Judge Nugent

09-05303 ReVest, LLC v. Long (Doc. # 102) - Document Text

SIGNED this 01 day of March, 2011.




FREDDIE WAYNE LONG, ) Case No. 09-12827

) Chapter 13


Debtor. )

Plaintiff, )
vs. ) Adversary No. 09-5303


Defendant. )



Case 09-05303 Doc# 102 Filed 03/01/11 Page 1 of 29


Plaintiff ReVest, LLC (“ReVest”) filed two dispositive motions.1 The first is a combined
motion to dismiss and for summary judgment filed on July 7, 2010, seeking dismissal of Freddie
Wayne Long’s fraud claim and summary judgment on: (1) Long’s Kansas Consumer Protection Act
(“KCPA”) claim against ReVest for unconscionable conduct in connection with the acquisition of
the properties; (2) Long’s quiet title claim against ReVest; and (3) ReVest’s complaint for a
judgment declaring it the owner of certain real property free and clear of any interest of Long.2 The
second motion, filed on January 10, 2011, seeks summary judgment on Long’s remaining KCPA
claims to the extent that Long seeks the remedy of money judgments.3

This adversary proceeding is a core proceeding and a “related to” proceeding over which this

Court has jurisdiction pursuant to 28 U.S.C. §§ 157(b) and 1334(b).

ReVest’s Motion to Dismiss Converted to Motion for Summary Judgment

ReVest moves to dismiss Long’s common-law fraud claim for lack of specificity under
Federal Rule Civil Procedure 9.4 Rule 9 requires that fraud claims be pleaded with specific facts
regarding who said and did what to whom, and when the commissions or omissions occurred.

1 Dkts. 37 and 68.
2 Dkt. 37.
3 Dkt. 68. ReVest’s second motion addresses both Long’s initial unconscionablity claim

under Kan. Stat. Ann. § 50-627 and his “bootlegged” deceptive practices claim under Kan. Stat.
Ann. § 50-626. As the Court has denied Long’s motion to add the latter claim, only the
unconscionability issue is considered here.

4 All future references to “Rule” will refer to the Federal Rules of Civil Procedure which
apply to adversary proceedings under Federal Rule Bankruptcy Procedure 7001, et seq. unless
otherwise noted.


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ReVest claims the Amended Counterclaim does not indicate who at ReVest made the false
statements, what was said, how Long relied upon those statements, or how those statements caused
Long damage.

Because ReVest has submitted affidavits and exhibits in support of its motion and Long has
submitted an affidavit and other exhibits in opposition, the Court must determine whether to treat
it as a motion for summary judgment.5 The Court assumes the parties know this rule and,
accordingly, considers that when each of them referred to matters outside the pleadings, they knew
that Rule 56 treatment might be the result. Because both parties rely on materials outside the
pleadings, the Court will convert ReVest’s motion to dismiss Long’s fraud claim to one for summary

Summary Judgment Standards

Rule 56(c) directs the entry of summary judgment in favor of a party who “shows that there

5 Rule 12(d) provides that if “matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”

 The parties must be given a reasonable opportunity to present all the material that is pertinent to
the motion. Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987), cert. denied, 484 U.S. 986
(1987) (“[W]hen a party submits material beyond the pleadings in support of or opposing a
motion to dismiss, the prior action on the part of the parties puts them on notice that the judge
may treat the motion as a Rule 56 motion.”). In ReVest’s second motion for summary judgment
(Dkt. 68), ReVest indicated that it had sought summary judgment or dismissal of Long’s fraud

6 The Court notes that if the Amended Counterclaim is read in conjunction with Long’s
affidavit, Long has alleged sufficient facts from which to infer who made the statements, what
was said, and when they were said. Len Marotte or Brent Hurst made the representations on
behalf of ReVest. See Dkt. 46, Affidavit of Freddie Long at 2, ¶ 24. The representations were
something to the effect of either: (1) the Purchase Agreement is a loan, not a sale; (2) as long as
Long continued to make payments, Long would be able to pay off the loan and keep his
properties; or (3) payments would assist Long in repurchasing his properties and the option to
repurchase would continue to be available. These representations were made in September
2005, December 2006, February 2007, April 2008, June 2009, and as late as September 2009.


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is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter
of law.”7 The Court’s function in reviewing a motion for summary judgment is to first determine
whether genuine disputes as to material facts exist for trial. In making this determination, the Court
may not weigh the evidence nor resolve fact issues.8 The Court must construe the record in a light
most favorable to the party opposing the summary judgment.9

Once the Court determines which facts are not in dispute, it must then determine whether
those uncontroverted facts establish a sufficient legal basis upon which to grant movant judgment
as a matter of law.10 If different ultimate inferences may properly be drawn from the facts, summary
judgment is not appropriate.11

Uncontroverted Facts

For the purpose of these motions, the Court will deem as admitted all material facts
contained in the statement of movant unless the statement of the opposing party specifically

7 Fed. R. Civ. P. 56(a). Before December 1, 2010, Rule 56 provided that summary
judgment should be rendered if there is “no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”

8 First Sec. Bank of New Mexico, N.A. v. Pan Am. Bank, 215 F.3d 1147, 1154 (10th Cir.
2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)); Concrete Works of Colo.,
Inc. v. City and Cnty of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (Court may not resolve
disputed questions of fact at the summary judgment stage).

9 McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988) (citation omitted).

10 E.E.O.C. v. Lady Baltimore Foods, Inc., 643 F.Supp. 406, 407 (D. Kan. 1986) (Even if
there are no genuine issue of material fact, the movant still has the burden to show it is entitled to
judgment as a matter of law.).

11 Sec. Nat. Bank v. Belleville Livestock Comm’n Co., 619 F.2d 840, 847 (10th Cir.


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controverts those facts.12 Likewise, the Court will deem admitted all material facts included in the
non-moving party’s statement of additional facts unless the movant’s reply specifically controverts
those facts.13 The Court will disregard those factual disputes that are not material to the outcome.
The Court will also disregard the characterization of facts, whether made by the movant or the nonmovant.
For example, the characterization placed on an admitted transaction or transfer will be
disregarded.14 The characterization of a transaction is a question of law for the Court.

