PEOPLE'S LEGAL FRONT

IN THE 37^TH JUDICIAL DISTRICT OF THE STATE OF MISSOURI

HOWELL COUNTY

Lee Allen Martin, Petitioner                                           ;        )

                                           &nb sp;                                                  )

            Vs                                           & nbsp;                                )         Case No: CV398-699CC

                                           &nb sp;                                                   )

Director of Revenue,                                          & nbsp;                  )

State of Missouri, Respondent                                           ;    )

 

REQUEST FOR LEAVE TO FILE SECOND AMMENDED PETITION FOR TRIAL DE NOVO FROM ADMINISTRATIVE ACTION AND OBJECTION TO UNTIMELY HEARING AND RULING UPON OF RESPONDENT’S DEFECTIVE MOTION TO DISMISS

        COMES NOW Petitioner, Lee Allen Martin and requests pursuant to Supreme Court Rule 67.06 leave to file a Second Amended Petition for Trial De Novo from Administrative Hearing. Petitioner again objects to the untimely hearing and objects to the ruling upon of Respondent’s defective Motion to Dismiss Petitioner’s First Amended Petition for Trial De Novo from Administrative Action. In support of his request and his objection, Petitioner alleges the following:

1. Respondent’s Motion to Dismiss contains certification of service of process which states that said motion was mailed postage-paid to Petitioner , Lee Allen Martin, 7050 CR 2810 West Plains, MO 65775 on December 21, 1998.
2. Said certified service of Respondent’s Motion to Dismiss was received through the mail, postage-paid at Petitioner’s residence located at 7050 CR 2810 West Plains, MO 65775 on December 22, 1998.
3. Respondent’s Motion to Dismiss contained no notice of hearing.
4. Respondent’s Motion to Dismiss contained no request to shorten time.
5. At hearing set by this Court, to hear other matters of law on this case, on December 21, 1998, no stipulation to shorten time was advanced nor accepted by the parties.
6. There was no cause shown that the Respondent’s Motion to Dismiss should be heard ex parte or any evidence of application thereto.
7. The motion was not supported by affidavit or, if it was, Petitioner was not served a copy of any such affidavit with the Respondent’s Motion to Dismiss nor any application to hear the motion ex parte.
8. Supreme Court Rule 44.01(d) states in relevant part: " A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by law or court rule or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by an affidavit, the affidavit shall be served with the motion; and, except as otherwise provided by law or rule in connection with a motion for a new trial, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time."
9. Supreme Court Rule 44.01 (e) further states, "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served by mail, three days shall be added to the prescribed period."
10. Supreme Court Rule 100.01 provides that sections 536.100 through 536.150 RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies unless the statute governing a particular agency contains different provisions for such review. In the Trial De Novo case of driver’s license revocations the controlling statute is 302.311.
11. RSMo 536.085 (1) the following terms mean: "Agency proceeding", an adversary proceeding in a contested case pursuant to this chapter in which the state is represented by counsel, but does not include proceedings for determining the eligibility or entitlement of an individual to a monetary benefit or its equivalent, child custody proceedings, eminent domain proceedings, driver's license proceedings, vehicle registration proceedings, proceedings to establish or fix a rate, or proceedings before the state tax commission."
12. STATE OF MISSOURI EX REL. SHERWOOD GRAVES AND MARY GRAVES, RELATORS, v THE HONORABLE ROBERT H. HOUSE, JUDGE OF THE 44TH JUDICIAL CIRCUIT OF MISSOURI, RESPONDENT 649 S.W.2d 498: "The holding, in effect, was that a dismissal pursuant to Rule 67.06, which is the type of dismissal sought by the Graves' here, requires four steps: (a) The sustention (sic) of a motion to dismiss, coupled with the granting of leave to amend and the specification of a deadline for amending; (b) the failure to file timely an amended pleading; (c) the filing of the motion mentioned in the second sentence of Rule 67.06; (d) the entry of final judgment of dismissal with prejudice (except in cases of excusable neglect)."
13. RSMo 536.110 (3) which Respondent relies upon in Respondent’s Motion to Dismiss gives the option of venue to the Plaintiff as "either the circuit court of Cole County or in the county of the plaintiff or of one of the plaintiff’s residence."
14. RSMo 302.353 states in relevant part that jurisdiction resides in the county of arrest.

        WHEREAS Respondent’s Motion to Dismiss was improperly served and improperly and untimely taken up on December 21, 1998, and whereas, Respondent incorrectly alleges this court’s lack of jurisdiction due to reliance on an inapplicable statute, whereas this Honorable Court did sustain Respondent’s Motion to Dismiss, and whereas, this Honorable Court failed to grant leave to amend or specify a deadline for amending, and whereas, the Petitioner’s right to redress of grievance from this Administrative Action has been effectively denied by this dismissal action of this Court, Petitioner prays this honorable court take notice of Petitioner’s objection to Respondent’s Motion for Dismissal of Petition, and further, to grant Petitioner leave to timely file a Second Amended Petition pursuant to Supreme Court Rule 67.06 for a full and proper hearing of his case.
                                         Respectfully submitted,

_________________________

Lee Allen Martin, Petitioner

Resident 7050 CR 2810, West Plains,

Howell County, Missouri 65775

CERTIFICATE OF SERVICE

        I, Lee Allen Martin, hereby certify that a true and correct copy of the foregoing motion was faxed and mailed to Rizwan Ahad, Assistant Prosecuting Attorney, Howell County, Missouri as the representative for the Director of Revenue, State of Missouri at fax number 417- 256-6756 and mailed to the Howell County Courthouse, Prosecuting Attorney’s Office, West Plains, Missouri 65774 on the 28^th day of December 1998.
 

So certified:_________________________
 

  Lee Allen Martin

                      7050 CR 2810

                      West Plains, MO 65775

NOTICE OF HEARING

        This motion will be called before the court for hearing on January 11, 1998 at 1 p.m. or as soon thereafter as petitioner may be heard.

                                         __________________________
                                            ; Lee Allen Martin
                                            ; 7050 CR 2810
                                            ; West Plains, MO 65775

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