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, )
JOINT ANSWER TO DEFENDANT'S RESPONSE TO
PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT
========================================
Because the defendant's responses are so similar, I will address them
together here and answer the affirmative defenses raised in both
responses.
The Standard
------------
Defendants cite the landmark case of ITT v. Mid-Am Marine which spells
out the burden required of the movant to obtain summary judgement.
Plaintiff admits that the burden of proof can be summarized as follows:
For the Plaintiff to qualify for summary judgement, the Plaintiff
must show that he is entitled to the judgement under the law and must
prove his case based only on facts for which there is no genuine
controversy, and he must also be able to establish that there is no
genuine controversy in the affirmative defenses raised by the
defendants. If the Plaintiff can meet this test, even though it is a
very hard test, then he is entitled to summary judgement.
The Plaintiff will therefore now construct a series of logical arguments
showing the he is entitled under the law to summary judgement on the
basis of only facts for which the defendants have admitted and will use
no facts in controversy, and will answer Defendants' affirmative
defenses.
Fraud upon the Court
--------------------
Rule 74.06(d) establishes that fraud upon the court is a basis for
overturning a judgement. 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 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."
It can therefore be concluded that if the Plaintiff can prove fraud upon
the court that he would be entitled to having the divorce judgement set
aside pursuant to Rule 74.06(d).
Sanctions
---------
The Defendants, in paragraph 10, affirmatively states that no sanctions
were imposed. Plaintiff admits this is true, however it isn't relevant.
If the Defendants committed fraud upon the court, the Plaintiff doesn't
have the burden of proving that the fraud led to the judgement. Fraud
upon the court is an act tampering with the administration of justice
itself (per Hazel-Atles) and therefore cast doubt upon the outcome of
the trial.
The only possible defense to tampering with the administration of
justice might be if the Defendants were to prove that there is no
possibility that their fraud could have influenced the judgement.
In paragraph 12 Wear and Sharp admit that they argued that the Plaintiff
should pay their fees because, in part, of the sanctions imposed.
Because Wear and Sharp used the sanction in their argument at trial to
influence the judgement, they are now estopped to deny that those
sanction may have influenced the judgement. Their argument at trial
constitutes an admission on their part that they believed the sanctions
issued would influence the decision.
Defendant's affirmatively state in paragraph 13 that the court did not
indicate that it's decision was based on the sanction. Plaintiff admits
this but it isn't relevant because Plaintiff bears no burden to prove
the sanctions affected the judgement. If the sanctions were obtained
through fraud upon the court the defendants have to prove the sanctions
didn't affect the decision. And they are barred through estoppel from
making that argument.
The Plaintiff was sanctioned by the court for failing to appear for his
deposition. However, if there was no deposition then the sanctions were
granted upon fraudulent grounds. Plaintiff admits that if there was a
deposition, that a genuine issue may exist and that this court would
then have to make a determination on the basis of fraudulent
concealment. The Plaintiff admits that although he believes he could win
the case on this basis, that he probably couldn't meet the tests for
summary judgement.
However, if the Plaintiff can prove that there was no deposition, then
these sanctions were clearly obtained through fraud upon the court
because it is impossible to sanction someone for not attending a
deposition if there was no deposition to attend. Plaintiff now has the
burden of proving that the Defendants fraudulently stated to the court
that the Plaintiff failed to attend a deposition for which the
Defendants knew never occurred.
Partial Summary
---------------
At this point the following is established:
1) Plaintiff is entitled to judgement if he can prove fraud upon the
court.
2) The question of sanctions being imposed isn't relevant.
3) Requesting the court grant sanction for a deposition which never
happened is fraud upon the court.
4) Therefore if the Plaintiff can establish that there was no
deposition, using only undisputable facts, then he is entitled to
summary judgement.
Was there a Deposition?
-----------------------
All parties agree that the Plaintiff was given notice of deposition was
given on 12-20-94. All parties agree that the Plaintiff filed an
objection to the deposition on 12-21-94. In paragraph 2 Defendants deny
the Plaintiff's characterization that his objections were a motion to
quash. However, the characterization of this motion isn't relevant to
the question of the existence of a deposition and therefore isn't an
issue of genuine controversy. Even if Defendants categorization is true,
it doesn't make any difference.
