COMES NOW Appellant, Marc Perkel, and pursuant to Supreme Court Rule 84.17 respectfully moves the Court vacate its opinion of February 10^th 1998 and to grant a rehearing. Appellant further suggests that this cause, due to the general interest of the issues involved, should be reheard by the court either en banc or before an expanded panel. Alternatively, Appellant moves the court, should rehearing be denied, to order the transfer of this cause to the Missouri Supreme Court pursuant to Rule 83.02.

As grounds therefore, Appellant states as follows:

1. The undisclosed surprise expert witness is grounds for a new trial.
2. The decision of this court contradicts itself with respect to its decision on maintenance.
3. The award of maintenance was improper under the law.
4. The decision fails to consider the issue of fraud upon the court.
5. Ignoring attorney misconduct sets a very dangerous precedent.
6. The award of attorney's fees was an abuse of discretion.
7. This case presents substantial and important questions of law that are of general interest to the public.
8. This case contradicts itself as well a several other Missouri cases.

 

 

WHEREFORE, Petitioner asks that the court will:

1. Remand this case for a new trial, or
2. Vacate its judgement and enter a new judgement, or
3. Modify its judgement to correct errors, or
4. Transfer this case to the Missouri Supreme Court.

The decision of this court erred in ignoring the Husband's evidentiary complaints with regard to expert witnesses. The decision of this court stated: "As to the evidentiary rulings, this court finds no merit in any of Marc's complaints and further finds all such complaints are too meritless to warrant discussion." The husband complained of the testimony of the Wife's expert witness, Clayton Parman who testified as an expert on the value and life cycle of the husbands copyrights which the wife claimed to be worth $750,000. Mr. Parman was a surprise expert witness and the Husband had filed an interrogatory requesting the disclosure of expert witnesses.

In Ellis v. Union Electric, 729 S.W.2d 71, the court ordered a new trial based on non-disclosure of expert witnesses. Ellis found:

Although the Husband testified at trial that he projected total sales of $225,000 and $150,000 for 1996 and 1997, these figures represent gross income figures and not profit. These projections indicate that the Husband's income was in decline from the peak sales in 1993 of $345,000. However, Mr. Parman gave expert testimony relating to the potential future value and life cycle of the software that prejudiced the court in evaluating this asset.

In this divorce case, an attorney, who was not a computer programmer, represented the husband. The husband's attorney, who objected several times to the expert witness, had no idea what to ask, nor did he understand the answers he was given. This prevented the Husband's attorney from effectively questioning the Wife's expert witness. The issue before this expert was the $750,000 copyrights which is a sum of money equal to 12 times the husband's average yearly income. Had the Husband been given the opportunity to depose this witness, the witness would likely have been disqualified because the witness admitted at trial that he was in fact not an expert. Even if he were allowed to testify, the Husband's attorney would have been able to prepare himself to cross examine this witness. The Husband was put at an unfair disadvantage over the most critical issue of this case.

In St. Louis v. Pennington 827 S.W.2d 265, the court stated:

The above case was reversed and remanded for a new trial because the court concluded that:

In Ellis, this court said "untimely disclosure or nondisclosure is so offensive to the underlying purpose and intent of discovery rules that prejudice may be inferred unless, under the circumstances of a particular case, such an inference is dissipated." Id. at 75. This undisclosed surprise expert left the Husband and his lawyer without any means to counter the confusion over the issues raised by the Wife's experts.

From the trial transcript on page 495:

The Husband had an expert witness testify. The Husband disclosed his expert witness well in advance of trial and gave the Wife's lawyers plenty of time to depose the Husband's expert. But the Husband was not given the opportunity to depose the Wife's expert.

Later in the testimony the Wife's expert's qualification came into question. The Husband's lawyer again objected. From the trial transcript on page 499:

In contrast, the day before the Wife called Dean Powell to the stand. Mr. Powell was a used furniture dealer and was one of the Wife's witnesses who testified about Computer Tyme's purchasing procedures. Computer Tyme had purchased used office furniture from Mr. Powell. The Husband had no idea that Mr. Powell would be called to testify.

