In the United States District Court for
For the Western District of Missouri
Southern Division
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Marc Perkel,
Plaintiff,
Vs
James R. Sharp,
William A. Wear,
The law firm of Wear and Sharp LLC
Vicki L. Stringfellow,
Donald R. Duncan,
The law firm of Turner, Reid, Duncan, Loomer, and Patton, P.C.,
The Honorable William L. Syler,
The Bar Plan Mutual Insurance Co,
Defendants,
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Case No: 98-3040-CV-S-3 |
CIVIL RIGHTS COMPLAINT
Jurisdiction
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 jurisdiction over plaintiff's common law claims, infra, and venue is proper pursuant to Title 28, United States Code, Section 1391. The issue before this court is the violation of the Plaintiff's civil rights
pursuant to Title 42 U. S. C. §
1983 and 1985 and raise federal questions and constitutional issues.
Plaintiff
Marc Perkel - Plaintiff in the underlying fraud case. Perkel complains that the Defendants are violating his 14th Amendment civil rights.
Defendants
James R. Sharp, Mo. Bar 35498 – Attorney for Ms. Stringfellow and Defendant. Mr. Sharp is a partner of Mr. Wear in the law firm of Wear and Sharp. Mr. Sharp is accused of Tampering
with Physical Evidence, filing a
False Affidavit, and Perjury.
William A. Wear Jr., Mo. Bar 23292 – Attorney for Ms. Stringfellow in the underlying divorce case and fraud case. Marc Perkel sued Mr. Wear, Mr. Sharp, and Ms. Stringfellow for fraud upon the court,
fabrication of false evidence, and
fraudulent conspiracy. Although he is a defendant, Mr. Wear appeared in the fraud suit to represent Ms. Stringfellow as her attorney.
The Law Firm of Wear and Sharp LLC - The law firm that employs Defendants Wear and Sharp.
Donald R. Duncan, Mo. Bar 18542 – Attorney for Wear and Sharp and Defendant. Mr. Duncan appeared as counsel for Mr. Wear and Mr. Sharp. Although an attorney can and often does represent parties who have
committed fraud, an attorney is not
allowed to break the rules or commit frauds himself in the representation of a client. On that basis the Plaintiff, Marc Perkel amended his pleading to include Mr. Duncan as a defendant. Mr. Duncan represents Mr. Wear
and Mr. Sharp, their law firm, his
own law firm, and is pro se in the underlying case. Mr. Duncan was hired by "The Bar Plan", who is the malpractice insurance company for Wear and Sharp.
The law firm of Turner, Reid, Duncan, Loomer, and Patton, P.C. - The law firm that employs Defendant Duncan.
Vicki L. Stringfellow, is the ex-wife of the Plaintiff and alleged conspirator in the fraud case. Ms. Stringfellow got a huge divorce judgement against the Plaintiff through fraud upon the court and
fabrication of false evidence in conjunction
with her attorneys.
The Honorable Judge William L. Syler, Trial Judge – Judge Syler was appointed to hear this case by the Supreme Court of Missouri after the local judges recused themselves due to conflicts of interest. Judge
Syler is the judge who made the
ruling in question which permitted defendants to represent other defendants. Judge Syler ordered the trial stayed pending a ruling from the Missouri Court of Appeals and the question is now before the United States
Supreme Court (Case 97-1053).
The Bar Plan Mutual Insurance Co., is an insurance company that sells legal malpractice insurance in Missouri. The Bar Plan sold insurance coverage to Defendants Wear, Sharp, and Duncan. Defendant
Duncan was retained by The Bar Plan to
defend Mr. Wear and Mr. Sharp.
Citizenship
Plaintiff Marc Perkel is a citizen of the state of Missouri, Defendants are all citizens of the State of Missouri. The Honorable William L. Syler is a Circuit Court Judge of the State
of Missouri. The law firm
defendants are law firms in Springfield Missouri. The Bar Plan is an insurance company located in St. Louis Missouri.
The Facts
On January 15th 1997, Plaintiff Marc Perkel filed a lawsuit against Defendants Wear, Sharp, and Stringfellow (Greene County Case: 197CC0170) alleging that defendants acted
together to defraud the plaintiff in an
underlying divorce case.
Although Defendants Wear and Sharp were named defendants in the underlying case, Mr. Wear and Mr. Sharp appeared as counsel for their codefendant, Ms. Stringfellow.
Mr. Duncan was hired by The Bar Plan and appeared as counsel for Defendants Wear and Sharp.
