If at first you don't suceed ....
Last December I filed a Federal Civil Rights
Lawsuit against my X, her lawyers, and a judge. The judge I sued
wasn't the trial judge, but was another judge, Scott Tinsley, who fucked
me over in the early stages of the divorce. Not wanting to screw up my
chances of getting the trial judge I decided to sue this other judge
first so if I screwed up I would learn how I screwed up and do it right
when I went after the trial judge.
That case got thrown out for failing to state a claim for which relief can be granted. Judges have almost absolute immunity from lawsuit. And, you can sue private parties in federal court over civil rights issues. For a civil rights case you have to have been abused by the state or under "color of law".
What this means is if your neighbor beats you up you can't sue him in federal court. But if a cop beats you up you can. (Rodney King) However, if a private person conspires with a public official then you have color of law and you can sue. When the federal judge through out my last case the decision explained everything I did wrong and now I know how to fix it and do it right.
In February I went to the Internation Convention on Prostitution to do research on a book I'm writing and to connect with whores I met in San Francisco who have been doing some of the TV talk shows. When I got back I found a For Sale sign on the Fair Grove property that we're fighting over in court. I took down the real estate sign and return it to the realitor and informed him that there was two pending lawsuits on the property, something my X had neglected to mention.
My X was pissed and she got her lawyer, Jim Sharp, to file for a restraining order, which he did, but he filed it in the wrong court. This case is not on Appeal and I have a state Independent Action in Equity. But he filed it under the style of the original divorce which is a case that was closed. The reason being that he had that judge in his pocket and knew he could get what he wanted. The fix was in!
The next day I filed a notice informing the judge he lacked jurisdiction. The judge however scheduled a hearing. At this point I knew the fix was in because the judge had already ruled he had no jurisdiction in an earlier motion I made. Knowing this I decided to use it to my advantage. If the fix was in the idea was to get the judge to break the rules on the record.
Since this case was already before the Appeals Court I filed a motion asking for a Writ of Prohibition to prohibit the judge from acting in excess of his jurisdiction. I then served it on him at the hearing.
We started the hearing talking about jurisdiction. I read him the Rule from the rulebook saying "This is the Rule. It's clear. Anyone can understand it." He said he'd take it under advisement and said he wanted to hear the case and then decide of jurisdiction. I objected asking to certify the question on an immediate appeal pointing out that the court of appeals already has a motion before it on this issue. He denied the motion.
We then went on to make arguments. I kicked their asses. If you would have seen it you would have thought I was the lawyer and Sharp was the pro se litigant I was that good. It gave me the confidence that I can hold my own in court and it let Sharp know he was up against someone who's a hell of a lot better at this than he is. When he left the room he knew I had kicked his ass.
The judge ruled that Sharp had 7 days to prove to the court it had jurisdiction. That would normally have been impossible except that the fix was in so I knew he would get his order. I had 7 days to respond to Sharp's written argument. In My Response I took the opportunity to dig them in deaper, put more rules before them so that they could break them on the record, and he did.
Here's my federal lawsuit. I think I have them this time. If not, I have a few more tricks up my sleave.
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MISSOURI
Marc Perkel )
)
vs. ) No.
)
William A. Wear Jr. )
James R. Sharp )
The Law Firm of Wear and Sharp )
Vicki L. Stringfellow )
Judge Paul McGhee )
COMPLAINT FOR DECLARATORY JUDGEMENT AND
OTHER RELIEF AND AN INDEPENDENT ACTION IN EQUITY
================================================
1. This is an action for declaratory relief pursuant to Title
28, United States Code, Sections 2201 & 2202; for injunctive relief,
pursuant to Rule 65 of the Federal Rules of Civil Procedure; and for
an independent action in equity for relief from the final
judgement[s] entered July 31, 1996 in a Missouri State Court divorce
proceeding against Plaintiff Marc Perkel (hereinafter "Plaintiff")
which was procured by Defendant Vicki Stringfellow (hereinafter
"Stringfellow") and her attorneys, Defendant James R. Sharp
(hereinafter "Sharp") and Defendant William A. Wear, Jr. (hereinafter
"Wear"), and Judge Paul McGhee (hereinafter Judge McGhee), obtained
by Defendants through fraud upon the court.
2. Jurisdiction of this action is based upon federal question
jurisdiction pursuant to Title 28, United States Code, Sections 1331,
1331(a) and the Due Process Clause of Art. IV of the United States
Constitution. This court has supplemental jurisdiction over
plaintiff's common law claims, infra, and venue is proper pursuant to
Title 28, United States Code, Section 1391.
