IN THE SOUTHERN DISTRICT COURT OF APPEALS FOR THE STATE OF MISSOURI
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Plaintiff/Appellant, Vs Director of Revenue, Defendant/Respondent, James A. Chenault III, Attorney |
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Case: S.D. #23071-1 |
Oral argument is requested
Lee Allen Martin
7050 County Road 2810
West Plains Missouri, 65775
Lee Allen Martin
Index to the Legal File
Title page #
Jurisdictional Statement 3
Statement of Facts 4
Points Relied Upon
Abuse of Discretion 12
Court of Record 15
Argument
Abuse of Discretion 17
Court of Record 25
Conclusion 31
Jurisdictional Statement
This action is one involving the 5th Amendment of the United States of America, rights of the plaintiff/appellant arising out of a final decision of the Director of Revenue resulting in the unconstitutional revocation of the plaintiff/appellant driver’s license. Plaintiff/Appellant made a timely filing for Trial De Novo in the County of Howell, State Of Missouri on the 4th day of September , 1998. The Trial Court through its abuse of discretion did fail to recognize the Jurisdiction of the 37th Judicial Circuit, and failed to make a judgment on the merits in this case, and the plaintiff appeals to this court for review.
Plaintiff/Appellant in his original Petition for Trial De Novo from Administrative Action, page 55 of the Legal File, made constitutional challenge of Double Jeopardy. Double Jeopardy arises out of the fact the Director of Revenue has revoked Plaintiff’s Driver’s License beyond the statutory guidelines set down in RSMo 302.010.3. The 37th Judicial Circuit did dismiss the Plaintiff/Appellant’s 1st Amended Petition for Trial De Novo from Administrative Action , page 53 of the Legal File, for lack of jurisdiction for failure to state a claim upon which relief could be granted.
The Trial Court did issue its Certified Judgment and Order, page 22 of the Legal File, on the 2nd day of February 1999, and the Trial Court did sustain the Appellant’s Motion to Proceed in Forma Pauperis, page 16 of the Legal File, on the 9th day of February , page 5 of the Legal File. The Trial Court’s 2-2-99 Order, page 22 of the Legal File, does render finality to the Trial Court’s Order to Dismiss, page 6 of the Legal File, Plaintiff/Appellant’s Claim.
Whereas, the issue for the Reviewing Court of the State of Missouri is one of the Trial Court’s failure to recognize the Subject Matter Jurisdiction, the matter lies in the Southern District Court of Appeals of the State of Missouri, as the Missouri Supreme Court has transferred the case to the appropriate Jurisdiction.
STATEMENT OF FACTS
Points Relied On
Argument #1 Abuse of Discretion
The Trial court of the 37th Judicial Circuit did abuse its discretion by refusing to acknowledge the Subject Matter Jurisdiction that did and does properly lie in sad court. The Trail Court did dismiss the Trial De Novo action on department’s Motion to Dismiss on an alleged technical defect which did deny the appellant/plaintiff due process of law, by not allowing the plaintiff/appellant to challenge the unconstitutional revocation of his drivers license beyond the statutory limits provided by law.
RSMo 302.010.
Except where otherwise provided, when used in this chapter, the following words and phrases mean:(3) "Conviction", any final conviction; also a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction, except that when any conviction as a result of which points are assessed pursuant to section 302.302 is appealed, the term "conviction" means the original judgment of conviction for the purpose of determining the assessment of points, and the date of final judgment affirming the conviction shall be the date determining the beginning of any license suspension or revocation pursuant to section 302.304;
PATRICIA MULLIGAN v. TRUMAN MEDICAL CENTER 950 S.W.2d 576
:On review of a trial court’s dismissal of a petition for failure to state a claim upon which relief can be granted, "the facts averred in the pleading are assumed to be true and are construed liberally in favor of appellant." Johnson v. Kraft General Foods, Inc., 885 S.W.2d 334, 335 (Mo. Banc 1994). "A petition is sufficient to withstand a motion to dismiss for failure to state a claim if it invokes substantive principles of law entitling plaintiff to relief and alleges ultimate facts informing defendant of that which the plaintiff will attempt to establish at trial." Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. Banc 1990). A pleading states a claim if there is any basis for relief within the facts pleaded. Yoest v. Farm Credit Bank of St. Louis, 832 S.W.2d 325, 328 (Mo. App. 1992).
