IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
plaintiff, )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Law Firm of Wear and Sharp )
Vicki Stringfellow )
Donald R. Duncan - pro se )
The Law Firm of Turner, Reid, )
Duncan Loomer and Patton, P.C., )
defendants, )
MOTION FOR PARTIAL SUMMARY JUDGEMENT
====================================
COMES NOW, Plaintiff Marc Perkel, and asks the court for a summary
judgement. There is now enough evidence in the record to support a
decision in favor of the plaintiff for at least the equity portion of
this case. In support of his motion, plaintiff states as follows:
1) 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.
2) On December 21, 1994, plaintiff filed a motion pursuant to 61.01(a)
to quash depositions.
3) 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 whether the
deposition had been canceled or not. Plaintiff indicated in his
letter that silence was to be interpreted as cancellation.
4) 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."
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."
Thus, Mr. Wear and Mr. Sharp admit that they knew that the Plaintiff
believed the deposition was canceled and that they chose to allow
him, through their silence, to continue to believe this. At no point
did the Plaintiff state, nor do anything to imply, that he would not
attend the deposition. Plaintiff only stated that he believed that
the deposition was canceled and inquired if what he believed was
true.
5) 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 was ready to be deposed and would have been at the offices
of Wear and Sharp on time to be deposed had he been told that
depositions were to be taken. The only reason the Plaintiff was not
deposed is because the deposition was clearly canceled by the
defendants.
6) In interrogatories answered by Mr. Sharp on October 9th 1997, Mr.
Sharp confesses that in fact there was no court reporter present nor
scheduled to take the deposition of the Plaintiff. Thus had the
Plaintiff appeared at the office of Wear and Sharp to be deposed,
they would have been unable to take his deposition. If there is no
court reporter, there is no deposition.
7) Later that same day defendants Wear and Sharp filed a motion for
sanctions against plaintiff, averring that plaintiff had "failed to
appear to a lawfully noticed deposition" when they, in fact, had
actual knowledge that there was no deposition.
8) 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. This hearing was the
first and only hearing before Commissioner Tinsley.
9) Despite actual knowledge that he had not, in fact, set up a
deposition Mr. Sharp nonetheless, wilfully sought contempt of court
sanctions against the Plaintiff 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.
10) Commissioner Tinsley granted defendants' motion for sanctions
against the Plaintiff. Specific sanctions were not imposed at that
time. However the Court record reflected a ruling for sanctions to
be imposed at a later date.
11) 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.
12) At trial, and in his final written arguments, Mr. Wear and Mr. Sharp
argued that because the Plaintiff had been sanctioned, that they
should be awarded attorney's fees. 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.
13) Thus Mr. Wear and Mr. Sharp purported to setup a deposition that
they did not setup in fact. They, nonetheless, wilfully
misrepresented to the court that the Plaintiff failed to appear for
this canceled deposition and petitioned the court for sanctions. The
court believed their fraudulent claim and sanctioned the Plaintiff.
Mr. Wear and Mr. Sharp argued at hearings and at trial that because
of these sanctions they should be awarded attorneys fees. The judge
then granted their request awarding them a total of $15,000.
14) Mr. Wear and Mr. Sharp, in their motions to dismiss filed in this
court, continue to take the position that there was a deposition
when in fact there was not. Their motions before this court,
constitute a fraud upon this court. And, if Mr. Duncan knew that
there was no court reporter present, then he too is a party to fraud
upon this court.
15) It is clear from the record that the above facts are undisputable.
These facts are known to this court from the court records and are
undeniable. That the defendants have never denied these fact and
never will deny them. And there is sufficient facts to establish
fraud upon the court and that the defendant's tampered with the
administration of justice. There are no facts that demonstrate the
existence of a genuine issue of material fact and thus summary
judgement is appropriate.
16) Rule 74.06(d) provides for judgement to be set aside for fraud upon
the court. This court has a duty to uphold the integrity of the
judicial system and punish those who are caught committing fraud on
the court.
WHEREFORE, Plaintiff prays for an order of the court to:
1) Enter partial summary judgement to set aside the judgement of the
divorce trial court pursuant to Rule 74.06(d) or alternatively to at
least grant Plaintiff relief from judgement by issuing and injunction
preventing execution of judgement.
2) That the court suspend Mr. Wear and Mr. Sharp from practicing law and
the court refer the matter to the Chief Disciplinary Counsel for
investigation to determine if they are fit to practice law in this
state.
3) That because the defendants have attempted to defraud this court,
that they should be sanctioned by having their motions to dismiss
stricken.