On January 23rd 1997 Plaintiff filed a motion to disqualify Wear and Sharp as counsel for Defendant Stringfellow on the basis of conflict of interest and violations of the Missouri Rules of Court.
On February 10th 1997 Plaintiff filed a notice informing the defendants and the court that Mr. Wear and Mr. Sharp would be called as a witness and they would be in violation of Missouri Rule 3.7 if they
continued to represent Defendant
Stringfellow.
The judges of Greene County recused themselves and the Missouri Supreme Court appointed the Honorable William Syler to hear the case. The first hearing was set to be held on July 14th 1997.
On May 19th 1997 Plaintiff filed a motion asking for a temporary restraining order to prevent execution of the underlying divorce judgement. Judge Syler never considered Plaintiff's TRO.
On May 29th 1997 Plaintiff filed another motion to disqualify counsel and asked Judge Syler for an immediate ruling. Judge Syler did not respond.
On June 2nd 1997 Plaintiff Marc Perkel amended his pleading to include Mr. Duncan as a defendant alleging that Mr. Duncan broke the rules to help his clients execute a judgement obtained through
fraud.
On June 26th 1997, Plaintiff sent a Notice of Intent to Depose to all the Defendants and the Judge and filed his notice in the record. In that notice Plaintiff informed the Defendants and the Court that
he will depose Mr. Wear and Mr.
Sharp and that they will be material witnesses. This notice was the second notice that Wear and Sharp would be a witness.
The Notice included a warning about their violation of Rule 3.7 prohibiting witnesses from being an advocate at trial.
On July 14th 1997 a hearing was held to take up pending motions, the issue of improper representation was raised.
At that hearing Defendant Stringfellow in open court was questioned by the judge and after testifying that she understood the consequences, that she knowingly and willingly waived conflict of interest with regards
to her being represented by another
defendant.
Judge Syler asked Mr. Sharp, a defendant in this underlying action, if he was going to be a witness.
In response Defendant Sharp replied, "No" in spite of the fact that both he and Judge Syler were twice notified that he would be a witness.
Both Judge Syler and Defendant Sharp knew at that moment that Mr. Sharp was going to be a witness.
Immediately after Mr. Sharp replied, Judge Syler decided to allow defendants to represent other defendants.
Plaintiff objected and asked the Court for an immediate appeal to certify the question, stating to the court that to continue with improper representation would be meaningless.
Judge Syler granted Plaintiff's motion to certify the question and issued the following order:
"The Court takes up Motion #2, Motion to Disqualify Defendant Vicki Stringfellow’s Attorney’s for Conflict of Interest. After examination of Deft Stringfellow in regard to her representation, the Court denies
the motion. Whereupon, Petr requests
certification of the ruling. After consideration of requests for certification, the Court recesses all proceedings pending Petr’s certification to the Court of Appeals."
Plaintiff took the question to the Missouri Court of Appeals who refused to answer the question.
Plaintiff then took the question to the Missouri Supreme Court who also refused to answer the question. The issue is now before the United States Supreme Court.
On July 29th 1997 Plaintiff filed a motion to recuse Judge Syler.
In his motion to recuse, Plaintiff complained that the Court ignored his request for a TRO, became an advocate at trial for the defendants, made a ridiculous ruling to allow defendants to represent other defendants,
ignored the Missouri Rules of
Court, complained about the five hour drive, and covering up e misconduct of the defendant attorneys.
On July 31st 1997 Judge Syler denied Plaintiff's motion to recuse.
On September 9th 1997 Plaintiff sent interrogatories to Defendant Sharp asking for the name of the court reporter who was to take Plaintiff's deposition on January 4th 1995. This was a
deposition that the Plaintiff was accused
of failing to attend and for which the court sanctioned the Plaintiff.
In response to his interrogatory, Defendant Sharp on October 9th 1997 revealed that he had no court reporter to take Plaintiff's deposition.
On October 20th 1997 Plaintiff filed a motion for summary judgement. The motion stated the Defendants had committed fraud upon the court by having the Plaintiff sanctioned for not attending a deposition
that never occurred. Plaintiff
argued that since there was no court reporter present, there was no deposition.
Although Defendant Duncan and his law firm are independent contractors, The Bar Plan had a right to control their conduct and activities.
On or about November 12th 1997 Plaintiff wrote a letter to The Bar Plan. In that letter Plaintiff warned The Bar Plan that their insured, Wear and Sharp had revealed through interrogatories that they had
no court reporter present to take
the Plaintiff's deposition, and that their lawyer, Mr. Duncan was committing fraud upon the court.
