Perkel v. Stringfellow
| Decision Date | 31 March 2000 |
| Parties | (Mo.App. S.D. 2000) Mark Perkel, Appellant, v. Vicki Stringfellow, Respondent. 22947 and 22948 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Greene County, Hon. Gerald D. McBeth
Counsel for Appellant: Party Acting Pro Se
Counsel for Respondent: James R. Sharp
Opinion Summary: None
In Appeal No. 22947, Mark Perkel ("Appellant") appeals the Circuit Court of Greene County's dismissal of the pro se "Civil Complaint" he filed May 4, 1998. In Appeal No. 22948, Appellant appeals the Circuit Court of Greene County's dismissal of the pro se "Civil Complaint" he filed May 11, 1998.1 Both appeals have their genesis in a dissolution of marriage action between the same parties and the resulting judgment was reviewed on direct appeal by this Court in In re Marriage of Perkel, 963 S.W.2d 445 (Mo.App. 1998). On February 10, 1998, this Court modified the judgment as to a matter not pertinent to these appeals and affirmed the remaining portion of the judgment.2 Both appeals are consolidated for purposes of this opinion.
After this Court's affirmance of the circuit court's judgment, as modified, in In re Marriage of Perkel, Appellant filed a "Civil Complaint" on May 4, 1998, asserting "an independent action in equity pursuant to Rule 74.06(d)." Appellant challenged the dissolution of marriage judgment between himself and Vicki Stringfellow ("Respondent"), alleging that it was obtained "through fraud upon the court . . . ." Although not set out in his statement of facts in his brief, we glean from our review of the record that Appellant complained of "tampering with the administration of justice, and misconduct" on the part of Respondent's attorneys. Appellant alleged that Respondent's attorneys committed fraud on the court in that they "lied to the court to have [Appellant] sanctioned for failing to attend a deposition that didn't exist" and that they lied to the court and fabricated evidence with respect to Appellant's income.
Regarding Appeal No. 22948, in his "Civil Complaint" filed May 11, 1998, labeled by Appellant as "an independent action in equity for a declaratory judgment for relief," he challenges an April 4, 1995, "order of temporary maintenance in the divorce proceeding between [Appellant] and [Respondent]" ordering Appellant to pay Respondent separate maintenance, attorney's fees, and other payments. Appellant maintains that the pendente lite order in question was not signed by a judge and was, therefore, void.
Respondent filed motions to dismiss both of Appellant's complaints for failure to state a claim for which relief may be granted. Specifically, as to those issues set out in Appeal 22947, Respondent alleged in the court below that Appellant's fraud claim concerning discovery, "even if true, [does] not [allege] the type of fraud which [Appellant] can receive relief" in that the issues in the claim were dealt with "by the Court in the dissolution case, both at the hearing on [Respondent's] motion for sanctions . . . and at the trial of the case . . . ." As to Appellant's other fraud claims, Respondent posited that such claims concerned "the propriety of the dissolution judgment itself and not the manner in which the judgment was obtained . . . ."
As to those issues set out in Appeal No. 22948, in the court below Respondent also moved to dismiss Appellant's "Civil Complaint" that the pendente lite order was not signed by a judge, pointing out that Appellant did not appeal the granting of the pendente lite order. Respondent maintains that this failure acted "as a waiver and preclud[ed] [Appellant] from bringing th[e] independent action."
Appellant appears before this Court pro se. Nevertheless, he is bound by the same rules of procedure as a party represented by a licensed attorney. See Belisle v. City of Senath, 974 S.W.2d 600, 601 (Mo.App. 1998); Maroney v. Maroney, 953 S.W.2d 644, 645 (Mo.App. 1997).
While this court recognizes the problems faced by pro se litigants, we cannot relax our standards for non lawyers. Brown v. City of St. Louis, 842 S.W.2d 163, 165 (Mo.App. E.D. 1992). It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties.
Kline v. Casey's Gen. Stores, Inc., 998 S.W.2d 140, 141 (Mo.App. 1999)(quoting Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo.App. 1993)).I.
