Untitled

IN THE WESTERN DISTRICT COURT OF APPEALS
STATE OF MISSOURI

Lee Allen Martin
Pro Se,
Appellant,
VS.
DEPARTMENT OF REVENUE,
Custodian of Records,
Carol Russell Fischer,
Respondents
Keith D. Halcomb
Earl Kraus
Assistant Attorney General
Attorneys
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CASE #01CV324209
APPEAL# W.D. 61674

 

 

 

 

First Amended Appellant Brief

Oral argument is requested

Lee Allen Martin

7050 County Road 2810

West Plains Missouri, 65775

 

 

Lee Allen Martin

 

Index to the Appellant Brief

Title page #

List of Citations

 3

Jurisdictional Statement

 7

Statement of Facts

8

Points Relied On

12

Argument

15

 

List of Citations

  1. Black's Law Dictionary 6th edition page 1331defines Rudeness: Roughness; incivility; violence. Touching another with rudeness may constitute a battery.
  2. Federal Rule of Civil Procedure 28(c)
  3. Federal Rule of Civil Procedure 30(b)(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes
    (A) the officer's name and business address;
    (B) the date, time and place of the deposition;
    (C) the name of the deponent;
    (D) the administration of the oath or affirmation to the deponent; and
    (E) an identification of all persons present.
    If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.
  4. Federal Rule of Civil Procedure 32(d)(2)
  5. Federal Rules of Civil Procedure Rule 37(b)(1) "Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court."
  6. Missouri Supreme Court Rule 14 February 28 2001 Effective January 1, 2002 http://www.osca.state.mo.us/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/26a2843676935b1386256a0200615f98?OpenDocument
  7. Mo.S.Ct. Rule 57.05(d) and Federal Rule of Civil Procedure 28(c)Any officer of the Court that has a fiduciary interest is disqualified from the proceedings.
  8. Missouri Supreme Court Rule 57.07 c 2 "Regarding the officer. An objection to a deposition because the officer before whom it is to be taken is not qualified shall be made before the deposition begins or as soon thereafter as the officer's lack of qualification becomes known or could have been discovered with reasonable diligence; otherwise, the objection is waived."
  9. 61.01 (f) Failure to Attend Own Deposition. "If a party or an officer, director or managing agent of a party or a person designated under Rules 57.03(b)(4) and 57.04(a), to testify on behalf of a party, fails to appear before the officer who is to take his deposition, after being served with notice, the court may, upon motion and reasonable notice to the other parties and all persons affected thereby, make such orders in regard to the failure as are just and among others, it may take any action authorized under paragraphs (1), (2), (3) and (4) of subdivision (d) of this Rule."
  10. 61.01 (g) Failure to Answer Questions on Deposition. "If a witness fails or refuses to testify in response to questions propounded on deposition, the proponent of the question may move for an order compelling an answer. The proponent of the question may complete or adjourn the deposition examination before applying for an order. In ruling upon the motion, the court may make such protective order as it would have been empowered to make on a motion pursuant to Rule 56.01(c).
    If the motion is granted, the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
    If the motion is denied, the court, after opportunity for hearing, shall require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
    If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
    If the motion is granted and if the persons ordered to respond fail to comply with the court's order, the court, upon motion and reasonable notice to the other parties and all persons affected thereby, may make such orders in regard to the failure as are just, and among others, it may take any action authorized under Rule 61.01(d)."
  11. RSMo 486.235 prescribes an oath for the officer of the court.
  12. RSMo 486.255
  13. RSMo 491.010, RSMo 491.270 prescribes that upon the oath of 485.235 RSMo the notary may act as an officer of the court with the same authority as a "court of record".
  14. 492.010 RSMo Officers and notary public authorized to administer oaths. Every court and judge, justice and clerk thereof, notaries public, certified court reporters and certified shorthand reporters, shall respectively have power to administer oaths and affirmations to witnesses and others concerning any thing or proceeding pending* before them, respectively, and to administer oaths and take affidavits and depositions within their respective jurisdictions, in all cases where oaths and affirmations are required by law to be taken. (RSMo 1939 § 1884, A.L. 1988 S.B. 425) Prior revisions: 1929 § 1720; 1919 § 5407; 1909 § 6351 *Word "depending" appears in original rolls, an apparent typographical error.
  15. RSMo 492.270. 1. Every person, judge or other officer of the state required to take the depositions or examination of witnesses, in pursuant of sections 492.080 to 492.400 or by virtue of any commission issuing out of any court of record in this or any other government, shall have power to issue subpoenas for witnesses to appear and testify, and to compel their attendance, in the same manner and under like penalties as any court of record of this state. The court's denial of the continuance forced petitioner to argue his own cause. IN RE LITTLE, 404 U.S. 553 (1972) the Supreme Court of the United States said: "He was therefore clearly entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client's cause. In re McConnell, 370 U.S. 230 (1962)"
  16. RSMo 610.027 provides costs in action brought pursuant to Chapter 610 to be on the Public Governmental Body.
  17. Chaplinsky v New Hampshire 315 U.S. 568 (1942)
  18. CITY SPRINGFIELD v. EVENTS PUBLISHING CO. 951 S.W.2d 366 [59] In contrast, we must interpret the phrase "at the expense" in a section of the Sunshine Law that must be liberally construed. § 610.011.1; Bill, 935 S.W.2d at 666. The mandate that we liberally interpret the Sunshine Law to promote the policy of open government, MacLachlan v. McNary, 684 S.W.2d 534, 537[2] (Mo.App. 1984), significantly differs from the policy of strict construction identified in Prudential. For that reason, neither Mason nor Prudential is instructive in our analysis of what the legislature intended by the phrase "at the expense of" in § 610.027.5.
    [60] Construing the phrase "at the expense of the public governmental body" liberally, we conclude that the legislature meant that a public governmental body should pay the attorney fees of its opponent when such body brings a declaratory judgment pursuant to § 610.027.5. We note that a public body would bear any burden of expense for the two other options under § 610.027.5. Neither requesting an opinion of its own counsel nor requesting an opinion of the Attorney General is an adversary proceeding requiring the active participation of another party. A public governmental body would naturally pay for the expense of its own counsel to render an opinion regarding compliance with the Sunshine Law. A public governmental body would also bear the expenses required for its employees to prepare and apply for an opinion of the Attorney General. Since the public governmental body chooses what avenue to take under § 610.027.5, and must bear the expenses of the other two options, it follows that the public governmental body must bear all of the expenses of an action for declaratory judgment.
    [61] If this were not so, a public governmental body might choose the option under § 610.027.5 of bringing an action for declaratory judgment because that option would be cost prohibitive for the opposing party. The western district cogently expresses this Conclusion in Bill:
    [62] "Not requiring the public governmental body to bear Bill's expenses would open a means for public governmental bodies to thwart the public policy underlying the open meetings and records law. The agency would be free to 'test' the determination of anyone requesting its records by filing a lawsuit, putting that person in the dilemma of not defending his or her request in court or enduring the significant expense of doing so."
  19. State ex rel. Missouri Highway and Transp. Comm'n v. Pully, 737 S.W.2d 241, 245 (Mo. App. W.D. 1987)."Although the trial court has authority to impose sanctions on a party for failure to engage in discovery, before the court can impose sanctions, it must determine that the opposing party is prejudiced by the errant party's non-compliance with discovery requirements."
  20. PAMELA SIMPSON, BY ANITA SIMPSON, NEXT FRIEND, RESPONDENT, v. REVCO DRUG CENTERS OF MISSOURI, INC., APPELLANT. 702 S.W.2d 482
    In the first place, sanctions under Rule 61.01 are authorized only upon motion and after notice to the party affected. Both the conduct which is to trigger the sanctions and the sanctions themselves are to be spelled out with specificity in order that the party against whom the order is to be entered will be apprised of the consequences of non-compliance. Hammons v. Hammons, 680 S.W.2d 409, 411 (Mo. App. 1984),

