the P3’s February 7th website post announced that the DEIS would not be published until Spring 2020.
The Plan for Phase 1
The P3’s February 7th website post included a map of Phase-1 as planned, a copy of which is provided below. Phase-1 will widen I-495 and I-270 for toll lanes, beginning by replacing and widening the American Legion Bridge that crosses the Potomac River from Virginia, and extending northward to I-70 in Frederick County. Current plans are to divide Phase-1’s delivery, first widening I-270 up to its intersection with I-370 in Montgomery County. However, since the project’s details remain undefined, the extent of privately owned real estate that will be required to support the widening remains unresolved. At present, there is an interactive map posted online by MDOT SHA for preliminary planning purposes, which remains subject to change.
Legislation Proposed to Stop the Project
This project remains highly controversial. In fact, Bills SB0229 & HB0292, cross-filed in both chambers of the General Assembly this session, propose to prohibit the State from constructing toll roads or bridges without the consent of the majority of the affected Counties. The Bills propose to rewrite an existing law (Maryland Transportation Code Section 4-407), which already requires majority County consent for toll projects, but only amongst nine named Counties all located east of the Chesapeake Bay Bridge. If successfully enacted, the new law would extend that majority consent requirement to ALL Maryland Counties and Baltimore City.
The House Environment and Transportation Committee held a hearing on February 13th in which HB0292 was under consideration. Those testifying in favor of HB0292 (i.e. in opposition to the 495/270 project), led by Prince George’s County representative Mary Lehman, raised arguments and allegations including:
The existing law stands as precedent, and to continue limiting the consent requirement to nine Counties is inequitable/unfair.
The State needs to fully engage affected Counties, yet there has been virtually no consultation, coordination and collaboration with affected Counties for this 495/270 project.
The contract procurement process has been far from transparent, as solicitation was recently amended to essentially sole-source to an Australian company called Transurban who was Virginia’s P3 contractor that still owns and operates its I-495, I-395 and I-95 Express Lanes.
Preliminary MDOT SHA estimates indicate that the entire 495/270 project will range between $8 and $9 Billion, but witnesses asserted that budget estimate details have not been released and independent estimates are as high as $25 Billion.
Testimony challenged the assertion that the project will be financed wholly by private investment, thus enabling other planned MDOT SHA projects to remain funded and on-track. Rather, it was suggested that taxpayers will likely absorb change-orders and cost overruns, which have proven to be significant in other P3 projects elsewhere. Transurban’s current West Gate Tunnel project in Australia was presented as an example.
This Bill will not become a blanket veto of all toll projects, because County politicians are accountable to voters, and if the project makes sense, they will support it or face being replaced.
Those testifying in opposition to the Bill (i.e. in favor of the I-495/I-270 project) raised arguments and allegations including:
This is a Not In My Back Yard (NIMBY) Bill, in that its proponents living closer to D.C. are disregarding the decades-long notorious traffic issues faced particularly by Maryland commuters living in upper Montgomery County, Frederick County and further. (4+ hours daily commute for many)
The State, not Counties, must ultimately consider how this 495/270 project will benefit its citizens at large and the larger State economy as it pertains to the livability and attractiveness to new persons and businesses considering moving here.
Individual Counties cannot be given a first right of refusal that will impact the entire State and pit counties against each other – which in all likelihood will occur. They referenced the recent I-95 toll road project north of Baltimore extending into Harford County, which Baltimore County could have opposed if this Bill were law, to the detriment of Harford County residents.
It is a fallacy that adding toll lanes will increase greenhouse gas emission.
The 495/270 widening would generate jobs and income, which would be lost if this Bill were passed.
Finally, there was discussion regarding the potential constitutional Commerce Clause challenges that could be raised should HB0292 become law. It was also noted that while toll projects tend to be State projects, they usually receive federal funds, making federal law applicable, which would potentially preempt a State law such as the one proposed. HB0292’s opponents posited that it is more susceptible to being repealed or preempted than the existing law requiring nine eastern Counties’ consent. They pointed out that the I-495 project involves interstate transit into Virginia falling under federal purview, while asserting that the existing law only impacts intrastate roadways in nine counties. HB0292’s proponents reiterated that it changes nothing about existing law other than the number of Counties whose consent is required.
As the General Assembly continues to deliberate these Bills, the 495/270 widening project will undoubtedly press ahead.