LARRY VICKERS v. PROGRESSIVE CASUALTY INS 1998.MO.15422
In reviewing the circuit court’s dismissal of a petition, this court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. We treat the facts averred to as true and construe the averments liberally and favorably to the plaintiff. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo.banc 1985). A petition is not to be dismissed for failure to state a claim if any set of facts is asserted which; if proved would entitle the plaintiff to relief. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo.banc 1988).
ROBERT LEE JACKSON v. DIRECTOR REVENUE 893 S.W.2d 831
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 within 30 days after notice of the 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.
STATE OF MISSOURI, EX REL., MICHAEL JOHNSTON, APPELLANT, v.
THE HONORABLE PAUL T. LUCKENBILL, JR., RESPONDENT.
1998.MO.823
"’Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Anderson v. Robertson, Mo. App., 402 S.W.2d 589(3-4).’"
BAKER ET AL. V. CARR ET AL. 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663
SUPREME COURT OF THE UNITED STATES
Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, or "frivolous," Bell v. Hood, 327 U.S. 678, 683. *fn17 That the claim is unsubstantial must be "very plain." Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274. Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court’s jurisdiction of the subject matter.
STATE MISSOURI v. RONALD C. CONNER 500 S.W.2d 300
a court may take judicial notice of its own files and records in the related criminal proceeding to the extent the law allows. State v. Keeble, 399 S.W.2d 118, 122[14] (Mo.1966); State v. Stidham, 403 S.W.2d 616, 618[1-6] (Mo. 1966).
Yanuzzi v. Director of Revenue, No. 75236 (Mo.App. ED 06/08/1999)
Petitions for review must be filed within 30 days of mailing of the notice of revocation. Section 536.110, RSMo 1994. Failure to do so deprives a trial court of subject matter jurisdiction. Johnson v. Director of Revenue, 879 S.W.2d 754, 755 (Mo. App. E.D. 1994). Moreover, subject matter jurisdiction cannot be waived or agreed to Goggin v. Director of Revenue, 878 S.W.2d 931, 931 (Mo. App. E.D. 1994). Therefore, a confession of judgment will not vest a court with subject matter jurisdiction which is otherwise lacking. Evans v. Director of Revenue, 871 S.W.2d 90, 92 (Mo. App. E.D. 1994). When a trial court lacks subject matter jurisdiction, it can take no action other than dismiss the case. Suglio v. Director of Revenue, 879 S.W.2d 753, 754 (Mo. App. E.D. 1994). Any other action is null and void. Evans, 871 S.W.2d at 91-92.
City of Rolla v. Armaly, No. 22154 (Mo.App.SD 02/11/1999)
"Failure to timely and specifically object to evidence on the ground that it is beyond the scope of the pleadings constitutes consent for determination of issues thereby raised." Kackley v. Burtrum, 947 S.W.2d 461, 465[7] (Mo.App. 1997) (citing Midwest Materials Co. v. Village Dev. Co., 806 S.W.2d 477, 488[8] (Mo.App. 1991)).
Richardson v. Collier Bldg. Corp., 793 S.W.2d at 366,
Appellant speaks of an alleged unfairness in this case by allowing amendment of the pleadings through implied consent. Actually, the unfairness would be in allowing appellant to take advantage of technical rules to exclude defenses to which it had full prior knowledge of the relevant facts.
Points Relied Upon
Argument #2 37th Judicial Circuit is not a Court of Record
The Trial Court did abuse its discretion in that it is a court that cannot maintain the records of the court pursuant to the statutes of the State of Missouri. The failure on the part of the trial court to provide accurate and verbatim transcripts and the failure of the trial court to timely file Motions and file stamp them does render the court not a court of record. This failure on the part of the trial court does deny the plaintiff/appellant due process of law.
Brown v. General Motors Assembly Div.,695 S.W.2d 501, 502 (Mo. App. E.D. 1985)
"A court of record speaks only through its records, which import absolute verity."
State ex rel. Nassau v. Kohn, 731 S.W.2d 840, 843 (Mo.banc 1987)
."A court's stamp on documents filed by the parties constitutes proof such documents are part of the record."
Blacks Law Dictionary defines Courts of Record
"Those courts whose proceedings are permanently recorded, and which have the power to fine or imprison for contempt."