3. Plaintiff and all defendants are citizens of the State of Missouri
and reside or have offices at the following addresses:
Plaintiff:
Marc Perkel
411 North Sherman, Suite 300
Springfield Mo. 65802
417-866-1222 (office)
Use Email (fax)
marc@ctyme.com (electronic mail)
Defendants:
William A. Wear Jr.
James R. Sharp
The Lawfirm of WEAR & SHARP
1949 East Sunshine
Corporate Center Suite S-400
P.O. Box 10826
Springfield Mo 65808-0826
417-881-0010 voice * 417-881-7593 fax
Vicki Stringfellow
1245 S. Florence
Springfield MO. 65807 * 417-865-6871 voice
Paul McGhee - Special Judge
P.O. Box 426
Dexter Mo. 63841
314-624-2101 voice
4. On 09-20-94 Ms. Stringfellow, (then Mrs. Perkel) filed for divorce in
Greene County Family Court. She was represented by defendants William
A. Wear Jr., James R. Sharp, and the Law Firm of Wear and Sharp.
IMPROPER REPRESENTATION
-----------------------
5. On 12-15-94 Plaintiff ran into Defendant Sharp at the Greene County
Courthouse and pointed out to him that a member of his law firm,
Evelyn A. Gwin, was suing Plaintiff's corporation for $100,000 and
inquired if this wasn't a conflict of interest to represent two
parties who are going after the same assets. Plaintiff followed up
sending Mr. Sharp a fax regarding the matter.
6. On 12-16-94 Defendant Sharp wrote a letter to the Plaintiff stating,
"With regard to your concern that we are associated with Evelyn
Gwin, who is currently suing your corporation for $100,000, I do
not see how our representation of Vicki is in anyway unethical or
a conflict of interest. Evelyn is suing your corporation which is
100% owned by you. Vicki is suing you for divorce, asking for a
reasonable share of marital assets. As we have never represented
you or your corporation, I cannot see how there is a conflict of
interest in this firm representing Vicki, and, as a result, we
will not be withdrawing as her attorneys." (see attachment)
7. However, in spite of their apparent admission that the Plaintiff owns
100% of his corporation, Defendants Sharp and Wear would later argue
that the corporation and the assets of the corporation were marital
property.
THE FAKED DEPOSITION
--------------------
8. On December 20, 1994, defendants William A. Wear Jr. and James R.
Sharp filed a notice to take the deposition of Plaintiff on January
4, 1995. (see Attachment)
9. On December 21, 1994, plaintiff filed a motion pursuant to 61.01(a)
to quash depositions. (see Attachment)
10. Thereafter, on December 22, 1994, plaintiff faxed a letter to
defendants Wear and Sharp, and the Court, averring that the
deposition of plaintiff on January 4, 1995, had been canceled as a
matter of law pursuant to Rule 61.01(a). (see Attachment)
11. The faxed letter also requested that defendants Wear and Sharp advise
plaintiff if he was in error in interpreting Rule 61.01(a) and as to
whether the deposition had been cancelled or not.
12. On the morning of January 4, 1995 at 8:45 am, plaintiff telephoned
the office of defendants Wear and Sharp to confirm that the
deposition had been canceled.
13. Defendants' secretary said that there were no depositions scheduled
for the morning January 4, 1995.
14. In a motion filed in United States District Court on October 21st
1996, a Motion prepared by their lawyer Mr.. Duncan, Defendants Wear
and Sharp state:
"Based on his interpretation of the Missouri Rules of Civil
Procedure, specifically Rule 61.01(a), Plaintiff thought that by
simply filing the motion to quash his deposition was effectively
canceled. Plaintiff communicated this belief by letter and
telephone to both the Court and Defendants Wear and Sharp,
requesting that he be informed if he was in error in believing
that his deposition was, in fact, canceled by his motion. He
received no response from either the Court or Defendants Wear and
Sharp. Accordingly, he did not appear on January 4th 1995 for his
properly noticed deposition."
15. In the above mentioned motion Defendants Wear and Sharp further
state:
"Nor were Defendants Wear and Sharp under a duty to telephone
Plaintiff and inquire about his absence when he failed to appear
for his deposition."