__________________________________
Marc Perkel * Plaintiff * 10-20-97
IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
plaintiff, )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Law Firm of Wear and Sharp )
Vicki Stringfellow )
Donald R. Duncan - pro se )
The Law Firm of Turner, Reid, )
Duncan Loomer and Patton, P.C., )
defendants, )
SUGGESTIONS IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY JUDGEMENT
====================================
At the time I filed this suit I thought I had a strong enough case to
support summary judgement on the face of the record. Giving Mr. Sharp
the benefit of the doubt, that there actually was a deposition and I had
missed it. Even under these circumstances it was clear that he caused me
to miss this deposition through fraudulent concealment. And if he
fraudulently concealed the deposition by allowing me to miss it because
I believed it was canceled, then asking the court to sanction me for
contempt, that would clearly be fraud on the court.
Now, in answer to my interrogatories on 10-09-97, Mr. Sharp confesses to
the fact that there was, in fact, no court reporter present to take my
deposition. Mr. Sharp has continued to assert the position that there
was a deposition and that I was absent from it. His revelation in the
interrogatories proves what I had always suspected, that there was in
fact no deposition for me to be absent from.
At no point in this process had I ever indicated that I wasn't going to
show up to be deposed. There is nothing in my motion to quash deposition
(Answer- Notice to take Deposition) that indicated that I wasn't
planning to attend. I was always ready, willing, and able to be deposed.
The morning of 01-04-95 when I called to inquire if the deposition was
on, had the secretary said "yes", I would have been there on time and
ready to be deposed. I did indicate that according to the rules, that my
motion to quash would stop the deposition until my motion to quash was
ruled on. I also stated that if the deposition was not canceled, that I
be informed that it was not. But I never said that I wouldn't attend if
it was still scheduled.
Now it is revealed that the deposition was in fact canceled. And it was
Mr. Wear and Mr. Sharp who canceled it. In my fax on 12-21-94 I
indicated that their silence in response to my fax would be interpreted
as cancellation, and they were silent. The morning of the deposition I
called and asked if the deposition was still on and the secretary said
it was not. And now Mr. Sharp reveals that there was no court reporter
there to take my deposition had I appeared. The way I see it, if Mr.
Sharp didn't have a court reporter present, then the deposition was in
fact canceled. You can't depose a witness without a court reporter
present.
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 stated to the Federal Court:
"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."
In this statement, Mr. Wear and Mr. Sharp are lying to the federal court
that there was in fact a position for me to be absent from. This
statement clearly says there was a deposition and that I failed to
appear. It paints a picture as if there were a court reporter there and
that they were ready to take my deposition and that I failed to appear
for it. This would be perjury if it were said by a private citizen, but
Mr. Wear, Mr. Sharp, and Mr. Duncan are lawyers and officers of the
court. Thus this goes beyond mere perjury, this is fraud upon the court.
Furthermore, in this court, in his "SUGGESTIONS IN SUPPORT OF SEPARATE
MOTION OF DEFENDANTS WILLIAM A. WEAR, JR., JAMES R. SHARP, AND THE LAW
FIRM OF WEAR & SHARP TO DISMISS PLAINTIFF'S AMENDED PETITION" defendants
Wear and Sharp through their attorney, Mr. Duncan, state:
"On behalf of Defendant Stringfellow, Wear and Sharp filed a motion
for sanctions against plaintiff subsequent to his failure to appear
for his scheduled deposition. During the hearing on Defendant
Stringfellow's motion for sanctions, plaintiff had the opportunity to
present the court with his evidence that Wear and Sharp had committed
fraud by failing to inform him that his deposition was not canceled
and allegedly leading him to believe that his deposition was
cancelled. In sustaining the motion for sanctions, the court
implicitly rejected plaintiff's allegations of fraud."
In this statement, Mr. Wear and Mr. Sharp are clearly stating to this
court that there was in fact a deposition when there was in fact NOT a
deposition. If Mr. Sharp had told the court, "Oh, by the way judge, I
didn't have a court reporter there to take the deposition, and if Mr.
Perkel had showed up to be deposed we would have had to inform him that
the deposition was canceled ...", would the judge have sanctioned me for
not attending a canceled deposition? I would hardly think so.
In the above statement Mr. Wear and Mr. Sharp are clearly lying to this
court. When you read the above statement, Judge, didn't you believe
there was a deposition and the issue was why I missed it? Are you not a
little surprised to find out that there was, in fact, no deposition?
They lied in family court, they lied in federal court, and now they are
lying in this court. And now that they confessed that they had no court
reporter, it's time for this court to take action to preserve this
integrity of the judicial system. Now that their deception is exposed,
what is this court going to do about it?
Wear and Sharp used the sanction issue at trial. The trial was before
Judge Paul McGhee who had to rely on the decisions of the previous trial
judge. In the following excerpt from the trial transcript, Mr. Wear is
questioning me on the stand:
Q. I understand. Mr. Perkel, do you recall, on December 20, 1994,
being served with a notice to take your deposition in my office for
January 4, 1995?