The Supreme Court of the state of Missouri, the court of appeals, the circuit divisions of
the circuit courts , and any other division of the circuit courts keeping a record of the proceedings before the court, shall be courts of record, and shall keep just and faithful records of their proceedings. Notwithstanding the foregoing, municipal divisions of the circuit courts shall not be considered courts of record, regardless of whether or not a verbatim record of proceedings before the court is kept.
It shall be the special duty of every judge of a court of record to examine into and
superintend the manner in which the rolls and records of the court are made up and kept; to prescribe orders that will procure uniformity, regularity and accuracy in the transaction of the business of the court; to require that the records and files be properly maintained and entries be made at the proper times as required by law or supreme court rule, and that the duties of the clerks be performed according to law and supreme court rule; and if any clerk fail to comply with the law, the court shall proceed against him as for a misdemeanor.
Notwithstanding the provision of any other statute to the contrary, it shall be the duty
of the clerks of all courts to keep such records of the courts and in such a manner as may be directed by rule of the supreme court so that they shall accurately record all essential matters relating to the causes and matters within the jurisdiction of the court which are and have been pending before the court, including pleadings, motions and related documents, transactions, orders and judgments or decrees related thereto showing the course and disposition of causes and matters, the taxing and collection of court costs, and the setting of trial calendars or dockets of pending cases.
to keep such records of the courts and in such a manner as may be directed by rule of the supreme court so that they shall accurately record all essential matters relating to the causes and matters within the jurisdiction of the court which are and have been pending before the court, including . . . transactions, orders and judgments or decrees related thereto showing the course and disposition of causes and matters."
Argument #1
The Court of the 37th Judicial Circuit of the Honorable Judge Ronald J. Garrett did abuse its discretion by refusing to recognize the Subject Matter Jurisdiction that did and does properly lie in said court. The Appellate Court must review this appeal in the light provided by PATRICIA MULLIGAN v. TRUMAN MEDICAL CENTER 950 S.W.2d 576:
On review of a trial court's dismissal of a petition for failure to state a claim upon which relief can be granted, "the facts averred in the pleading are assumed to be true and are construed liberally in favor of appellant." Johnson v. Kraft General Foods, Inc., 885 S.W.2d 334, 335 (Mo. banc 1994). "A petition is sufficient to withstand a motion to dismiss for failure to state a claim if it invokes substantive principles of law entitling plaintiff to relief and alleges ultimate facts informing defendant of that which the plaintiff will attempt to establish at trial." Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990). A pleading states a claim if there is any basis for relief within the facts pleaded. Yoest v. Farm Credit Bank of St. Louis, 832 S.W.2d 325, 328 (Mo. App. 1992).
Pursuant to the reviewing guidelines presented in Mulligan v. Truman Medical Center the facts averred is true. The plaintiff/appellant’s allegations concerning the revocation of the Driver’s License in question must be assumed to be true. Appellant states that the original Petition for Trial De Novo from Administrative Action, page 55 of the Legal File, and the 1st Amended Petition for Trial De Novo from Administrative Action, page 53 of the Legal File, both invoke substantive principles of law which would tend to entitle the plaintiff/appellant relief. The principle of law is that the revocation of the driver’s license was beyond the range provided in 302.010.3 RSMo, which does define, when a revocation is to begin. That being upon the mandate of the reviewing court being issued. The reviewing court in the case that brought about the revocation is the Southern District Court of Appeals Division #1 where on the 5th day of January 1998 the Court through the Honorable Judge Crow, the Honorable Judge Parrish, and the Honorable Judge Prewitt took to hear the oral arguments of the Appellant in the case of #21211-1. The attorney for the state in the said cause, Mr. Rizwan Ahad, was present and did take to address the Court of Appeals. The Court of Appeals did refuse any announcements on the part of Mr. Ahad as he had failed to file a respondent’s brief.
