Marc Perkel - pro se

COMES NOW, Appellant Marc Perkel, pro se, to appeal the decision of the Honorable Gerald McBeth in the Circuit Court of Greene County Missouri, Case No. 198CC1753. This case was brought as a collateral attack on an unsigned order of the court from an unknown author for the purpose of declaring such unsigned order void.

Table of Contents *

Arguments *

In Summary *

Conclusion *

Table of Authorities *

The plaintiff appeals from dismissal of his cause for declaratory judgement and the imposition of attorney's fees in Green County Circuit Court, Division 31. This court has jurisdiction pursuant to Article 5 Section 3 of the Missouri Constitution which vests general appellate jurisdiction in the Southern District of the Missouri Court of Appeals.

1. On April 4^th 1995 an order of the court was docketed in the divorce case of Perkel vs. Perkel, 194DR3198 ordering the plaintiff to pay the defendant separate maintenance, attorney's fees, and other payments.
2. The plaintiff made payments according to that order totaling about $40,000 believing the order to be a valid order of the court. [page 52]
3. In May of 1998 the plaintiff discovered the original order in the legal file of that divorce case and discovered for the first time the original handwritten order for which the docketed order was derived. [page 17]
4. The handwritten order contains no date or signature at all. There is nothing to indicate the identity of the author. There is nothing to indicate that the document was a finished document intended to be an order of the court. This document has not been authenticated in any way. [page 17]
5. The presumed author of the hand written order is Commissioner Winston Davis since he was the one who conducted the hearing on the subject. However, the author's identity is merely a guess.
6. If Commissioner Davis was the author, he is a commissioner and not a judge. Only a judge can issue orders of the court. [Missouri Constitution, Slay v. Slay]
7. On May 11^th 1998, shortly after discovering the original order, the plaintiff filed an action in equity to have the void order declared void. [page 4]
8. The plaintiff argued that the Rules say that an order of the court shall be signed by a judge, and that this order was not signed at all, and the suspected author is not a judge. [page 4]
9. On December 14^th 1998 a hearing was held in this case and another case 198CC1666. Judge McBeth dismissed both complaints. [page 80,81]

Points Relied On

1. The trial court erred in dismissing this action for failing to state a claim for which relief can be granted because challenging the validity of an unsigned order of the court of an unknown author as void certainly is a claim for which relief can be granted as it was in Berger v. Berger where this court upheld Administrative Rule 4.09(6) and 4.12. 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). [page 75-79]
2. If this dismissal is viewed as a decision on the merits, the trial court erred in upholding an unsigned "order of the court" because Rule 74.01(a) and Administrative Rule 4.09(6) and Administrative Rule 4.12 provides that a judgement shall be signed by a judge. The challenged document is not signed by anyone. Berger v. Berger, 931 S.W.2d 216. [Missouri Rules of Court]
3. If this dismissal is viewed as a decision on the merits, the trial court erred in upholding an "order of the court" of an unknown author because Rule 74.01(a) and Administrative Rule 4.09(6) provides that a judgement shall be signed by a judge. There has been no evidence presented to establish the identity of the author of the order and an unknown person can not write orders of the court. [Missouri Rules of Court]
4. If this dismissal is viewed as a decision on the merits, the trial court erred in upholding an "order of the court" signed by a commissioner because Rule 74.01(a) and Administrative Rule 4.09(6) provides that a judgement shall be signed by a judge. [Missouri Constitution] If it were established that Commissioner Winston Davis was the author, he is not a judge. Nor was there a judicial remedy at the time the order was entered. York v. Daugherty, 969 S.W.2d 223.
5. If this dismissal is viewed as a decision on the merits, the trial court erred in upholding an "order of the court" because a void judgement is void forever and does not become not void with the passing of time. William Blair Hughes And Mary Elizabeth ,332 S.W.2d 1. Any kind of proceeding to cancel a void judgement is proper. Rufus Rhine V. M. E. Montgomery, Magistrate Judge Of Scott County, Missouri, 422 S.W.2d 661.