Defendants admit that they got the letter, (their exhibit A). Plaintiff
admits that this letter is addressed to Judge Davis. Plaintiff admits
that it indicates that he believes the deposition is canceled, however
it request that he be corrected if his assumption is wrong. Since Wear
and Sharp admit having got this letter, they were aware, although the
letter was addressed to the judge, that I was asking for clarification
as to my obligation to attend the deposition.
As further evidence of their awareness, Wear and Sharp state
affirmatively in paragraph 3 that they had no duty to inform the
Plaintiff that the deposition was not canceled. In this statement the
defendants are, in fact, admitting that they had actual knowledge that
the Plaintiff was confused as to his duties and that he might have
attended the deposition. Wear and Sharp's decision to withhold this
information from the Plaintiff, whether or not they had a right to,
proves that they knew the Plaintiff might show up. By their deliberate
withholding of this information, Wear and Sharp are admitting that
wanted the Plaintiff to think the deposition was canceled.
As to the claim that Wear and Sharp had no duty to inform the Plaintiff
that the deposition was canceled when they had actual knowledge that the
defendant believed the deposition was canceled isn't relevant to this
motion for summary judgement. Even if we were to assume that there
statement were true, that they had no duty, their duty isn't relevant if
there was no deposition. Plaintiff admits that he probably wouldn't be
entitled to summary judgement if Wear and Sharp had a court reporter
present to take the deposition. However, if there was no deposition, the
duty to inform is not a factor. Because of the absence of the court
reporter, Plaintiff need not rely on the fraudulent concealment issue to
make his case for summary judgement.
Defendants cite their exhibit B stating that Plaintiff stated he would
not be there on 01-04-95 for the deposition. Plaintiff had apparently
lost the record of this fax but admits that it's genuine. However,
defendants crossed out the date of the fax in an apparent attempt to
conceal when this fax was sent. In paragraph 4 defendants state to the
court that this fax was sent on 12-22-94 when it was in fact sent on
12-21-94. If you look in the upper right hand corner of the page of
their exhibit you will notice that the correct date appears. The
Plaintiff wrote his own fax gateway software interface which puts the
date on the fax in two places. It would appear that the defendants
failed to notice the second date when they tried to pull a fast one on
this court. It appears that the defendants tried to obscure the fact
that exhibit B was sent the day before exhibit A. Defendant's tampering
with the date on exhibit B constitutes fraud upon this court.
As the court can see, exhibit B states that the Plaintiff will not be
there. But it states that the reason the Plaintiff will not attend is
because of his motion to quash filed the same day. The next day the
Plaintiff sent exhibit A to the judge and Wear and Sharp indicating what
he believed to be true, but clearly stating that he wished to be
corrected if he were wrong. This wish to be corrected clearly implies
that the Plaintiff was willing to be deposed if he was required to. Thus
exhibit A supersedes exhibit B indicating a possibility that the
Plaintiff would attend the deposition.
Defendants Wear and Sharp are constructively admitting that they had
actual knowledge that the Plaintiff might attend by asserting their
right to conceal the answer to the Plaintiff's question as to if the
deposition was canceled. If Wear and Sharp didn't have knowledge that
the Plaintiff might attend, they wouldn't be asserting that they had no
duty to respond to Plaintiff's inquiry as to if the deposition was
canceled. Therefore, since Wear and Sharp had actual knowledge that the
Plaintiff might attend, they have no excuse for not having a court
reporter present to take the Plaintiff's deposition.
Plaintiff admits that if he had told Wear and Sharp that he will not
under any circumstances appear for the deposition, then it is reasonable
that they wouldn't go to the expense of hiring a court reporter. But it
is clear that the Plaintiff established and the Defendants understood
that the Plaintiff might show up for the deposition. In paragraph 5
Defendants state that had the Plaintiff indicated that he intended to
appear, that a court reporter could have been quickly obtained. This
implies that the Defendant feels that the Plaintiff had a duty to inform
the Defendant that he would attend before he hired a court reporter. But
there's nothing in the law that indicates that the Plaintiff has that
duty.