The Court of Appeals did sustain the trial court order and judgment in the appeal # 21211-1 on the 9th day of February 1998 in the Memorandum issued on that date. Appellant in the appeal, #23071-1, contends in his Petition for Trial De Novo from Administrative Action, page 55 of the Legal File, that on the 9th day of February 1998 the revocation the Director of Revenue, was to enforce on the driving privileges of the Appellant, was to go into effect on said date. The revocation should have lasted one year and expired on the 9th day of February 1999. Any revocation which would extend said revocation of driving privilege would be Double Jeopardy and a violation of the 5th and 14th Amendments to the Constitution of the United States of America. As well as Article 1 of the Missouri Constitution as well as the rulings of the Missouri Courts as exemplified in LARRY VICKERS v. PROGRESSIVE CASUALTY INS 1998.MO.15422 held:
In reviewing the circuit court's dismissal of a petition, this court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. We treat the facts averred to as true and construe the averments liberally and favorably to the plaintiff. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo.banc 1985). A petition is not to be dismissed for failure to state a claim if any set of facts is asserted which; if proved would entitle the plaintiff to relief. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo.banc 1988).
The question before this Honorable Court is whether the failure of the trial court to recognize Subject Matter Jurisdiction is abuse of discretion in light of United Supreme Court definition as maintained in the Supreme Court of the United States of America decision BAKER ET AL. v. CARR ET AL. 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663:
Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, or "frivolous," Bell v. Hood, 327 U.S. 678, 683. *fn17 That the claim is unsubstantial must be "very plain." Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274. Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter.
The Court’s decision not to recognize subject matter jurisdiction is based on the Plaintiff/Appellant’s failure to state his residency in the body of the 1st Amended Petition for Trial De Novo from Administrative Action , page 53 of the Legal File, page 13 line 8 through 18 of the official transcript. The Plaintiff did note to the open court on the 21st day of December 1998 that:
1) Plaintiff was a resident of Howell County, page 15 lines 19 through 21 of the official transcript.
2) Plaintiff was a candidate for Circuit Court Clerk for Howell County, page 12 lines 20 and 21 of the official transcript.
3) Defendant Department of Revenue did acknowledge the correct address of the Plaintiff/Appellant in the Final Notice, page 14 lines 18 through 23 of the official transcript as attached to the Original Petition page 57 of the Legal File.
4) That Plaintiff/Appellant did state his address in the Petition underneath his signature, page 13 lines 19 through 21 of the official transcript.
5) That Plaintiff/Appellant was in the custody of the Howell County Sheriff’s Department for most of 1998, page 12 line 23 through 24 of the official transcript.
The Honorable Trial Court, page 15 line 19 through 20 of the official transcript, does acknowledge the plaintiff/appellants address as 7050 C.R. 2810, and does not state the City or County of such address because he was well aware of the plaintiff/appellant’s address.
The plaintiff/appellant did present to the Court in post trial motion for review on the 1st day of February 1999 the case ROBERT LEE JACKSON v. DIRECTOR REVENUE 893 S.W.2d 831:
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 within 30 days after notice of the 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/appellant did ask the honorable trial court to take Judicial Notice of the Jackson case and specifically the aforementioned section, page 18 lines 17 through 19 of the official transcript. Jackson seems to state to the appellant that the technical difficulties can be resolved as long as the 30-day time limit is met. That "Subject Matter Jurisdiction is merely the court's power to hear and determine the matter involved in the case."
The Honorable Trial Court did have Subject Matter Jurisdiction as no other court in the state would have had said jurisdiction. Plaintiff could not file this petition in the County of Boone. His only option was to file it in the county of arrest, that being Howell County. Subject Matter Jurisdiction is a matter that cannot be waived or agreed to either the court has this jurisdiction or it does not Yanuzzi v. Director of Revenue, No. 75236 (Mo.App. ED 06/08/1999)
Petitions for review must be filed within 30 days of mailing of the notice of revocation. Section 536.110, RSMo 1994. Failure to do so deprives a trial court of subject matter jurisdiction. Johnson v. Director of Revenue, 879 S.W.2d 754, 755 (Mo. App. E.D. 1994). Moreover, subject matter jurisdiction cannot be waived or agreed to Goggin v. Director of Revenue, 878 S.W.2d 931, 931 (Mo. App. E.D. 1994). Therefore, a confession of judgment will not vest a court with subject matter jurisdiction which is otherwise lacking. Evans v. Director of Revenue, 871 S.W.2d 90, 92 (Mo. App. E.D. 1994). When a trial court lacks subject matter jurisdiction, it can take no action other than dismiss the case. Suglio v. Director of Revenue, 879 S.W.2d 753, 754 (Mo. App. E.D. 1994). Any other action is null and void. Evans, 871 S.W.2d at 91-92.
