IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Lawfirm of Wear and Sharp )
Vicki Stringfellow )
IN RESPONSE TO MOTION TO DISMISS
OF DEFENDANT, VICKI STRINGFELLOW
--------------------------------
COMES NOW, Plaintiff Marc Perkel in response to Defendant Vicki
Stringfellow's motion to dismiss. The facts and arguments in this
response would also apply to Defendants Wear, Sharp, and the Lawfirm of
Wear and Sharp.
In their own motion to dismiss Wear and Sharp only raise the single bare
allegation that they aren't parties to this suit. However, in thier
motion to dismiss in behalf of their client, Vicki Stringfellow, Wear
and Sharp seem to be arguing in their own defense and not the defense of
their client. This leaves the Plaintiff somewhat confused as to who is
representing whom and deferrs to the Court to interpret the confusion.
Since Defendants Wear and Sharp defend their own conduct in their
clients Motion to Dismiss rather than their own Motion to Dismiss it
would seem reasonable that this brief should address issues here as
though Defendants Wear and Sharp had raised their own issues in their
own motion. Plaintiff points out to the Court that if Defendants Wear
and Sharp are permitted to represent Defendant Stringfellow, that this
trial is going to be a circus.
BRIEF IN SUPPORT OF OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
---------------------------------------------------------------
FACTS
-----
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.
On December 21, 1994, plaintiff filed a motion pursuant to 61.01(a) to
quash depositions.
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). 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 the status of if the deposition was canceled or not.
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. Defendants' secretary said that there were no depositions
scheduled for the morning January 4, 1995. Plaintiff contension is that
in a small law office a deposition is a big event and Defendant's
secretary knew that there was in fact no deposition for Plaintiff to
attend.
In a motion filed in United States District Court on October 21st 1996
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."
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."
Although Defendants Wear and Sharp claim thay 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."
The Plaintiff's office is located less than one mile or five minutes
from where the Lawfirm of Wear and Sharp was located at that time. The
Plaintiff was in his office at 9:00 on the morning of January 4th 1995
and had he received a phone call inquiring why he was not at the
deposition he could have been there within 5 minutes ready to be
deposed. The Defendants had the phone number and address of Plaintiff's
office and knew that had they made that call that the Plaintiff could
have been there. Yet it would appear that Defendants Wear and Sharp
chose not to make that call and allow, through their silence, the
Plaintiff to believe that the deposition was cancelled.
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.
Later, the same day of the deposition, defendants Wear and Sharp filed a
motion for sanctions against plaintiff, averring that plaintiff had
"failed to appear to a lawfully noticed deposition."
At a hearing before Commissioner Tinsley on January 12, 1995, defendant
Sharp alleged to the court that although he had expected plaintiff to
appear, plaintiff failed to appear. 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. Commissioner Tinsley granted defendants'
motion for sanctions.
Specific sanctions were not imposed at that time. However the Court
record reflected a ruling for sanctions to be imposed at a later date.
These sanctions impuned the Plaintiff's credibility by labeling him a
"bad boy" in the record for all future judges involved in this divorce
trial to see.
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.
On June 25th 1996 at the divorce trial defendant Wear raised the issue
of sanctions in his argument that the Plaintiff should have to pay his
fees because of Plaintiff's legal misbehavior as demonstrated by the
order of Tinsley for sanctions.
On July 31st 1996 Judge McGhee entered an order which contained in part
that the Plaintiff pay to the Lawfirm of Wear and Sharp an additional
$12,500 in attorney's fees.
AUTHORITY OF THE COURT
----------------------
Rule 74.06(b) (Relief from Judgement or Order) gives the court the
authority to relieve the Plaintiff from these decisions. The Rule states:
"On motion and upon such terms that are just, the court may relieve a
party or his legal representative from a final judgement or order for
the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of
and deverse party; ..."
Rule 74.06(d) specifically gives the Court the power to entertain an
independent action by stating:
"This Rule 74.06 does not limit the power of the court to entertain
an independent action to relieve a party from judgement or order or
to set aside a judgement for fraud upon the court."