 

Jurisdiction Statement

Comes now the Plaintiff/Appellant, Lee Allen Martin, pursuant to Missouri Supreme Court Rule 84 and for good cause asks the Court to Set aside the Trial Court Order and Judgment of July 5, 2002,page 10 of the Legal File, that did deny the Motion to Set Aside Default Judgment, page 17 of the Legal File. The Trial Court Order of July 5, 2002, page 10 of the Legal File, did make the Judgment of June 19, 2002, page 34 of the Legal File, final. The Judgment of the trial court issued on June 19, 2002, page 34 of the Legal File, did dismiss the Petition for Declaratory Judgment Arising out of Chapter 610 RSMo and struck the pleadings of the plaintiff and further, accessed cost to the Plaintiff, such order and judgment is in error as it does not correctly apply the law, that such order and judgment does misapply the law, and that such order and judgment was rendered against the weight of the evidence. The Order and Judgment of June 19, 2002 is an abuse of discretion. Plaintiff's objection has been properly preserved for appeal by plaintiff's post trial motion, Motion to Setaside Default Judgment, page 17 of the Legal File, which Motion to Setaside Default Judgment was denied by the trial court Order and Judgment on July 5, 2002.

 

Statement of Facts

Summery of Case

The Action before the 19th Judicial Circuit is one arising out of Chapter 610 of the revised statutes of the state of Missouri. The appellant did on March 24, 2001 request certain public documents be provided to him from the Custodian of Record for the Department of Revenue for the State of Missouri, page 172 of the Legal File.

The defendant/respondent, Carol Russell Fischer, did reply to the official request on the 5th day of April, 2001, page 173 of the Legal File.

Plaintiff/Appellant did file with the 19th Judicial circuit Petition for Declaratory Judgment Arising out of Chapter 610 of the RSMo, page 167 of the legal file. Defendant did Answer, page 153 of the legal file, the court took up the action and assigned Judge Joyce. Discovery began with the plaintiff filing for Production of Documents. The document requested included the documents requested in the Original petition. Many discovery motions and motions to compel discovery followed. Judge Joyce recused prior to trial on February 7, 2002, the cause was assigned to Judge Sodergren who recused on April 1, 2002. Judge Brown was assigned on the 1st of April 2002. On April 1, 2002 plaintiff/appellant asked Judge Brown about an action upon him brought by the Attorney General. The Action was on going and was in the Supreme Court at that time. Plaintiff move for change of Judge on 15 of April 2002 and was denied on May 6, 2002.

Defendant requested deposition of the plaintiff on April 2, 2002 the Plaintiff did file a Motion to quash the deposition on the 15th day of April 2002. The motion to suppress was denied by the court and plaintiff was ordered to deposition on the 21st day of May 2002 at 147 Park Central Square at 10:30 am. On the 21st day of May Plaintiff do go to deposition at the prescribed location. Plaintiff arrived early and was met by Assistant Attorney General Kraus and moved to the space designated for the deposition. Ms. Sonntag of Alpha Reporting was there and set up. Mr. Holcomb arrived later.

Prior to 10:30 a conversation between Plaintiff and Ms. Sonntag of Alpha Reporting occurred, in the presence of defendant counsel, where the plaintiff asked Ms. Sonntag if she could tell the plaintiff what her oath of office said. Ms. Sonntag answered that she could not because she had forgot it a long time ago. Plaintiff made an objection on the record to this fact and requested to inquire more of Ms. Sonntag. Attorneys for the defendant refused and Ms. Sonntag refused to take the deposition stating that the record ended on 10:20 am.

Defendant/Respondent moved for sanctions requesting cost for the deposition. Hearing was held on the 19th day of June 2002 one day before trial. As Ms. Sonntag was not present on the 19th day of June 2002 an immediate hearing was held on the affirmation of the Defendant/Respondent that one of the attorneys for the defendant would testify, and that the plaintiff would agree. Both parties answered in the affirmative concerning the immediate hearing and AAG Mr. Kraus testified for the defendant in the hearing on the Motion for Sanction brought by the defendant/respondent. Plaintiff also testified. The Judge ruled that the plaintiff had frustrated his deposition and ordered the cause dismissed striking the plaintiffs pleadings and accessing cost to the plaintiff. The hearing transcript is provided in the Record on Appeal.

Plaintiff filed a timely motion to setaside default judgment. The court did deny the motion and this appeal has followed.