It would deny the appellant/plaintiff any form of due process for the Court of Subject Matter Jurisdiction to fail to recognize its jurisdiction on the grounds of technical difficulties in the petition. Richardson v. Collier Bldg. Corp., 793 S.W.2d at 366:
"Appellant speaks of an alleged unfairness in this case by allowing amendment of the pleadings through implied consent. Actually, the unfairness would be in allowing appellant to take advantage of technical rules to exclude defenses to which it had full prior knowledge of the relevant facts."
If the Trial Court felt that it could not proceed on the petition as written it would behoove the interests of justice to note the failure of the petition and allow an amended petition to be filed. If it is to take multiple amendments then the interest of justice is best served by these multiple amendments. The Goal of the Courts of the state of Missouri is justice, not an expedient elimination of the court calendar. The Trial Court had within its power to amend through delineation any petition that goes before it and wide and varied discretion is granted to the circuit courts for the state of Missouri in the furtherance of Justice.
The trial courts of the State of Missouri can take Judicial Notice of the Courts Records, STATE MISSOURI v. RONALD C. CONNER 500 S.W.2d 300:
a court may take judicial notice of its own files and records in the related criminal proceeding to the extent the law allows. State v. Keeble, 399 S.W.2d 118, 122[14] (Mo.1966); State v. Stidham, 403 S.W.2d 616, 618[1-6] (Mo. 1966).
The Honorable Judge Ronald J. Garrett’s failure to recognize and allow the petition of the plaintiff/appellant to be heard on the merits was to deny the plaintiff/appellant any due process of law. The plaintiff/appellant’s litigation in the criminal case arising out of the 37th Judicial Circuit, CR495-338MX and CR495339MX, that resulted in S.D. #21211-1 did so offend the Honorable Ronald J. Garrett that he would refuse to take Judicial Notice of the proceedings in the court of the 37th Judicial Circuit. The Honorable Judge Ronald J. Garret did fail to take Judicial Notice of several common known facts in the community that he resides. It is unconscionable that the Honorable Judge Ronald J. Garret was not aware of the candidacy of the Plaintiff/Appellant for the position of Circuit Court Clerk for his Court. The Honorable Judge Ronald J. Garrett did in fact misquote the Missouri Supreme Court Rule 81.05(a) , page 17 lines 3 through 11 of the official transcript, and further allowed the representation of the Director of Revenue, Mr. Rizwan Ahad, to blatantly lie to the Honorable Court, page 4 lines 3 and 4 of the supplemental transcript, when Mr. Ahad asserts that instead of filing multiple Motions the Withdraw he had filed a Motion to Dismiss, page 4 line 4 of the Supplemental Transcript, "for Procedural Reasons" with the Missouri Supreme Court. Mr. Ahad goes on to say, page 4 lines 6 and 7 of the supplemental transcript, "We filed that basically so that they wouldn’t have to send that to us anymore." Appellant contends that at no time does a Motion to Dismiss relieve counsel from receiving any documents filed in a case, and at no time upon the plaintiff/appellant filing Notice of Appeal, page 14 of the Legal file, did the representatives of the Department of Revenue file any Motion to Dismiss, as reflected in the docket sheets provided by the Supreme Court to the clerk of the Southern District Court of Appeals. The Honorable Judge Ronald J. Garrett was aware of Mr. Ahad’s deception and allowed it to continue not in the furtherance of justice but in the furtherance of the Honorable Judge Ronald J. Garrett’s personal biases against the Plaintiff/Appellant. Appellant contends that when he asserted Mr. Nathan Franklin Garrett, Honorable Ronald J. Garrett’s son, prosecutorial position was nepotism in S.D. appeal #21211-1, the Honorable Judge Ronald J. Garrett harbored animosity towards the person of the plaintiff/appellant.