About Miller, Miller & Canby
Miller, Miller & Canby has extensive experience in protecting property owners’ rights throughout the eminent domain process. Jamie Roth is an Associate in the firm’s Litigation Practice Group, concentrating his practice in real estate litigation with a focus in eminent domain. Prior to becoming an attorney, Jamie enjoyed a distinguished career spanning over twenty years in the private and public sector with experience in project management, strategic planning, asset management and risk mitigation, including eleven years as a successful real estate consultant in federal eminent domain matters.
If you have any eminent domain-related questions or questions about the project or its potential impact to your property, please contact Jamie at 301.762.5251 or via email.
Visit our firm’s website for general information on the eminent domain process and our firm’s services by clicking here.
The risk of liability is a very real concern for today’s business owners. There are employment-related issues including wrongful termination, sexual harassment, and discrimination; careless business partners and employees; and contractual obligations that may include personal guarantees, leases, business agreements, etc. There are also personal liabilities like divorce, vehicle accidents, and rental real estate.
Unfortunately, our litigious society necessitates that a broad range of people, including business owners, board members, real estate investors, private practitioners and retirees, should protect their hard-earned assets from a variety of liabilities. We have outlined some strategies for business owners and practitioners that may help provide protection from risk.
Key Take-aways to Protect Yourself from Risk:
● Types of liability insurance you need to have in place;
● State exemptions that will protect certain assets from the claims of creditors; and
● The role of business entities in liability planning.
Tip #1 – Insurance is the First Line of Defense Against Liability
Liability insurance is the first line of defense against any claim. Liability insurance provides a source of funds to pay legal fees as well as settlements or judgments.
The types of insurance you should consider include:
● Homeowner’s insurance
● Property and casualty insurance
● Excess liability insurance (also known as “umbrella” insurance)
● Automobile and other vehicle (motorcycle, boat, airplane) insurance
● General business insurance
● Professional liability insurance
● Director and officer insurance
Planning Tip: Never rely on insurance as your sole means of liability protection since the cost of a comprehensive policy may be prohibitive, and each type of policy has numerous exceptions to coverage. Instead, you should use insurance as one of a multiple layer of strategies designed to place a barrier between your business and personal assets and the claims of a plaintiff. Moreover, it is important to work with an insurance professional who can explain the purpose of each type of coverage, make recommendations for liability limits and deductibles, and help you consider the most cost-effective coverage on an annual basis.
Tip #2 – State Law Exemptions Protect a Variety of Personal Assets from Lawsuits
Each state has a set of laws or constitutional provisions that partially or completely exempt certain types of assets from the claims of creditors. While these laws vary widely from one state to the next, in general, the following types of assets may be protected from a creditor seeking to enforce a judgment against you:
● Primary residence (referred to as “homestead” protection in some states)
● Qualified retirement plans (401(k)s, profit sharing plans, money purchase plans, IRAs)
● Life insurance (cash value)
● Property co-owned with a spouse as “tenants by the entirety” (only available to married couples; and may only apply to real estate, not personal property, in some states)
● Prepaid college plans
● Section 529 plans (“college savings plan”)
● Disability insurance payments
● Social Security benefits
Planning Tip: If you reside in Maryland or the District of Columbia, Miller, Miller & Canby’s attorneys can help you determine which exemptions are available to you and how much protection they provide. Our business and estate planning attorneys can also help you understand the pros and cons of each type of exemption. For example, while tenants by the entirety co-ownership of real property between you and your spouse is simple and may make sense in the short term; in the long run, if you divorce or one spouse dies, the protection provided by tenants by the entirety co-ownership ends, thus making it completely useless. As with liability insurance, exemption planning is best used as one layer of an overall asset protection strategy.
Tip #3 – Business Entities Protect Business and Personal Assets from Lawsuits
The various types of business entities include partnerships, limited liability companies, and corporations. Business owners need to mitigate the risks and liabilities associated with owning a business. Business entities can also help real estate investors mitigate the risks and liabilities associated with owning real estate. The right structure for your enterprise should take into consideration asset protection, income taxes, estate planning, retirement funding, and business succession goals.
Business entities can also be an effective tool for protecting your personal assets from lawsuits. In many states, in addition to the protections offered by incorporating, assets held within a limited partnership or a limited liability company are protected from the personal creditors of an owner. Depending on the type of business entity and the state of formation, the personal creditors of an owner may be prevented from taking control of the business. Instead, the creditor is limited to a “charging order” which only gives the creditor the rights of an assignee. This is beneficial to the owners, because an assignee generally only receives distributions from an entity if, and when, the distributions are made.
