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

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CASE #01CV324209

Motion to Set Aside Default Judgment Of June 19, 2002

Comes now the Plaintiff, Lee Allen Martin, pursuant to Missouri Supreme Court Rule 75.01 and for good cause asks the Court to Set aside the Judgment of June 19, 2002 as it does error in not correctly apply the law, that it does misapply the law, and that it was rendered against the weight of the evidence.

Legal Argument

1. It is well established Judgments by default are not favored. 49 C.J.S. Judgments § 187, p. 326, n. 24 (1947). "The entry of a default judgment against a party litigant is a harsh and drastic action." 47 Am. Jur. 2d Judgments § 1154, p. 185 (1969).

2. In Kollmeyer v. Willis, 408 S.W.2d 370 (Mo.App. 1966), this court reviewed the propriety of an order of the trial court setting aside a default judgment, the order having been entered less than 30 days after entry of the judgment. The following general principles were stated: The setting aside of a default judgment is a matter resting largely in the discretion of the trial Judge. It is not a mental discretion to be exercised ex gratia, but a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve, and not impede or defeat the ends of substantial Justice. Kollmeyer, supra, 408 S.W.2d at 380 [12]. The principle that each case must be ruled upon its own particular facts is especially applicable to an inquiry as to whether a trial court has been guilty of an abuse of discretion in setting aside or in refusing to set aside a default judgment. Kollmeyer, supra, 408 S.W.2d 16 380 [13]. An appellate court is less likely to interfere when the trial court has set aside a default judgment than when it has not. This is for the reason that when the judgment is set aside, the case is reopened and Justice will yet be done on the merits and is in keeping with and in furtherance of the policy of the law to try and determine cases on their merits when that will not result in harmful delay. Kollmeyer, supra, 408 S.W.2d at 380 [14]. The trial court has, during the period of 30 days after entry of judgment, the same inherent power to vacate a judgment "for good cause" as, under prior practice, it did during the judgment term. Kollmeyer, supra, 408 S.W.2d at 381 [15].

3. In Vaughn v. Ripley, 416 S.W.2d 226 (Mo.App. 1967), referring to the "good cause" language of Rule 75.01, V.A.M.R., the court said at page 228: 'Error implies fault. 'Good cause' for remedying it begins with that premise and concerns itself only with whether the fault should be excused or extenuated in the interests of Justice. The term 'good cause', as used in this connection, is not susceptible of precise definition, but it was obviously coined to serve a remedial purpose in a matter addressed primarily to the conscience of the court and it should therefore be interpreted with commensurate liberality, not only to prevent a manifest inJustice but to avoid a threatened one, especially in cases tried without a jury where evidence on one side only is presented."

4. Rule 61.01(b) and (d) empower a court to strike pleadings and dismiss a case with prejudice against a party who fails to obey a discovery order. Further, "a trial court is vested with wide discretion to administer the rules of discovery." Bethell v. Porter, 595 S.W.2d 369, 377 (Mo. App. 1980). We recognize that a dismissal with prejudice is ". . . a drastic punishment and is most aptly invoked where the party has shown a contumacious and deliberate disregard for the authority of the court." In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo. App. 1977).

5. The trial court abuses its discretion when its ruling "is clearly against the logic of the circumstance then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Redfield, 42 S.W.3d at 711

6. Although the trial court is empowered with such broad discretion, such discretion is not removed from appellate review. This latter provision becomes particularly applicable where in those cases judgment by default is entered against a party for failure to adhere to an order for discovery, see In re Marriage of Dickey, 553 S.W.2d 538 (Mo.App. 1977). Judgments by default have long been recognized as harsh and drastic actions and there is wide observance that " by default are not favored", see Lambert Brothers, Inc. v. Tri City Construction Co., 514 S.W.2d 838, 841 (Mo.App. 1974) and 47 Am.Jur.2d Judgments § 1154, p. 185 (1969). Where such a judgment is rendered, one court has observed the function of review as follows: " principle . . . that each case must rest and be ruled upon its own particular facts is especially applicable in an inquiry as to whether a trial court has been guilty of an abuse of discretion in setting aside, or refusing to set aside a default judgment," Kollmeyer v. Willis, 408 S.W.2d 370, 380 (Mo.App. 1966).

7. 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).
   

As the Judgment Does not Correctly apply the Law

Mo.S.Ct.Rule 57.07(d)(2) States: "(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence."


Mo.S.Ct. Rule 57.07(d)(2)is not alone. Federal Rule of Civil Procedure 32(d)(2) states: "(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence."


Plaintiff 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.


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, exhibit #1, Deposition were scheduled to be held at 149 Park Central Square, Springfield Missouri, Greene County, exhibit #3. The proposed Court Reporter is 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 this court or to the Plaintiff. If Counsel for Defendant is knowingly concealing the lack of jurisdiction of the Court Reporter this concealment may be fraud upon the Court.


RSMo 492.270. 1. Every person, judge or other officer of the state required to take the depositions or examination of witnesses, in pursuance 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 weather 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."

As the Judgment Misapplies the Law

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."


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.


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)."


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.
"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 produced witness, and questioned witness failing to establish any prejudice upon the defendant. The defendant did produce pleading Motion for Sanctions and Supporting Suggestions which plaintiff can find no statement of prejudice.