16. Although Defendants Wear and Sharp claim they were not under a duty
to telephone Plaintiff, Local Rule 32.1 "Use of Discovery and
Certification To Circuit Division" indicates otherwise. 32.1 states:
"Any motion made pursuant to, or to enforce, the provisions of
Supreme Court Rule 56 through and including 61 will not be
considered by the Court unless the movant files with such motion
a statement of counsel stating:"
"That he or she has communicated with the opposing party or his
or her counsel in a sincere attempt to communicate with the
opposing party or his or her counsel without success and setting
forth in detail the particulars of such attempt."
"Failure to comply with this rule shall be sufficient ground, in
the discretion of the Court, for overruling the motion so filed
or striking it from the files."
17. Plaintiff has placed phone calls to every court reporter listed in
the Springfield Yellow Pages and in every case after checking their
records shows no court reporter was scheduled to take a deposition
at the offices of Wear and Sharp on the morning of January 4th 1995.
Plaintiff believes that there was in fact no deposition to show up
to.
18. Based on information and belief Wear and Sharp made no provisions
for a court reporter to take the deposition.
MOTION FOR SANCTIONS
--------------------
19. Later, the same day of the alleged deposition, defendants Wear and
Sharp filed a motion for sanctions against plaintiff, averring that
plaintiff had "failed to appear to a lawfully noticed deposition."
(see Attachment)
20. At a hearing before Commissioner Tinsley on January 12, 1995,
defendant Sharp averred to the court that although he had expected
plaintiff to appear, plaintiff failed to appear.
21. Based upon this, defendant Sharp sought sanctions seeking: to strike
plaintiff's pleadings in that case pursuant to Rule 61.01(f) of the
Missouri Supreme Court Rules; and for reasonable attorney's fees.
22. Commissioner Tinsley granted defendants' motion for sanctions
against the Plaintiff. (see Attachment)
23. Specific sanctions were not imposed at that time. However the Court
record reflected a ruling for sanctions to be imposed at a later
date.
24. On April 4th 1995 Commissioner Winston Davis entered an order
against the Plaintiff directing him to pay Wear and Sharp $2500 in
attorney's fees. This amount was more than twice the amount granted
in an earlier decision he made.
25. On July 31st 1996 Judge McGhee entered an order which contained in
part that the Plaintiff pay to the Law Firm of Wear and Sharp an
additional $12,500 in attorney's fees. (see Attachment)
TAMPERING WITH A WITNESS
------------------------
26. The relevant sections of Missouri Revised Statutes 575.270 states:
"A person commits the crime of tampering with a witness if, with
purpose to induce a witness ... in an official proceeding ... to
absent himself ... he: (2) Uses ... deception ..."
27. In this instance the "official proceeding" was the deposition that
Wear and Sharp scheduled for January 4th 1995. In this deposition
the Plaintiff would have been the "witness", except that the witness
was "absent" because Wear and Sharp had used "deception" to allow
through their silence for the Plaintiff to believe that the
deposition was cancelled.
28. A deposition is an official proceeding.
29. The Plaintiff was to be the witness in this official proceeding
(deposition).
30. The Witness (Plaintiff) was absent from the official proceeding
(deposition).
31. Defendants have admitted in their motion in Federal Court (see
above) that the reason the Witness (Plaintiff) was absent from the
official proceeding (deposition) was because he believed that the
official proceeding (deposition) was canceled.
32. Plaintiff contends that if the Plaintiff can demonstrate to the
Court that the Defendants used deception to cause the Witness
(Plaintiff) to be "absent" for the official proceeding (deposition),
that the criteria for the crime of "Tampering with a Witness" is
met.
SEPARATE MAINTENANCE
--------------------
33. On February 2, 1995, a hearing for temporary maintenance was held
before Judge Davis of the Greene County Family Court.
34. Plaintiff filed unaltered income tax returns, to which he swore
under penalties of perjury, specifying his net monthly income.
35. Defendants Sharp, Wear and Stringfellow had copies of Plaintiff's
tax returns prior to the hearing that were provided by the
Plaintiff.
36. Despite notice of the tax returns Defendant Wear nonetheless made
the unverified allegation at the hearing by stating to the Court
that Plaintiff "Cleared $10,000 a month".
37. Defendant Stringfellow proffered documents and stated to the court
under oath indicating her income was $400 per month.
38. Defendant Stringfellow stated to the court under oath that she
received $125 per month of social security income.
39. However, Defendant Stringfellow later disclosed through discovery
her checking account records which indicated her income to be far
greater than $400 per month.