Chronology of Petition, Discovery Pleadings, Judge Recusal, Hearing, Judgment, Notice of Appeal

  1. Petition for Declaratory Judgment Arising out of RSMo. 610, page 167 Legal File, filed on May 17, 2001. The request for public records held by the defendants for the daily operation of the defendant business. The request consisted of
    1. Application for a Driver's License.
    2. Oaths of Defendant Department Personnel.
    3. Policy and Procedures for the Defendant Department.
  2. Defendant Answer, page 153 of Legal File, filed on June 28, 2001. Answer for the defendant at no place denied or asserted that these were not public records. Defendant assert that
    1. Application is an electronic process and that no application exists in electronic format.
    2. Department has no Oaths for department personnel.
    3. Policy and Procedures are not in Electronic Format.
  3. Judge Joyce Assigned July 27, 2001, page 4 of the Legal File.
  4. Plaintiff submits Request for Production of Document on August 2, 2001, page 4 of the Legal File, pursuant to the Missouri Supreme Court Rules of Discovery.
  5. Defendant Responses to Production of Documents served September 4, 2001, page 4 of the Legal File, out of time pursuant to Missouri Supreme Court Rules.
  6. Defendant files Response to Motion to Compel, page 4 of the legal file, on the 20th day of September, 2001 a day before the Court files the Motion to Compel submitted by the Plaintiff.
  7. Plaintiff files Motion to Compel Discovery, Production of Documents, page 5 of the Legal File, on the 21st day of September.
  8. Plaintiff files Request for Interrogatories, page 4 of the legal file, September 21, 2001.
  9. Defendants Response to Request for Interrogatories, page 5 of the legal file, filed October 26, 2001.
  10. Plaintiff files second request for Interrogatories, page 5 of the legal file, on November 28, 2001.
  11. Defendant Answers second set of interrogatories, page 5 of the legal file, on the 20the day of December 2001.
  12. Defendant files Notice to take Deposition, page 6 of the legal file, on the 29 day of January 2002.
  13. Plaintiff files Motion to Suppress Notice of Deposition, page 6 of the legal file, on the 4th day of February 2002.
  14. Judge Joyce Disqualifies on own motion, page 7 of the legal file, on the 7th day of February 2002.
  15. Judge Sodergren Disqualified on own Motion, page 7 of the legal file, on the 1st day of April 2002.
  16. Judge Thomas Brown assigned, page 7 of the legal file, on 1st day of April 2002. In open court Judge Brown admits that defendant counsel, Attorney General, has brought suit against Judge Brown, but states he will be unbias.
  17. On April 2, 2002 Defendant/Respondent files certificate of service for Notice of Deposition up on the Plaintiff, page 7 of the legal file,.
  18. Plaintiff files Motion for Judge Brown to Recuse, page 8 of the legal file, on the 15th day of April 2002, Judge Brown grants limited Motion to Compel answer to Interrogatories on the 15th day of April 2002.
  19. May 6th 2002 Judge Brown denies motion, page 8 of the legal file, to recuse cause set for trial on the 20th day of June 2002.
  21. May 21, 2002 Deposition, page 7 line 17 of the Transcript, of the Plaintiff was scheduled at 147 Park Central Square Springfield Missouri at the Attorney General's Office at 10:30 am. Plaintiff/Appellant did appear. The Deposition was canceled by Defendant at 10:20 am, page 31 line 21 and 22 of the legal file. Defendant Counsel stated that defendant would get sanctions upon the Plaintiff.
  22. June 19, 2002 Hearing was held before Judge Brown on defendant Motion for Sanctions, Transcript, Testimony was taken before a court reporter that violated the sunshine law in that court reporters response to official sunshine request was that the provisions of chapter 610 of the RSMo does not apply to the judiciary. This reply is maintained in the Appellant Court file, Motion to Compel Transcript, of this appeal. Judge Brown ruled plaintiff had tried to frustrate a deposition that was cancelled 10 minutes before it was scheduled. The Judge did strike all of the pleadings of the plaintiff and dismissed the action charging all cost to the plaintiff.
  23. June 24 2002 Plaintiff files Motion to Set Aside Default Judgment, page 10 of the legal file,.
  24. July 5 2002 Judge denies Motion to Set Aside Default Judgment, page 10 of the legal file,.
  25. July 17 2002 Notice of Appeal Filed by Plaintiff, page 10 of the legal file,.

 

Points Relied On

Plaintiff/Appellant appeals the judgment of the July 5, 2002, page 10 of the Legal File which does bring finality to the Petition for Declaratory Judgment Arising out of Chapter 610 of the RSMo, page 167 of the Legal File, before the trial court. The denial of the Plaintiff/Appellant Motion to Set Aside Default Judgment, page 17 of the Legal File, issued on the 19th day of June 2002, Page 34 of the Legal File, "Plaintiff appears pro se; Defendants appear by AAG Halcomb and AAG Kraus; Plaintiff's Motion for Sanctions taken up; Parties offered opportunity to be heard; Said Motion overruled; Defendant's Motion for Continuance and Defendant's Motion for Sanctions taken up; Evidence adduced; Defendant's Motion for Sanctions, sustained; Plaintiff's pleadings are hereby stricken; Judgment of Dismissal is entered; Costs of this proceeding, including costs associated with attempted deposition on May 21, 2002, taxed to Plaintiff. TJB" The aforementioned judgment is an abuse of discretion on the part of the trial court. :

  1. As the Judgment Does not Correctly apply the Law

    The trial court erred in ordering on June 19, 2002, "Defendant's Motion for Continuance and Defendant's Motion for Sanctions taken up; Evidence adduced; Defendant's Motion for Sanctions, sustained; Plaintiff's pleadings are hereby stricken; Judgment of Dismissal is entered; Costs of this proceeding, including costs associated with attempted deposition on May 21, 2002, taxed to Plaintiff. TJB" Page 34 of the Legal File, in that the Judgment does not correctly apply the law. In this action the Plaintiff/Appellant was bound by Mo. S.Ct. Rule 57.07 c 2. He was to ascertain any reason for disqualification of the court reporter at the earliest time, preferably before deposition. Plaintiff/Appellant did find a disqualifying interest in that the Court Reporter did not know her oath of Office. The Court Reporter disqualified as was appropriate. The ruling of the Trial Court on 19 June 2002 dismissing the Petition for Declaratory Judgment and striking the pleadings of the Plaintiff was not based in law, and it did not serve the interest of justice. The accessing of cost to the plaintiff is not based in the law as set down in Chapter 610 of the Revised Statutes of the State of Missouri in that cost is to be accessed to the public governmental body and not the plaintiff.