Since the Plaintiff has established that the Defendant had actual
knowledge that the Plaintiff might attend, it is the duty if the
Defendant, who scheduled the deposition to be prepared to depose the
Plaintiff had he appeared as scheduled. The Plaintiff had no duty other
than to show up. The Defendant had the duty to be ready for the
Plaintiff to be deposed. Was the Defendant ready to take the Plaintiff's
deposition? Clearly the Defendant has admitted in paragraph 6 that there
was in fact no court reporter and therefore is can be concluded based
solely on the facts admitted to, that Wear and Sharp were not prepared
to take the Plaintiff's deposition, had he appeared.
Defendant's continue to argue the point about who's fault it was that
the Plaintiff failed to attend. However, this argument is only relevant
if there was a deposition to attend. If there was no deposition in the
first place, then who's fault it was becomes irrelevant. All arguments
about duty to inform become not relevant. If there was no deposition,
then the Plaintiff couldn't possibly have missed it.
Before the day of the deposition the Plaintiff was concerned that Wear
and Sharp might be deliberately trying to set him up to miss his
deposition. The Plaintiff had made several phone calls to Wear and Sharp
that week leaving messages, but Wear and Sharp never returned
Plaintiff's calls. As a precaution, the Plaintiff decised he would show
up for the deposition, knowing it was canceled, just to make sure he
wasn't going to be penalized for not showing up. But instead of actually
driving down there, Plaintiff made a phone call 15 minutes before the
time for which he was required to appear. Plaintiff was told by the
secretary that no deposition was scheduled for that morning. Had there
been a court reporter present, one would assume that the secretary
would have inform the Plaintiff the deposition was on and the Plaintiff
would have appeared.
Plaintiff has stated that he attempted to attend the deposition and was
told on the phone that there was no deposition. Defendants stated that
they had no knowledge of Plaintiff's attempt. Plaintiff accepts that the
Defendant's probably don't have any knowledge of the attempt. However,
it doesn't matter for the purposes of summary judgement if any of the
statements in the above paragraph are true because there was no court
reporter.
The Plaintiff's motion for summary judgement does not rely on his
attempt to appear because even if the Plaintiff made no attempt to
appear, the fact that there was no deposition to appear for is
unchanged. The issue before this court is whether there existed any
possible way for the Plaintiff to have complied with the order to
appear. Because there was no court reporter, the answer is clearly no.
Plaintiff admits that had the Defendants had a court reporter present
that there might be a genuine controversy. However, the revelation that
there was no court reporter changes everything. Plaintiff no longer has
to depend on references to his pleadings to make his case for summary
judgement. The new revelation that there was no court reporter is
sufficient to justify a summary judgement. Thus the issue of technical
compliance with references back to the pleading doesn't apply because I
am now relying on new information based on discovery. The references to
the paragraphs in their answers satisfies the rules.
The Final Logical Test
----------------------
Now we come to the final determining factor. What is it that determines
if there was or was not a deposition. Wear and Sharp say there was, but
there was no court reporter. A court reporter is absolutely essential
for a deposition to take place. One can not conduct a deposition without
a court reporter. The question of whether there was a deposition rests
solely on the question as to if there was any way possible for the
Plaintiff to have attended his deposition.
Had the Plaintiff, the morning of 01-04-95 decided to be deposed, could
he have been deposed? The answer is clear based only on the facts that
the Defendants have admitted, that there is absolutely no possible way
the the Plaintiff could have been deposed. And if he could not have been
deposed, then there was no deposition. And if there was no deposition,
there was fraud upon the court.
Summary
-------
1) The Plaintiff has established that he might have attended his
deposition and the Defendants have through their admission shown that
they had actual knowledge that the Plaintiff might attend.
2) Had the Plaintiff appeared, the Defendants could not have taken the
Plaintiff's deposition because the was no court reporter. Therefore
there was no deposition.
3) If there was no deposition, then the Defendant's motion that the
Plaintiff be sanction for not attending the non-existent it is fraud
upon the court.
4) The law entitles the Plaintiff relief from judgements obtained
through fraud upon the court.
5) In coming to these conclusions, Plaintiff relies solely on facts that
the Defendants have admitted to. Plaintiff states that all facts for
which the Defendants denied are not necessary to his proof, and that
all the affirmative defenses of the defendants are irrelevant.
6) Therefore, the Plaintiff is entitled to his partial summary
judgement.
WHEREFORE, Plaintiff prays the court grant him summary judgement or in
the alternative, at least grant his request for an injunction to prevent
execution of judgement.
__________________________________
Marc Perkel * Plaintiff * 11-21-97
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