40. These same checking account records also indicated that her social
security income was in fact $363 per month and she had been
receiving that amount for at least 2 months before the hearing.
41. On April 4, 1995, an order entered granting Defendant Stringfellow
temporary maintenance in the amount of $1200.00 per month, in
addition to medical and auto insurance for the daughter of Defendant
Stringfellow by a former marriage, all based upon Defendant Wear's
unverified allegation and documents Defendant Stringfellow proffered
to the Court (see attached Exhibit).
DIVORCE TRIAL
-------------
42. On June 24 and 25, 1996 a hearing was held in Greene County Circuit
Court to finalize the divorce between Plaintiff and Defendant
Stringfellow.
43. Plaintiff is the chief executive officer, board of directors, and
owner of all of the stock of Computer Tyme Inc.
44. At the hearing Defendant Stringfellow produced an inventory list of
assets of Computer Tyme Inc., and their respective values. (see
attached exhibit)
45. In rebuttal, Plaintiff produced documentary evidence including an
inventory list the items of Computer Tyme Inc., specifying the
true value of assets ,income tax returns, and corporate financial
statements prepared by a Certified Public Accountant.
46. A comparison of the values of specific items proffered by defendants
and the true value of these items indicates the values were inflated
by a factor of 10-20 times. (see attached exhibit)
47. Despite record evidence to the contrary, Defendants represented to
the court that plaintiff's software was currently worth $750,000.
48. Defendants expert accountant informed Defendants that the company
was only worth $40,000 to $60,000, yet Defendants represented to the
court the company was worth about $1,000,000.
49. In defendants proposed property division she lists about $1,200,000
worth of marital assets.
50. Defendant Stringfellow produced lists of checks written on the
checking account of Computer Tyme Inc. to pay for personal items.
This list was used at trial to establish that Plaintiff Perkel was
taking corporate money for personal use. (see attached exhibit)
51. Defendant Stringfellow worked at Computer Tyme Inc. and was
personally familiar with the computerized accounting system and knew
or should have known that the procedures used to account for
personal distributions from the company checking account.
52. Defendant Stringfellow knew or should have known that personal
expenses paid for with company checks were accounted for in the
software and that Computer Tyme uses accepted accounting procedures.
In fact Defendant Stringfellow admitted at trial that she produced
the list of personal expenses paid for with company checks using the
software.
53. Plaintiff produced an expert witness, his CPA Knial Soutee, who
explained that funds dispersed to the Plaintiff from Computer Tyme
Inc. were done in a lawful manner.
54. However, Defendant Stringfellow characterized these accounting
procedures in her testimony as a misuse of company funds.
55. As one of their trial witnesses Defendant Sharp called Mr. Dean
Powell to the stand. Mr. Powell is the owner of Powell Enterprises,
a used office supply dealer. Mr. Powell was asked by Mr. Sharp about
sales of used office equipment to Computer Tyme Inc.
56. Apparently unknown to Mr. Sharp, Mr. Powell had been asked to
estimate the value of Computer Tyme's office equipment and had
produced a bid for Computer Tyme. This evaluation occurred a few
months before trial.
57. Mr. Imhof, in his cross examination of Mr. Powell, asked him to
verify a list of items and prices he quoted for Computer Tyme.
58. When it appeared that their own witness Mr. Powell would damage
their position, Wear moved to have his own witness disqualified.
59. Judge McGhee sustained Mr. Wear's objection and refused to allow Mr.
Powell to testify in cross examination.
60. Without notice to Plaintiff Judge McGhee allowed Mr. Wear to
present an undisclosed expert witness, Mr. Clayton Parman, in spite
of objections from Mr. Imhof. Mr. Parman admitted under oath that he
was in fact not an expert. Mr. Imhof again objected to his testimony
on that basis and was again overruled by Judge McGhee.
JUDGEMENT
---------
61. On July 31st, 1996 Judge McGhee entered an Order in the "Divorce of
[Respondent] Marc Perkel and [Petitioner] Vicki Stringfellow."
(see Attachment)
62. The Order directed Plaintiff to pay a sum of $60,000 plus $1000 a
month for one year plus about $5000 of her credit card debt, and
Plaintiff lost his farm and farm equipment that he paid for, despite
that Plaintiff filed evidence with the Court that his gross assets
were less than the amount of the judgement.
63. In his arguments at trial, Defendant Wear argued that Plaintiff
should be required to pay his attorneys fees because the Court had
sanctioned Plaintiff for failing to show up for his deposition.
