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 A. Duncan )
The Law Firm of Turner, Reid, )
Duncan Loomer and Patton, P.C., )
defendants, )
SUGGESTIONS IN OPPOSITION TO
SEPARATE MOTION OF DEFENDANTS WILLIAM A. WEAR, JR.,
JAMES R. SHARP, AND THE LAW FIRM OF WEAR AND SHARP
TO DISMISS PLAINTIFF'S AMENDED PETITION
===================================================
Plaintiff now responds to the motion filed by Mr. Duncan representing
the above named defendants. Plaintiff still does not recognize the
standing of Mr. Duncan to represent these codefendants. However,
Plaintiff responds in case the Court should rule incorrectly and allow
this improper representation to continue. THIS RESPONSE SHALL NOT BE
CONSTRUED AS ACCEPTANCE OF MR. DUNCAN'S IMPROPER REPRESENTATION OR A
WAIVER OF ANY RIGHT BY THE PLAINTIFF TO OBJECT TO MR. DUNCAN'S STANDING
BEFORE THE COURT.
Proper Parties
--------------
Mr. Duncan is still trying to make the same frivolous claim that his
clients are not proper parties. Plaintiff agrees that the mere
representation as a lawyer doesn't make the lawyer a party to the
actions of the client. However, Plaintiff is suing these clients because
of their own improper actions of Fraud upon the Court. Since the
Plaintiff is alleging that these clients personally committed the fraud
and other improper acts they are obviously a party. If the Plaintiff
were suing these lawyers strictly on the behavior of Ms. Stringfellow
then Mr. Duncan might have a point. But that is not what the pleading
states.
Mr. Duncan knows or should know this and his argument here is frivolous
in violation of Rule 55.03 and should be sanctioned.
Elements of Fraud
-----------------
A pleading is intended to state the facts and not to argue the entire
case. Mr. Sharp represented to the court that the Plaintiff failed to
attend his deposition. This representation was in fact false because
there was in fact no deposition for Plaintiff to have attended. If there
was one, Mr. Sharp has already admitted that he concealed it from the
Plaintiff. The representation was material in that Mr. Sharp asked the
court to sanction the Plaintiff on the basis of the representation. Mr.
Sharp obviously knew he tricked the Plaintiff into not showing up for
the deposition and therefore knew it was false.
Since Mr. Sharp was asking for sanctions there was an expectation that
the court would act on his motion. Was the judge ignorant that Mr. Sharp
was lying. One would hope that the judge wouldn't have ruled in his
favor if he knew he was lying. Logic would dictate that the judge must
have been ignorant of a falsity of the representation and one must
assume that since this was a court hearing that the judge made his
decision based on the testimony of Mr. Sharp and therefore relied on the
information.
The Plaintiff doesn't see where anyone could argue that a judge doesn't
have the right to rely on testimony. So obviously the judge does have a
right to rely on Mr. Sharp's testimony. And finally, was the hearer
injured? More accurately, the Plaintiff was injured because the
Plaintiff was sanctioned by the judge who heard the testimony.
So, if the Plaintiff needs to have pleaded these elements of fraud, they
are now pleaded. As far as having to prove them, that is what discovery
and the trial is for. All the Plaintiff has to do is allege fraud and
enough facts to support the basis for his allegation.
Plaintiff has alleged several frauds in this case. Besides fraud on the
court, Plaintiff is alleging fraud by concealment because these
defendants at least deliberately concealed the fact that this deposition
was not cancelled, then the secretary lied to the Plaintiff the morning
of the deposition telling him there was no deposition. Or in the
alternative, the secretary told the truth that there was no deposition
and the lawyers lied when they said there was.
Plaintiff has also alleged that these lawyers conspired with their
client to fabricate false evidence proffered to the court in order to
make the court believe the Plaintiff was much richer than he really was
in order to defraud him of his property. If the client perjured herself
without the lawyers knowledge then there would be no claim of fraud
against the lawyers. But that's not what happened. These lawyers
encouraged their client to falsify documents and actively participated
in the fabrication of the false evidence and with full knowledge
proffered this fabricated evidence to the court with the intention of
undermining the administration of justice. When a lawyer, who is an
officer of the court, conspires with a client to deceive a judge, you
have 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 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 contends that if it is proven that the
Defendants used concealment 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).
No Duty?
--------
Mr. Duncan claims that his clients had no duty to inform the Plaintiff
that the deposition had been cancelled even though the Plaintiff had
written him asking to be informed and that they knew the Plaintiff
believed that the deposition had been cancelled. Apparently they figured
that if they kept their mouth shut and allowed the Plaintiff to believe
the deposition was cancelled, then they could go to the court and get
the Plaintiff sanctioned, which they did.
Mr. Duncan seem to be arguing that his clients have a right to be
dishonest and deceitful. That they have a right to lie to the Plaintiff
and to conceal from him a deposition so that they could later lie to the
court to get sanctions imposed against the Plaintiff. It would seem that
Mr. Duncan clearly believes in this fundamental right of lawyers to be
dishonest because his argument is in itself dishonest. However, the
Plaintiff has already addressed this issue in his last brief and Mr.