To properly controvert an assertion of fact, a party must cite to particular parts of materials
in the record or show that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.15 Long’s
inability to recall certain facts (i.e., receipt of letters) or to verify figures because of his poor
recording keeping are not proper controversions of those facts.

Both parties use the deposition of Long to support their contentions. ReVest cites to several
statements made by Long in his deposition by page and line and attached the complete transcript of
the deposition as it was taken on December 9, 2010. Local Bankruptcy Rule 7056.1(a) requires that
parties support their contentions by citing to the record with particularity. ReVest has done this.
The Court has read only those portions of the deposition particularly cited by ReVest and Long.

12 Fed. R. Civ. P. 56(e) and D. Kan. LBR 7056.1(a).

13 D. Kan. LBR 7056.1(b)(2).

14 See Patton v. AFG Indus., Inc., 92 F.Supp.2d 1200, 1202 n. 3 (D. Kan. 2000)
(Controversion only denied characterization of a fact [a conversation] and therefore the fact is
deemed admitted); Stephens v. City of Topeka, Kan., 33 F.Supp.2d 947 (D. Kan. 1999)
(Conclusory terms or characterizations without any concrete facts to support characterizations
are afforded no weight by the court); Rogers v. United States, 58 F.Supp.2d 1235 (D. Kan. 1999)
(The general characterization of a transaction is a question of law).

15 Fed. R. Civ. P. 56(c)(1)(A) and (B).


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Long attached a complete “corrected” transcript of the deposition to his response and cites
with particularity to the same passages ReVest relied on, but which he has altered in a manner that
he believes creates material factual controversy. As ReVest notes in its response, this tactic is likely
improper. The Tenth Circuit has likened this to filing a “sham” affidavit, a practice that is clearly
barred by Rule 56(h).16 As corrections are filed under penalty of perjury or under oath, the Court
considers them the equivalent of declarations for the purpose of Rule 56 and evaluates them by
determining: (a) whether the deponent was cross-examined during his testimony; (b) whether the
affiant or deponent had access to the pertinent evidence at the time of his earlier testimony or
whether the corrections were based on newly-discovered evidence; and (c) whether the earlier
testimony reflects confusion which the corrections could explain.17 These corrections were filed and
signed by Long after the second summary judgment motion was filed and without listing any reason
for the changes. They do not meet any of the above tests and will therefore be disregarded.

The Court finds the following facts to be established for the purpose of trial.18

1. ReVest is a Kansas limited liability company with its principal place of business at
1999 N. Amidon, Suite 224, Wichita, Kansas.
2. Long is the debtor in the captioned bankruptcy case and resides at 337 N. Lark Lane,
Wichita, Kansas. He is the sole proprietor of Aero Comm Machining, an aircraft parts
manufacturing company. He began the business in 1969 with the assistance of his wife, Patsy Long,
who handled their personal and business finances.
16 Burn v. Board of County Comm’rs of Jackson County, 330 F.3d 1275, 1281-1282
(10th Cir. 2003).
17 See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).
18 See Rule 56(g).

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3. After a long illness, Patsy Long died of cancer in November 2004. Prior to her death,
Long had a number of health problems including a stroke in 2004.
4. During his wife’s illness, and after her death, Long was deeply depressed and
neglected his personal and business finances. He incurred a substantial tax debt to the Internal
Revenue Service.
5. In September 2005, after a failed attempt to obtain a loan from a local bank to pay
off his tax debt, Long contacted ReVest to borrow money. Long was 61 years old when he first met
with Len Marotte of ReVest. During this time, Long suffered from depression and memory issues
as a result of his 2004 stroke and other physical ailments.
6. On October 4, 2005, Long and ReVest executed an agreement, entitled “Purchase
Agreement,” relating to five properties then owned by Long: the Bonn Property, the St. Clair
Property, the 167th Street Property, the Reno County Property, and the Lark Property (collectively
referred to as “the Properties”). The Purchase Agreement had three major provisions. It first
provided for the sale of the Properties from Long to ReVest for $250,000 plus closing costs and
unpaid property taxes for a total of $266,100. Second, ReVest would lease the Properties back to
Long beginning on November 1, 2005 and ending October 31, 2006. Third, ReVest granted Long
an option to buy back the Properties for $291,000 on or before October 31, 2006.19
7. Long understood the nature of the transaction and the rights he had as a result of it.20
19 Dkt. 37-2, Ex. A, Purchase Agreement Dated October 4, 2005.

20 Long initially testified that he understood that he could either choose to exercise the
option to repurchase or not and that if he chose to “walk away,” he would owe ReVest nothing.
Long later “corrected” his testimony to state with respect to questions about this, “Yes, the
agreement says that.” As noted above, the Court disregards the corrected testimony.


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8. ReVest allocated the $266,100 purchase price as follows: $117,000 to the Lark
Property, $66,000 to the Reno County Property; $30,000 to the Bonn Property, $42,000 to the St.
Clair Property, and $11,100 to the 167th St. Property.
9. Long estimated the values of the Properties at or near the time of the Purchase
Agreement totaled $538,000, divided as follows: $160,000 for the Lark Property; $200,000 for the
Reno County Property; $55,000 for Bonn Property; $63,000 for the St. Clair Property; $60,000 for
the 167th Street Property.
10. Long acquired the Bonn Property in the 1960s from one of his wife’s relatives by
making an undisclosed down-payment and taking over the house payments. Long purchased the St.
Clair Property for $57,000 in 1995. Long purchased the 167th Street Property in 1996 or 1997 for
$50,000-$52,000. Long purchased the Reno County Property sometime after 1996 or 1997 for
$25,000. Long purchased the Lark Property for $93,000 in 1992.
11. On or about October 4, 2005, Long executed and delivered warranty deeds covering
the Properties to ReVest, who recorded them in the appropriate Register of Deeds’ offices.21
12. ReVest financed its purchase of the Properties with a loan from US Bank. At the
closing, Long received approximately $244,000 from ReVest.22
13. Pursuant to the Purchase Agreement, ReVest and Long executed a one-year Lease,
to begin November 1, 2005 and terminate October 31, 2006, with monthly lease payments in the
amount of $1,720 per month. The monthly payment was calculated based upon the amortization of
21 Long disputes whether the deeds absolutely conveyed the properties to ReVest. This
does not effectively controvert that he executed these warranty deeds to ReVest.