64. The Order also directed Plaintiff to pay attorneys fees in the
amount of $12,500.
65. The amount of the judgement was in excess of 100% of plaintiff's net
assets. (see attachment)
AFTER TRIAL MOTIONS
-------------------
66. On 08-30-97, Plaintiff, through his attorney Mr. Imhof filed his
Motion for New Trial and/or Reconsideration. (see Attachment)
67. On 09-25-96 Mr. Wear and/or Mr. Sharp filed the divorce decree on
the title of a 78 acre piece of land (the Fair Grove Property) in
behalf of Defendant Stringfellow to transfer ownership of this
property to Defendant Stringfellow.
68. At the time that Wear and Sharp filed the divorce decree on the
title of the Fair Grove property to transfer ownership to Ms.
Stringfellow the judgement was not yet final.
69. On 10-29-96 a hearing was held before Judge McGhee to discuss
Plaintiff's Motion for Reconsideration. At the hearing Judge McGhee
gave the Plaintiff and opportunity to submit a new proposal for a
property settlement. Plaintiff submitted the attached suggestions
for dividing property. Plaintiff dismissed his attorney Mr. Imhof
and submitted arguments himself.
70. Plaintiff established in the record that no evidence was presented
by either side indicating that the Plaintiff had the $72,500 in cash
that was due immediately. Plaintiff pointed out that the judgement
was in excess of 100% of his assets and that he thought that such a
judgement would force him into immediate bankruptcy. Plaintiff
pointed out that the decision of the Court lacked the necessary
findings required by law to support a decision for maintenance.
71. On 11-18-96 Judge McGhee denied Plaintiff's motions for
reconsideration and/or new trial and thus the judgement became
final.
REQUESTS FOR MODIFICATION OF FINAL DECREE
-----------------------------------------
72. Plaintiff then submitted motions to the court asking Judge McGhee to
grant him a payment schedule for $72,500 that was due immediately.
Plaintiff indicated that the final order would force Plaintiff into
bankruptcy. (See Attachment)
73. Plaintiff also submitted a motion for a restraining order to prevent
execution of final judgement and requested a hearing on his motions.
74. On 11-30-96 Judge McGhee made the following finding:
"... and the Court finds that it does not have the authority to
grant the motions as the Order entered on November 18, 1996,
concluded the case." (see Attachment)
75. Plaintiff made a motion to recuse Judge McGhee. The motion to recuse
was based on the accusations that in spite of the evidence presented
by both sides that the judge made an order which he knew or should
have known would force the Plaintiff into bankruptcy. Plaintiff also
complained that he was being denied due process rights to have
hearings to have his motions considered by the Court. (see
Attachment)
76. Within 10 days of final judgement Plaintiff filed his notice of
appeal. (Missouri Court of Appeals Case #21362-1)
77. On 01-31-97 Plaintiff filed an independent action in equity against
defendants Stringfellow, Wear, and Sharp pursuant to Missouri Rule
74.06 for fraud upon the court. (Greene County Case #197CC0170)
RECKLESS ABUSE OF JURISDICTION
------------------------------
78. On 03-06-97 Defendant Stringfellow, through her attorney's Wear and
Sharp, made a motion before Judge McGhee in the original divorce
court for a temporary restraining order to keep the Plaintiff off of
the Fair Grove property.
79. The motion was styled with the original case number of the divorce.
Judge McGhee had already made a finding that this divorce case was
concluded.
80. In response the Plaintiff sent Judge McGhee a notice pointing out to
him that he lacked jurisdiction to hear their motion. Plaintiff
pointed out that the case was on appeal and that there was an
independent action in equity pending and that these other courts
were the appropriate place for their motion to be heard. (see
Attachment)
81. Nonetheless, in spite of this notification, Judge McGhee scheduled a
hearing on 03-31-97.
82. On 03-28-97 Plaintiff filed a motion in the Missouri Court of
Appeals to determine jurisdiction. In this motion Plaintiff pointed
out to the defendants and the judge that they had no jurisdiction
over the Plaintiff's person. Plaintiff served defendants Sharp and
Judge McGhee with his motion in the Court of Appeals at the 03-31-97
hearing. (see Attachment)
83. At the hearing Plaintiff again raised the issue of jurisdiction over
the Plaintiff's person. Plaintiff read Rule 75.01(a) into the record
which states:
"After the filing of notice of appeal and before the filing of
the record on appeal in the appellate court, the trial court,
after the expiration of such thirty day period, may still vacate,
amend, or modify it's judgement upon stipulation of the parties
accompanied by a withdraw of the appeal."