Planning Tip: Creating a business entity that protects your assets from lawsuits involves much more than just filling out some forms with the state and paying an annual fee. Business formalities must be observed and documented, otherwise a creditor can attack the entity through “veil piercing” or “alter ego” arguments, which could result in personal liability for your business’s actions or debts. Additionally, state laws governing business entities vary widely and are constantly changing due to legislative action and court decisions. As a result, it is critical to properly chronicle business activities and modify the business’s governing documents as applicable laws change.
Miller, Miller & Canby’s business law attorneys can help you remain in compliance to thwart any potential challenges to your entity. And remember, as with liability insurance and state law exemptions, the use of business entities is just another layer of an overall asset protection strategy that should coordinate with other asset protection strategies.
Protecting Your Assets
We highly recommend that liability insurance, state law exemption planning, and business entities be used together to create a multi-layered asset protection plan. The business & estate planning attorneys at Miller, Miller & Canby are experienced with helping business owners, real estate investors, board members, retirees, physicians, practitioners, and others create and maintain effective liability protection plans.
David A. Lucas is an attorney in the MM&C's Estates & Trusts and Business & Tax practice groups, focusing his practice in Estate Planning, and Trust and Estate Administration. He provides extensive estate and legacy planning, asset protection planning, and retirement planning. To learn more about Miller, Miller & Canby's Estates & Trusts practice click here.
Chris Young is an associate in the Business & Tax practice at Miller, Miller & Canby. He focuses his practice on corporate legal agreements, business formation, tax controversy work and helping clients deal with new tax regulations. View more information about Miller, Miller & Canby's Business & Tax practice by clicking here.
- Posted January 28, 2020 at 6:13 PM
- Categories Real Estate, Litigation, Business & Tax, Maryland Property Tax News
At the end of December, the Maryland Department of Assessments and Taxation (SDAT) issued new Assessment Notices to owners of one-third of all commercial and residential properties in Maryland. For instance, in Montgomery County, commercial properties in Bethesda, Potomac and Germantown were reassessed. In Anne Arundel County, commercial properties in Annapolis, Glen Burnie and Linthicum were reassessed. In Frederick County, commercial properties in and around downtown Frederick were reassessed. In Prince George’s County, commercial properties in Beltsville, Laurel, Clinton and Upper Marlboro were reassessed.
Property owners have 45 days from the date of the Assessment Notice to challenge these new assessments. Based on the notices we have seen this cycle, the appeal deadline is February 10, 2020, although this could vary depending upon the notice date. The “first-level” appeal takes place at the local Assessment Office. If the assessor refuses to reduce the assessment, the owner may file a further appeal to the county’s Property Tax Assessment Appeals Board (PTAAB). This Board will consider the evidence and issue a written decision, usually within two weeks. If the property owner is still dissatisfied, another appeal may be filed to the Maryland Tax Court.
Miller, Miller & Canby has been challenging the assessments of various types of properties in Maryland for more than 30 years and has obtained substantial reductions in real property assessments for our clients. Our litigation attorneys regularly represent clients before the local Assessment Office, PTAAB and the Maryland Tax Court. We have successfully appealed the assessments on office buildings, retail stores, senior living centers, warehouses, industrial sites, casinos, apartment buildings and cemeteries. Let us help you reduce your Maryland property assessments in 2020.
Michael Campbell is a partner in the litigation group at Miller, Miller & Canby. In addition to trial and appellate advocacy, his practice focuses on real estate litigation and property tax assessment appeals. Please feel free to contact Mr. Campbell at 301.762.5212 or send him an email for property tax guidance or to help reduce your commercial Maryland property tax assessment. For more information about the firm’s Maryland property tax appeals practice and representative cases, click here.
- Posted January 15, 2020 at 2:06 PM
- Categories Real Estate, Litigation, Eminent Domain and Condemnation
Do you co-own, or are you planning to co-own, real estate in Maryland? Perhaps you are married or planning to marry, you are acquiring property with others, or you have inherited a property along with others. There are many decisions to make when considering real estate co-ownership, one of which is the type of co-ownership you should enter into, referred to legally as your estate in the property. In fact, as circumstances change, you may benefit by changing your type of co-ownership. However valid your reason for sharing ownership in a given property may be, you should clearly understand the type of co-ownership you have, because it matters a great deal more than you may realize.