Unknown to the wife, however, Mr. Powell had come to the offices of Computer Tyme and appraised the office equipment for the Husband for trial. The Husband's lawyer hadn't intended to call him as an expert witness, but, since he was already on the stand, the Husband's lawyer decided to take advantage of the opportunity. The Husband's attorney believed that the Wife couldn't object to her own witness, but she did, and her objection was sustained. On page 157 of the transcript the Husband's attorney cross examines the Wife's witness:

After some debate about who disclosed what and searching for papers, on Page 163 of the trial transcript:

In this instance the court allowed the Wife to object to her own witness on the basis of expert testimony, and the court sustained the objection on the basis of an undisclosed expert. This is a double standard where the Wife had the protection of the court to prohibit expert testimony about the value of the office furniture, but the court refused to prohibit testimony of the Wife's expert with regards to the value and life of the Husband's copyrights.

The Husband had, through interrogatories asked for the disclosure of expert witnesses pursuant to Rule 56.01(b)(4)(a). The expert witness remained undisclosed until the last hour of the last day of the trial. The Husband's lawyer objected to the undisclosed expert at trial, thus preserving the issue for appeal. Mr. Wear stated at trial, " Springing experts on us at trial is--is inappropriate." The Husband agrees with the Wife's lawyer that springing an expert witness is inappropriate. Thus, the decision of this court that the evidentiary rulings are too meritless to warrant discussion is clearly in error. Based on the issue of a surprise expert witness alone, a new trial must be ordered.

Missouri Statute 452.335 states that:

The law clearly states that in order to get maintenance, the Wife must meet two tests. The Wife must lack property apportioned to her and she must be unable to support herself. In addition to this, she must state that these two conditions exist, and the court must make a finding that these two conditions exist. In the final judgement the required finding is absent. That by itself disqualifies her for maintenance. Not only is it absent, but the wife testified at trial that the opposite is true. (Page 171-177) She testified that she was capable of earning $15 per hour (Page 172) stating as follows:

She also decided to not seek employment to meet her expenses. This was a decision she made of her own free will to not work and to not earn what she stated in open court that she could earn. On Page 175 of the transcripts the wife states:

In fact, the Wife has finally, after 3 years of not working, taken a job with Brooks Fiber, a division of Worldcom Communications, and is now making a higher salary than the Husband, thus proving her testimony that she is in fact capable of supporting herself.

The court in Beeler v. Beeler, 820 S.W.2d 657, determined that a spouse must exert reasonable efforts to attain self-sufficiency and will not be permitted to benefit from inaction ruling:

Based on the Wife’s own statements, she could support herself, she merely chose not to. If the Wife states that she is able to support herself, then it is an error for this court to state, "this court holds the trial court could have reasonably found from the evidence that at time of trial, Vicki satisfied the requirements for maintenance in Section 452.335.1." If the court had made this finding it would have been made in direct contradiction to the testimony of the Wife. This kind of finding shows bias on the part of this court in making its decision. The wife was also awarded over $150,000 of property and money. Thus the evidence does not support a finding that the wife lacked sufficient property to meet her reasonable needs.

Even if one could accept the possibility that the court could have made this finding, it didn’t. In the case of Allen v. Allen, 927 S.W.2d the court ruled:

No where in the decision of the trial court does it say that the court finds that the Wife is unable to support herself AND that she lacks sufficient property to meet her needs. 452.335.1 says the court must make this finding, not that it could have made this finding. This is especially true when it is so obvious that the court could not have made this finding.

The trial court made a conditional judgement. Even if the conditional judgement is valid, the negative side of the conditional is met. The conditional judgement of the trial court states as follows:

In regards to this issue, this court made a decision that contradicts itself. This court ruled:

In quoting Tappan, this court is effectively ruling that limited maintenance is invalid because the court didn't rule on the issue that the wife's income was likely to change. A non-modifiable award of maintenance is also invalid, because it doesn't take into account the possibility that the wife's income could change. These are two opposite positions on the same issue. Since the trial court ruled that if limited maintenance is invalid then no maintenance is ordered, then it is only logical to conclude that no maintenance is ordered by the trial court. This court is clearly aware that the trial court definitely did not want the wife to receive maintenance in perpetuity.

This court claims that the trial court was aware of Tappan, or a case like Tappan, and knew that temporary maintenance was prohibited. This court then concluded that the trial court, knowing it could not order temporary maintenance and make the order non-modifiable, decided to break the rules and do it anyway. However, this court concluded that the trial court, in knowingly breaking the rules, didn’t want the husband to get stuck paying the wife maintenance forever. Therefore, this court concluded, the trial court made another improper decision to balance out its first improper decision.