84. Judge McGhee stated he would take the issue of jurisdiction under
advisement and would hear the merits and make a determination if he
had jurisdiction.
85. Plaintiff objected on the record and moved that the question of
jurisdiction be certified and asked for an immediate appeal.
Plaintiff pointed out to the judge that there was a pending request
for a ruling on jurisdiction that was already before the Court of
Appeals. Plaintiff asked the court to suspend until the Court of
Appeals acted.
86. Judge McGhee denied Plaintiff's motions and continued in spite of
all warnings.
87. By agreement with Judge McGhee, Plaintiff stayed to argue the merits
under the condition that he was arguing in the hypothetical and that
his arguments would not constitute an appearance.
88. The Judge took the case under advisement and ruled that Mr. Sharp
had seven days to prove to the Court that it had jurisdiction.
89. In spite of repeated notice to the Court of all applicable rules, in
spite of Plaintiff motion in front of the Court of Appeals, in spite
of Plaintiff's request for an immediate appeal to certify the
question of jurisdiction, and in spite of the fact that Judge
McGhee's prior finding that the Court had no authority, on 04-15-97
Judge McGhee granted the injunction. (see Attachment)
IMPROPER REPRESENTATION
-----------------------
90. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 5 to 7. Plaintiff respectfully contends that
the representation of Ms. Stringfellow by the law firm of Wear and
Sharp constitutes an improper conflict of interest. They were
representing two clients who were going after the same assets and by
their own apparent admission stated that their dual representation
was proper only because the Plaintiff owns 100% of his company, a
fact they later disputed at trial.
FRAUD UPON THE COURT AND/OR CONSPIRACY TO DEFRAUD THE COURT
-----------------------------------------------------------
91. Plaintiff respectfully contends that the conduct of Defendants
Sharp, Wear and Stringfellow as specified in foregoing paragraphs
constitutes fraud upon the court and/or conspiracy to defraud the
court by;
a. faking a deposition and avering to the Court that the
plaintiff should be sanctioned; and,
b. assisting their client in the fabrication of false documents
proffered as evidence at both the temporary maintenance hearing
and at trial.
IRREGULAR JUDGEMENT
-------------------
92. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff respectfully contends that a
judgement against the Plaintiff is irregular.
TAMPERING WITH A WITNESS
------------------------
93. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 8 to 32. Plaintiff respectfully contends that
the conduct of Defendants Sharp, Wear and Stringfellow as specified
in foregoing paragraphs constitutes Tampering with a Witness,
pursuant to Missouri Revised Statutes Section 575.270 (Mo).
LARCENY BY FRAUD
----------------
94. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff respectfully contends that
the conduct of Defendants Wear, Sharp, McGhee, and Stringfellow as
specified in the foregoing paragraphs constitutes the crime of
Larceny by Fraud because;
a. faking a deposition and representing to the Court that the
plaintiff should be sanctioned because he failed to attend a
deposition that did not exist; and,
b. assisting their client in the fabrication of false documents
proffered as evidence; and,
c. allowing or participating in transferring the title of the Fair
Grove property before judgement was final; and,
d. conspired with a judge to defraud the Plaintiff in order to steal
his property.
VIOLATION OF DUE PROCESS
------------------------
95. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff respectfully contends that
the conduct of Defendants Sharp, Wear, McGhee and Stringfellow as
specified in foregoing paragraphs denies him his rights to property
without due process of law and therefore is in violation of title
42, section 1983 and 1985(2) of the United States Code because;
a. he was not allowed to cross examine a witness; and
b. defendants were allowed to call an undisclosed expert witness;
and,
c. defendants submitted massive quanties of fraudulent evidence so
as to confuse the court; and,
d. defendants faked a deposition and used this faked deposition to
prejudice family court judges against the Plaintiff; and,
e. defendants Wear, Sharp, and Stringfellow transferred title of the
Fair Grove property before judgement was final; and,
f. Judge McGhee made a finding he had no jurisdiction when the
Plaintiff asked for his motions to be heard, but later decided he
had jurisdiction and granted a hearing for defendants' motions to
be heard.