Thus, according to the specific language of Rule 74.06, this action is
the appropiate means of releif for Fraud on the Court under the law.
FRAUD ON THE COURT
------------------
Blacks Law Dictionary, Sixth Edition id. at 457 defines "Fraud on Court"
as:
"[Fraud on Court] consists of conduct so egregious that it undermines
the integrity of the judicial process."
The court in Sutter v. Easterly (Mo) 189 SW2d 284, articulated the
general rule defining fraud on the court within the courts of Missouri:
"... Where a lawyer engages in a conspiracy to commit a fraud upon
the court by the production of fabricated evidence and by such means
obtains a judgement then the enforcement of the judgement becomes
manifestly unconscionable' and a court of equity may devitalize the
judgement." Id, at 288.
In Sutter it was concluded by the Court that:
"Peters' scheme and conspiracy were such a violation of a lawyer's
duty to the court --- a duty imposed not alone by the principles of
honesty and good morals but also by a code of ethics adopted as rules
of court, as to amount to a fraud on the court for which equity will
grant relief."
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:
"Furthermore, tampering with the administration of justice in the
manner indisputably shown here involves far more than injury to a
single litigant. It is a wrong against the institutions set up to
protect and safegaurd the public institutions in which fraud can not
complacently be tollerated consistent with the good order of society.
Surely it cannot be that that preservation of the integrity of the
judicial process must always wait upon the diligence of litigants.
The public welfare demands that the agencies of public justice be not
so impotent that they must always be mute and helpless victims of
deception and fraud."
In Hazel-Atlas Plaintiff contends that Fraud on the Court is an act not
only against the litigant, but is an act against the judicial system
itself and demands the exercise of the historic power of equity to set
aside fraudulently begotten judgements. Since Fraud on the Court
undermines the integrity of the judicial system itself, Plaintiff argues
that the power of the Court to devitalize a judgement is not limited to
the amount of specific damages Plaintiff can prove he suffered as a
direct result of the act of fraud, but must also consider the amount
such fraud has damaged the integrity of the institution of justice
itself.
When Wear and Sharp filed their Motion for Sanctions against Plaintiff
they certified to the Court by their signature on the motion, that there
was in fact a deposition, and that the Plaintiff was in fact expected to
appear. However, Plaintiff condends that if it is proven that the
Defendants used conceilment to deceive the Plaintiff into being absent
from the deposition, and that they really had no expectation that
Plaintiff would appear, or it can be additionally shown that there was
in fact no Court Reporter present ready to take Plaintiff's deposition,
then Plaintiff contends that Sharp and Wear's Motion for Sanction itself
constitutes the production of fabricated evidence by lawyers (per
Sutter).
As you can see from the attachments to Plaintiff's pleading, there is a
gross disparity between Plaintiff's real net worth and the net worth
proffered by the Defendants. At trial Plaintiff produced copies of
income tax statements and asset lists and corporate financial statements
as well as the testimony of his CPA indicating a total net worth of
around $140,000. Defendants produced falsified documents which indicated
a net worth of well over one million dollars.
This kind of disparity in the figures produced by the Plaintiff and
Defendant Stringfellow should have caused Defendants Wear and Sharp to
question the integrity of their clients position and cause them to be
concerned about the validity of their clients evidence. For Wear and
Sharp to proffer Stringfellow's fabricated evidence to the court in
light of Plaintiff's evidence in their possession appears to be a
conspiracy to commit fraud on the court.
Rule 55.03 of the Missouri rules of Civil Procedure indicates a duty of
a lawyer to make a reasonable inquiry of the validity of clients
evidence. Rule 55.03 states in part:
"The signature of an attorney or party constitutes a certificate by
him that he has read the pleading, motion, or other paper; that to
the best of his knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is warrented by
existing law or good faith argument ..."