This court is saying that the trial judge made these rulings knowing that his rulings were improper. If the trial judge did indeed know, as this court suggests, that the trial judge deliberately made improper rulings, then the entire judgement should be dismissed and a new trial with a new judge ordered. It appears to the Husband that this court has found that the trial judge made several decisions he knew was improper and is therefore obligated to reverse the judgement and remand for new trial. When a judge knowingly and deliberately makes an improper ruling, bias and prejudice must be assumed.

In addition to concluding that the trial judge’s decisions were knowingly improper, this court stated:

This not only says that the trial court acted improperly, but one of the improper rulings was for the benefit of the Husband. This court then appears to invite the Husband to go along with the improper ruling, indicating, in what appears to be a thinly veiled threat, that if the Husband does not go along with the improper decisions, this court will override the trial court’s decision that there be no perpetual maintenance.

The Husband wishes to make it absolutely clear to this court and all courts that he expects only the highest standards of ethics from the judicial system and is no more satisfied with an improper decision that is in his favor than one that is not in his favor. The Husband is only interested in a decision that is proper, honest and lawful. This court is making an erroneous assumption when it concludes that the Husband doesn't want this court to declare the 12 month limitation void because the trial judge decided that if the limitation was invalid, no maintenance is ordered. Thus a ruling that the time limitation was invalid would mean that no maintenance is ordered.

The decision of this court to award attorney's fees conflicts with the case of Vanessa Crawford Wise, v. Keith Arnold Crawford, 695 S.W.2d 487 that decided that:

In this case the Wife was awarded $60,000 cash. Her attorney's fees were about $15,000 balance at the time of the divorce. The courts have held that the fundamental consideration in determining whether the wife is entitled to an award of attorney fees is whether the Wife is possessed of sufficient means to prosecute the suit on her own. Clearly the $60,000 is enough money to cover the fee, therefore the wife possessed sufficient means to prosecute the suit on her own.

If however the court concluded that the Husband was to pay attorney's fee's based on the Wife's attorney's argument that there was legal misconduct on the part of the Husband, then the Husband argues that the Wife's attorneys committed fraud upon the court in having the Husband sanctioned for a non-existent deposition. Since the Wife's attorneys argued that the Husband should pay attorney's fees based on the sanctions, they are now estopped from denying the possible effects of their arguments on the judge's decision. The Husband contends that because the Wife's lawyers committed fraud upon the court that the Wife's lawyers are not entitled to a fee.

This court decided that the division of marital property was not an abuse of discretion. However, this decision relies on the fact that the Copyrights could be construed to be worth between 0 and $750,000. However, the surprise expert witness prejudiced evaluation of these copyrights.

The decision of this court ignores the issue of fraud upon the court. The court stated:

One of the reasons this court didn't find any indications that the alleged misconduct of the Wife's lawyers affected the outcome of the case is because this court was also fooled by the fraudulent information. Obviously if this court believes the false information, it would come to that conclusion.

In order for courts to not get "suckered" by lawyers, the courts must take a strong stand when it is discovered that an attorney has committed an act of fraud against the court itself. If an attorney fooled the court and it is discovered, it raises the question as to if the trial process can produce a just result.

In Hazel-Atlas Glass Co. v. Hartford Empire Co. 322 U.S. 238 64 S.Ct. 997, 1000, 88 L. Ed 1250 addresses the issue of injury caused by Fraud on the Court by stating:

In this case Mr. Wear and Mr. Sharp faked a deposition and tricked the Husband into not attending. So confident were they that the husband would not attend that they didn't even bother to hire a court reporter to take his deposition. Mr. Sharp has now admitted to not hiring a court reporter in interrogatories. The Husband attempted to be deposed but was told the depositions were cancelled the morning it was scheduled. Mr. Sharp then filed a motion for sanctions against the Husband and won. He then argued that the husband should pay his fee because he was sanctioned and won a total of $15,000 in attorney's fees.

When a lawyer has crossed the line and is getting people sanctioned for non-existent depositions, he is clearly tampering with the administration of justice. When this kind of tampering is discovered, it must be presumed that the trial process is tainted and that a judgement obtained in this manner must be ruled void. Mr. Sharp and Mr. Wear have called into question the integrity of the judicial process and the only remedy is a new trial.