Consider these three important questions:
Can you convey your share of the property by gift or sale, or devise it in a will, without consent of your co-owners?
Is your property vulnerable to a creditor who may be actively seeking to collect on a personal debt you owe, or on the debt of a co-owner?
- What happens to your property interest in the event of a divorce or death?
There are three types of real estate co-ownership in Maryland: Joint Tenancy, Tenancy by the Entirety (a.k.a. Tenancy by the Entireties) for married couples and Tenancy in Common.
JOINT TENANCY is when two or more co-owners simultaneously have an interest in the whole property, as well as a separate, undivided individual interest. Each Joint Tenant enjoys a shared right of possession to the whole property, while holding title to a portion of it. Joint Tenancy requires that the Joint Tenants acquire their interests at the same time, by the same instrument (e.g. deed or will) and in equal interests. The hallmark of Joint Tenancy is a right of survivorship. When one Joint Tenant dies, by operation of law the decedent’s interest is automatically transferred proportionally amongst the surviving Joint Tenants. The intent to form a Joint Tenancy must be clearly expressed in the instrument. If the instrument does not contain the words “Joint Tenants” or “Joint Tenancy,” it must otherwise clearly intend a right of survivorship.
Pros & Cons of Joint Tenancy: In one sense a right of survivorship is an advantage, because there is no need to record a deed verifying that the survivor(s) now owns the decedent’s interest. However, this also means that a Joint Tenant cannot devise her property interest to her heirs. Joint Tenants are only responsible for their respective share of cost of maintaining the property, such as property taxes, mortgage and insurance. Moreover, Joint Tenants are entitled to share proportionally in any income the property earns. Also, if a Joint Tenant incurs a debt unrelated to the property, any resulting judgment lien is only against her apportioned interest in the property. However, if a judgment creditor successfully levies the property within the debtor Joint Tenant’s lifetime, the other Joint Tenants may suffer the consequences of either a forced sale or partitioning (physical division) of the property. A Joint Tenant retains the right to sell or gift his/her interest in the property without permission of the other Joint Tenants, but in doing so, the Joint Tenancy is severed, creating a Tenancy in Common with the remaining Joint Tenants. In Maryland, a Joint Tenant’s mortgage of his/her property interest also converts his/her co-ownership into a Tenancy in Common. Finally, an individual Joint Tenant may file a lawsuit to potentially force a partition of the property, or a sale in lieu of partition, in which case the proceeds are distributed amongst the Joint Tenants.
TENANCY BY THE ENTIRETY is a form of Joint Tenancy recognized under common law for married couples. In Maryland, couples who are married when executing the deed to a property are presumed to take title as Tenants by the Entirety unless otherwise provided in the instrument. However, if two persons marry while already owning property together as Joint Tenants, their ownership is not automatically converted into a Tenancy by the Entirety. They must update their deed. Conversely, when the Court grants an absolute divorce, the Tenancy by the Entirety is severed by operation of law and their co-ownership is converted into a Tenancy in Common, thus extinguishing the right of survivorship.
Pros & Cons of Tenancy by the Entirety: Under a Tenancy by the Entirety there is only one shared interest between the married co-owners, consequently one spouse cannot sell or otherwise convey the property without the consent of the other. Also, if only one spouse owes a debt to a creditor, that creditor cannot force a sale to satisfy the debt; the property is shielded from the debts of one spouse.
TENANCY IN COMMON differs from Joint Tenancy in that each co-owner has a divisible interest in the property, and there is no right of survivorship. When a Tenancy in Common is formed, the property interests will be apportioned equally between the Tenants in Common, unless allocation is otherwise specified. Any property granted to two or more unmarried persons is a Tenancy in Common unless there is a clear intention in the instrument to form a Joint Tenancy.
Pros & Cons of Tenancy in Common: A Tenant in Common may convey, encumber and devise his/her property interest as he/she wishes without the consent of the other co-owners. However, a Tenant in Common’s interest in the property is susceptible to liens and judgments.
As a co-owner in any arrangement, you should understand the ramifications of your type of co-ownership. This is particularly true when facing litigation. It is important to consult a professional to review your deed, and discuss how your property interest may be impacted if you are facing litigation or other situation.
James (Jamie) Roth is an Associate in the Litigation Practice Group at Miller, Miller & Canby. He concentrates his practice in real estate litigation with a focus in eminent domain, as well as business and commercial litigation. He has enjoyed a long-standing and distinguished career as a successful real estate consultant, including more than twenty years of private and public sector experience in project management, strategic planning, asset management and risk mitigation.