PROFESSIONAL MISCONDUCT
-----------------------
96. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff respectfully contends that
the conduct of Defendants Wear and Sharp constitutes substantial
professional misconduct because they;
a. violated the rules of professional conduct; and,
b. committed a criminal act that reflects adversely on their honesty;
and,
c. engaged in conduct involving dishonesty, fraud, deceit, and
misrepresentation; and,
d. engaged with his client in the fabrication of false evidence;
and,
e. engaged in conduct prejudicial to the administration of justice;
and,
f. assisted a judge in conduct that violated the rules of judicial
conduct.
JUDICIAL MISCONDUCT
-------------------
97. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff respectfully contends that
the conduct of Judge McGhee constitutes substantial judicial
misconduct because;
a. Judge McGhee allowed Defendants Wear, Sharp, and Stringfellow to
disqualify a witness they called to the stand when the witness
started to testify in a manner unfavorable to their position;
and,
b. Judge McGhee allowed the Defendants to put an undisclosed expert
witness on the stand; and,
c. Judge McGhee allowed Defendants to transfer title of the Fair
Grove property before the judgement was final; and,
d. Judge McGhee entered an order for the Plaintiff to pay a sum of
money which he knew or should have known was beyond his means. He
further refused to allow Plaintiff to make payments to satisfy
the judgement. If fact, Judge McGhee denied the Plaintiff's
request to have a hearing to discuss a possible payment schedule.
It would appear that the Judge intended to force the Plaintiff
into bankruptcy; and,
e. Judge McGhee denied Plaintiff his due process rights by refusing
to hear any of the Plaintiff's motions while he permitted the
hearing of Defendant's motion; and,
f. Judge McGhee conducted a hearing for Defendant's motion for a
temporary restraining order even after he himself had already
ruled the case closed and being advised of the rules that clearly
stated that the Court of Appeals had jurisdiction; and,
g. Judge McGhee made an order for Plaintiff to pay maintenance to
Defendant Stringfellow in spite of a statutory requirement that
a finding that she was unable to support herself was required by
statute; and,
h. Judge McGhee ruled that Plaintiff's non-marital corporation was
maritial property without any supporting finding for such a
ruling; and,
i. Judge McGhee acted as an advocate for and a willing and active
participant in a conspiracy with Defendants Wear, Sharp and
Stringfellow to defraud Plaintiff out of his property.
OBSTRUCTION OF JUSTICE
----------------------
98. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff respectfully contends that
the above stated acts of all the defendants is at least prejudicial
to the administration of justice if not a conspiracy to obstruct
justice because;
a. defendants Wear, Sharp, and Stringfellow conspired to fake a
deposition and averred to the court that Plaintiff failed to
attend a lawfully noticed deposition; and,
b. defendants Wear, Sharp, and Stringfellow conspired in the
fabrication of false evidence proffered at trial; and,
c. defendant Judge McGhee denied Plaintiff's due process rights.
MALICE
------
99. Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff respectfully contends that
the above stated acts of all defendants constitutes wanton and
wicked conduct and were done willfully and maliciously.
RELIEF
------
DECLARATORY RELIEF
------------------
Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff asks the Court declare that all
the judgements starting with that of Commissioner Tinsley on 01-12-95
are void.
INJUNCTIVE RELIEF
-----------------
Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff seeks an injunction to prevent
defendants from executing the state court divorce decree.
Plaintiff seeks an injunction enjoining the execution of any judgement
or decree which Judge McGhee may issue in the Missouri State divorce
case.
COMPENSATORY DAMAGES
--------------------
Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff seeks to recover actual damages,
the amount of which is still accruing.
Defendants' above described conduct has effected plaintiff to the extent
that:
(a) it has injured him emotionally, causing him mental suffering, loss
of sleep, depression, nervousness, grief, anxiety, worry,
mortification, shock, humiliation, indignity, embarrassment, and
paranoia, apprehension; and,
(b) as well as incurring him the expenses of litigation, it has required
a substantial amount of his time and energy for research and writing
in defending himself, sufficient to preclude him from procuring
other work as a computer programmer, writing software, having a
social life; and,
(c) it has caused him to suffer a lack of concentration which has
resulted in an inability to perform his job, and as a result he has
been unable to write new programs to market and keep competitive and
stay current with computer technology. As a result, he has had to
lay off 4 of his 5 employees and has virtually destroyed his company.