"If a pleading, motion, or other paper is signed in violation of this
rule, the court, upon motion or it's own initiative, shall impose
upon the person who signed it, a represented party, or both, an
apporpiate sanction, which may include an order to pay to the other
party or parties the amount of reasonable expenses incurred because
of filing of the pleading, motion, or other paper, including a
reasonable attorney's fee.
In this case Wear and Sharp, having in their posession the tax returns
of the Plaintiff as well as his financial record prepared by his CPA
indicating a gross disparity between Plaintiff's figures and that of his
client. According to rule 55.03 Wear and Sharp have a duty to reasonable
inquiry which Plaintiff contends they breached when they proffered
Defendant Stringfellow's unverified evidence to the court.
Defendants Wear and Sharp are lawyers and as such it is assumed that
they know what the rules are. Thus their failure to make a reasonable
inquiry raises a reasonable question if they, in fact, conspired in the
frabrication of false evidence in order to obtain a favorable judgement.
Plaintiff contends that if it is found that Defendants comitted Fraud on
the Court that Defendants Wear and Sharp may be liable to the Plaintiff
for reasonable expenses and Attorney's fees pursuant to Rule 55.03.
ARGUMENTS
---------
Defendants Wear and Sharp argue that even though Plaintiff asked that he
be informed if the depositions were in fact not canceled, that they had
no duty to answer Plaintiff's question. Plaintiff contends that
defendants Wear and Sharp did have a duty on the basis of common honesty
and fair dealing (Sutter v. Easterly) to answer the Plaintiff's inquires
on the basis of Rule 4.1 of the Missouri Rules of Professional Conduct
which states:
Rule 4.1 - TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(b) fail to disclose a material fact to a third person ...
Was the noncancelation of the deposition a material fact? Since it was
used as the basis for court sanctions it would appear that it was. Did
Wear and Sharp fail to disclose this to the Plaintiff? Wear and Sharp
freely admit that they failed to make the disclosure. It would therefore
seem as if the conduct of Defendants Wear and Sharp directly violated
the specific language of Rule 4.1.
In the comment section of Rule 4.1 is the definition of
misrepresentation.
A lawyer is required to be truthful when dealing with others on a
client's behalf, ... Misrepresentation can also occur by failure to
act.
This rule affirms that a lawyer has a duty of common honesty and fair
dealing (Sutter V. Easterly) in his relations with others, and that a
lawyer is not exempt from the principles of common honesty and fair
dealing. Based on Sutter, Plaintiff asserts that since Defendants Wear
and Sharp confessed that they knew that the Plaintiff believed the
deposition was cancelled, and that they were aware that the Plaintiff
requested clarification, and that they were put on notice that silence
equated to cancelation, and that Wear and Sharp have confessed that they
chose to be silent, that Defendants Wear and Sharp failed to act when
they had a duty to act, and therefore misrepresented to the Plaintiff by
their silence that the deposition was canceled.
Since the Plaintiff made it clear that silence meant that the deposition
was canceled, that Defendants silence was in fact an affirmative
statement and was logically equivalent to a direct statement telling the
Plaintiff that the deposition had been canceled. The Plaintiff relied on
this silence as confirmation of cancellation and, as a result of this
reliance, was absent from the deposition.
The Missouri Rules of professional conduct define professional
misconduct as follows:
Rule 8.4 MISCONDUCT
It is professional misconduct for a lawyer to: (c) engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation.
What this rule seems to say is that even a lawyer is prohibited from
conduct involving dishonesty, fraud, deceit, or misrepresentation.
This raises the question, "Does the conduct of Wear and Sharp represent
dishonesty, fraud, deceit, or misrepresentation?" Plaintiff contends
that it does.
In Berry v. Cobb (Mo 1928) 20 SW2d, at 296, the Missouri Court Appeals
held that:
"... Silence, where there is a duty to speak, amounts to a
concealment, and justifies the application of the doctrine of
estoppel in pais [i.e., by silence] (numerous citations omitted)."