  2. The Judgment offers no substantial evidence to support it

    The trial court erred in ordering on June 19, 2002, "Defendant's Motion for Continuance and Defendant's Motion for Sanctions taken up; Evidence adduced; Defendant's Motion for Sanctions, sustained; Plaintiff's pleadings are hereby stricken; Judgment of Dismissal is entered; Costs of this proceeding, including costs associated with attempted deposition on May 21, 2002, taxed to Plaintiff. TJB" Page 34 of the Legal File. It is clear that the Plaintiff appeared for deposition before 10:30 AM on the 21st day of May 2002, pursuant to the transcript made on the 19th day of June 2002 before the trial court. The court issued no order compelling Plaintiff/Appellant to answer any question at deposition, but instead took the drastic action of default judgment to dismiss the Petition for Declaratory Judgment Arising out of Chapter 610, striking Plaintiff/Appellant pleadings and accessing cost to the Plaintiff/Appellant. The Defendant/Respondent never made a showing of prejudice. The Judgment of June 19, 2002 offers no substantial evidence to support that Plaintiff did not appear for deposition and did violate the Missouri Supreme Court Rule 61. The Judgment of June 19, 2002 is an abuse of discretion and does not serve the interest of justice.

  3. The Judgment is Against the Weight of The Evidence

    The trial court erred in ordering on June 19, 2002, "Defendant's Motion for Continuance and Defendant's Motion for Sanctions taken up; Evidence adduced; Defendant's Motion for Sanctions, sustained; Plaintiff's pleadings are hereby stricken; Judgment of Dismissal is entered; Costs of this proceeding, including costs associated with attempted deposition on May 21, 2002, taxed to Plaintiff. TJB" Page 34 of the Legal File. Plaintiff/Appellant had a duty to bring objections to the court reporter at the earliest possible time preferably prior to deposition Mo.S.Ct. Rule 57.07 c 2. The Oath of Office is very simple in that it prescribes that the court reporter abide by the constitution of the State of Missouri the Constitution of the United States and know the governing Chapters of the Revised Statutes of the State of Missouri. The statutes prescribe jurisdiction for a court reporter. The Court reporter was without jurisdiction. The Court Reporter should rightly disqualify upon realizing a disqualifying interest. It is not the fault of the Plaintiff/Appellant that the Court Reporter refused to take the deposition. The Defendant/Respondent did not have a certified Court Reporter ready to take Plaintiff/Appellant's deposition at 10:30 am on the 21st day of May 2002. The Trial Court did abuse it discretion in dismissing the declaratory action for attempting to frustrate a deposition when the court reporter disqualified. Any interpretation of Mo.S.Ct. Rule 57.07 c 2 allows for a party to determine the qualifications of one acting as a court reporter. It protects all parties and to allow a trial court to ignore the clear provisions of Mo.S.Ct. Rule 57.07 c 2 is an abuse of discretion which does defeat the interest of justice.

 

Argument

Standard of Review

The standard of review in this action is pursuant to Murphy v. Carron, 536 S.W.2d 30 with the following provision as applied by the Western District Court of Appeals in Young v. Safe-Ride Services, No. WD57178(Mo.App. W.D. 05/31/2000).

Young v. Safe-Ride Services, No. WD57178 (Mo.App. W.D. 05/31/2000)
STANDARD OF REVIEW
"Appellate review of a default judgment sustains the trial court's discretion unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Boatmen's First Nat'l Bank v. Krider, 844 S.W.2d 10 (Mo.App. 1992) citing Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). However, the discretion of a trial court to deny a motion to set aside a default judgment is subject to closer scrutiny on appeal than is the discretion of a trial court to grant a motion to set aside. Boatmen's, supra citing Gibson v. Elley, 778 S.W.2d 851, 853-54 (Mo.App. 1989). Therefore, an appellate court is much more likely to interfere with the trial court's decision when the motion to set aside the judgment has been denied. Id. citing Gibson, 778 S.W.2d at 854. This is because of the court's distaste for default judgments. Billingsley v. Ford Motor Co., 939 S.W.2d 493, 498 (Mo. App. 1997)."

As the Judgment Does not Correctly apply the Law

The trial court erred in ordering on June 19, 2002, "Defendant's Motion for Continuance and Defendant's Motion for Sanctions taken up; Evidence adduced; Defendant's Motion for Sanctions, sustained; Plaintiff's pleadings are hereby stricken; Judgment of Dismissal is entered; Costs of this proceeding, including costs associated with attempted deposition on May 21, 2002, taxed to Plaintiff. TJB" Page 34 of the Legal File, in that the Judgment does not correctly apply the law. In this action the Plaintiff/Appellant was bound by Mo. S.Ct. Rule 57.07 c 2. He was to ascertain any reason for disqualification of the court reporter at the earliest time, preferably before deposition. Plaintiff/Appellant did find a disqualifying interest in that the Court Reporter did not know her oath of Office. The Court Reporter disqualified as was appropriate. The ruling of the Trial Court on 19 June 2002 dismissing the Petition for Declaratory Judgment and striking the pleadings of the Plaintiff was not based in law, and it did not serve the interest of justice. The accessing of cost to the plaintiff is not based in the law as set down in Chapter 610 of the Revised Statutes of the State of Missouri in that cost is to be accessed to the public governmental body and not the plaintiff.

The Standard of review is provided by the Western District Court of Appeals in Young v. Safe-Ride Services, No. WD57178 (Mo.App. W.D. 05/31/2000)"Appellate review of a default judgment sustains the trial court's discretion unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Boatmen's First Nat'l Bank v. Krider, 844 S.W.2d 10 (Mo.App. 1992) citing Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). However, the discretion of a trial court to deny a motion to set aside a default judgment is subject to closer scrutiny on appeal than is the discretion of a trial court to grant a motion to set aside. Boatmen's, supra citing Gibson v. Elley, 778 S.W.2d 851, 853-54 (Mo.App. 1989). Therefore, an appellate court is much more likely to interfere with the trial court's decision when the motion to set aside the judgment has been denied. Id. citing Gibson, 778 S.W.2d at 854. This is because of the court's distaste for default judgments. Billingsley v. Ford Motor Co., 939 S.W.2d 493, 498 (Mo. App. 1997)."