Contact Jamie at 301.762.5251 or via email.
For more information on Miller, Miller & Canby’s Real Estate Litigation Practice, click here.
DISCLAIMER - This article is offered as an overview for educational purposes, it is not a comprehensive coverage of the law, and it is not a substitute for an attorney’s consultation.
Miller, Miller & Canby is pleased to announce our attorneys who have been named to the list of Super Lawyers in the state of Maryland for 2020. Attorneys James Thompson and Donna McBride have been once again selected for this honor, and attorneys Diane Feuerherd, Callie Carnemark and Christopher Young have been named to the 2020 “Rising Stars” list, which recognizes attorneys under the age of 40.
2020 marks the 14th year that James (Jim) Thompson has been named to the list. He has led Miller, Miller & Canby's Litigation Group for more than 25 years, concentrating his practice in eminent domain and real estate valuation litigation, as well as in property tax assessment appeals. For more than a decade, Mr. Thompson represented Maryland in the Owners’ Counsel of America, a national network of property rights attorneys with demonstrated excellence in this area. In 2018, Mr. Thompson was recognized with the President's Citation for Outstanding Service by the Montgomery County Bar Association. He was also selected as the Senior Lawyer of the Year by the Maryland State Bar Association.
Donna McBride has been a named Super Lawyer since 2014, and has been a partner in Miller, Miller & Canby’s Litigation practice since 2009. She focuses her practice in litigation in the following areas: business and commercial, employment, estates and trusts, personal injury and insurance, as well as real estate. In 2019, Ms. McBride was admitted to the American College of Trial Lawyers as a Fellow. In addition to her background as a trial lawyer, Ms. McBride is a member of the Court of Appeals Standing Committee of Rules of Practice and Procedure, where she was appointed to serve a second 5-year term beginning in 2018. She is also a member of the Trial Court's Judicial Nominating Commission, the Montgomery County Inn of Court, a former co-chair and current member of the Maryland State Bar Association's Judicial Selections Committee and has volunteered as a mediator for the District Court since 2008. In 2018, she was elected to serve as Treasurer for the Montgomery County Bar Association, to serve the 2018-2019 term. She currently serves as Treasurer for the Montgomery County Bar Foundation.
2020 is the fifth year that attorney Diane Feuerherd has been named to the Super Lawyers “Rising Stars” list. She has successfully represented individuals, property owners, and businesses in a wide variety of matters, ranging from administrative hearings before the Board of Appeals, to jury and bench trials in state and federal courts, and to appeals before the Court of Special Appeals and Court of Appeals. In addition to her work, she is active in state and local bar associations. She serves as a co-chair of the Maryland State Bar Association's Judicial Appointments Committee, Blog Manager of the Maryland Appellate Blog, Board Member of the Maryland Bar Foundation and a past Fellow of the MSBA's prestigious Leadership Academy.
2020 is the second year that attorney Callie Carnemark has been recognized as a Super Lawyers “Rising Star.” An associate in the Litigation group, she focuses her practice on real estate and business litigation as well as the firm’s appellate practice. Ms. Carnemark is a member of the Montgomery County Inns of Court, the Montgomery County Bar Association and the Maryland State Bar Association. She is a graduate of the Montgomery County Bar Association Leadership Academy, Class of 2017. She is a member of the Executive Committee of the Montgomery County Bar Association, and Co-Chair of its New Practitioner Section. She is also a member of the Montgomery County Women's Bar Association.
2020 is also the second year that Christopher Young has been recognized as a “Rising Star.” An associate in the Business & Tax Practice Group, he works with business clients and individuals to resolve tax disputes with the Internal Revenue Service and state agencies. He works with corporate clients on issues related to corporate disputes, governance, formations and restructurings, as well as drafting and reviewing corporate documents such as contracts and purchase agreements, operating agreements and partnership agreements. He also advises clients on matters related to foreign financial account reporting and compliance.
These five attorneys join other Miller, Miller & Canby attorneys previously named Super Lawyers including Joe Suntum, who practices in the field of eminent domain and commercial litigation, Pat McKeever, whose practice focuses in real estate law and Jody Kline, whose practice focuses in Land Use and Zoning.
Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement.