22 Long claims he cannot agree definitively to the amount because of his poor record
keeping. This does not effectively controvert the stated fact.


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the loan ReVest obtained to finance the purchase of the Properties. Long’s monthly payments were
due on the first day of the month.

14. On February 9, 2006, Brent Hurst of ReVest wrote Long a letter reiterating the terms
of the Purchase Agreement, itemizing the closing and insurance costs, and summarizing the rent
15. Long’s payments were typically late. ReVest sent letters to Long reminding him of
his monthly payments and the consequences of non-payment on February 27, 2006, April 18, 2006,
April 25, 2006, and June 6, 2006.24
16. On October 12, 2006, ReVest’s Hurst sent Long a letter regarding the option to
purchase the Properties. The letter stated: “You have indicated you are going to purchase the
properties back from us. As you recall the deadline to purchase these properties on the terms of the
agreement we signed is October 31st, 2006. You will need to close on the purchase of these
properties by 5:00 p.m. on October 31st, 2006, otherwise, your option will expire.”25
17. Long did not exercise his option to repurchase all the properties. Instead, the parties
negotiated a new agreement whereby Long purchased the Lark Property, and entered into a new
23 Dkt. 37-7, Ex. F, ReVest Letter Dated February 9, 2006.

24 Dkts. 37-8 thru 11, Exs. G-J, ReVest Letters Dated February 27, 2006, April 18, 2006,
April 25, 2006, and June 6, 2006. Long claims that he does not recall receiving these letters
because his memory was affected by his serious depression and stroke. This does not effectively
controvert that ReVest sent these letters to him.

25 Long controverts the letter to the extent that the words in it do not convey the intent of
the parties. Long characterizes the “option to purchase” as a means to restructure his payments
to ReVest.


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option agreement to repurchase the remaining properties, along with a new lease covering them.26
Long borrowed $148,000 from Wells Fargo to buy back the Lark Property from ReVest.

18. Long believes that ReVest did what it said it would do. His initial deposition
testimony was as follows:
Q: At this time did ReVest do anything other than everything that they had promised they would
do? A I would say yes.
Q They had done everything they’d promised to do?
A Yes.27
The Court concludes that, at least with respect to the Lark tract, Long believes that ReVest did what

it said it would do.28

19. The second option agreement, executed on December 29, 2006, granted Long an
option to buy-back the four remaining properties for $161,000.00 as long as it was exercised by 5
p.m. on February 28, 2007.29 This agreement also provided that Long could continue to lease these
properties during the option exercise period, i.e., from December 26, 2006 until February 28, 2007.
20. Long did not exercise the second option to repurchase the remaining properties.
21. After the second option expired, Long continued to make payments to ReVest even
though there were no current written lease or unexpired option agreements pending between them.
22. After February 2007, Brent Hurst periodically called Long for money and they would
26 Long attempts to controvert this statement by characterizing the purchase of the Lark
property as the release of a collateral on ReVest’s loan to him. This does not controvert that the
parties renegotiated and entered into a new option agreement.

27 Dkt. 68-2, Deposition of Freddie W. Long at 73-74.

28 Long’s “corrected” testimony is: “Yes, they loaned me money and they took deeds and
collateral and released Lark upon payment.” As noted above, the Court disregards the corrected

29 Dkt.37-13, Ex. L, Option Agreement dated December 29, 2006.


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discuss how further payments by Long would enable him to keep his properties.30

23. Long knew that as long as he made payments to ReVest, he could preserve the right
to repurchase the real estate.
24. By letter dated April 21, 2007, ReVest sent the following to Long:
This is just a reminder that as of today I have not received your rent of $1,100.00 that
was due April 1st, 2007. I know you are busy but please take a minute and send your
rent payment today. The last we spoke you said you visited with your banker and
you might hear something Tuesday with respect to purchasing the four remaining
properties. Would [you] please call me on Tuesday to let me know what your banker
says. As I have said I must remove these properties from my line of credit very soon
as my time is up. If we cannot get something worked out in the next week or so I
will need to move forward with selling the properties to pay off my lender.31

25. ReVest sent letters reminding Long of overdue payments on July 3, 2007 and August
6, 2007.32
26. On December 17, 2007, ReVest sent Long a notice to quit, vacate, and surrender
possession of the St. Clair and Bonn properties if the overdue sum of $1,200.00 was not paid within
three days.33 Long paid ReVest $1,200.00 on December 19, 2007, within the three-day period.34
27. Long paid ReVest $6,900 on April 21, 2008.
30 ReVest controverts Long’s characterization of the payments as loan payments.

31 Dkt. 37-14, Ex. M, ReVest Letter Dated April 21, 2007. Long claims that he cannot
recall receiving this letter. This does not effectively controvert that ReVest sent this letter to

32 Dkts. 37-15 and 37-16, Exs N & O, ReVest Letters Dated July 3, 2007 and August 6,
2007. Long claims that he cannot recall receiving these letters. This does not effectively
controvert that ReVest sent these letters to him.

33 Dkt. 37-17, Ex. P, Three Day Notice to Quit for Nonpayment of Rent. Long claims
that he cannot recall receiving this letter. This does not effectively controvert that ReVest sent
this letter to him.