The Order of Judge Brown on he 19th day June 2002 was issued after the testimony of the plaintiff and the Assistant Attorney General Earl Kraus. Judge Brown Ruled Plaintiff did frustrate the taking of Deposition. Plaintiff contends that he had to make all objections to the Officer of the Court, Court Reporter, prior to the taking of the of the Deposition. In fact in the Motion to Quash the Deposition submitted to the Court on on the 15th Day of April 2002, (page 81 of the legal file), said objection of the defendant to fully inform plaintiff of the court reporter name and Curriculum Vitae was brought before the court. Plaintiff made these requests pursuant to Missouri Supreme Court Rule:

  1. Plaintiff/Appellant contends he had not only the right to ask questions, but that if an attorney was in the same situation the attorney would be negligent if they did not ask questions. Curriculum vitae is provided so that all parties can be aware that the one presuming to do an action is qualified to do that action.
  2. 492.010 RSMo Officers and notary public authorized to administer oaths. Every court and judge, justice and clerk thereof, notaries public, certified court reporters and certified shorthand reporters, shall respectively have power to administer oaths and affirmations to witnesses and others concerning any thing or proceeding pending* before them, respectively, and to administer oaths and take affidavits and depositions within their respective jurisdictions, in all cases where oaths and affirmations are required by law to be taken.

(RSMo 1939 § 1884, A.L. 1988 S.B. 425)
Prior revisions: 1929 § 1720; 1919 § 5407; 1909 § 6351
*Word "depending" appears in original rolls, an apparent typographical error.

  • Ms. Sonntag is Commissioned in Christian County, page 27 of the Legal File, Deposition were scheduled to be held at 149 Park Central Square, Springfield Missouri, Greene County, page 33 of the Legal File. The proposed Court Reporter was without jurisdiction to exercise the authority of office provided in the RSMo. 492 or in Mo.S.Ct.Rule 57, without further qualification which has not been provided to the Plaintiff. If Counsel for Defendant/Respondent is knowingly concealing the lack of jurisdiction of the Court Reporter this concealment may be fraud upon the Court. The Court Reporter on the 21st day of May 2002 at about 10:00 am was not certified to make a digital recording of the deposition, page 32 of the legal file. The transcript of the proceeding, page 29 and 49 of the legal file, starts out with the witness objection. The sworn statement on page 32 of the legal file, states that the proceed was "then and there took down in stenotype ..." it is not possible to start a stenotype deposition with the objection of the Plaintiff. The shorthand machine, stenotype, would require the announcement of defendant counsel to call the deposition. Further the document of Ms. Sonntag, Court Reporter is self notarized. Ms. Sonntag may be a registered Professional Reporter, and Certified shorthand Reporter, but the certification for the equipment and location of the deposition to be held on the 21st day of May 2002 are not present or sworn to by the defendant court reporter. With out the proper certification, Missouri Supreme Court en banc February 28, 2001 effective January 1, 2002 Rule 14 , the defendant did not have a court reporter present. To allow a party in a litigation to call someone off the street to be a court reporter is to not meet the requirements of Missouri Supreme Court Rule 57.
  • RSMo 492.270. 1. Every person, judge or other officer of the state required to take the depositions or examination of witnesses, in pursuant of sections 492.080 to 492.400 or by virtue of any commission issuing out of any court of record in this or any other government, shall have power to issue subpoenas for witnesses to appear and testify, and to compel their attendance, in the same manner and under like penalties as any court of record of this state.

    When a party or counsel has a reasonable and justifiable concern that a Judge will be biased or unfair he has an obligation to move as promptly as possible to request that the Judge recuse herself so as to minimize any disruption or delay . . . . He cannot wait until he has received an adverse ruling and then move for disqualification. In deposition the Court Report is the "Officer of the Court".

    Plaintiff had a duty to challenge qualifications of the "officer of the Court" at the earliest possible time. Said Officer acts with the same authority as a "court of record." For the plaintiff to wait until he agreed and/or disagreed with the record created to determine his argument as to disqualification is to waive that argument. The court's denial of the continuance forced petitioner to argue his own cause. IN RE LITTLE, 404 U.S. 553 (1972) the Supreme Court of the United States said: "He was therefore clearly entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client's cause. In re McConnell, 370 U.S. 230 (1962)"

    As to Costs

  • RSMo 610.027 provides costs in action brought pursuant to Chapter 610 to be on the Public Governmental Body.
  • The Cost is taxed against the public governmental body whether they prevail or they lose.
    CITY SPRINGFIELD v. EVENTS PUBLISHING CO. 951 S.W.2d 366

    [59] In contrast, we must interpret the phrase "at the expense" in a section of the Sunshine Law that must be liberally construed. § 610.011.1; Bill, 935 S.W.2d at 666. The mandate that we liberally interpret the Sunshine Law to promote the policy of open government, MacLachlan v. McNary, 684 S.W.2d 534, 537[2] (Mo.App. 1984), significantly differs from the policy of strict construction identified in Prudential. For that reason, neither Mason nor Prudential is instructive in our analysis of what the legislature intended by the phrase "at the expense of" in § 610.027.5.
    [60] Construing the phrase "at the expense of the public governmental body" liberally, we conclude that the legislature meant that a public governmental body should pay the attorney fees of its opponent when such body brings a declaratory judgment pursuant to § 610.027.5. We note that a public body would bear any burden of expense for the two other options under § 610.027.5. Neither requesting an opinion of its own counsel nor requesting an opinion of the Attorney General is an adversary proceeding requiring the active participation of another party. A public governmental body would naturally pay for the expense of its own counsel to render an opinion regarding compliance with the Sunshine Law. A public governmental body would also bear the expenses required for its employees to prepare and apply for an opinion of the Attorney General. Since the public governmental body chooses what avenue to take under § 610.027.5, and must bear the expenses of the other two options, it follows that the public governmental body must bear all of the expenses of an action for declaratory judgment.
    [61] If this were not so, a public governmental body might choose the option under § 610.027.5 of bringing an action for declaratory judgment because that option would be cost prohibitive for the opposing party. The western district cogently expresses this Conclusion in Bill:
    [62] "Not requiring the public governmental body to bear Bill's expenses would open a means for public governmental bodies to thwart the public policy underlying the open meetings and records law. The agency would be free to 'test' the determination of anyone requesting its records by filing a lawsuit, putting that person in the dilemma of not defending his or her request in court or enduring the significant expense of doing so." The Courts of the State of Missouri seem to have made it so clear in Springfield v. Events Publishing to allow a public governmental agency to abuse the judicial process by forcing citizens of the state of Missouri to go to court to acquire the public records that the citizen needs to scrutinize the workings of government is to thwart the sunshine law. The auditor for the state has also found as such. Costs are to be accessed against the public governmental body. To ignore the clear meaning of the statutes is to abuse the courts discretion. To ignore the rules of court is to abuse the court's discretion.