As demonstrated above, defendants Wear and Sharp breached the duty of
common honesty and fair dealing (Sutter v. Easterly) which they owed to
plaintiff, thus creating an estoppel by silence [in pais] which barred
them from averring that a deposition was scheduled for plaintiff on
January 4, 1995. As demonstrated by Berry, the same conduct also
constitutes concealment under Missouri law.
As noted in Medical West Bldg Corp v. E L Zoernig & Co (Mo) 414
SW2d 287:
"Estoppel is a factual matter to be determined on the facts of the
particular case (other citations omitted)....[I]t is the principle by
which a party who knows or should know the truth is absolutely
precluded, both at law and in equity, from denying, or asserting the
contrary of, any material fact which, by his words or conduct,
affirmative or negative, intentionally or through culpable
negligence, he has induced another, who was excusably ignorant of the
true facts and who has a right to rely upon such words or conduct, to
believe and act upon them thereby, as a consequence reasonably to be
anticipated, changing his position in such a way that he would suffer
injury if such denial or contrary assertion was allowed.
In the final analysis, however, an equitable estoppel rests upon the
facts and circumstances of the particular case is which it is urged,
considered in the framework of the elements, requisites, and ground
of equitable estoppel, and consequently, any attempted definition
usually amounts to no more than a declaration of an estoppel under
those facts and circumstances" (other citations omitted). Id, at 292.
"For a standing by [i.e., standing by in silence when under a duty
to speak out] to become the predicate of equitable estoppel, it is
necessary that the person remaining silent be under a duty to speak.
In other words, he must speak only when common honesty and fair
dealing demand that he do so." Id, at 293.
Also see: 31 Corpus Juris Secundum, 99, at pages 510-513; 28 Am Jur
2d 53, at pages 666-670; UAW-CIO # 31 v. Royal Ins Co Ltd (Mo) 594
SW2d 276, 282-283; Chrysler Credit Corp v. Friendly Ford, Inc (Mo)
535 SW2d 110, 112-113; United Finance Plan v. Parkview Drugs (Mo) 250
SW2d 181, 184-186; Balding v. Farm & Home S & L (Mo) 131 SW2d 57, 58;
Berry v. Cobb (Mo) 20 SW2d 296, 298; State v. Missouri Utilities Co
(Mo) 96 SW2d, at 615; Liese v. Sackbauer (Mo) 222 SW2d 84, 86; Brown
v. Brown (Mo) 146 SE2d 553, 554-555.
Thus, the rule of Medical West imposes duty on all people, including
attorneys, to act with common honesty and fair dealing. As noted in the
above facts:
Further, Black's Law Dictionary, Sixth Edition 1979, West Pub., Id at
455, defines fraud, as at least:
"A false representation of a matter of fact ... by concealment of
that which should have been disclosed, which is intended to deceive
another so that he shall act upon it to his legal injury."
Thus, as demonstrated by definition by Black's, concealment is a kind
of fraud, both of which include the element of an intent to deceive, or
deception. Thus, since the above facts giving rise to the estoppel in
pais of defendants Wear and Sharp have been shown to include concealment
pursuant to Berry, they also include at least deception, pursuant to
Black's definition of fraud.
RESPONSE TO SPECIFIC ARGUMENTS
------------------------------
ACTION IN COURT OF APPEALS
--------------------------
In Defendant's motion paragraph 2 Defendant makes a bare allegation,
unsupported by law, that this action is before the Missouri Court of
Appeals and that request for relief under Rule 74.06 is premature and
should be dismissed.
In response Plaintiff states that this action is not premature in that
there is nothing in the law that precludes an independent action for
Fraud on the Court pursuant to Rule 74.06 when an appeal is pending.
However, if there were a conflict of jurisdiction then the Plaintiff
would ask the Court of Appeals for a stay and put the appeal action on
hold until the outcome of this cause of action is determined.
TAMPERING WITH A WITNESS
------------------------
In paragraph 5 Defendant alleges that Plaintiff's allegations of
"Tampering with a Witness" cannot stand.