Arguments

Failure to State a Claim

A motion to dismiss for failure to state a claim is solely a test of the adequacy of a plaintiff's petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). In reviewing the trial court's dismissal based on the failure to state a claim, an appellant Court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). All of plaintiff's averments are assumed to be true, with no attempt made to weigh any of the facts alleged as to whether they are credible or persuasive. Nazeri, 860 S.W.2d at 306. The petition is reviewed in an almost academic matter to determine if the facts alleged meet the elements of a recognized cause of action or a cause that might be adopted in the case. Id. The facts as outlined above are cast in a manner consistent with these principles. Therefore, the plaintiff contends that if this court finds that if his set of facts defines a cause for which relief can be granted, then this action must be remanded back for a trial on the merits.

Judge Shall Sign Orders

It is clearly established in the Rules and in case law that a judge shall sign the orders of the court. Before us is an unsigned order by an unknown author. There is no evidence to indicate who the author of this document is. There is also no evidence to indicate if the document is a completed document that was intended to be submitted as a final order. The document could be just a partially completed order that was in the process of revision. We don't know if the unknown author intended the document to be used in this form. We don't know if it was finished or not, or if the document, in it's present form, was intended to be a judicial act.

The document lacks any signature or initials indicating an attempt to authenticate the document. It only bear the initials of a clerk pursuant to Administrative Rule 4.09(6) which is used for other entries that are not judgements or orders of the court. In the case of Berger v. Berger, 931 S.W.2d 216 the court ruled:

A signing by initials or other method is sufficient for the statute of frauds, "if in signing in any of these methods he intended to authenticate the paper as his act." Irving v. Goodimate Co., 320 Mass. 454, 70 N.E.2d 414, 417 (1946). Other cases indicate that it is the intent to authenticate a writing when putting initials or other marks which controls. See Venable v. Hickerson, Phelps, Kirtley & Assoc., Inc., 903 S.W.2d 659, 662-63 (Mo.App. 1995); Sedmak v. Charlie's Chevrolet, Inc., 622 S.W.2d 694, 699 (Mo.App. 1981); Newton v. Emerson, 66 Tex. 142, 18 S.W. 348, 349 (1886).

Clearly in Berger there is a requirement that there is some form of attempt to authenticate the document by the judge. Even if he spit on it and declared that was his mark it could be upheld. But this document lacks anything than can be construed as the signature of the author and therefore falls short of any minimum standards. If this ruling is allowed to stand then, in theory, anyone could sign an order of the court. Rules 4.09 and 74.01 would have no meaning.

Identity of Author is Unknown

At the trial court level the plaintiff filed motions making arguments indicating reasons why he believes that Commissioner Davis is not the author of the unsigned order. Even if it were somehow established the Commissioner Davis was the author of the order, he is not a judge.

In the Plaintiff's Response to Suggestions in Opposition to Plaintiff's Motion for Summary Judgement, the plaintiff contends that Commissioner Davis is in fact not the author of the unsigned order of maintenance and gives a number of reason for believing that the document might be written by someone else. The plaintiff stated in his argument:

A family court commissioner makes findings and recommendations to a judge who makes judgements and orders. The Plaintiff finds it inconceivable that Winston Davis would not know that he doesn't have the power to enter orders. In the hand written order, the author clearly knew this was so because the author, on the last page of the order, originally wrote, "Commissioner makes the following findings from Hearing concluded 6 feb 95.", but then scribbled this out and wrote "Therefore the court orders" above it.

If Commissioner Davis is the author of the order then he clearly and knowingly usurped the powers of a judge, which would be a criminal act. The plaintiff's motion cites other details about the order that would indicate that Commissioner Davis is not the author. The plaintiff therefore does not accuse Commissioner Davis of being the author of the unsigned order.

Commissioners are not Judges - RSMo 487.030(2) remedy didn't exist in 1995

In Slay v. Slay 965 S.W.2d at 845 the court ruled that commissioners are not judges and can not enter orders and ruled RSMo 487.030.1 unconstitutional. However, RSMo 487.030.2 provided a remedy to the commissioner's order and it was ruled that if a party didn't use that remedy, a 15 day period to ask for judicial review, then they have accepted the ruling of the commissioner.

In the York v. Daugherty, 969 S.W.2d 223 decision, the court was dealing with the issue of what to do with judgements made be commissioners after ruling parts of 487.030 unconstitutional. During the period of May 15^th 1996 to March 24^th 1998 the law gave Commissioners the power to enter orders and judgements. Section 2 of this statute provided the opportunity for a judge to review the decision within a 15 day period. The court concluded that a party who didn't take advantage of the 15 day remedy loses his right to now complain about it due to waiver and estoppel.