    • The Judgment offers no substantial evidence to support it

    The trial court erred in ordering on June 19, 2002, "Defendant's Motion for Continuance and Defendant's Motion for Sanctions taken up; Evidence adduced; Defendant's Motion for Sanctions, sustained; Plaintiff's pleadings are hereby stricken; Judgment of Dismissal is entered; Costs of this proceeding, including costs associated with attempted deposition on May 21, 2002, taxed to Plaintiff. TJB" Page 34 of the Legal File. It is clear that the Plaintiff appeared for deposition before 10:30 AM on the 21st day of May 2002, pursuant to the transcript made on the 19th day of June 2002 before the trial court. The court issued no order compelling Plaintiff/Appellant to answer any question at deposition, but instead took the drastic action of default judgment to dismiss the Petition for Declaratory Judgment Arising out of Chapter 610, striking Plaintiff/Appellant pleadings and accessing cost to the Plaintiff/Appellant. The Defendant/Respondent never made a showing of prejudice. The Judgment of June 19, 2002 offers no substantial evidence to support that Plaintiff did not appear for deposition and did violate the Missouri Supreme Court Rule 61. The Judgment of June 19, 2002 is an abuse of discretion and does not serve the interest of justice.

    The Standard of review is provided by the Western District Court of Appeals in Young v. Safe-Ride Services, No. WD57178 (Mo.App. W.D. 05/31/2000)"Appellate review of a default judgment sustains the trial court's discretion unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Boatmen's First Nat'l Bank v. Krider, 844 S.W.2d 10 (Mo.App. 1992) citing Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). However, the discretion of a trial court to deny a motion to set aside a default judgment is subject to closer scrutiny on appeal than is the discretion of a trial court to grant a motion to set aside. Boatmen's, supra citing Gibson v. Elley, 778 S.W.2d 851, 853-54 (Mo.App. 1989). Therefore, an appellate court is much more likely to interfere with the trial court's decision when the motion to set aside the judgment has been denied. Id. citing Gibson, 778 S.W.2d at 854. This is because of the court's distaste for default judgments. Billingsley v. Ford Motor Co., 939 S.W.2d 493, 498 (Mo. App. 1997)."

    1. Sanctions such as the court has applied in the Judgment of June 19, 2002 are not founded. Yes, such sanctions pursuant to Mo.S.Ct. Rule 61.01 (f) may be applied, but only for failure to appear at deposition.

      61.01 (f) Failure to Attend Own Deposition. "If a party or an officer, director or managing agent of a party or a person designated under Rules 57.03(b)(4) and 57.04(a), to testify on behalf of a party, fails to appear before the officer who is to take his deposition, after being served with notice, the court may, upon motion and reasonable notice to the other parties and all persons affected thereby, make such orders in regard to the failure as are just and among others, it may take any action authorized under paragraphs (1), (2), (3) and (4) of subdivision (d) of this Rule."

    2. Federal Rules of Civil Procedure Rule 37(b)(1) "Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court."

      The Federal rule is able to further the need for a Judicial "Order" before proceeding to the extreme sanction that has been imposed upon the plaintiff in the Judgment of 19 June, 2002.

    3. Sanctions for failure to answer pursuant to Mo.S.Ct.Rule 61.01 (g) requires the judge to be given the chance to issue an "Order" commanding answer.

      61.01 (g) Failure to Answer Questions on Deposition. "If a witness fails or refuses to testify in response to questions propounded on deposition, the proponent of the question may move for an order compelling an answer. The proponent of the question may complete or adjourn the deposition examination before applying for an order. In ruling upon the motion, the court may make such protective order as it would have been empowered to make on a motion pursuant to Rule 56.01(c).
      If the motion is granted, the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
      If the motion is denied, the court, after opportunity for hearing, shall require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
      If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
      If the motion is granted and if the persons ordered to respond fail to comply with the court's order, the court, upon motion and reasonable notice to the other parties and all persons affected thereby, may make such orders in regard to the failure as are just, and among others, it may take any action authorized under Rule 61.01(d)."

    4. There was no prejudice presented to the court on the 19th day of June 2002. No prejudice was presented in the the pleading for Sanction brought by the Defendant/Respondent.
      "Although the trial court has authority to impose sanctions on a party for failure to engage in discovery, before the court can impose sanctions, it must determine that the opposing party is prejudiced by the errant party's non-compliance with discovery requirements." State ex rel. Missouri Highway and Transp. Comm'n v. Pully, 737 S.W.2d 241, 245 (Mo. App. W.D. 1987).

      In the action before the court Defendant/Respondent produced witness, and questioned witness failing to establish any prejudice upon the Defendant/Respondent. The Defendant/Respondent did produce pleading Motion for Sanctions and Supporting Suggestions in which plaintiff can find no statement of prejudice.

    5. PAMELA SIMPSON, BY ANITA SIMPSON, NEXT FRIEND, RESPONDENT, v. REVCO DRUG CENTERS OF MISSOURI, INC., APPELLANT. 702 S.W.2d 482
      In the first place, sanctions under Rule 61.01 are authorized only upon motion and after notice to the party affected. Both the conduct which is to trigger the sanctions and the sanctions themselves are to be spelled out with specificity in order that the party against whom the order is to be entered will be apprised of the consequences of non-compliance. Hammons v. Hammons, 680 S.W.2d 409, 411 (Mo. App. 1984),
    6. IN RE THE MARRIAGE OF: SALLY A. GIESLER, PLAINTIFF-RESPONDENT, v. DONALD L. GIESLER, DEFENDANT-APPELLANT, 731 S.W.2d 33
      [31] Rule 61.01 governing sanctions for failure to make discovery provides that an order may be entered to strike pleadings and render judgment by default against a party who fails to obey an order to answer interrogatories.

      At no time did the trial court issue an order commanding appearance or stating that Plaintiff/Appellant's action would be dismissed if the court reporter for deposition disqualified. At no time did the Plaintiff/Appellant fail to obey an Order of the trial court.