In his "Statement of Facts", Appellant sets out that:
1) On May 4th 1998 the plaintiff filed an Independent Action in Equity pursuant to Rule 74.06(d) attacking the final judgment in his divorce for fraud upon the court. [Page 4]
2) In his pleading the plaintiff alleged fraud upon the court and sufficient facts to support fraud upon the court as required by Rule 74.06(d). [Page 4-14]
3) On December 14th 1998 a hearing was held in this case and another case 198CC1753. Judge McBeth dismissed both complaints. [Page 40-43]
4) Judge McBeth dismissed this case as frivolous and assessed $1,500 in attorney's fees. [Page 40-43]
5) The plaintiff filed a timely motion to reconsider asking for clarification of the issues involved and the judge failed to rule within the time period allotted by law. [Page 44]
We immediately observe that Appellant's statements of facts in this appeal violate Rule 84.04(c).3 His statement of facts is nothing more than a five sentence procedural history of the case. Appellant fails to include any specific facts relating to his fraud claim, opting instead to state the legal conclusion that, "[i]n his pleading, [he] alleged fraud upon the court and sufficient facts to support fraud upon the court as required by Rule 74.06(d)." Rule 84.04(c) requires that the statement of facts in an appellant's brief be "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Rule 84.04(c). This requirement serves to define the scope of the controversy and afford the appellate court an immediate, accurate, complete and unbiased understanding of the facts of the case. See Chopin v. American Auto. Ass'n, 969 S.W.2d 248, 251 (Mo.App. 1998); Haynes Family Corp. v. Dean Properties, Inc., 923 S.W.2d 465, 466-67 (Mo.App. 1996). Further, "[a] statement of facts that consists of nothing more than an abbreviated procedural history fails to provide an understanding of the case and is deficient." Angle v. Grant, 997 S.W.2d 133, 134 (Mo.App. 1999). "Such a violation of Rule 84.04 constitutes grounds for the dismissal of Plaintiff's appeal, although we hesitate to dismiss an appeal for this reason alone." Myrick v. Eastern Broadcasting, Inc., 970 S.W.2d 885 (Mo.App. 1998); see also Cade v. State, 990 S.W.2d 32, 36 n.2 (Mo.App. 1999); Tate v. Kamakas, 989 S.W.2d 617, 618-19 (Mo.App. 1999).
Appellant also alleges four points of trial court error, as follows:
1) The trial court erred in dismissing this action for failing to state a claim for which relief can be granted because an independent action in equity is allowed for fraud upon the court pursuant to Rule 74.06(d) and it is the correct procedure for attacking a judgement based upon fraud upon the court. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993); Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993).
2) The trial court erred in determining the plaintiff's action as frivolous because an independent action in equity is allowed for fraud upon the court pursuant to Rule 74.06(d). The plaintiff correctly alleged fraud upon the court. The plaintiff may eventually lose the case but it certainly is brought within the rules.
3) The trial court erred in awarding attorney's fees because this is neither a divorce action nor a contract dispute where attorney's fees are provided for. There is no statute to support an award of attorney's fees in an independent action in equity. In order to award attorney's fees in violation of the "American Rule" there has to be a finding to give the reason that the fees fit into one of the exceptions. DCW Enterprises V. Terre Du Lac Association, 953 S.W.2d 127.
4) The trial court erred in awarding attorney's fees as punishment for the plaintiff representing himself because the Supreme Court has established that an individual has the right to represent himself in court. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.
Appellant's first point is deficient in that it is nothing more than an abstract statement that independent actions in equity concerning fraud upon the court are allowed under Rule 74.06(d). See Rule 84.04(d)(4).4 Abstract statements of law, standing alone, do not comply with this rule. See Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App. 1999). Appellant also fails to "state concisely the legal reasons for the appellant's claim of reversible error," Rule 84.04(d)(1)(B), and to "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(1)(C); see Jennewein v. Puricelli, 988 S.W.2d 643, 644 (Mo.App. 1999); Superior Outdoor Advertising Co. v. Snadon, 965 S.W.2d 421, 423 (Mo.App. 1998); Tate v. Kamakas, 989 S.W.2d at 619. Appellant's first point is denied.
Appellant makes the same errors in his second point as in his first. His second point is nothing more than a bald assertion that the trial court erred in "determining [his] action as frivolous because [it] . . . correctly alleged fraud upon the court." See J.A.D. v. F.J.D., 978 S.W.2d 336, 338 (Mo. banc 1998); Thummel v. King, 570 S.W.2d 679, 685-686 (Mo. banc 1978). The purpose of the briefing requirements regarding points relied on is to give "notice to the party opponent of the precise matters which must be contended with and answered" and "to inform the court of the issues presented for resolution." Id. at 686. If the appellate court must search the argument portion of the...
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