That Plaintiff has suffered severe and permanent damage to his
ability to earn a living as a computer programmer; and,
(d) it has impaired his ability to engage in recreational, family,
dating, and social activities, and has resulted in a loss of his
enjoyment due to his inability to engage in such activities; and,
(e) destroyed his faith and trust in the American judicial system,
causing him to believe that lawyers and judges can break the rules
with impunity and get away with it; and,
(f) it has destroyed his motivation to earn a living because he
believes anything he earns will be taken away from him. He lives in
fear that he will be incarcerated for failing to comply with
judgements in excess of his ability to pay; and,
(g) it is at present causing him emotional pain and suffering and he
anticipates permanent emotional pain and suffering from it. That he
anticipates that he will never again be able marry or to function as
a normal member of society.
PUNITIVE DAMAGES
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Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Defendants' conduct as described above is
wilful, intentional and malicious resulting from fraud, insult and
malice and is associated with aggravating circumstances, such as
willfulness, wantonness, malice, oppression, outrageous conduct,
indignity, insult, fraud and gross fraud, thus warranting plaintiff's
recovery of punitive damages, to be determined by the trier of fact.
ATTORNEYS FEES
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Plaintiff incorporates herein by reference all of the facts of
foregoing paragraphs 1 to 89. Plaintiff is entitled to an award of
attorneys fees pursuant to 42 USC 1983. Since punitive damages are
appropriate, counsel fees, paralegal fees and litigation fees can be
taken into consideration when estimating the foregoing punitive
damages.
WHEREFORE, there being no adequate remedy at law, plaintiff prays that:
1. This Court enter a declaratory judgement(s), and, for an independent
action in equity to remedy a final state law judgement which was
obtained by defendants through fraud upon the court, declaring that:
(a) that defendants committed fraud upon the court and that
judgements obtained by fraud upon the court are void;
(b) that Judge McGhee was acting as an advocate and that judgements
obtained with the judge acting as advocate are void;
(c) that the actions of defendants constituted a fraudulent
conspiracy and that judgements obtained through fraudulent
conspiracy are void;
(d) that Judge McGhee at least exceeded his jurisdiction, had a
reckless disregard for jurisdiction and/or acted in the absence
of all jurisdiction and judgements obtained through excess of
jurisdiction, reckless disregard for jurisdiction, or the absence
of all jurisdiction are void;
(e) plaintiff was denied a trial on the facts, and his day in court,
through the fraudulent conduct of defendants;
(f) the concerted conduct of defendants constitutes fraud, fraudulent
conspiracy, and intentional infliction of emotional distress,
under the laws of Missouri;
(g) the conduct of Defendants Wear, Sharp, and McGhee constitutes
substantial professional and judicial misconduct;
(h) that because of their conduct that Wear, Sharp and McGhee are
unfit to practice law;
(i) this Court shall exercise supplemental jurisdiction over his
common law claims is proper, because:
(1) as the pleaded facts clearly demonstrate, plaintiff cannot
receive a fair civil trial in the State of Missouri;
(2) the facts as pleaded raise a substantial federal claim;
(3) litigation of plaintiff's federal claim and common law
claims will promote judicial economy, convenience and
fairness to the litigants; and there is no possibility of
jury confusion as between plaintiff's federal claim and his
common law claims;
(4) the facts as pleaded establish federal question jurisdiction
under Title 28, United States Code, 1331, 1331(a) and the
Contract Clause of the United States Constitution, Art. 1,
10, cl. 1;
(5) the facts as pleaded support an award of compensatory and
punitive damages;
(6) the facts as pleaded support an award of attorney's fees.
2. The court provide immediate injunctive relief in the form of a
Temporary Restraining Order, a Preliminary Injunction and a
subsequent Permanent Injunction to restrain defendants from enforcing
the judgements of the Family Court; and,
3. The Court issue an injunction to injoin execution of any future
judgement or decree which Judge McGhee may enter in any Missouri
State case arising from the instant facts.
4. The Court declare that the representation of Ms. Stringfellow by the
law firm of Wear and Sharp was improper and therefore the Plaintiff
should be reimbursed for all his legal expenses and other cost and
damages resulting from the improper representation.
5. The Court grant such other and further federal relief as it may deem
just and proper.
JURY DEMAND
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Plaintiff hereby demands a trial by jury pursuant to FRCP Rule 39.
AD DANNUM CLAUSE
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Based upon the foregoing pleaded facts, plaintiff prays for compensatory
and punitive damages in the amount of Five Million Dollars
($5,000,000.00).
__________________________________
Marc Perkel * Plaintiff * 05-07-97
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