    In this action the Plaintiff did appear for deposition. The Plaintiff did attempt to acquire the information that was denied him in the Notice of Deposition in order to lay the grounds for Objection. The Plaintiff did ask the Court Reporter if she knew her Oath of Office to which the Court Reporter made a negative response. The Oath for a notary requires the adherence to the Constitutions of the State and to the Constitution to the United States as well as knowledge of the governing Chapters in the Revised Statutes of the State of Missouri. It is not long, and it is not complicated. The negative response by the Court Reporter to the plaintiff's question, "do you know your oath" is grounds for objection. Having made that objection the Court Reporter has the right to disqualify herself and that is what she did. It is not a fault or frustration on the part of the Appellant/Plaintiff. The Defendant/Respondent failed to show any prejudice upon their case. The trial court failedc to make any order commanding any discovery in this case except the dismisal, striking of pleadings, and acessing of cost in sanctions for discovery. The trial court did abuse its dicretion in not ordering party to participate in discovery.

    The Judgment is Against the Weight of The Evidence

    The trial court erred in ordering on June 19, 2002, "Defendant's Motion for Continuance and Defendant's Motion for Sanctions taken up; Evidence adduced; Defendant's Motion for Sanctions, sustained; Plaintiff's pleadings are hereby stricken; Judgment of Dismissal is entered; Costs of this proceeding, including costs associated with attempted deposition on May 21, 2002, taxed to Plaintiff. TJB" Page 34 of the Legal File. Plaintiff/Appellant had a duty to bring objections to the court reporter at the earliest possible time preferably prior to deposition Mo.S.Ct. Rule 57.07 c 2. The Oath of Office is very simple in that it prescribes that the court reporter abide by the constitution of the State of Missouri the Constitution of the United States and know the governing Chapters of the Revised Statutes of the State of Missouri. The statutes prescribe jurisdiction for a court reporter. The Court reporter was without jurisdiction. The Court Reporter should rightly disqualify upon realizing a disqualifying interest. It is not the fault of the Plaintiff/Appellant that the Court Reporter refused to take the deposition. The Defendant/Respondent did not have a certified Court Reporter ready to take Plaintiff/Appellant's deposition at 10:30 am on the 21st day of May 2002. The Trial Court did abuse it discretion in dismissing the declaratory action for attempting to frustrate a deposition when the court reporter disqualified. Any interpretation of Mo.S.Ct. Rule 57.07 c 2 allows for a party to determine the qualifications of one acting as a court reporter. It protects all parties and to allow a trial court to ignore the clear provisions of Mo.S.Ct. Rule 57.07 c 2 is an abuse of discretion which does defeat the interest of justice.

    The Standard of review is provided by the Western District Court of Appeals in Young v. Safe-Ride Services, No. WD57178 (Mo.App. W.D. 05/31/2000)"Appellate review of a default judgment sustains the trial court's discretion unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Boatmen's First Nat'l Bank v. Krider, 844 S.W.2d 10 (Mo.App. 1992) citing Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). However, the discretion of a trial court to deny a motion to set aside a default judgment is subject to closer scrutiny on appeal than is the discretion of a trial court to grant a motion to set aside. Boatmen's, supra citing Gibson v. Elley, 778 S.W.2d 851, 853-54 (Mo.App. 1989). Therefore, an appellate court is much more likely to interfere with the trial court's decision when the motion to set aside the judgment has been denied. Id. citing Gibson, 778 S.W.2d at 854. This is because of the court's distaste for default judgments. Billingsley v. Ford Motor Co., 939 S.W.2d 493, 498 (Mo. App. 1997)."

    1. The Judgment of the Court in dismissing all pleadings in the face of prior inconsistent statements on the part of Defendant/Respondent counsel and Defendant/Respondent witness is against the weight of the evidence. Mr. Halcomb's rebuttal question to Mr. Kraus concerning "how many times did we try to swear Mr. Martin?" To which Mr. Kraus replied "4 or 5", (page 44 line 20 of the transcript), is and was a fabrication under oath and knowingly done. It was malicious and capricious and the Court had an obligation in the interest of justice to make a ruling favorable to the plaintiff on this alone.
    2. Plaintiff, Defendant/Respondent's witness, and Ms. Sonntag by and through exhibits #1, page 27 of the Legal File, and #2, page 28 of the Legal File, presented to the court state plaintiff was present for deposition. The presence of the plaintiff at the prescribed location at the prescribed time in and of it self eliminates sanctions pursuant to Mo.S.Ct. Rule 61.01(f).
    3. Deposition was canceled at 10:20 am. A full 10 minutes before deposition was scheduled, exhibit #2 (page 31 line 21 of the Legal File).
    4. Plaintiff was under NO obligation to answer any question presented to him by the counsel for the Defendant/Respondent until 10:30 am per the notice of deposition, (page 33 of the Legal File).
    5. Plaintiff's right to freedom of speech as guaranteed by the First Amendment of the United States Constitution and Art. I Section 8 of the Missouri Constitution allowed for conversation with the court reporter. Further, at no time and no evidence or testimony has been offered that said conversation with the Court Reporter rose to the level of "fighting words", Chaplinsky v New Hampshire 315 U.S. 568 (1942), as was characterized by Ms. Sonntag herself as being small talk, (page 27 of the Legal File).
    6. Plaintiff's question to the Court Reporter "can you tell me what your oath says?" Is not rude.
      Black's Law Dictionary 6th edition page 1331 defines Rudeness: Roughness; incivility; violence. Touching another with rudeness may constitute a battery.
      The testimony before the court on the 19th day of June 2002 never produced any comment made by plaintiff that on the 21st day of May 2002 of roughness, incivility, or violence.
    7. The Court Reporter's response to Plaintiff's question "I don't know, that was a long time ago I forgot it." does bring into question the qualifications of the Court Reporter, (page 27 of the Legal File). RSMo 486.235 prescribes an oath for the officer of the court. RSMo 491.010, RSMo 491.270 prescribes that upon the oath of 485.235 RSMo the notary may act as an officer of the court with the same authority as a "court of record". The utterance speaks for itself, and objections to, and motions to disqualify are to be made "at the earliest time, Mo.S.Ct. Rule 57.07(d)(2), Federal Rule of Civil Procedure 32(d)(2).
    8. The Court Reporter's self notarized affidavit, (page 27 of the Legal File), in direct violation RSMo 486.255, as well as the oath of office that she was to have swore to maintained at RSMo 486.235, shows the court reporter's qualifications were justly questioned.
    9. The Court Reporter's emotional outbreak was not because of the plaintiff being rude, or abusive, but on the fact that she knew she had a disqualifying interest. That said disqualifying interest did bring into issue her office. When the action of a officer of the court rises to the level as to jeopardize their job it then becomes a fiduciary interest. Any officer of the Court that has a fiduciary interest is disqualified from the proceedings, Mo.S.Ct. Rule 57.05(d) and Federal Rule of Civil Procedure 28(c).
    10. The Court Reporter correctly disqualified herself, Mo.S.Ct. Rule 57.05(d) and Federal Rule of Civil Procedure 28(c).
    11. The Court Reporter's disqualification in no way was due to unethical or bad acts by the plaintiff.
    12. At no time during testimony on June 19, 2002 did any witness testify as to the rude words, referring only to the questioning if the Court Reporter knew her Oath as "rude and abusive".
    13. The requisite "contumacious activity" as required to bring about a dismissal and the striking of Pleadings were never shown or proven. Allegations of a Mr. Kraus that in 5 minutes plaintiff showed contempt for the judicial process is baseless. For there to be contumacious activity on the part of Plaintiff on the 21st day of May 2002 his response at the very least would have had to be made on or after 10:30 am as set by the Notice of Deposition, (page 33 of the Legal File). According to (page 31 of the Legal File line 21) the deposition was canceled at 10:20 am. at Mr. Halcomb's request.
    14. Federal Rule of Civil Procedure 30(b)(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes (A) the officer's name and business address; (B) the date, time and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters, (page 28 of the Legal File) at no time provides for the protections and manner of deposing a party. The expert witness, Mr. Kraus, testified that in his depositions, "Well, normally we immediately go on the record and the witness is sworn in, and then I begin questioning the witness."(page 29 line 15 of the transcript) would tend to show either Mr. Kraus does not do Federal Cases, or that he was deliberately misleading the Court under Oath.