The letter warned them that Mr. Duncan, acting as an agent for The Bar Plan, might be creating liability for them through his improper activities, and that they should look into it. The letter also asked them to
settle this case.
On November 18th 1997 all defendants, in two separate but similar answers, responded to Plaintiff's motion.
Both answers included Exhibit A and Exhibit B that are copies of faxes sent by the plaintiff. These exhibits are identical in both responses.
Defendants altered Exhibit B to conceal the date that it was sent by crossing out the date of the fax with something similar to a thin tipped black Flair pen. However, the time of Exhibit B was left unaltered.
Exhibit B was faxed on December 21st 1994, however, in their responses both lawyers misrepresented the crossed out date as December 22nd 1994. This change reversed the chronological order of
Exhibit A and Exhibit B.
On November 24th 1997 Plaintiff filed a motion to strike Defendants' responses because they had tampered with evidence by obliterating the date on Exhibit B and stating in their motion that the fax was
sent the day after it was really
sent.
On November 26th Plaintiff sent a second letter to The Bar Plan. In that letter Plaintiff informed The Bar Plan that their insured, Wear and Sharp, had tampered with physical evidence in violation of
Missouri Statute Section 575.100, and
that there lawyer, Mr. Duncan, had proffered this evidence to the court. Plaintiff again warned The Bar Plan that their lawyer was committing fraud while acting as their agent. Plaintiff again asked The Bar Plan for a
good faith settlement.
On November 28th 1997 the Plaintiff sent a notice to Defendants to take their deposition on December 19th 1997.
Although Defendants had already answered two sets of interrogatories, on or about November 30th Defendants filed for a protective order to stop discovery.
On December 1st 1997 Plaintiff filed another motion to disqualify counsel pointing out that Defendant Sharp had already answered interrogatories and thus established himself as a witness.
On December 3rd 1997 Judge Syler granted the protective order and issued an order staying all discovery.
On December 8th 1997 Plaintiff filed a second motion for summary judgement stating that the tampered evidence constituted and admission by conduct that the defendants could not win the case on the
merits.
On January 6th 1998 Defendants responded to Plaintiff's second motion for summary judgement. In their response Defendant Sharp states that he did not obliterate the date. He stated that he highlighted the
date and that it photocopied to
solid black, and then he lost the original. Mr. Sharp made these statements in a sworn affidavit before a notary public.
Based on scientific knowledge, information, and belief, Mr. Sharp's affidavit is in fact a false affidavit. What he has sworn to be true is not possible.
On January 9th 1998 Plaintiff wrote a third letter to The Bar Plan. In that letter Plaintiff informed them that their insured, Mr. Sharp, had made a false sworn affidavit and that their lawyer, Mr.
Duncan, had proffered the false affidavit
to the court. Plaintiff again asked for a settlement.
On January 12th 1998 Plaintiff filed a reply to Defendants' response to Plaintiff's motion for summary judgement. In his reply Plaintiff stated that a photocopy machine couldn't copy highlighted text as
solid black and cited a number of
facts that strongly indicated that Mr. Sharp's affidavit can not possibly be true.
This reply included a color test sheet using six colors of highlighters for the defendants to test to see if they could duplicate the solid black effect which Mr. Sharp claims.
On January 23rd 1998 Plaintiff filed his Second Motion to Recuse Judge pursuant to Section 508.090 of the Missouri Code.
In his motion to recuse, Plaintiff complained that Judge Syler, in failing to investigate possible criminal wrongdoing by the defendants, violated the Plaintiff's 14th Amendment property rights and right
to due process of law. That Judge
Syler conduct violated his civil rights and a conspired to obstruct justice pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1985(2) of the federal code. Plaintiff complained Judge Syler violated Canon 1, Canon 2(a), Canon
3(a)(1), Canon 3(a)(3), Canon 3(a)(4),
Canon 3(a)(5), and Canon 3(d)(1). Plaintiff complained that the Judge's impartiality might therefore be questioned.
On January 26th 1998 Judge Syler denied Plaintiff's second motion to recuse.
Defendant Duncan, as an agent for The Bar Plan acts under their control and authority. The Bar Plan has a right to control the conduct of Mr. Duncan.
None of the Defendants have produced any evidence to refute Plaintiff's claim that it is scientifically impossible for a highlighter pen to photocopy to solid black even though they were invited to do so.