In its decision this court referred the Husband to the Disciplinary Counsel, presumably indicating that attorney misconduct was not within their jurisdiction. However, the Husband has filed several bar complaints with the Disciplinary Counsel and they will not look into the matter while the case is still open. The Disciplinary Counsel argues that it is the jurisdiction of the trial court and appellate courts to deal with these issues while a case is open. They will only look at a complaint after the case is closed. The Husband disputed the jurisdiction of the Disciplinary Counsel and filed a Writ of Mandamus on September 3^rd 1997 in the Missouri Supreme Court against the Disciplinary Counsel to ask for an order of the high court to start and investigation. The Disciplinary Counsel again argued that the trial court had jurisdiction while a case is pending. The Missouri Supreme Court denied the Husband's writ apparently siding with the Disciplinary Counsel on the issue of jurisdiction. Thus, the decision of this court that it does not have jurisdiction over attorney misconduct is in contradiction with that of the Missouri Supreme Court.

Canon 3(B)(3) clearly states, "A judge should report what the judge believes clearly to be professional misconduct of a judge or lawyer to the appropriate disciplinary agency." This canon applies to this court and having a litigant sanctioned for failing to attend a non-existent deposition is clearly professional misconduct. Thus, this court should report it.

In the matter of Alphonso H. Voorhees 739 S.W.2d 178, it was decided that:

The Constitution gives the husband the right to due process of law. Due process includes the right to have his case heard in a court free of attorney fraud. The Husband contends that if this court won't enforce ethical standards on its attorneys and won't consider attorney misconduct in reversing a decision obtained through fraud upon the court, then this court is violating the Husband's 14^th Amendment right to due process of law. Constitutional rights are a federal question and where a constitutional right is at issue, the federal courts have jurisdiction to void a state judgement. Thus, if this court lets stand a decision that was obtained through attorney fraud, then the Husband will have federal jurisdiction to attack the opinion of this court on the basis of a constitutional question. See Pulliam v. Allen, 466 U.S. 522, 529 (1984).

The decision of this court sets a very dangerous precedent in that it ignores the Husband's arguments about the ethical standards of lawyers. Fraud upon the court, such as when lawyers fabricate false evidence, and when lawyers tamper with the administration of justice, is extrinsic fraud. All throughout the Rules of Professional Conduct it is stressed that it is essential to enforce ethical standards in order to preserve the integrity of the courts. An entire section of the rules is named "Maintaining the Integrity of the Profession". The comment section of Rule 8.3 states:

If the courts ignore attorney misconduct and fraud upon the court, as the Husband argued in his oral arguments, then there is no way for an honest lawyer to practice law in this state. The lawyer who cheats will always be able to win over the lawyer who doesn't cheat. Thus litigants will be forced to hire the most crooked lawyers in order to win. Ethical standards will become a race to the bottom.

Although the Husband knows this court has ruled on this issue, the Husband feels it is in the interest of justice to rethink the relationship of ethical standards and the effect it has on the courts, or to allow the Missouri Supreme Court to rule on this issue.

Alternatively, the Husband requests that this court transfer jurisdiction to the Supreme Court of Missouri. The decision of this court conflicts with several other cases. These cases include:

• Allen v. Allen, 927 S.W.2d
• Alphonso H. Voorhees 739 S.W.2d 178
• Beeler v. Beeler, 820 S.W.2d 657
• Ellis v. Union Electric, 729 S.W.2d 711,
• Hazel-Atlas Glass Co. v. Hartford Empire Co. 322 U.S. 238 64 S.Ct. 997
• In re Marriage of Tappan, 856 S.W.2d 362
• Keefe v. Keefe, 435 S.W.2d 313
• Oldfield v. Oldfield, 767 S.W.2d 134
• Owen v. City of Springfield, 741 S.W.2d 16
• St. Louis v. Pennington 827 S.W.2d 265
• Vanessa Crawford Wise, v. Keith Arnold Crawford, 695 S.W.2d 487

It also leaves open the question and conflict of jurisdiction over who has the responsibility of attorney discipline and dealing with misconduct issues. It would be appropriate for the Missouri Supreme Court to decide those issues.

The issues raised here are important and are of general interest to the public and therefore should only be decided by this state's highest court.

The issue of the surprise expert witness is by itself sufficient to require the decision of the trial court to be reversed and remanded for new trial. No other issues past that need be addressed. Under the circumstances, this would be an easy out for this court to take that would correct the errors of this court as well as the trial court. A new trial before a new judge should be ordered.