Duncan is aware of, although he chooses to ignore, the local rule.
Local Rule 32.1 "Use of Discovery and Certification To Circuit Division"
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."
In looking through the Rules of Professional Conduct I see no rules
supporting the defendants contention that they have a right to be
dishonest and deceitful. Although it is commonly practiced among
attorneys, and often with the condonation of the court, it is still
wrong and against the rules. The Plaintiff sees several rules indicating
that a lawyer is in fact expected to be honest and truthful with the
tribunal and with opposing counsel.
Collateral Estoppel and Res Judicata
------------------------------------
Mr. Duncan claims collateral estoppel and res judicata. It is true that
the Plaintiff brought two other cases before federal court that were
dismissed. The first case was dismissed because to get into federal
court the Plaintiff had to sue under civil rights laws and he failed at
that time to understand that this required that the defendants act under
color of law. That case wasn't dismissed because it didn't have merit.
It was dismissed because it should have been filed in State Court rather
than Federal Court. This case corrects the Plaintiff's mistake in
interpreting jurisdiction. The second federal case was dismissed because
this case is open.
This case is also different in that it alleges a conspiracy with a state
actor and thus the defendants acted under color of law and thus, in this
case, can be tried for civil rights violations. In Judge England's
decision to dismiss, the judge explains several errors the Plaintiff
made which led to the dismissal. This case corrects all those errors.
So the principle of res judicata does not apply here. The case wasn't
tried on the merits but dismissed because of technical errors which
have not been corrected.
Mr. Duncan claims that the Plaintiff is barred by collateral estoppel
because the judge ruled for sanctions against the Plaintiff. Mr. Duncan
seems to be making the claim that if his client commits fraud on the
court and gets away with it, that would create an estoppel? Is he
arguing that if his client successfully lies to the judge and the judge
believes the lie that constitutes res judicata?
Again, Mr. Duncan is contending that a lawyer has a right to lie to the
judge and if he gets away with it then the lie becomes the truth.
Although the Plaintiff concedes that it would seem like that is the way
the court operates, the Plaintiff contends that is not the way the court
is supposed to operate and the Plaintiff contends that lying to the
judge is not justified just because the judge believes the lie.
Issues not Challenged
---------------------
Although a motion to dismiss is not the same as answering the pleading,
it is interesting to note that at no point does the defendants deny any
of the fraudulent conduct alleges by the Plaintiff. They seem to be
arguing only that the defendants have a right to be dishonest. Plaintiff
contends that the court record speaks for itself, that all the facts
proving fraud are in the record and are undeniable. That upon the court
record alone the fraudulent deposition can be proven.
Mr. Duncan fails to address the issue that his client conspired with Ms.
Stringfellow to proffer false evidence to the court. Perhaps the reason
he doesn't address this issue is because if he denied his client
participated with Ms. Stringfellow in fraud you would have a case of an
attorney testifying against his client, implying that the fraudulent
evidence was all the doing of Ms. Stringfellow.
He doesn't address the conflict of interest with regards to Ms. Gwin's
suit as to if these lawyers should have been representing Ms.
Stringfellow in the first place. The allegations of Tampering with a
Witness are also ignored.
Mr. Duncan doesn't address the issue of misrepresenting his client's
income at the separate maintenance hearing. He doesn't address the issue
of transferring title of property before final judgement. He doesn't
address the issue that he acted in a conspiracy with the trial judge who
acted improperly on his behalf.
Plaintiff also pleaded that in this case that Mr. Duncan's clients broke
the conflict of interest and "lawyer as a witness" rules in his clients
attempt to undermine the judicial system by one defendant representing
another defendant. A charge that the Plaintiff now levels against Mr.
Duncan as well.
Even if all the allegations Mr. Duncan complains about were thrown out,
there are still plenty of allegations against his client which he did
not address to sustain the lawsuit.
Medically Diagnosable Damages
-----------------------------
Plaintiff does contend that he will be able to prove that his damages
are medically diagnosable, that the defendants conduct is extreme and
outrageous, that the defendants have acted and continue to act in an
intentional and reckless manner, and that the damage is medically
significant. Should the court find these allegations are necessary, the
Plaintiff moves to amend his pleading to include this necessary language
that was omitted.
Misleading Legal Argument
-------------------------
Plaintiff contends that Mr. Duncan has violated Rule 3.3 "Candor Toward
the Tribunal" by proffering a misleading legal argument to the court.
The rule's comment section states, "Legal argument based on a knowingly
false representation of law constitutes dishonesty towards the
tribunal." Mr. Duncan has made arguments here that he knows is not true
in order to mislead the court. Plaintiff asks the Mr. Duncan be
sanctioned for violation of Rule 3.3.
WHEREFORE, Plaintiff, while not acknowledging that Mr. Duncan even has
standing to make a motion in behalf of his codefendants, respectfully
asks the court to DENY defendants motion to dismiss and grant the
Plaintiff sanctions and whatever other relief the court deems necessary.
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