34 Dkt. 46, Ex. 5, ReVest’s Register.


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28. In a letter dated October 28, 2008, ReVest wrote Long:
On December 29, 2006, you entered into an Option Agreement and Property Lease
with ReVest, LLC, which provided you both the option to purchase certain parcels
of land no later than February 27, 2007, and a lease of those parcels from January 1,
2007 until February 28, 2007. You elected not to exercise your option to purchase
those parcels, and since the expiration of the lease you have been a tenant-at-will
under Kansas law. Pursuant to K.S.A. 58-2501 et seq., you are hereby notified that
your tenancy will terminate no later than November 30, 2008, and any amounts you
may be receiving from sub-tenants must be directed to this office.35

29. In a letter dated November 24, 2008, ReVest’s counsel wrote Long:
It is my understanding you have had some communications with ReVest regarding
your continued involvement in the above properties. ReVest is willing to consider
continuing its relationship with you in some form, but is not willing to engage in a
protracted negotiation. If you have any interest in an immediate short term
resolution or are interest in a prompt purchase of the above properties, please notify
Mr. Hurst or me no later than 5:00 p.m., Wednesday, November 26, 2008. If not,
please make arrangements to remove any of your belongings from the properties and
provide ReVest with copies of all subtenant agreements no later than Monday,
December 1, 2008.36

30. ReVest’s counsel sent an additional letter to Long on January 14, 2009.37
31. In April and May 2009, ReVest began receiving rent from the St. Clair and Bonn
properties directly from the occupants.

32. Long paid ReVest $20,000 on June 10, 2009.38
35 Dkt. 37-18, Ex. Q, ReVest Letter Dated October 28, 2008. Long’s lack of memory
regarding receipt of this letter does not effectively controvert that ReVest sent him this letter.

36 Dkt. 37-19, Ex. R, Letter Dated November 24, 2008.

37 Dkt. 37-20, Ex. S, Letter Dated January 14, 2009.

38 ReVest posits that “[a]s a result of [the lump-sum] payments, ReVest did not
undertake to sell the properties to third-parties, and did not undertake to terminate the tenancy on
the buildings on the properties occupied by Long.” Dkt. 37, Statement of Uncontroverted Facts
¶20. Long controverts ReVest’s characterization of these payments as consideration for not
terminating Long’s tenancy and asserts that they were “pay downs” on the amount due to


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Long filed for Chapter 13 relief on August 31, 2009.
34. In September 2009, Long and Roger Dorphinghaus visited ReVest’s office where
they received a memorandum from Hurst which outlined the terms for a proposed third option to
repurchase. ReVest offered to sell the four remaining properties to Long for $172,000 if he
repurchased them by November 30, 2009. The repurchase price was not equivalent to the
properties’ estimated market value. There is nothing in the record that indicates that this option
proposal was reduced to an executed writing and Long did not close the repurchase.
ReVest is shown as the mortgagee on the Properties’ insurance.
ReVest filed this adversary proceeding on December 11, 2009.
37. Long filed his Answer and Counterclaim on January 13, 2010, and an Amended
Counterclaim on June 16, 2010.
Long converted this case to one under Chapter 11 on March 26, 2010.
39. There are no current written leases in effect between Long and ReVest. There are
no unexpired option agreements between Long and ReVest.
Analysis and Conclusions of Law
In the Fall of 2005, Long needed money to deal with a tax debt. Apparently unable to
borrow from conventional sources, he turned to ReVest, who offered to acquire his rental real estate
and his homestead for cash and to lease the properties back to Long, granting him an option to
repurchase them for what ReVest paid him plus interest and a fee. The parties executed the October
4, 2005 Purchase Agreement and Long deeded over his properties. When the 2005 option expired,
ReVest issued a second option in 2006 in exchange for a cash payment made by Long. Long claims


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that the sale and leaseback transactions were loans secured by the Properties while ReVest claims
they were what they nominally appear to be, sales. In addition, Long also claims that ReVest took
advantage of his health and depression following his wife’s death and used its dominant economic
position to defraud him, committing not only common law fraud, but also violating the KCPA.

On summary judgment, ReVest first argues that Long’s KCPA and fraud claims covering
the Purchase Agreement are time-barred because any representations made in connection with the
Purchase Agreement occurred after the applicable statutes of limitation expired.39 ReVest also
argues that nothing in the facts support finding that it made any misrepresentations to Long.40
ReVest also claims that the facts do not demonstrate unconscionable conduct on ReVest’s part and
that the KCPA does not apply to these transactions in any event.41 Based on all the documents,
ReVest maintains that no facts preclude the Court from determining that it is the owner of the

A. Long’s KCPA Claims and the Statute of Limitations
1. KCPA Generally
Long asserts that ReVest acted unconscionably when it induced him to enter into the
Purchase Agreement in 2005. Kan. Stat. Ann. § 50-627(a) states that no “supplier” shall engage in
an unconscionable act or practice in connection with a “consumer transaction.” A “consumer” is
defined in the Act as an individual who seeks or acquires “property or services for personal, family,

39 Dkt. 37 at 8.
40 Id. at 7 (“...nothing in the facts...supports any misrepresentation”).
41 Dkt. 68 at 8.


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household, business or agricultural purposes.”42 A “supplier” is a “manufacturer, distributor, dealer,
seller, lessor, assignor, or other person” who engages in “consumer transactions,” but the definition
of supplier does not include any “bank, trust company or lending institution” that is state- or
federally regulated.43 A “consumer transaction” is a “sale, lease, assignment, or other disposition
for value of property or services” to a consumer.44 An unconscionable act “violates this act when
it occurs before, during or after the transaction.”45 “Services” are broadly defined in the Act and in
the cases and include personal services, privileges, and “any other act performed for a consumer by
a supplier.”46 “Property” includes real estate.47

Whether an act is unconscionable is a question of law, but the Court is to consider the
circumstances that the supplier knew of or should have known, including, but not limited to: (a)
whether the supplier took advantage of the consumer’s infirmity; (b) whether the consumer was
unable to receive a material benefit from the transaction; (c) whether the transaction was excessively
one-sided in favor of the supplier; or (d) whether the supplier misled the consumer with a statement
of opinion.48

42 Kan. Stat. Ann. § 50-624(b).
43 Kan. Stat. Ann. § 50-624(j).
44 Kan. Stat. Ann. § 50-624(c).
45 Kan. Stat. Ann. § 50-527(a).
46 Kan. Stat. Ann. § 50-624(i). Moore v. Bird Eng’g Co., P.A., 273 Kan. 2, 41 P.3d 755

(2002) (definition of services is very broad).
47 Kan. Stat. Ann. § 50-624(h).
48 Kan. Stat. Ann. § 50-627(b)(1), (3), (5), and (6), respectively. The Court believes

these are the most applicable parts of § 50-627 to this case.

