Lee Allen Martin Plaintiff, VS. DEPARTMENT OF REVENUE, et al., Defendants.

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CASE #01CV324209

Suggestion in Opposition to Defendant Motion For Sanctions and Supporting Suggestions

Comes now the Plaintiff, Lee Allen Martin, and does offer the following Suggestion in Opposition to the Defendants Motion for Sanctions:

1. Plaintiff did appear at 147 Park Central Square, Springfield Mo. on May 21, 2002 on or about 10:00 am.
   
2. Plaintiff did have a conversation with the presumed Court Reporter one Debbi J. Sonntag. In that conversation plaintiff asked the presumed Court Reporter if she could tell the plaintiff "what her Oath of office said?"
   Ms. Sonntag replied: "I forgot that a long time ago. I have been a court reporter for 3 years."
   
3. Plaintiff did object on the record, page 3 line 2 of the transcript marked defendant's exhibit #2.
   
4. For Defendant to characterize Plaintiff's questions as a challenge to Ms. Sonntag's oath or ethics is baseless. Plaintiff asked a simple question as to Ms. Sonntag's knowledge of her oath. Here Reply was HER Reply. Defendant's Exhibit #1 states "I didn't know that was three years ago." Plaintiff did not answer the question for Ms. Sonntag. Ms. Sonntag is responsible for her own utterances.
   
5. Plaintiff at no time refused to be sworn, defendant's exhibit #2.
   
6. Defendant Counsel Halcomb was negligent in failing to note:
   1. who were present for the deposition,
   2. what manner and equipment would be used in the deposition,
   3. who the court reporter was,
   4. what case # that the deposition was being called for,
   5. the date
   6. or the time.
   
   defendant's exhibit #2.
7. Counselor Halcomb insisted on mischaracterizing my conversation with Ms. Sonntag as something more abusive than "small-talk", defendant's exhibit #1.
   
8. Ms Sonntag did take to affix her Notary Seal to her own signature, defendant's exhibit #1, in violation of RSMo 486.255. Showing that Ms. Sonntag is also unaware of the responsibility placed upon he by RSMo. 486.235.3
   
9. Plaintiff at no time refused to be sworn, defendant's exhibit #2.
   
10. Plaintiff at all times was polite and cordial, defendant's exhibit #2 page 4 line 16.
    
11. Plaintiff at no time was abusive, rude or less than polite and cordial and the record of the proceeding at no place reflects anything to the contrary.
    
12. Defendant Counsel dismissed the deposition, not the plaintiff. Defendant Counsel Kraus went so far as to offer to escort plaintiff out of the building saying You do not work here and you need to leave.
    
13. Ms. Sonntag's refusal to participate in the deposition was a disqualification on her part. Ms. Sonntag was well within her rights to disqualify upon seeing a conflict of interest.
    
14. Ms. Sonntag stated that she was from Ozark Missouri, Christian County the jurisdiction of her Commission, defendant's exhibit #1 and #2, but she now lives in Springfield. Ms. Sonntag's Commission pursuant to RSMo 486.315 is predicated upon living in the county of the commission.
    
15. Ms. Sonntag's Commission is also predicated on being a registered voter in the county of her residence, RSMo 486.220.
    
16. Ms. Sonntag admits that she refused to do the deposition, defendant exhibit #1, Not the plaintiff.
    
17. A court reporter must be able to disqualify themselves at anytime to protect the interest of justice. For a officer of the court to disqualify is not grounds for sanctions upon opposing party.
    

Conclusions

Plaintiff at no time refused to be sworn or to answer any question put to him on the 21st day May 2002. Defendant at no time has shown plaintiff did refuse to be sworn. The only thing the exhibits for the defendant tends to show is that plaintiff was trying to establish the curriculum vitae of the Court Reporter, The Parties Present, and the equipment and manner the deposition was to be taken. Defendant Counsel Halcomb's cries to "swear the witness", defendant's exhibit #2 line 9 page 3, was premature and very un-professional. The absence of the address of Ms. Sonntag brings into question the jurisdiction of the proceeding and whether Ms. Sonntag could function in the capacity for which she was called. Plaintiff has every right to make objections for disqualification of the deposing officer at the earliest possible time. By trying to protect the constitutional rights afforded the plaintiff in the action does not rise to the level of failing to be deposed, or answer questions, or swear an oath.

Defendant relies on Court case Edison ex rel. Webster v. Edison,7 S.W.3d 495(Mo.App.W.D. 1999) the court determined that the party denied discovery must show that they were prejudiced. Defendant also relies on Kohn by Curtis v. Kohn 672 S.W.2d 174 (Mo App.E.D. 1984) which is a family law case where the party failed to appear for deposition, and then the court took to remand to determine if the sanctions were justified in light of the court's failure to allow the offending party to show good cause for not being present. In the case at hand plaintiff did appear. Plaintiff never refused to be sworn. Plaintiff even waited while defendant counsel sought to search for another Court Reporter. Plaintiff did not leave the location until Mr. Kraus asked Plaintiff to leave, and volunteered to escort Plaintiff out of a public building.

Prayer for Relief

Wherefore, defendant's allegations are baseless. That the Court Reporter has not only the right to disqualify but an obligation to disqualify upon a finding of a conflict of interest. That Plaintiff was present at the proper location and the proper time. That Plaintiff even waited to see if defendant could provide substitute court reporter. That Plaintiff never called off the deposition, or in any way refused to be sworn. Plaintiff at no time refused to answer any question presented to him by counsel for the defendant. Plaintiff did everything possible to participate in deposition. Plaintiff therefore asks that the Honorable Court deny Sanction as requested by defendant. Further Plaintiff asks the Honorable Court to note the false representations made in Defendant Motion for Sanctions and Supporting Suggestions.

1. Plaintiff was Rude and Abusive.
   
2. Plaintiff refused to be sworn.
   
3. Plaintiff made the Court Reporter Cry.
   
4. Plaintiff refused to cooperate.
   

Plaintiff asks that sanction, pursuant to Missouri Supreme Court Rule 55.03, upon defendant counsel in the amount of 500.00 dollars be granted to the plaintiff for the time to participate in deposition that did not take place and the time to defend against baseless allegations not supported by the record. Plaintiff asks that the court take all such measures against the defendant and the defendant counsel that is allowed by law.

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