QUIT YA CRYIN'
Well, the Appellees filed a joint response to the Appellant's Motion For Rule 34 Sanctions; and you never read such crying from grown folks in your life. They claim that appellees may adopt by reference portions of the briefs of others. While true, they still cannot file a separate brief that argues a single issue from a case in which they appeared as counsel and not as parties. They address that by stating they are proper parties to the appeal. Again, true if they filed a joint brief. They did not. Civil Procedure 101- John Houseman's class-JURISDICTION, Mr. Berg (Seinfeld reference). At the end of that argument they state: "In the alternative... Appellees are more than willing to file amended briefs to cure any defects." If you have been following this case, you are probably thinking- Can you spell IRONY, boys and girls!
Next they say that they didn't make any misrepresentations regarding Contempt; and thus the Appellant's motion is misguided and (wait for it, wait for it...) Frivoluous. They love using that phrase. Their definition?
friv-o-lous. -adjective. Any pleading filed by a pro se litigant that doesn't support our storyline.
They further go on to say Judge Stanback's order is not the issue in this appeal, although their brief purportedly details it completely. They say the sole issue is if Judge Stephens (they spelled his name wrong repeatedly in their brief-oops) acted according to the law. Sounds pretty clear except that if the records are public record (which they are) the order is void, and Judge Stephens did not act according to law. The whole point is they want the Appellant to write what they want him to write-which is nothing about the case or the players. Unfortunately, that darn First Amendment thing keeps coming up. They know this so they don't go into if these records are public records and actually say that the allegations that these records are public is pure surmise. [the dog ate my homework, the check is in the mail and those allegations are pure surmise] They contend that this issue is not before the court. They believe that they should get a judgment for contempt and if it's based upon a lie or omission of the facts...well the trial court didn't catch it so.............
In fine [you haven't been checking out your appeal blogs] fashion, the Appellees also argue that the Appellant has no right to supplement the record. How dare he! Boys and girls there are new appellate rules, as of Oct 1, 2009. Check out this blog entry! Nuf said!
I love this part. When challenged in the motion for sanctions for not presenting a fair presentation of the facts, they simply say that the information is in the record somewhere and the COA could find it if they were so inclined.
It may be time to fire their secretary. No. "II. Appellees Made No Misrepresentation Regarding Contempt" is mistakenly re-typed as No "III. Appellees Made No Misrepresentation Regarding Contempt" (Damn, OOPS again...damn).
Oh, oh, this is great! As to the numerous appellate rule violations? They acknowledged a few, but say they are de minimis. I think they may be a little de confusus. They argue that these multiple rule violations are not gross or substantial. However, if the Appellees lack standing to argue an issue on appeal, their brief is in gross and substantial violation of the rules. Simply put, the Appellees with their 60 plus attorneys, at least 8 being appellate attorneys, asked for and received 30 extra days to file their briefs and the many rule violations seems to suggest that they may not have put their A Team on it.
Lastly, these officers of the court, accused of misrepresenting the facts state the following:
"Throughout this process, Appellant makes reference to the fact that he is appearing and proceeding pro se, and that the courts should take pity upon him...Appellant is quick to point out his 'status,' presumably asking "How was he supposed to know? Enough is enough." Have you ever read such crap? If these guys can point to ANYWHERE in any record where the Appellant asked the court to take pity on him or where he asked "how was I supposed to know", I'll push a pea with my nose from Durham to Des Moines. What they are really saying is that up against a pro se litigant, they are SUPPOSED to win. Each and Everytime.
THE ONLY RESPONSE TO A PLEADING THIS BAD IS:
Well, I finally checked out this Appellee Brief . After I got to the 10th egregious error, I realized this isn't a brief with just a difference of opinion. This document is text-book OMG! In response, I filed a Motion For Rule 34 Sanctions. You can read the motion by clicking the link or the graphic above, but here are some of the highlights:
1) Big Problem: Back in February 2009 Partrick and West were told by Judge Ronald Stephens that they could not initiate a contempt motion without the sworn affidavit of the "aggrevied" party. Unfortunately, he then let Partrick swear to the motion. Lawyers don't generally like to swear to stuff in court because they can then be held accountable for what they say, but Sean did it anyway. Now he's being sued. OK, so what do they do in Sept-Oct of 2009? They initiate another motion for sanctions without a sworn affidavit. Here's the problem. The attorneys filed two briefs. One brief was the Yates Lawyers representing the Oak Health Appellees. That's fine. But the other brief is the YMH-Brock Lawyers representing the YMW Lawyers as Appellees arguing that Johnson is continuing to say bad things about them. What's the rub? The motion for contempt sanctions is based upon a supposed violation of Judge Stanback's order where the YMW-Partrick-West crowd appeared as counsel for Oak Health. The attorneys have no standing to appear as Appellees on the issue of Johnson is saying bad things about us, because they never brought an action as Plaintiffs. Wow! And these guys got an extra 30 days to file this thing!
2) I love this one. West filed a motion to strike summonses, asked for attorney fees and filed an affidavit. He also drew up the proposed order, which Judge spencer signed. Unfortunately for West, he neglected to state what statutory basis the attorney fees were requested under. They are now trying to claim its Rule 11, but that has to be expressly cited in the motion. So what do they do? In their brief, they say its Rule 11...of course its Rule 11. But also in their brief they say its Rule 22. OOPS.
3) Here's another good one. For Rule 11 sanctions, the judge has to state specific findings of fact to justify how he arrived at the attorney fee. Here, West writes in his proposed order that Judge Spencer signed "...based on the stuff West said in his motion and affidavit..yada, yada, yada..." That is insufficient. So what do they do in their brief? They simply say "yea it is! Just check out Winston-Salem Wrecker Ass'n, Inc. v. Barker; it says the judge can just refer to the motion and affidavit of the attorney to justify attorney fees. See? See?" When I read that, I remembered the Winston-Salem Wrecker case during MY research. And then it hit me... In the MORE specific case of William Carter Franklin v. June Marie Wiggins, Wiggins LLC., the W-S Wrecker case is cited. Problem for the Appellees? It supports my argument. The case highlights that due to an interpretation by another court some years back, NC Gen Stat 6-21.5 allows a judge to make that one line finding of fact that references the attorney's motion and affidavit, but as hightlighted in Franklin v. Wiggins, that aint-a-gonna help you when asking for attorney fees under Rule 11. The Appellees actually make MY point by citing Wrecker. 30 extra days, 60+ lawyers...you couldn't make this stuff up!
4) It appears that Brock has turned over the appeal to a new youngsville gavin (inside joke) upstart re-plant attorney from New York to handle the appeal. Maybe he is too busy or maybe he sees where this is going. Anyway, the new guy, Adam G. Tarsitano, forgot to include his email address and State Bar Number as required. (He's a singer-songwriter like me . I think I'm better , though) William T. Kessler , Jr. (lot of Jr.s in the legal field) who is ghost-writing for Partrick, (another inside joke) also forgot to include his email address. The rule violations abound in both these briefs though. Check out the Motion for Rule 34 sanctions for the long list of Rule violations. Anyway, these briefs are a hoot.