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Long meets the definition of consumer and ReVest, not being a regulated lending entity, is
a supplier that offered Long a service (purchase and lease-back) as opposed to property. The
Purchase Agreement would qualify as a consumer transaction as would the subsequent option
agreements. Only specific actions are deemed violations. Continuing violations are only
actionable if they are “not identified to be in connection with a specific identifiable consumer
transaction but []continuing in nature.”49 With the statutory parameters of the KCPA claim in mind,
we first address the effect of the statute of limitations on it.

2. The KCPA Three-year Statute of Limitations, Kan. Stat. Ann. § 60-512
This Court previously analyzed the timeliness of Long’s claims in connection with ReVest’s
initial motion to dismiss Long’s Counterclaim and ruled that as pled, Long’s KCPA and fraud claims
were time-barred.50 Actions for violating a statute have a three-year limitation as provided in Kan.
Stat. Ann. § 60-512. Long argued that the statute of limitations had not run on his KCPA, fraud or
quiet title claims because ReVest’s continuing conduct constitutes a continuing tort that tolls the
statutes. The Court declined to apply the continuing violations rule to Long’s KCPA claim because

(1) his Counterclaim lacked facts tying his payments to misrepresentations made within three years
of him filing the claim and (2) the doctrine is a narrow concept that is applied only where there is
explicit statutory language directing its application and the KCPA statute did not contain such
language. As noted above, Kan. Stat. Ann. § 50-636(d) expressly excludes continuing violations
that are connected to a specific transaction from the scope of actionable violations under the Act.
Long filed an Amended Counterclaim containing factual allegations that ReVest made

49 Kan. Stat. Ann. § 50-636(d).
50 Dkt. 29.

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misrepresentations to Long in April 2008, June 2009, and September 2009, which induced him to
continue making monthly payments and two large lump-sum payments. ReVest argues that Long’s
KCPA claim in connection with the Purchase Agreement and the acquisition of the Properties is
barred because the alleged unconscionable activity with respect to that transaction occurred more
than four years prior to the filing of the claim, barring reformation of the deeds. Long argues the
additional facts detailed in his amended complaint, his affidavit, and the discovery materials require
that the Court apply the continuing violations rule to find that his KCPA claim is not barred. Long
also notes that as a debtor in possession, he may claim the benefit of § 108(a) which extends an
unexpired statute of limitations for a period of two years after the date of his bankruptcy petition.
Thus, his KCPA claim relating to the 2006 option agreement is not time-barred.

3. The KCPA Purchase Agreement Claim Is Barred
Long insists that the amended facts warrant applying the continuing violations rule to his
KCPA claim. He forgets that the KCPA statute does not explicitly provide for that. Indeed, Kan.
Stat. Ann. § 50-636(d) explicitly deals with continuing violations and expressly excludes those that
are connected to a specific transaction from the scope of actionable violations under the Act.

Nor does it help that his KCPA claim is fraud-based. Long relies on the case of Alexander

v. Certified Master Builder Corp51 to urge the Court to count the time from Long’s discovery of the
wrong. Alexander is not binding on this Court, but the opinion of the highest Kansas appellate court
on this point is. The Kansas Court of Appeals rejected Alexander’s approach recently in Four
Seasons Apartments, Ltd. v. AAA Glass Serv., Inc, where it drew a clear distinction between the lack
of a discovery provision or a period of repose in Kan. Stat. Ann. § 60-512 and the presence of both
51 43 F.Supp.2d 1242 (D. Kan. 1999).

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in the fraud statute of limitations, Kan. Stat. Ann. § 60-513(b).52 Thus, Long’s additional allegations
that ReVest made misrepresentations to him in April 2008, June 2009, and September 2009 do not
revive the KCPA claim pertaining to the Purchase Agreement. The Court does not view the KCPA
claim as one scheme, rather it considers each transaction between the parties as a separate potential
KCPA violation and claim.

A KCPA claim accrues on the date of the alleged unconscionable act or practice regardless
of when the alleged unconscionable act is discovered.53 Because of Long’s status as a debtor in
possession and pursuant to § 108(a), the Court must first determine whether the applicable
nonbankruptcy statute of limitations period has expired before Long filed his bankruptcy petition.
If that period has not expired, § 108 extends the statute of limitations for an additional two years
from when the bankruptcy action was filed. Because the Purchase Agreement was executed on
October 14, 2005, the statute of limitations for a KCPA claim in connection with it expired on
October 14, 2008, well before Long filed his bankruptcy petition. Section 108 does not save the
statute of limitations on that claim. Long’s KCPA Purchase Agreement claim is barred.54

The KCPA Claims on the 2006 Option and Lease, the April 2008 and June 2009
Lump-sum Payments, and the Offer of the September 2009 Option Agreement Are
Not Time-barred.
52 37 Kan.App.2d 248, 250, 152 P.3d 101, 104 (2007), referring to Johnsmeyer v.
Hanover Development Co. II, Case No. 93,158, 2005 WL 2495817 (Kan. App. Oct. 7, 2005)

53 Agristor Leasing v. Meuli, 634 F.Supp. 1208, 1213 (D. Kan. 1986) (KCPA cause of
action accrues when the transaction in question takes place).

54 ReVest also argued that its acquisition of the Properties were beyond the terms of the
KCPA because it did not involve a sale of property “to a consumer.” The Court need not address
this argument given its determination that the KCPA claim covering the Purchase Agreement
was time-barred.


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With respect to Long’s KCPA claim covering the December 29, 2006 option agreement, the
statute of limitations period for that claim expired three years from the date of that agreement, on
December 29, 2009. Because that period had not expired before Long filed his bankruptcy petition
on August 31, 2009, § 108(a) extended the statute of limitations an additional two years from the
petition date to August 31, 2011. Thus, Long’s KCPA claim covering the 2006 option agreement
was timely filed and is not barred.55 Likewise, Long’s KCPA claims covering the April 2008 and
June 2009 lump-sum payments and the offer of the third option were timely filed and are not barred.