Defendant Stringfellow was sent a copy of all motions and is fully aware of her attorneys conduct and misconduct and has failed to take any remedial measures. None of the Defendants have taken any remedial action
since the criminal conduct was
exposed.
Defendant Stringfellow is busy selling or trying to sell assets from the ill-gotten judgement and has garnished a receivable from the Plaintiff’s corporation for about $11,000.
If this court allows the Defendants to continue to take the Plaintiff’s assets, the Defendants, who have much stronger economic resources, will have an unfair advantage over the Plaintiff.
Counts
Fraud - All Defendants - Plaintiff respectfully contends that when tested against standards of fraud as specified in foregoing paragraphs, the challenged conduct constitutes fraud
and fraud upon the court.
Fraudulent Conspiracy - All Defendants - Plaintiff respectfully contends that when tested against the standards of conspiracy as specified on the foregoing paragraphs, the challenged conduct
constitutes a fraudulent conspiracy to
violate the Plaintiff's Civil Rights.
Perjury, False Affidavit - Defendant Sharp - Plaintiff respectfully contends that the foregoing facts indicate that the affidavit of Defendant Sharp is a false affidavit and is in violation of Missouri
Statutes 575.040 and 575.050.
Suborning Perjury - Plaintiff respectfully contends that the foregoing facts indicate the Defendants either directly committed perjury or supported the other Defendants in their act of committing
perjury.
Waiver of Conflict of Interest - Defendant Stringfellow - Plaintiff respectfully contends that because Defendant Stringfellow waived conflict of interest after being questioned under oath in open court
that she cannot isolate herself
from the misdeeds of her lawyers. Ms. Stringfellow has been kept fully informed as to the conduct of her lawyers and her lawyers are acting with her knowledge and approval. Plaintiff respectfully contends that she is a
part and is fully liable both
civilly and criminally as a fully informed joint participant in the conduct of her attorneys.
Tampering with Physical Evidence - Defendants Wear and Sharp - Plaintiff respectfully contends that the foregoing facts indicate that these defendants altered evidence and proffered the altered
evidence to the court in violation of
Missouri Statute 575.100. Plaintiff respectfully contends that Defendant Duncan proffered this evidence to the court knowing that Defendants Wear and Sharp altered it.
Respondent Superior - Plaintiff respectfully contends that the foregoing facts indicate that The Bar Plan has the right to control the conduct of Defendant Duncan and therefore is liable for his
misconduct under the doctrine of
respondent superior. Plaintiff respectfully contends that the law firm defendants are jointly liable under the doctrine of respondent superior.
Tort of Bad Faith - Plaintiff respectfully contends that the foregoing facts indicate that The Bar Plan has committed a Tort of Bad Faith against the Plaintiff.
Party to the Conspiracy - Plaintiff respectfully contends that the foregoing facts indicate that The Bar Plan is a party to the conspiracy because they had actual knowledge of the misdeeds of their
attorney and the insured defendants
and failed to act to prevent further criminal conduct when they were warned three times and therefore had a duty to act.
Color of State Law - Plaintiff respectfully contends that the foregoing facts indicate that because the Defendants conspired with a judge, and the judge is the state actor, that the Defendants have
acted under color of state law and can
be sued in a 1983 civil rights action.
Civil Rights - Plaintiff respectfully contends that the foregoing facts indicate that the Defendants violated the Plaintiff's 14th amendment rights to property, due process of law, and equal
protection of the laws.
Obstruction of Justice - Plaintiff respectfully contends that the foregoing facts indicate that the defendants conspired to obstruct justice within the meaning of Title 42 USC § 1985(2).
Concealing Criminal Conduct - Plaintiff respectfully contends that the foregoing facts indicate that the defendants conspired to conceal criminal conduct.
Professional Misconduct - Plaintiff respectfully contends that the foregoing facts indicate that the defendant lawyers violated numerous rules of professional conduct as well as breaking laws that
carry the penalty of Class D
felony.
Judicial Misconduct - Judge Syler - Plaintiff respectfully contends that the foregoing facts indicate that Judge Syler, in allowing defendants to represent defendants, suborning perjury, and stopping
discovery when criminal conduct was
uncovered amounts to judicial misconduct.
Failure to Recuse - - Plaintiff respectfully contends that the foregoing facts indicate that Judge Syler violated the Plaintiff's civil rights by obstructing justice by failing to recuse himself when a
reasonable person, knowing all the
circumstances, would believe that the judge's impartiality could be questioned.