The annual selections are made using a patented multiphase process that includes:
• Peer nominations
• Independent research by Super Lawyers
• Evaluations from a highly credentialed panel of attorneys
The objective is to create a comprehensive listing of exceptional attorneys who have attained a high degree of peer recognition and professional achievement, to be used as a resource for both referring attorneys and consumers seeking legal counsel. Attorneys are selected from more than 70 practice areas and a variety of firm sizes, but are limited to no more than 5% of attorneys practicing in any given region (2.5% for Rising Stars). The lists are published annually in leading city and regional magazines and newspapers nationwide.
View a PDF of the press release by clicking Download below.
Miller, Miller & Canby litigation attorney, Diane Feuerherd, authored a recent Maryland Appellate Blog which introduced the seventeen applicants for the open at-large seat on the Court of Special Appeals based on the forthcoming retirement of Judge Alexander Wright, Jr.
Click here to read the full blog article.
In December 2017, Ms. Feuerherd joined the joined the Maryland State Bar Association’s Maryland Appellate Blog as its Blog Manager. Founded in 2013, the Maryland Appellate Blog is sponsored by the MSBA Litigation Section, and is dedicated to disseminating information about appellate practice and appellate law. The blog covers news from Maryland’s Court of Appeals and Court of Special Appeals, as well as the U.S. Supreme Court and U.S. Court of Appeals for the Fourth Circuit. It features commentary from a number of contributors and guest authors, including coverage of notable arguments, practice tips, commentary on implications of specific rulings or trends, and interviews with appellate judges.
Diane Feuerherd is an associate in Miller, Miller & Canby’s Litigation Practice Group and focuses her practice in appellate, commercial and business litigation. She has successfully represented individuals, property owners, and businesses in a variety of matters ranging from administrative hearings before the Board of Appeals of Montgomery County, to trials in state and federal courts, and to appeals before the Court of Special Appeals and Court of Appeals. She may be reached at 301-762-5212.
Miller, Miller & Canby litigation attorneys Donna McBride and Callie Carnemark have obtained a jury verdict on behalf of their client, a medical practice, with offices in Montgomery and Howard Counties. An employee of the practice, who worked as the office administrator, was charged with embezzling funds in excess of $900,000 over the course of several years. After a 6-day jury trial, the jury returned a verdict in favor of the practice which represented almost the entirety of the damages presented to the jury. Through skilled direct and cross-examination, both attorneys worked to seamlessly present the evidence in a manner that was efficient, captivating and highly effective. The defendant will face a criminal trial in April.
“We are delighted with this outcome, and we are pleased that the defendant was held accountable” said Donna McBride.
Donna McBride, a partner in Miller, Miller & Canby’s litigation practice, has an extensive and diverse trial practice. She focuses on various areas of litigation including business and commercial, employment, personal injury, insurance, and real estate. Callie Carnemark is an associate with the litigation practice group, and focuses her practice in business and commercial litigation. To learn more about MM&C's litigation practice, click here.
- Posted November 17, 2019 at 5:14 PM
- Categories Litigation, Eminent Domain and Condemnation, MM&C Happenings, Featured Events, Land Development
Miller, Miller & Canby is pleased to announce the firm has been recognized among the 2020 “Best Law Firms” in the Washington, DC metro area and across the nation.
U.S. News & World Report and Best Lawyers publicly announced the Tenth Edition of the Best Law Firms rankings this month. Miller, Miller & Canby received Metropolitan Tier 1 honors in two practice areas: Eminent Domain and Condemnation Law, and Land Use and Zoning Law. The firm’s Land Use and Zoning practice also achieved a National Tier 1 Ranking. Tier 1 is the highest rank given; the rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.
“For the 2020 ‘Best Law Firms’ publication, the evaluation process has remained just as rigorous and discerning as it did when we first started ten years ago,” says Phil Greer, CEO of Best Lawyers. “This year we reviewed 14,931 law firms throughout the United States – across 75 national practice areas – and a total of 2,106 firms received a national law firm ranking. We are proud that the ‘Best Law Firms’ rankings continue to act as an indicator of excellence throughout the legal industry.”
“We are honored to be recognized in this prestigious publication, across both the metropolitan and national categories,” said Miller, Miller & Canby’s Soo Lee-Cho, who Co-Chairs the firm’s Land Use and Zoning practice along with Jody Kline. Mr. Kline, who has led the practice group since 1974, has been named to the US News “Best Lawyers” list for 14 consecutive years.