B. Long’s Fraud Claim and the Statute of Limitations, Kan. Stat. Ann. § 60-513
Long’s fraud claim is based on the same facts and transactions that underpin his KCPA
claims, that he was led to enter into a transaction that was not what he thought it was by a series of
misrepresentations by ReVest upon which he relied to his detriment. ReVest argues that Long’s
fraud claim is barred because it accrued on October 4, 2005, when Long signed the deeds and the
Purchase Agreement, or at the latest on December 17, 2007, the date Long received ReVest’s Three-
Day Notice to Quit, which “should have clued Long [] that ReVest claimed ownership of the
property.” ReVest claims that under either accrual date, Long’s counterclaim, filed on January 13,
2010, was filed outside the two-year period.

Kan. Stat. Ann. § 60-513(a)(3) provides that an action for fraud shall be brought within two
years, but that the cause of action shall not be deemed to have accrued until the fraud is discovered.
Kan. Stat. Ann. § 60-513(b) provides that:

a cause of action shall not be deemed to have accrued until the act giving rise to the
cause of action first causes substantial injury, or, if the fact of injury is not

55 We note that neither party raised or discussed § 108 in their briefing on the first
Motion to Dismiss.


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reasonably ascertainable until some time after the initial act, then the period of
limitation shall not commence until the fact of injury becomes reasonably
ascertainable to the injured party, but in no event shall an action be commenced more
than 10 years beyond the time of the act giving rise to the cause of action.

ReVest ignores the distinction between Kan. Stat. Ann. § 60-512 which lacks a period of
repose or a discovery provision and that which applies to fraud claims, Kan. Stat. Ann. § 60-513.
Indeed, ReVest argued that the latest time Long could have discovered the fraud was December 17,
2007. Long filed his bankruptcy case on August 31, 2009, well-within the running of the two-year
statute of limitations. Section 108(a) saves his fraud claim. In addition, if ReVest made
misrepresentations to Long to induce the April 2008 and June 2009 payments or to induce Long’s
entry into an option arrangement in September 2009, Long could claim that he did not discover
ReVest’s perfidy until his failure to exercise the 2009 option resulted in ReVest’s taking “his”
Properties.56 Whatever its merits may be, Long’s fraud claim is timely.

Summary Judgment Analysis
Long’s Non-barred KCPA Claims (the 2006 Option and Lease Agreement, the Lump-
sum Payments, and the 2009 Option Offer).57
ReVest indulges in a mechanical argument to contend that the KCPA doesn’t apply to these
claims because Long, as a seller, is the “supplier” and ReVest as the purchaser stands in the shoes
of a “consumer,” but isn’t one. Under Long’s theory, he is the “consumer” and ReVest the

56 Under this scenario, Long has no need of § 108 to extend the statute of limitations
period for Long’s fraud claim. Long’s bankruptcy petition was filed on August 31, 2009 and the
last pleaded fraudulent act occurred in November 2009.

57 ReVest filed its second motion for summary judgment before this Court issued its
order denying Long’s request to add a KCPA claim for deceptive acts and practices pursuant to
Kan. Stat. Ann. § 50-626. The Court will only consider ReVest’s summary judgment arguments
that relate to Long’s KCPA claim for unconscionable acts and practices under Kan. Stat. Ann. §


Case 09-05303 Doc# 102 Filed 03/01/11 Page 20 of 29

“supplier.” The Court concludes that on the summary judgment record, Long could make out a
claim that some of these transactions, including the leases, the options to purchase, and the
extensions on the option to repurchase were unconscionable. Kan. Stat. Ann. § 50-627(a) provides
that no supplier shall engage in an unconscionable act or practice “in connection with a consumer
transaction.” Thus, the Court considers whether, as a matter of law, what ReVest did in connection
with each of these transactions is unconscionable, guided by the non-exclusive list of factors
contained in Kan. Stat. Ann. § 50-627(b). They are:

The supplier took advantage of the inability of the consumer reasonably to
protect the consumer’s interests because of the consumer’s physical
infirmity, ignorance, illiteracy, inability to understand the language of an
agreement or similar factor;
when the consumer transaction was entered into, the price grossly exceeded
the price at which similar property or services were readily obtainable in
similar transactions by similar consumers;
the consumer was unable to receive a material benefit from the subject of the
when the consumer transaction was entered into, there was no reasonable
probability of payment of the obligation in full by the consumer;
the transaction the supplier induced the consumer to enter into was
excessively one-sided in favor of the supplier;
the supplier made a misleading statement of opinion on which the consumer
was likely to rely to the consumer’s detriment; and
except as provided by K.S.A. 50-639, and amendments thereto, the supplier
excluded, modified or otherwise attempted to limit either the implied
warranties of merchantability and fitness for a particular purpose or any
remedy provided by law for a breach of those warranties.58
In Wille v. Southwestern Bell Tel. Co.,59 the Kansas Supreme Court identified 10 factors to

consider in determining whether an act is unconscionable under the KCPA:

(1) The use of printed form or boilerplate contracts drawn skillfully by the party in
58 Kan. Stat. Ann. § 50-627(b).
59 219 Kan. 755, 549 P.2d 903 (1976).