    The Court Reporter did not know her oath. The Court Reporter was not certified in Greene County, the place of deposition. The Court Reporter misrepresented the manner of transcription. The court Reporter notorazied her own affidavit. The Rules were not followed as to deposition. The Attorney for defendant demanded that the constitutional rights of the plaintiff be denied in their presence, but a party to the litigation had as much right to protect the veracity of the record as the party had to call the deposition. The actions that were sworn to the trial court was against the weight of the evidence to dismiss the pleading of the plaintiff/appellant.

    Conclusions and Prayer for Relief

    Wherefore, the Plaintiff/Appellant having shown good cause that the trial court has abused its discretion by dismissing the declaratory action by issuing a default judgment pursuant to discovery rules. That the Plaintiff/Appellant was present at the proper time and place. That the Plaintiff/Appellant did attempt to determine a disqualifying interest on the part of the court reporter. That no contumacious disregard of the trial court authority was shown or proven on he part of the Plaintiff/Appellant. That Plaintiff/Appellant that costs are to be accessed to the state agency in an action brought pursuant to 610.027 RSMo. That Defendant/Respondent never made a showing of prejudice. The Plaintiff/Appellant asks that the review court remand the action for determination on the merits of the action, and the Plaintiff preys the Court find:
    1. Plaintiff was present on the 21st day of May 2002 at the proper time and did not fail to attend the noticed deposition.

    2. Plaintiff was under no duty to be sworn until 10:30 am on the 21st day of May 2002.

    3. Deposition was dismissed by the counsel for the Defendant/Respondent st 10:20 am the 21st day of May 2002.

    4. Court Reporter was required by Mo.S.Ct. Rule 57.05(d) to disqualify for interest if the Court Reporter recognized a financial interest in the action.

    5. Pursuant to Mo.S.Ct. Rule 57.07(d)(2) Plaintiff as deponent was required to make objections and motions to disqualify at the earliest possible time, preferably before the start of deposition.

    6. The provisions of Mo.S.Ct. Rule 61.01(f) are not applicable in the present action in that plaintiff was present for deposition.

    7. That the Provisions of Mo.S.Ct. Rule 61.01(g) govern the problems asserted by Defendant/Respondent.

    8. That Defendant/Respondent at no time took to avail themselves of the provisions of Mo.S.Ct. Rule 61.01(g) on the Morning of the 21st day of May 2002.

    9. That Ms. Sonntag's self notarized affidavit is in direct violation of RSMo 486.255.

    10. That Ms. Sonntag's Commission is for the County of Christian, State of Missouri.

    11. That the Deposition was scheduled for the County of Greene, State of Missouri.

    12. That Ms. Sonntag lacked jurisdiction to be the officer of the court in the County of Greene, State of Missouri on the 21st day of May 2002.

    13. That the Defendant/Respondent has shown no prejudice because of the disqualification of the Court Reporter.

    14. The plaintiff/appellant has provided good cause to set aside the Judgment of June 19, 2002 as the Judgment is against the weight of the evidence.
    15. The Court did not correctly apply the provisions of 57.07(d)(2) of the Mo.S.Ct. Rules in that plaintiff/appellant was bound to make the objections to the Officer of the Court at the earliest possible time including prior to deposition.
    16. That the Court misapplied the clear provisions of Mo.S.Ct. Rule 61.01(f) that sanctions pursuant to this rule is upon "failure to attend deposition".
    17. That prejudice upon the Defendant/Respondent must be shown.
    18. That cost are do the plaintiff/appellant no matter the outcome of the action, and that the Defendant/Respondent is not entitled to cost from the plaintiff/appellant, pursuant to RSMo 610.027.5.
    19. The legal authorities cited show that the extreme remedy brought about by the Court in the Judgment of June 19, 2002 is an abuse of discretion as "it is clearly against the logic of the circumstance before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration."
    20. That in the interest of Justice the action should be reinstated and trial set at the earliest possible date.


    Respectfully Submitted

    Lee Allen Martin
    7050 County Road 2810
    West Plains
    Missouri 65775

    CERTIFICATE OF SERVICE


    I hereby certify this pleading was served upon all attorneys of record for each of the parties to this action and All parties not represented by counsel in the following manner:
    [ ] By delivering a copy to them.
    [ ] By leaving a copy at their office with the clerk.
    [ ] By leaving a copy at them office with an attorney associated with them.
    [ ] By mailing a copy to them as prescribed by law.
    [ ] By faxing a copy to them.
    ______________day of __________________, ______

    So certified: _____________________________

    Lee Allen Martin