In this case however, the "order" occurred on April 4^th of 1995, more than a year before 487.030 was enacted. At that time a commissioner was clearly prohibited from entering an order or judgement and there was no 15 day review statute. At that time the remedy of statute 487.030.2 didn't exist. The intent of the Missouri Supreme Court in the York v. Daugherty decision was not to bless all void judgements, but to fix the confusion created by 487.030. Since 487.030 wasn't enacted until a year later, the York v. Daugherty decision doesn't apply to this case. The plaintiff had no judicial review option available.

Can the document be cured?

The order in question was never signed and remains unsigned to this say. I would raise the question for the purpose of argument, what would happen if Commissioner Winston Davis were to sign the document now? Would that cure the problem?

The plaintiff contends that it would not. There was a window of time, during the period of May 15^th 1996 to March 24^th 1998, when it was believed that a commissioner could have signed an order of the court. At the time the order was entered into the docket, April 4^th 1995 it was clearly illegal for a commissioner to enter an order of the court, as it is illegal to do so today. So, if it was illegal at the time of the docketing of the order, and it is illegal today, if Commissioner Davis were to come forward and sign the order now, he would be impersonating a judge and committing a crime. He would be acting in the absence of all jurisdiction and be subject to a lawsuit in spite of his judicial immunity.

In the case of Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646 (1871), the Supreme court gave the example that, "If a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action." The case of Malina v. Gonzales, 1 F.3d 304 (5th Cir. 08/26/1993) stated, "The jurisdiction prong for judicial immunity requires that judges possess the authority to perform actions relating to a matter before them."

Thus if Commissioner Davis were to sign the order now, he would be doing so where is it clearly established that he lacks the authority to do so. The plaintiff contends that if this court were to allow Commissioner Davis to sign the order now that members of this court would not enjoy judicial immunity either.

The point here isn't that the plaintiff intends to sue anyone, but to demonstrate that the order in question is not only defective, but can not be cured. The fact that it can't be cured enhances the plaintiff's argument that it is in fact void. If someone receives an unsigned check the check can not be cashed. But if the check is later signed then the defect is cured and it can be cashed. In this case the order can not be signed by anyone unless they author is a judge, thus unlike the unsigned check, the order can't be fixed. If it can't be fixed then it is permanently broken, or void.

The plaintiff states for the record that at no time since the underlying suit was filed has anyone offered any evidence that Commissioner Davis is the author of the unsigned order, nor has he come forward to claim authorship or offer to sign the order retroactively. The plaintiff takes the position that Commissioner Davis is not the author and that the author is unknown.

Prompt action upon Discovery

Additionally, the plaintiff didn't discover the docketing error until May of 1998 and within days of discovering the error filed suit to have the order declared void. Thus in this case the plaintiff can not be accused of having accepted the order of the court once he discovered that the order was fatally flawed.

Legal Knowledge of Judge McBeth

Judge McBeth issued two judgements. The first judgement was hand written on the docket sheet and was unsigned and not initialed. Shortly thereafter, the defendant's lawyer wrote up a judgement and sent it to Judge McBeth, which he signed. [Page 80,81,83]

The appellant contends that if not for the defendant's attorney, the order on appeal here would have also been an unsigned order of the court. It would appear that the trial judge doesn't know he's supposed to sign orders of the court and it raises doubt that this judge has the legal skills to consider the issues presented to the court. The appellant also contends that the defendant's attorney, in sending the court an order to be signed, admits through conduct that it is in fact necessary for a judge to actually sign orders of the court.

Void Judgements Void Forever - Does not Bind

In the case of William Blair Hughes And Mary Elizabeth, 332 S.W.2d 1, determined that a void judgement is a judgement that never really existed and is void forever. It doesn't become unvoid with the passage of time or inaction of the litigants. A void judgement has no power to bind or protect anyone. In Rufus Rhine V. M. E. Montgomery, Magistrate Judge Of Scott County, Missouri, 422 S.W.2d 661, it was decided that any kind of proceeding to cancel a void judgement is proper. And it is the duty of this court to declare the order void as a matter of law:

