PEOPLE'S LEGAL FRONT

IN THE 37^TH JUDICIAL CIRCUIT OF

THE STATE OF MISSOURI, HOWELL COUNTY

Lee Allen Martin, Plaintiff                                                       )

                            Pro se                                           & nbsp;           )

                    V                                           &n bsp;                          ) case #CV398-699CC

Director of Revenue, Defendant                                              )

State of Missouri                                          & nbsp;                        )

Michael P. Hutchings, Attorney                                          & nbsp;   )

SUGGESTIONS IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

        COMES NOW the plaintiff, Lee Allen Martin, and does present the following points to refute the defendants MOTION TO DISMISS. Plaintiff will admit that the points 1 through to 4 are correct with the following reservation.

1) On the 5^th day of October 1998, this Honorable Court did dismiss the Plaintiff’s petition for failure to state a cause of action and allowed Petitioner fifteen days to file amended petition. The argument by the defense was that the original petition failed to list the Director of Revenue as a defendant. This ruling by the Honorable Court was contradictory to Jackson v. Director of Revenue 893 S.W. 2d 831, where the Supreme Court of Missouri ruled in paragraph 16

"Although it is the better practice to name the Director in the caption, the technical failure to do so does not necessarily deprive the circuit court of subject matter jurisdiction. Subject matter jurisdiction is merely the court’s power to hear and determine the matter involved in the case. The court’s power exists where the petitioner meets the requirements of the statute that provides for review of the driver’s license suspension or revocation. 302.311 RSMo 1994. Naming the Director in the caption of the petition is not required by statute, and we hold that the technical failure to do so does not deprive the court of subject matter jurisdiction if the petitioner files a timely petition for review that: 1) names either the Director of Revenue or Department of Revenue in the caption or names as an adverse party, seeks relief against, or in any other way treats as a party to the lawsuit the Director of Revenue or Department of Revenue in the body of the petition; and 2) makes obvious from the body of the petition that the suit seeks review of a driver’s license suspension or revocation." The plaintiff will admit that in order to appease the Honorable Court plaintiff did amend the original petition to conform to the discretion of the court. It was not incumbent on the plaintiff, but in order to obtain a hearing on the merits and not offend the court, the court’s request was followed.

2. On the 21^st day of December 1998 the Honorable Court dismissed Plaintiff’s First Amended Petition for lack of allegations of venue and jurisdiction, because the body of the amended petition failed to note that Plaintiff was a resident of Howell County. Plaintiff stated in open Court that he was a resident of Howell County and further requested the Honorable Court to take Notice of the address of plaintiff provided under the plaintiff’s signature. Plaintiff further, requested that the Honorable Court note the plaintiff’s address that was supplied by the Department of Revenue in the department’s final decision which was attached to the original petition.

        Whereas, the plaintiff did present a viable Petition for Trial De Novo on the 4^th day of September 1998, and the Honorable Court on the 5^th day of October 1998 did mistakenly dismiss said petition for failure to state a claim upon which relief can be granted, because Plaintiff’s petition failed to name the director of revenue in contradiction to Jackson v Director of Revene 893 S.W. 2^nd 831. Further, any subsequent arguments by the defense as to the residence of the Plaintiff not being provided in the body of the petition when the Plaintiff’s address is supplied beneath plaintiff’s signature has no grounds. The State of Missouri’s Department of Revenue’s final decision state’s plaintiff’s address as the same one provided by plaintiff in the petition. Whether the plaintiff proceeds on review pursuant to 302.311 or 536.110 RSMo subject matter jurisdiction lies in the 37^th Judicial Circuit of the State of Missouri, County of Howell, and technical difficulties such as failing to include the Director of Revenue in the caption and failure of the plaintiff to state in the body of the petition plaintiff is a resident of Howell County do not relieve the Honorable Court of this Subject matter jurisdiction. Plaintiff insists that the interest of justice is best served by the Honorable Court issuing a ruling on the merits of the case by addressing the issue that the Department of Revenue has suspended a license beyond the statutory limits set down in 302.010(3) as presented and affirmed in the Court of Appeals of Missouri, Southern District Bass v. Director of Revenue 793 S.W.2^nd 923.

Respectfully Submitted,

                                                                          __________________________
 

                                           &nb sp;                             Lee Allen Martin

                                           &nb sp;                             7050 County Road 2810

                                           &nb sp;                             West Plains, Missouri 65775

CERTIFICATE OF SERVICE

        I, Lee Allen Martin, hereby certify to the Court that a true and full copy of the foregoing instrument was served upon the defendant through defendant’s attorney of record, Rizwan Ahad, by hand delivery in open court at the Howell County Courthouse, West Plains, MO 65775 on February 1, 1999.

                                                                              So certified: __________________________

                                                                                       &nb sp;               Lee Allen Martin
 

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