The plaintiff/appellant could at no time expect to receive a ruling on the merits of his 1st Amended Petition for Trial De Novo from Administrative Action, page 53 of the Legal File, because of the bias of the trial judge. The merits of the 1st Amended Petition for Trial De Novo from Administrative Action, page 53 of the Legal File, was such that the Department of Revenue had extended the revocation of his driving privilege beyond the statutory guidelines as set down in 302.010.3 RSMo. The Plaintiff/Appellant did not request or attempt a collateral attack of the Memorandum of the 9th day of February 1999, and the plaintiff/appellant in fact acquiesced to the Southern Districts Memorandum after completing all available remedies. The plaintiff/appellant notes that the Superior Courts of the State of Missouri have set the criteria for abuse of discretion as what would shock the sense of justice. STATE OF MISSOURI, EX REL., MICHAEL JOHNSTON, APPELLANT, v. THE HONORABLE PAUL T. LUCKENBILL, JR., RESPONDENT #54398 1998.MO.823
"'Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Anderson v. Robertson, Mo. App., 402 S.W.2d 589(3-4).'"
In this appeal before the Southern District Court of Appeals the issue of a trial judge refusing to except the undeniable subject matter jurisdiction when the Plaintiff/Appellant has no other court to file for his 1st Amendment Constitutional Right of "redress of grievance" does shock the sense of justice and does indicate a lack of careful consideration on the part of the trial judge. Further a reasonable man who is a citizen of Howell County could not ever question the plaintiff/appellant’s residency. The Plaintiff/Appellant has ran for office twice in the County of Howell. Has spoken often before the Howell County Public. Has been in the Courts of the 37th Judicial Circuit since 1992, and has continually attacked what he feels is the unethical behavior of the judiciary of the 37th Judicial Circuit. He has been on the front page of the local newspaper, and has on occasion had confrontations and discussions with the Honorable Judge Ronald J. Garrett. The Plaintiff/Appellant is a graduate of West Plains High School and associated with both of the Honorable Judge Ronald J. Garrett's boys while they were youths. There would be no reasonable man in the County of Howell that would dispute the residency of the Plaintiff/Appellant. The departments counsel, Rizwan Ahad, was present at the Oral Argument presented to the Southern District Court of Appeals on the 5th day of January 1998, and visited with the plaintiff/appellant while he was functioning as a trustee for the Howell County Jail. The Prosecuting Attorney, Michael P. Hutchings, was asked by the plaintiff/appellant, while functioning as trustee, about constitutionality of the so-called law library of the Howell County Jail. No reasonable mind could or would question the plaintiff/appellant’s residency. The Department of Revenue did provide an ANSWER, page 46 of the Legal File, to the 1st Amended Petition for Trial De Novo from Administrative Action,page 53 of the Legal File. The Department does not question the residency of the plaintiff/appellant only the Assistant Prosecuting Attorney Rizwan Ahad, could or would question such a fact.
Mr. Ahad did not question the residency of the plaintiff/appellant until the 21st day of December 1998. Mr. Ahad did not question it on the 21st day of September 1998, or the 5th day of October 1998. The Missouri Courts have ruled that if an objection to fact is not specifically mentioned it is agreed, City of Rolla v. Armaly, No. 22154 (Mo.App.SD 02/11/1999)
"Failure to timely and specifically object to evidence on the ground that it is beyond the scope of the pleadings constitutes consent for determination of issues thereby raised." Kackley v. Burtrum, 947 S.W.2d 461, 465[7] (Mo.App. 1997) (citing Midwest Materials Co. v. Village Dev. Co., 806 S.W.2d 477, 488[8] (Mo.App. 1991)).
No where in the transcript does it reflect a specific objection for the failure to state residency in the body of the Plaintiff/Appellant’s petition prior to the 21st day of December 1998. If Mr. Ahad in his capacity as assistant Prosecuting Attorney would have truly believed that the residency of the Plaintiff/Appellant was not in Howell County it should have been incumbent on him and his office to prosecute the Plaintiff/Appellant for violating the election laws for the office of Circuit Court Clerk for Howell County. This was not done, and was never in question during the election because all reasonable minds could agree that Plaintiff/Appellant was a resident of the County of Howell.
Therefore, the Appellant must request that the Honorable Southern District Court of Appeals for the State of Missouri see that the Honorable Ronald J. Garrett, Trial Judge, has abused his discretion in the case at hand and grant the appropriate relief of rescinding the revocation of the appellant’s driving privilege or in the alternative remand the cause back to the trial level for a decision on the merits.