In response Plaintiff refers to the relevant sections of Missouri
Revised Statutes 575.270 which 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 ..."
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. (See above arguments as to Defendant's deception)
Based on this statute the following logic progression can be concluded:
1) Plaintiff would assume that the Defendant is not going to deny that
a deposition is an official proceeding.
2) Since the Plaintiff was to be deposed it is undeniable that the
Plaintiff was to be the witness in this official proceeding
(deposition).
3) There was no question that the Witness (Plaintiff) was absent from
the official proceeding (deposition).
4) Plaintiff and the Defendants agree that the reason the Witness
(Plaintiff) was absent from the official proceeding (deposition) was
because he believed that the official proceeding (deposition) was
canceled.
5) It would therefore seem 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.
ISSUES ALREADY HEARD?
---------------------
In paragraphs 3 and 4 Defendant contends that some of the issues in the
Pleading were issues that have been "dealt with by the Court" or "were
raised at trial". Defendants had no evidence of this and Plaintiff
contends that the issue of Fraud on the Court was never raised at trial.
However, Rule 74.06 specifically deals with the issue of "Relief from
Judgement or Order". In order to have a relief from judgement you must
first have a judgement which means that you have already concluded a
trial. Rule 74.06 deals with the issue of declaring a judgement void if
among other things, it can be demonstrated that the judgement was
obtained by means of Fraud on the Court. So yes, perhaps some of these
issues were dealt with at trial, but Plaintiff contends they were dealt
based on Fraud on the Court. It was held in Sutter vs. Easterly that,
"... Where a lawyer engages in a conspiracy to commit a fraud upon
the court by the production of fabricated evidence and by such means
obtains a judgement then the enforcement of the judgement becomes
manifestly unconscionable' and a court of equity may devitalize the
judgement." Id, at 288.
Thus under the Rule a judgement can be devitalized if fraud upon the
court can be demonstrated.
If Defendant's contention that issues have been "dealt with by the
Court" were to be the end of any action, then Rule 74.06 would be a
meaningless rule. The fact that the Rule exists makes Defendants'
argument not persuasive.
STEIN v. STEIN
--------------
Defendant's arguments sites only the single case of Stein v. Stein
relating to the issue of fraud. In Stein the court found that the wife
failed to prove fraud but held that Equity will provide relief against a
judgement obtained by fraud. Had the wife proven fraud, she would have
been entitled to relief through Equity. Plaintiff is confused why
Defendants would site a case that backs up Plaintiff's position.
Plaintiff contends that this site has nothing to do with this case
because Plaintiff has raised the issue of "Fraud on the Court" which is
clearly within the scope of Sutter as well as the language of 74.06 (b).
Supreme Court Justice Black wrote, "When fraud upon the court is
established, the court has ample power to afford the appropriate
relief," Hazel-Atlas Glass Co. v. Hatford Empire Co., 322 US 238 (1944).
Plaintiff doesn't see any way the Defendants can argue, in view of
Sutter and Hazel-Atlas that the issue of Fraud on the Court doesn't give
Plaintiff a cause of action under 74.06.
CONCLUSION
----------
1) That Fraud on the Court is a wrong against the Court and undermines
the integrity of the Judicial System itself.
2) Plaintiff has cited numerous cases (Hazel-Atlas, Sutter) that show
that Justice will not tollerate Fraud on the Court.
3) The facts that are in the record and are undispuble, prove Fraud
on the Court.
4) Rule 74.06 provides a remedy in equity to devitailze a judgement
obtained by Fraud on the Court.
5) Therefore the Court must devitalize any judgements where Fraud on the
Court is involved.
WHEREFORE, Plaintiff prays the Court will DENY the Motion to Dismiss of
Defendant Vicki Stringfellow.
______________________________________
Marc Perkel * Plaintiff * 01-30-97
|
Case Law $7/Month 50 States + Fed
I use this service.