A. Yes.
Q. And do you recall, on January 4, 1995, you did not appear for that
deposition?
A. It had been cancelled.
Q. And do you recall that we filed a motion for sanctions, which was
sustained?
A. I feel like--Yes, the sanctions were sustained.
Q.Okay. And the exact nature of the remedy for those sanctions was
going to be taken with the case to be determined later. Do you recall
that?
A. Yeah. I--It seems like something like that was said.
Later, Mr. Wear submitted written closing arguments. In his arguments he
reminds the court that I was sanctioned:
"Respondent's activities in this regard have resulted in numerous
hours spent by this firm responding to these communications, the
recusal of two family court commissioners, a delay in these
proceedings by several months and the court sustaining our motion for
sanctions. Therefore it would be appropriate for the court to order
respondent to pay for the petitioner's attorneys fees which, in large
measure, he helped create."
One can only guess how much effect these arguments, along with the court
record which indicated sanctions, had on the outcome of the trial.
However, it is clear that Mr. Wear believed that they would effect the
outcome of the trial because he argued these issues. He would therefore
be estopped to now deny that his sanctions, obtained through fraud upon
the court, affected the outcome of the trial.
Mr. Duncan's Involvement
------------------------
Another issue before this court is the role of Mr. Duncan in
participating in fraud before this court. Wear and Sharp's statement to
this court that there was a deposition is clearly fraudulent and this
statement was proffered my their attorney Mr. Duncan. If Mr. Duncan knew
that Wear and Sharp had no court reporter present to take my deposition
at the time he filed his motions, then Mr. Duncan is clearly a
conspirator in the fraud upon this court and this court should take
actions against him as well. If he had no knowledge that Wear and Sharp
didn't have a court reporter then he too is an innocent victim of their
deceptions. With regard to Mr. Duncan, the question is, what did he know
and when did he know it.
Let's assume that Mr. Duncan just found out upon reading his clients
answers to interrogatories that there was no deposition. Up until now he
has been stating in his motions that there was a deposition and I missed
it and the issue was who's fault it was. Now it is revealed for the
first time that the presumption that there was a deposition is not true.
Rule 1.2 in the comment section under "Criminal, Fraudulent and
Prohibited Transactions" states in the relevant part:
"However, a lawyer may not knowingly assist a client in criminal or
fraudulent conduct."
"The lawyer is not permitted to reveal the client's wrongdoing except
where permitted by Rule 1.6. However, the lawyer is required to avoid
furthering the purpose, for example, by suggesting how it might be
concealed. A lawyer may not continue assisting a client in conduct
that the lawyer originally supposes is legally proper but then
discovers is criminal or fraudulent. Withdrawal from the
representation, therefore, may be required."
Rule 3.3(a)(2) states: "A lawyer shall not knowingly: (2) fail to
disclose a material fact to a tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client;" Rule 3.3
goes on to say that there is a constitutional requirement that an
advocate must disclose the existence of perjury with respect to a
material fact, even that of a client. It says that remedial measures
must be taken if the lawyer discovers that his client is engaging in
fraud or criminal activity. And the rules make it clear that a lawyer is
not to allow himself to be a part of a fraudulent or criminal act by a
client.
Rule 4.1 adds to the expectation of truthfullness from lawyers by
stating:
"In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
or (b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is prohibited by Rule 1.6"
The comment section under "Fraud by Client" goes on to state:
"Paragraph (b) recognizes that substantive law may require a lawyer to
disclose certain information to avoid being deemed to have assisted
the client's crime or fraud. "
In this case Mr. Duncan is now aware that his clients, Mr. Wear and Mr.
Sharp, were in fact lying to the court. He now has a duty to reveal to
the court that there were no depositions. He has to amend all his
pending motions which state or imply that there was a deposition. All
pending motions implying there was a deposition should now be stricken.
At the very least Mr. Duncan has a duty to try to get his clients to
come forward and disclose the truth to the court or the Rules would be
require him to withdraw as counsel. If Mr. Duncan fails to reveal the
fraud, withdraw from the case, or try to perpetuate the fraud, he would
become a conspirator to the fraud and would be as guilty as his clients.
Rule 1.6(b)(2) states as follows with respect to disclosures by a lawyer
about his clients:
"(b) A lawyer may reveal such information to the extent the lawyer
reasonably believes necessary: (2) to establish a claim of defense on
behalf of the lawyer in a controversy between the lawyer and the
client to establish a defense to a criminal charge or civil claim
against the lawyer based upon conduct in which the client was
involved, or to respond to allegations in any proceeding concerning
the lawyers representation of the client."
The comment section goes on to say:
"If a lawyer is charged with wrongdoing in which the client's conduct
is implicated, the rule of confidentiality should not prevent the
lawyer from defending against the charge. Such a charge can arise in
a civil, criminal or professional disciplinary proceeding, and can be
based on a wrong allegedly committed by the lawyer against the
client, or on a wrong alleged by a third person; for example, a
person claiming to have been defrauded by the lawyer and the client
acting together."