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the strongest economic position, which establish industry wide standards offered on
a take it or leave it basis to the party in a weaker economic position (Henningsen v.
Bloomfield Motors, Inc., supra; Campbell Soup Co. v. Wentz, 3 Cir., 172 F.2d 80);

(2) a significant cost-price disparity or excessive price; (3) a denial of basic rights
and remedies to a buyer of consumer goods (Williams v. Walker-Thomas Furniture
Company, 121 U.S.App.D.C. 315, 350 F.2d 445; 18 A.L.R.3d 1305); (4) the
inclusion of penalty clauses; (5) the circumstances surrounding the execution of the
contract, including its commercial setting, its purpose and actual effect (In re
Elkins-Dell Manufacturing Company, 253 F.Supp. 864, (E.D.Pa.)); (6) the hiding of
clauses which are disadvantageous to one party in a mass of fine print trivia or in
places which are inconspicuous to the party signing the contract (Henningsen v.
Bloomfield Motors, Inc.,supra); (7) phrasing clauses in language that is
incomprehensible to a layman or that divert his attention from the problems raised
by them or the rights given up through them; (8) an overall imbalance in the
obligations and rights imposed by the bargain; (9) exploitation of the
underprivileged, unsophisticated, uneducated and the illiterate (Williams v.
Walker-Thomas Furniture Company, supra); and (10) inequality of bargaining or
economic power. (See also Ellinghaus, ‘In Defense of Unconscionability’, 78 Yale
L.J. 757; 1 Anderson on the UCC, s 2-302, and cases cited therein.)
The Court must also consider general contract principles. A general principle of contract law
is that competent parties may make contracts on their own terms, provided such contracts are neither
illegal nor contrary to public policy, and in the absence of fraud, mistake or duress, a party who has
entered into such contract is bound thereby.60 This rule applies regardless of a party’s failure to read
the contract,61even if the contract turns out to be disadvantageous to the complaining party.62 Bad
deals are not necessarily unconscionable.

Long claims ReVest acted unconscionably because: (1) it took advantage of his weakened
emotional and mental state; (2) it exacted an interest rate grossly exceeding that which would be
charged in similar transactions at the time when the Purchase Agreement was made; (3) the

60 Squires v. Woodbury, 5 Kan.App.2d 596, 598, 621 P.2d 443 (1981).
61 Washington v. Claasen, 218 Kan. 577, 580, 545 P.2d 387 (1987).
62 Wille, 219 Kan. at 757.


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transaction was excessively one-sided in favor of ReVest; (4) the purchase price of $250,000 was
substantially less than the value of the properties; and (5) ReVest continually made misleading
statements that he would be able to repurchase the properties even after the expiration of the option
agreements.63 Long continues to assert that all of these transactions form one integrated scheme to
defraud him, beginning with the Purchase Agreement. But his claim concerning the Purchase
Agreement is barred. In the context of a KCPA claim, the Court considers each subsequent
transaction separately and determines whether the uncontroverted facts and inferences drawn from
them support a conclusion that ReVest is entitled to judgment as a matter of law that it did not act

a. The 2006 Option Agreement and Leases
The original Purchase Agreement granted Long an option to repurchase the Properties on
or before October 31, 2006. He had deeded all of the Properties to ReVest when the Purchase
Agreement closed in 2005 and executed a lease that was coterminous with the option, also expiring
on Halloween, 2006. On October 12, 2006, ReVest wrote to Long and warned him that if the option
prices were not paid by October 31, the option would expire. Thereafter, Long and ReVest
renegotiated an arrangement whereby he could partially exercise his option by repurchasing the Lark
tract for $148,000. He repurchased Lark. In addition, Long and ReVest signed a second option
agreement on December 29, 2006 pursuant to which Long’s option to repurchase the remaining
Properties was extended to February 28, 2007. In tandem with this, Long signed a coterminous lease
on the remaining properties.

Long claims the lease agreement was the vehicle by which ReVest received payments on the

63 Dkt. 36, ¶31(c) and Count I, ¶4.

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mortgage it held against his properties.64 He says that the lease did not transfer the normal risks and
responsibilities of a lessor to ReVest because Long paid the taxes and insurance on the Properties65
and the lease payments were based on an amortization of ReVest’s debt to US Bank, not actual
market rents. Long ignores the reality that most, if not all commercial leases are “net” propositions
that burden the tenant with taxes and insurance and relies on his characterization of the
uncontroverted facts to argue that the lease was in fact a loan repayment vehicle.

Applying the unconscionability factors in Kan. Stat. Ann. § 50-627 to the 2006 option and
lease transactions, the Court finds nothing in the uncontroverted facts that would support a finding
that ReVest took advantage of Long’s infirmity or that Long was charged more rent than was
appropriate. Indeed, one of Long’s persistent arguments in this case is that the Properties were
worth far more than ReVest paid (or loaned) him for them. Long can hardly argue that ReVest
undervalued the properties, but charged a “grossly excessive” rent to repay the US Bank loan it
incurred to pay the too-low price. Nor is there any evidence in the summary judgment record of
Long’s medical or mental condition in December of 2006 from which the Court could conclude that
ReVest took advantage of his condition then. Long received several material benefits from the
transactions. He got the Lark house back and he retained possession of “his” rentals for a period of
time. The option document has been interlineated which suggests that Long actively negotiated it
and negates his argument that it was somehow “one-sided in favor of the supplier.” The lease
appears to the Court to be pretty typical of short-form commercial leases. There may well have been

64 Dkt. 46 at 13.

65 Dkt. 36, ¶31(a).


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unequal bargaining strength, but that alone is not enough to support a finding of unconscionability.66
ReVest should have summary judgment on the KCPA claim as it relates to the 2006 consumer

b. The Lump-sum Payments
Long did not exercise the 2006 option on or before February 28, 2007. Instead, he continued
to make payments to ReVest even though the option and lease had expired. Periodically, Brent
Hurst would call Long and they would discuss how further payments would allow Long to retain
the Properties. ReVest essentially treated Long as a month-to-month tenant at sufferance, soliciting
and collecting rents in the amounts set in the 2006 lease. On December 17, 2007, ReVest sent Long
a notice to quit and alleged that Long was delinquent on his December rent for the St. Clair and
Bonn Properties. Long paid up. On April 21, 2008, Long paid ReVest $6,900, an amount that the
Court cannot square with the rents due under the month-to-month scheme.67

Long says that the lump-sum payment was a large “paydown” of ReVest’s loan, and not
consideration for any extension of an option to repurchase. The most recent option had expired on
February 27, 2007. Long claims when he made the lump-sum payment in April of 2008, he was
assured that it would be applied to his loan balance and that he would be able to keep the Properties.
He received the same assurance when he made the $20,000 lump-sum payment in June of 2009.
ReVest does not deny making these assurances, only the manner in which Long characterizes them.