Argument #2 Trial Court is not a Court of Record
It is well known that "A court of record speaks only through its records, which import absolute verity." Brown v. General Motors Assembly Div., 695 S.W.2d 501, 502 (Mo. App. E.D. 1985). "A court's stamp on documents filed by the parties constitutes proof such documents are part of the record." See State ex rel. Nassau v. Kohn, 731 S.W.2d 840, 843 (Mo.banc 1987). As Blacks Law Dictionary defines Courts of Record "Those courts whose proceedings are permanently recorded, and which have the power to fine or imprison for contempt." In the case at hand the Trial Court does maintain the power to fine or imprison for contempt, but the trial courts failure to preserve a record denies it the status of Court of Record. The Missouri Supreme Court held in STATE EX REL. FAIRY M. NASSAU v. HONORABLE JUDGE KOHN 731 S.W.2d 840:
"As relater observes, not only must a court speak through its records, but it too was respondent's duty to ensure the accuracy of the records of this proceeding. Circuit courts are courts of record and shall keep just and faithful records of their proceedings. Section 476.010, RSMo 1986. The probate division of the circuit court shall keep " record of probate proceedings, which shall contain all orders, judgments and decrees of the court" and " record of the minutes of the proceedings of the court." Section 472.280.1(9), (10), RSMo 1986. It is the special duty of every judge of a court of record "to require that the records and files be properly maintained and entries be made at the proper times as required by law or supreme court rule, and that the duties of the clerks be performed according to law and supreme court rule." Section 483.140, RSMo 1986. Under § 483.082.1, RSMo 1986, it is the duty of the clerks of all courts, and too vicariously the duty of every judge of a court of record by virtue of § 483.140, too:
[30] keep such records of the courts and in such a manner as may be directed by rule of the supreme court so that they shall accurately record all essential matters relating to the causes and matters within the jurisdiction of the court which are and have been pending before the court, including . . . transactions, orders and judgments or decrees related thereto showing the course and disposition of causes and matters."
Although, the statutes of the state of Missouri determines a court of record said court must preserve the record. The statutes of the State of Missouri calls to maintain true and accurate records. These statutes vest the Trial Court with a responsibility and when a trial court does fail in this official capacity then it does cease to be a court of record. When a trial court does not accurately record the parties present and Motions heard, and the clerk for said court fails to accurately and timely maintain the court’s file, then due process is denied. The Courts of the State of Missouri have held that the trial court always maintains the jurisdiction to make its record speak the truth. When the trial Court refuses to hear and change said record to speak the truth justice is not only denied it is obliterated.
In the appeal at hand the trial court has failed to comply with the statutes of the state of Missouri and the rules of the Supreme Court of the State of Missouri in that:
6) The Honorable trial court did allow the Court Reporter, Barbara Jackson, to enter her personal records of the proceedings of the trial court as evidence without making them a part of the official court record, page 13 line 19 through line 12 page 14 of the supplemental transcript. These documents were requested to be supplied in the supplemental Legal File and were not produced.
7) The affidavits of Ms. Robin C. McDermott and Mr. Robert L. Martin was presented to the Missouri Supreme Court in the Appellant/Plaintiff’s Objection to the Preparation of the Record on Appeal, as maintained in the Official Appellate Court File, and noticed by the Trial Court on the 17th day of May 1999, page 23 line 2 through line 10 page 24 of the supplemental transcript, does in fact contradict the testimony of the Court Reporter, Barbara Jackson. The honorable trial court failed to give the affidavits of Ms. McDermott and Mr. Martin the eyewitness credibility that they did deserve.
8) The honorable trial court has not provided a transcript for the proceedings on the 21st day of September 1998 where the honorable trial court did take to make a ruling to enter the prosecuting attorney for the County of Howell as attorney of record in the cause above the objection of Mr. Ahad. The hearing held on the 17th day of May 1999 the honorable trial court did note no matters were heard on the record the 21 day of September 1998, page 22 line 25 through line 1 page 23 of the supplemental transcript. The official Docket sheets provided in the Supplemental Legal File, pages S-2 through S-6 of the supplemental transcripts and pages 4 through 7 of the Legal File, reflect no Entry of Appearance on the part of the Prosecutors for Howell County. However, there is a docket entry made on the 21st day of September 1998, page 7 of the Legal File and page S-6 of the Supplemental Legal File, this docket entry by the hand of someone whose initials are "ffw" is not made pursuant to any filing on the part of Mr. Ahad or Mr. Hutchings as is reflected in the docket sheets. It was made by ORDER of the Honorable Trial Court; although, the honorable trial court insists that no matters were heard on the record that day. Plaintiff/appellant contends that no other court personal could make the entry on the 21 day of September 1998, page 7 of the Legal File and page S-6 of the Supplemental Legal File, other than the Honorable Trial Judge who did not make it, page 17 lines 19 through 21 of the Supplemental Transcript. No Court personal could identify the initials and who made them. The plaintiff/appellant contends that the initials are "ffw" which coincides with the name of the court clerk, Fern Freeman Welker, who in the capacity of her elected duties would be in the position to make entries on the official docket sheets.