Clearly in this case, where Mr. Duncan is a defendant accused of
fraudulent conspiracy, Rule 1.6 can not be used as an excuse to conceal
criminal or fraudulent acts of his clients that he is aware of. And
rules 1.2, 3.3 and 4.1 establish a duty for Mr. Duncan to reveal to the
court any acts or conduct which he is aware of that indicate that his
client committed a criminal act or fraud. If Mr. Duncan fails to come
forward at this point and reveal what he knows, he will become a party
to the fraud.
When Lawyers Lie
----------------
Mr. Wear and Mr. Sharp have argued that there are two kinds of fraud,
intrinsic and extrinsic, and that this is intrinsic fraud. There is a
third kind of fraud, fraud on the court. Fraud on the Court is when a
lawyer, who is an officer of the court, lies to the court and this fraud
is much more serious than mere intrinsic or extrinsic fraud. As an
officer of the court, the word of a lawyer carries more weight than the
word of a pro se litigant. A judge would automatically be obligated to
trust the word of the lawyer as he is a professional and has taken an
oath to uphold the constitution. Thus when a lawyer lies to a tribunal,
as these lawyers have, it undermines the integrity of the judicial
system itself. That's why there is a separate Rule 74.06(d) separate
from 74.06(b) to deal specifically with cases where the lawyers commits
the fraud.
In State of Missouri, v. Robert Joe Mason, 394 S.W.2d 343, and many
other similar cases, it is accepted that if a party is caught cheating,
that it can be inferred that their cause is an unrighteous one and that
their conduct is evidence of their guilt. Surely where a lawyer
has a party sanction for failing to attend a deposition the lawyer
canceled, the court has a duty to the constitution to not let the lawyer
profit from his ill-gotten gains. Wear and Sharp have now been caught
cheating.
Fraud upon 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 safeguard the public institutions in which fraud can not
complacently be tolerated consistent with the good order of society.
Surely it cannot be 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 State of Missouri, v. Robert Joe Mason, 394 S.W.2d 343
"The defendant having resorted to unfair means to defeat the ends of
justice, he must suffer the consequences. In Fulkerson v. Murdock, 53
Mo. App.l.c. 154, it is said: 'Evidence of the fact of an attempted
subornation is admissible as an admission by conduct that the party's
cause is an unrighteous one.'"
Conclusion
----------
The trial court may enter summary judgement when the pleadings,
depositions and admissions on file, together with the affidavits, if
any, show that no issue of material fact exists and that the law
entitles the moving party to a favorable judgement. Id.; Rule 74.04(c).
To overcome a summary judgement motion, the party against whom judgement
is sought must produce facts that demonstrate the existence of a genuine
issue of material fact. Ernst v. Ford Motor Co., 813 S.W.2d 910, 916
(Mo. App. 1991).
"A 'genuine issue' exists where the record contains competent materials
that evidence two plausible, but contradictory accounts of the essential
facts. A 'genuine issue' is a dispute that is real, not merely
argumentative, imaginary or frivolous." ITT Commercial, 854 S.W.2d at
382.
In this case all the facts are clear and in the record. Wear and Sharp
had me sanctioned for failing to attend a deposition which they
canceled. There is no other conclusion which may be drawn from the
facts other than that they committed fraud upon the court.
A judge has a duty to uphold the integrity of the court. Failure to do
so is treason against the constitution. I think the revelation that
there was no court reporter there to take the deposition is enough for
this court to either strike or rule against their motion to dismiss.
Then they would then have to answer the pleading. So if this court isn't
comfortable with a partial summary judgement now then at least make them
answer the pleading and save the summary judgement ruling for later.
At the last hearing you asked Mr. Sharp if he was going to be a witness.
He replied "No" and based on that answer you ruled that he could
continue to represent Ms. Stringfellow. Since that ruling circumstances
have changed. Mr. Sharp has now been served with and has answered
interrogatories which now establishes him as a witness. It would now be
appropriate for this court to reverse it's ruling in light of the
changed circumstances. The last ruling was clearly a mistake and this
court now has the opportunity to fix it.
I'm in the process of filing a writ of mandamous in the United States
Supreme Court to order the Missouri Supreme Court to rule on the issue
of one defendant representing another. This court has created a legal
paradox where the lower court is suspended until the higher court rules,
and the higher court has refused to rule. If the Supreme Court orders
the Missouri Court to rule, they will probably just throw it back to
this court. And if they ignore it then it's back in this court anyhow.
I like to get on with this case. I think if this court will make the
defendant's play by the Rules, this case can be settled fairly quickly.
__________________________________
Marc Perkel * Plaintiff * 10-20-97
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