Relief
Declaratory Relief
Plaintiff asks the court to rule that it is improper for defendants to represent other defendants.
Plaintiff asks the court to rule that Defendant Sharp's affidavit appears to be false and should be investigated by a Federal Prosecutor.
Make a finding that Judge Syler should have recused himself from the State proceeding.
Make a finding that Judge Syler's order staying discovery is unconstitutional.
Make a finding that Judge Syler's actions constitute judicial misconduct.
Court costs should be assessed to Defendants.
Injunctive Relief
Plaintiff asks the court for a TRO and a hearing to grant him an immediate injunction to stop the execution of the underlying divorce judgement.
Order Defendants to return or to put into escrow all money and property that the Defendants have taken from the Plaintiff.
Make an order that Judge Syler's order to stay discovery should be lifted.
Make an order that Judge Syler should recuse himself from the State proceeding.
This court should make an immediate order preventing defendants from even attempting to represent other defendants before this court, and this court should issue orders sanctions sua sponte if the defendants attempt
to undermine the Plaintiff's due
process rights before this court.
Compensatory Damages
Plaintiff seeks to recover actual damages, the amount of which is still accruing. Defendants' above described conduct has effected plaintiff to the extent that;
- it cost him about $30,000 in separate maintenance, about $20,000 in attorneys' fees, about $12,000 worth of tools, trailer, and other farm equipment, $117,000 value of 80 acres of land (less about $80,000 in debt on
the land), credit card payments,
about $8,000 Honda Accord owned by Computer Tyme Inc., about $11,000 in garnished receivables of Computer Tyme Inc., and hundreds of thousands of dollars in lost income and future income; and,
- has prevented him from enjoying his farm, using his tractors, building his home, moving his business to Fair Grove, and enjoying country living; and,
- it has injured him emotionally, causing him mental suffering, loss of sleep, depression, nervousness, grief, anxiety, worry, anger, mortification, shock, memory loss, humiliation, indignity, embarrassment, and
paranoia, uncertainty, apprehension;
and,
- as well as incurring him the expenses of litigation, it has required thousands of hours of his time and energy to learn the law and for research and writing to defending himself, sufficient time and energy to
preclude him from procuring other work as
a computer programmer, writing software, keeping his software current, running his business and having a normal social life; and,
- it has caused him to suffer a lack of concentration that 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, lost his market share, caused him to fail to keep up with current technology, caused him to get behind on loans, destroyed his credit rating, caused him to not be able to
afford to advertise his products, lost
the value of his software copyrights (which Defendants have valued at $750,000), and has virtually destroyed his software company. That Plaintiff has suffered severe and permanent damage to his ability to earn a living
as a computer programmer; and,
- damaged his reputation as a programmer and a business owner, loss of identity and standing in the world of nerds, caused him to be embarrassed and shamed before his customers because his company could no longer meet
the software needs of his customer
base; and,
- loss of his career leaving the Plaintiff wondering what he will do for a living and in need of retraining in order to become competitive in the field of computer software; and,
- it has impaired his ability to engage in recreational, family, dating, travel, and social activities, and has resulted in a loss of his enjoyment due to his inability to engage in such activities; and,
- 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,
- it has destroyed his motivation to earn a living because he believes anything he earns will be taken away from him. Plaintiff fears that execution of the fraudulently obtained judgement will leave him broke and
homeless as the Defendants takes his
home, truck, and what's left of his business and puts him out on the street. He lives in fear that he will be incarcerated for contempt of court for standing up for his constitutional rights and for failing to comply
with a divorce judgement in excess of
his ability to pay; and,
- 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.
Malice
Plaintiff respectfully contends that the foregoing facts indicate that the defendants constitutes wanton and wicked conduct and were done willfully and maliciously.
Punitive Damages
Defendants' conduct as described above is willful, 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.
Attorney's Fees
Plaintiff is entitled to an award of attorney's fees pursuant to 42 USC 1988. Since punitive damages are appropriate, counsel fees, internet access fees, computer and office equipment,
paralegal fees and litigation fees
can be taken into consideration when estimating the foregoing punitive damages.
Jury Demand
Plaintiff hereby demands a trial by jury.
Ad Dannum Clause
Based upon the foregoing pleaded facts, plaintiff prays for compensatory and punitive damages in the amount of Twenty Five Million Dollars ($25,000,000.00).
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Marc Perkel - Plaintiff - 02-02-98
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