9) The plaintiff/appellant did take to file a Motion for Nunc Pro Tunc to Correct the Court Record, page 38 of the Legal File, and a Motion for Retaxation of Bill of Costs , page 12 of the Legal File, which were heard on the 1st day of March 1999, page 4 of the Legal File, the docket entry reads "any pending M/S before this court are overruled" the initials and hand writing of the entry are that of the Honorable Ronald J. Garrett and do not match the entry of the 21st day of September 1998. The Trial Court did rule on the 17th day of May 1999 that no motions were heard on the record on the date of 1st day of March 1999, page 22 line 25 through line 1 page 23 of the supplemental Transcript. The trial court refused due process of law and redress of grievance in that the Honorable Trial Judge would not hear argument as to the billing provided by the Clerk of 37th Judicial Circuit Court, and would not correct the entries of the Court Nunc Pro Tunc. In fact the Court refused to maintain a record of these issues and summarily dismissed any and all pleadings made by the plaintiff/appellant without deciding whether or not any of the allegations had standing.
WHEREFORE, the trial court has backdated official court records without a court order. The trial court has failed to maintain official court recordings and transcripts, pursuant to RSMo 485.050 that notes the duties of the Court Reporter. One duty "is to preserve all official notes taken in said court for future use or reference, and to furnish to any person or persons a transcript of all or any part of said evidence." The Appellant request that Honorable Court of Appeals determine that the Court of the Honorable Ronald J. Garrett of the 37th Judicial Circuit is not a court of record, and the decision of the said honorable court is null and void. The Plaintiff/Appellant requests that in the interests of justice that the case is remanded back to a court of record where a fair and unbiased decision is made on the merits.
Conclusion
Wherefore, the appellant/plaintiff has shown to the honorable Court of Appeals that an abuse of discretion has taken place in the honorable court of the honorable Ronald J. Garrett by the Trial Court’s failure to recognize the Subject Matter Jurisdiction that did lie in the Court for Howell County 37th Judicial Circuit. By refusing to recognize the subject matter jurisdiction the Trial Court did deny the plaintiff/appellant any semblance of due process of law. Further the trial court through inefficient maintenance of the official trial court record did in fact deny the plaintiff/appellant a record which did import absolute verity so that the reviewing court could be able to make a decision. On the abuse of discretion of the trial court in its failure to recognize subject matter jurisdiction the Court of appeals is requested to find that RSMo 302.010.3 is binding on the Department of Revenue and that the revocation the Plaintiff/Appellant’s driver’s license and that the Memorandum issued by the Court of Appeals on the 9th day of February 1998 was the date that the revocation was to go into effect. That the one year revocation should have expired on the 9th day of February 1999 and that the plaintiff/appellant has been denied a property right unconstitutionally without the support of the statutes of the state of Missouri. The failure of the trial court to preserve a court record that does import absolute verity has substantially denied plaintiff/appellant due process of law. The irregularities which has occurred in the trial court in allowing an attorney for the Department of Revenue to misrepresent the filing of motions is a violation of the Professional Code of Conduct which does proscribe that if any court personal does see or are knowledgeable of unethical conduct it is incumbent on the court personal to report said infractions to the Disciplinary Committee, Canon 3, B (3). Therefore, in light of the aforementioned the plaintiff/appellant must ask the Honorable Court of Appeals take the necessary steps to protect the judiciary of the state Missouri from any further injury.
Respectfully Submitted
Lee Allen Martin
7050 County Road 2810
West Plains Missouri 65775