“It is particularly gratifying for our practice to be named to this list, as both our clients and colleagues in the legal industry contribute to this process,” said Miller, Miller & Canby’s Joseph Suntum, who leads the firm’s Eminent Domain and Condemnation Law practice. “We take great pride in our dedication to our clients and to be recognized for this service is a privilege.”
The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in the field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a 2020 ranking, a law firm must have at least one lawyer recognized in the 25th Edition of The Best Lawyers in America list for that particular location and specialty.
National and metropolitan tier 1 rankings will be featured in the physical edition of U.S. News – Best Lawyers “Best Law Firms”, which will be distributed to more than 30,000 in-house counsel. The 2020 “Best Law Firms” rankings can be seen in their entirety by clicking here.
Miller, Miller & Canby has more than 70 years of land use & zoning, real estate, eminent domain and condemnation law focus —protecting clients’ rights throughout the condemnation process. For more information about Miller, Miller & Canby’s Eminent Domain and Condemnation Law practice click here or for information about Miller, Miller & Canby's Land Use and Zoning Law practice click here. View the firm press release by clicking the Download button below.
Merging Businesses Beware: MD Court Case Demonstrates Importance of Signed Legal Corporate Documents
A recent decision by the Maryland Court of Appeals serves as a cautionary tale for business owners in Maryland. In MAS Associates v. Korotki, the parties intended to merge their businesses with an existing limited liability company (LLC), but never signed the requisite corporate documents to solidify their intention. When a dispute arose, two of the owners claimed a partnership existed while one disagreed. Taking their dispute to the courts, the Court of Appeals ultimately determined that, while intent can be explicit or based on the parties’ conduct and the surrounding circumstances, there was insufficient evidence of a partnership here. Thus, the failure to document the relationship proved fatal to the argument of the majority owners.
During the economic recession of 2009, Harry Korotki sought to initiate a merger with the mortgage lending company he owned, Savings First Mortgage, LLC ("Savings First"), and two other licensed mortgage entities: Greentree Mortgage Corporation ("Greentree"), owned by Joel Wax ("Mr. Wax"), and MAS Associates, LLC d/b/a Equity Mortgage Lending ("MAS"), owned by Saralee Greenberg ("Ms. Greenberg") and Ken Venick ("Mr.Venick"). Post-merger, the three companies were to operate as one, with MAS absorbing Greentree and Savings First, and becoming the surviving entity.
In an effort to memorialize their merger, each party was represented by its own counsel. However, due to complex regulations governing mortgage companies, the parties selected an independent regulatory counsel to navigate the merger process. At the time of the pre-merger negotiations, it would have been impossible to combine all 3 businesses without some interim steps for the purposes of licensing. Accordingly, the independent regulatory counsel prepared an "Issues Outline," which served as an outline for an "Interim Agreement." It included arrangements, obligations, and the structure of the business prior to the completion of the merger.
During the fall of 2009, the independent regulatory counsel drafted a new agreement between the parties, memorializing their intention to "ultimately change the membership of [MAS] and the membership percentages . . ." However, the parties intended for this agreement to take effect once the requisite regulatory approvals had been obtained, which was slated to be three years or more. The agreement was intended to provide time for each jurisdiction to process such approvals, namely MAS’ change in ownership paperwork, and to act as a limitations period to insulate MAS from potential creditors.
The independent regulatory counsel circulated the initial draft agreement to the parties and their attorneys for review. Two days later, regulatory counsel forwarded the parties a draft Operating Agreement for the new MAS. Negotiations over the terms of the agreement and the Operating Agreement lasted for several months. However, an agreement over the language of the documents was not finalized, and the parties decided to proceed with business operations without executing the agreement. The parties concluded, because they were not generating revenue, it was not financially sound to continue absorbing legal fees with the regulatory counsel. Rather, they decided to proceed without signing any documents (except for a lease between Wax Properties and MAS).
By summer 2010, the combined mortgage lending business had finally begun turning a profit. Shortly thereafter, the parties agreed to start receiving a salary of $10,000.00 per month each. At that time, they informally agreed that all business decisions and day-to-day executive functions of MAS were to be unanimously approved between them.
At the end of the year, the three men divided MAS's profits evenly among themselves, each receiving $120,000.00. The next week, they each made an additional contribution of $125,000.00 to the business. Then they drew a second profit distribution, totaling $64,500.00 each. Thereafter, as MAS began to grow, so did its need to secure additional lines of credit. As collateral to secure a line of credit, Mr. Greenberg and Mr. Wax agreed to pledge their own, personal resources. However, Mr. Korotki refused to be personally liable for any amounts exceeding his one-third share; which eventually led to the unraveling of the venture.