66 See Wille, 219 Kan. at 758.

67 The Court carefully examined the evidence submitted in support of and in opposition
to the summary judgment motions and could not conclude that this cash payment or the
subsequent $20,000 payment represented past-due rent, advance rent, or were even multiples of
the rent. In short, these payments are, at best, unexplained in the context of a lease.


Case 09-05303 Doc# 102 Filed 03/01/11 Page 25 of 29

Because nothing in the summary judgment record explains what these payments were for, and
because there is a material factual dispute concerning whether ReVest told Long anything to induce
these payments, the Court may infer that Long made these payments in reliance on ReVest’s
representations. The remaining factual dispute surrounding the lump-sum payments requires that
ReVest be denied summary judgment on Long’s KCPA claims pertaining to them.

2. Long’s Fraud Claim
Long’s fraud claim, generally stated, is that he was induced to enter into the 2005 Purchase
Agreement and option by material misrepresentations made by ReVest’s principals and that a
continuing pattern of misrepresentation and fraud has attended his relationship with ReVest since
that time until the filing of his bankruptcy case. Essentially, Long claims that this series of
misrepresentations were made to induce him to keep paying ReVest in the forlorn hope that ReVest
would reconvey the Properties to him. Long points to these misrepresentations as well as those
made concerning the true nature of the Purchase Agreement, option and lease, essentially dressing
up a credit transaction as a sale. ReVest denies that it made any misrepresentations and asserts that
Long knew what he was doing from 2005 when he made the first deal until the time of his
bankruptcy case.68

To prove fraud, Long will have to show the following: (1) false or untrue representations
made as a statement of existing and material fact; (2) representations were known to be false (or
untrue) by the party making them, or were recklessly made without knowledge concerning them,

(3) representations were made for the purpose of inducing another party to act upon them; (4) the
other party reasonably relied and acted upon the representations made, and (5) the other party
68 Dkt. 37 at 7.

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sustained damage by relying upon them.69 Long claims that ReVest misrepresented the Purchase
Agreement by stating that it was a loan and not a sale and by telling Long that if he continued to
make payments, he would be permitted to pay off the “loan” and keep the Properties. Long claims
that after the 2005 and 2006 option agreements expired, ReVest continued to induce him to make
payments by representing that these payments would go toward Long’s repurchase and that the
option to repurchase would continue to be available.70 Only when he did not close the repurchase
offered in 2009 did ReVest take serious action to dispossess him of the Properties.

Drawing all reasonable inferences in Long’s favor, the Court concludes that factual disputes
remain concerning what ReVest’s principals said to Long concerning the nature of the transaction,
i.e., was it a sale or a mortgage, and what, if any, representations they made to Long after the second
option expired on February 28, 2007. There is also a dispute about what the lump-sum payments
were for. The presence of these disputes prevents summary judgment on the fraud claim. The Court
may consider all of the facts and circumstances leading up to the execution of the Purchase
Agreement in 2005, as well as what transpired thereafter, as an integrated scheme or series of
activities undertaken to defraud Long. Whether Long can prove that is another story, but on
summary judgment, the existence of disputed material facts concerning whether and what
representations were made and the extent of Long’s detrimental reliance on them requires ReVest’s
motion to be denied as to this claim.

3. The Quiet Title Claims
69 Pattern Instructions Kansas Civil 4th § 127.40 (2008); Newcastle Homes, LLC v. Thye,
44 Kan.App.2d 774, 788-789, 241 P.3d 988 (Kan. 2010).
70 Dkt. 36, Count III, ¶4 at 9.

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ReVest’s original complaint proceeded on the theory that this Court should quiet title in the
remaining Properties in ReVest. In turn, Long counter-claimed that ReVest had obtained title to
these Properties through its unconscionable acts and by fraud. He generally asserts that the deeds
delivered to ReVest were given as security for a debt rather than as absolute conveyances. His
papers variously refer to “setting aside” and “reforming” the deeds as a remedy for ReVest’s
misconduct, and seeks to quiet title to the Properties in himself.

ReVest argues that because Long has no viable claim remediable by reformation, it should
have a declaratory judgment that it owns the Properties and that Long is a mere tenant. Kan. Stat.
Ann. § 60-1002(a) provides that “any person claiming title or interest in personal or real property”
may bring an action for quiet title against “any person who claims an estate or interest therein
adverse to him or her, for the purpose of determining such adverse claim.”71 Kansas law recognizes
that deeds may be given as security and numerous Kansas cases address the equitable considerations
that courts take in determining whether a deed is really an equitable mortgage.72 Even if Long did
not succeed in proving that ReVest committed fraud in its dealings with him, he could prove (by
clear and convincing evidence) that the deeds were given as mortgages. Therefore, there remain
genuine factual disputes about whether the Purchase Agreement and subsequent transactions were
conveyances or financing arrangements. A legal controversy also remains regarding whether the
deeds were given as a mortgage. Neither ReVest’s nor Long’s quiet title claim is ripe for summary

71 Kan. Stat. Ann. § 60-1002; Ferrell v. Ferrell, 11 Kan.App.2d 228, 231, 719 P.2d 1
(1986) (definition of a quiet title action: two parties asserting adverse interests with regard to
certain property).

72 See Berger v. Bierschbach, 201 Kan. 740, 443 P.2d 186 (1968) and cases cited therein.


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judgment on this record. ReVest’s motion is therefore denied.

VI. Conclusion
The Court grants ReVest’s summary judgment motions in part and denies them in part as
follows. Summary judgment for ReVest and against Long is GRANTED on the KCPA claim
concerning the Purchase Agreement because it is barred by the statute of limitations. ReVest is
GRANTED summary judgment on the KCPA claim covering the 2006 option and lease; the Court
finds that the 2006 option and lease were not unconscionable as a matter of law. ReVest is
DENIED summary judgment on Long’s KCPA claim in connection with the 2008 and 2009 lump-
sum payments and the 2009 option offer; on Long’s fraud claim; and on ReVest’s and Long’s quiet
title claims.

# # #


Case 09-05303 Doc# 102 Filed 03/01/11 Page 29 of 29


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