If the magistrate court had no jurisdiction over the person of the relator, the 1956 judgement was void and, if void then, it remains so forever. Restatement of judgements, § 14, pp. 77-81; 49 C.J.S. judgements §§ 451-452, pp. 882-884. The judgement in scire facias was based upon the original judgement and would have no more force and effect than the judgement upon which it was founded. Thieman Bros. v. Bodine, 239 Mo. App.875, 202 S.W.2d 912, 915(7). A void judgement is entitled to no consideration [Coombs v. Benz, 232 Mo. App.1011, 114 S.W.2d 713, 717(8)] and any kind of a proceeding to cancel it is proper [McCoy v. Briegel, Mo. App., 305 S.W.2d 29, 34(2)], including prohibition to prevent further action in a defaulted suit. State ex rel. Generale Transatlantique v. Falkenhainer, 309 Mo. 224, 274 S.W. 758, 759(1). However, prohibition to prevent execution on or enforcement of a judgement valid on its face is a collateral attack and extrinsic evidence is generally inadmissible to collaterally dispute it. Nevertheless, if the facts as to jurisdiction (as here) are undisputed, agreed upon or admitted into evidence without objection and reveal the court's lack of jurisdiction over the person of the defendant, it is then established the judgement is void as if so shown by the record itself and under such circumstances it becomes the duty of the court to so declare as a matter of law in a collateral proceeding. Edwards v. Hrebec, Mo. App., 414 S.W.2d 361, 364(4); State ex rel. Uthoff v. Russell, Mo. App., 210 S.W.2d 1017, 1023; State ex rel. Generale Transatlantique v. Falkenhainer, supra, 274 S.W. at 760(3); 30A Am. Jur. judgements, § 859, p. 775; 49 C.J.S. judgements § 410 at p. 816.

Derivative Judgement

Commissioner Davis in this case did not make the final judgement. A special judge, The Honorable Paul McGhee, decided this case. In making his judgement, Judge McGhee must have relied on the findings in the unsigned order by the unknown order. The unsigned order makes findings that the Wife helped develop some software. The Wife at trial claimed this software was worth $750,000. As a result, the Plaintiff ended up with a judgement for more than 100% of his assets. The unsigned order makes a finding that "the legal status of the business was not proven by competent evidence at the hearing" and as a result the business, worth $40,000 to $60,000 was ruled to be marital property. Plaintiff contends that Judge McGhee, a special judge who came in late on this case, must have relied on the findings of the unknown author in reaching his judgement. In this situation, the Defendant has the burden of proof that the void order had no effect on the final judgement. Thus if there is a reasonable possibility that the final judgement was affected by the void order, the final judgement is void as well. [Perkel v. Perkel]

In Summary

1. This case should never have been dismissed because clearly there was a claim stated for which relief could be granted.
2. The handwritten order of the court in dispute was not signed by anyone and the author is unknown.
3. The initials on the order are the initials of a clerk, not the judge. [Page 19]
4. There is nothing to indicate that the document purported to be an order is a finished document and was intended to be an order in it's present form. It may have been someone's notes.
5. If Commissioner Davis made the order it is still void because he is not a judge. This order was made before 487.030 when there was neither confusion that commissioners could not sign orders nor was there a judicial remedy provided in 487.030.2.
6. If Commissioner Davis made the order then he knowingly committed a criminal act. This raises doubts that he is the author.
7. Commissioner Davis, if he is the author, can not sign the order today and thus the unsigned order can't be cured.
8. If Commissioner Davis is not the author, who is?
9. Because the document is not signed, there's nothing that indicates the document is intended to be a judicial act.
10. Void orders are void forever and can be attacked in any judicial proceeding.
11. Orders derived from void orders, or rely upon void orders, are void as well.
12. The trial judge didn't sign his first order, which raises the question of his competency.

In conclusion, to uphold an order by an unknown author that is not signed undermines many of the rules of court. If unsigned orders are allowed to stand, how do we know who signed the order? For all we know, the plaintiff or the defendant might have written the order. Does the bank cash checks that are unsigned? Not hardly. Do we enforce written contracts that are unsigned? No. If the plaintiff had failed to sign this brief the Clerk would be prohibited from filing it. If the litigants are required to sign every document, including certificates of service, then shouldn't orders of the court be required to be signed?

The signature identifies the person who has the authority to act and shows he intended to authenticate the paper as his act. In this case we don't know who the author of the "order" is. We don't know if the "order" was complete and intended to represent the act of the author.

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Marc Perkel * Appellant * 10-07-99