In the spring, Mr. Korotki informed Mr. Greenberg and Mr. Wax of his decision to quit. When Mr. Greenberg and Mr. Wax allegedly refused to negotiate the terms of his departure and buyout, Mr. Korotki filed a complaint in the Circuit Court for Baltimore County for breach of contract and declaratory judgment under RUPA. After several years of litigation and the associated legal costs, the trial court ruled that the parties intended to form a partnership.
The appeal by MAS Associates was elevated to the Maryland Court of Special Appeals. The ruling at the Court of Special Appeals affirmed the trial court. Specifically, the Court of Special Appeals ruled that the parties entered a “joint venture” in the short period of time between not signing the agreement and when they couldn’t agree to the terms of the merger.
MAS Associates appealed to the Maryland Court of Appeals and Judge Adkins reversed the lower court, holding: “The party asserting the existence of a partnership bears the burden of producing sufficient facts to conclusively demonstrate the parties’ intent to form a partnership. Intent can be explicit or based on the parties’ conduct and the surrounding circumstances. Sharing profits and losses, equal management authority, making capital contributions, and whether the parties were concurrently seeking to form another type of business entity can all be factors the courts consider when evaluating intent.
Here, the trial court made an error of law when it concluded that Harry Korotki’s $275,000 in payments to Saralee Greenberg were capital contributions for a new entity, and to the extent that it applied a presumption of partnership based on receipt of profits, it also made an error of law. As for the other factors and evidence, taken together, the record lacks competent material evidence to conclude the parties formed a partnership and the trial court was clearly erroneous in concluding that they did.”
The Court of Appeals concluded that the parties, throughout the course of their business relationship and dealings, demonstrated that they never abandoned their pursuit of acquiring the membership interest in MAS. Specifically, the Court ruled that it is a contradiction of Maryland law to simultaneously sustain the dual intention of acquiring an existing LLC’s membership interest and of forming a partnership or joint venture. The Maryland Court of Appeals reversed the Court of Special Appeals (and the trial court).
Important Factors for Businesses Considering a Merger
Hire Business Law Counsel
The parties in this case hired independent regulatory counsel to guide them through the merger as well as personal business law attorneys. The regulatory counsel devised a plan whereby the parties would eventually become members of the LLC.
Negotiate and Execute Agreements
The regulatory counsel drafted documents per the instructions of the parties, the parties just couldn’t come to an agreement with certain aspects of the agreements – so instead of resolving them, they just never signed them and conducted business without certainty.
Understand the Risk of Operating a Business Without Executed Agreements
Independent counsel warned the parties and their representatives that it would be difficult to determine their rights and obligations without signed agreements. While the parties disagreed over some points, namely liability, had they executed the agreements or more effectively communicated with regulatory counsel, it could have protected their interests as it related to their business relationship with one another. Instead, the parties conducted business activities as though an agreement was executed – in other words, they didn’t let the lack of a signed business contract get in the way of transacting business. Despite their regulatory counsel’s repeated recommendations and warnings, they ignored his advice.
Trusted Business Law Advice May Reduce Your Future Legal Fees
The lesson here is that your actions and conduct today can potentially be used either against you, or in your favor, in the future. In the absence of signed agreements, the Court had to look to the actions and conduct of the parties. The parties ignored the independent regulatory counsel’s warnings and advice because they didn’t want to pay the legal bills (based on the testimony of one party). A trusted business law attorney makes sure their clients understand that they are looking out for their best interests. Clients are better served by paying legal fees to structure their business appropriately, rather than incur problems and costly litigation later.
Chris Young is an associate in the Business & Tax practice at Miller, Miller & Canby. He focuses his practice on corporate legal agreements, business formation, tax controversy work and helping clients deal with new tax regulations. He may be reached at 301-762-5212 or via email. View more information about Miller, Miller & Canby's Business & Tax practice by clicking here.
Michael Campbell is a partner in the litigation group at Miller, Miller & Canby. He focuses his practice on commercial, real estate and construction litigation. Please feel free to contact Mr. Campbell at 301.762.5212 or send him an email for an inquiry. For more information about the firm’s litigation practice, click here. For more information about the firm’s business and contract law practice, click here.