Transcription
Heat.
[Music] Heat.
[Music] [Music] Did you get your count? At 99, folks, raise your hand. All right. Okay. Okay. We'll continue now. Now, to go back to, um, the beginning of this, uh, today's tea party and talk about one thing is, I hope that I can impart something to you that will enable you to win because I love to win. I hate to lose. I'm not interested in riding a rocket into outer space if I'm going to burn up on re-entry. I want to win on the win.
Now, we're going to discuss four actual cases of real live people. Let's, uh, let's go back and review.
[Applause]
Courts of inferior jurisdiction, where we have to start out. How do they get jurisdiction? That's right. From pleadings sufficient to invoke their power to act. And where do they get these pleadings? They get them from the people that are litigating when they do it right. We have a common sense means that before we know what any statute, rule, constitution means, we're going to have to look at what the Supreme Courts have ruled and determined that it means. And we find out where, in the state annotated. Jurisdiction is a four-legged table. You got to have two people. You got to have the subject matter. And you've got to have the competent witness. If any of those elements is missing, the table falls down. It's void and is subject to being vacated.
Now, we're going to start looking at some actual cases. The first case they're going to tell you about is Tim. Now, before I tell you about Tim, there is a pass out in your materials that I, that I hope is handy. And this is a letter to a collection agency. Anybody ever heard from a collection agency? Okay. There is a letter to a collection agency that I have used, by count, nine times. There has yet to be reported to me a single response. This letter will empower you to learn. Do what? The second trade. Yeah, I think it is. Yeah, it's this page. It's this page. This empowers you to learn what do the people that are calling you on the phone and writing threatening letters have the authority to do that? If you send them this letter, you will find out fast whether they do or not because you'll probably never hear from them again. I've used it nine times. Nobody's reported to me that they've ever heard from them again, which tells me that those collectors were trying to run a con game. If they had legitimate rights, they would have pursued them. But they didn't have legitimate rights. And once they were confronted with something that was sufficient, then they decided that they better go pick on somebody else.
Now, this brings us to, uh, Tim, a real-life person that I work with. And this happened three years ago. Just happened to run into him at a hockey game. And, uh, I don't go to very many hockey games, but anyway, ran into him at a hockey game. And, uh, Tim said with a great deal of urgency in his voice, "You're a lawyer, aren't you?" "No, no, no, I'm not a lawyer." "Well, you do legal stuff." Well, yeah, I do legal stuff. What's your problem? Well, I've been sued. Well, how do you know? Well, they sued me. I got this, I got this summons. Said, "You've been sued and I'm going to have to go to court." They sued me. I said, "Well, maybe. Maybe you've been sued. Maybe you haven't."
Now, why did I say that? Well, because I suspected that it would be the typical BS. And again, what was I relying on? I was relying on the law because the law says in a disputed matter, a disputed matter does not become a case or a proceeding until the law provides for a hearing before a court. And therefore, any matter is first judicially determined in a court of some nature. In other words, until you put the four legs under that table, it's not even a case yet. It's not even a case. Now, again, I'm not saying this 'cause I love it. I do. But I'm saying it's because the law. This can go with those others for copying back there.
So Tim thinks that he's been sued, and probably 99% of all lawyers and even a lot of judges probably think he was thought he was sued, too. And I said, "Okay, here's what you do." Said, "Bring me the paperwork." He brought me the paperwork, and I looked at it, and I said, "You haven't been sued yet." And he said, "But it's a summons and it says you have been sued. You have 20 days to answer." And I said, "Yes, but you haven't been sued yet. And here's the reason why."
Now, Tim's too young to remember very much about Judge Walner, but Judge Walner always began by saying, "I've read your complaint. I know you've been sworn. There was nobody in here swearing. Who was injured?" Somebody says, "I'm injured," then you've been sued. But until that competent witness appeared, it's not a case yet. That's what the law says. And I said, "Here's what you want to do. Go down to that courthouse. You ask for this case file number. You look in there and you tell me if you see an affidavit because if you don't see an affidavit in there, they have yet to name a witness. If there's no witness, there's no injury. If there's no injury, there's no wrong. There's no wrong, there's no remedy, there's no case." All right?
So, he went to the courthouse and lo and behold, when he looked in his file, there was no affidavit. And so, he calls me and he says, "Well, now what do we do?" So, I say, "Okay, here's exactly what to do." You compose a letter and it goes like this: "It is not now, nor has it ever been my intention to avoid paying any obligation that I lawfully owe. In order that I can make arrangements to pay the obligation which I may owe, please document and verify the obligation."
So you make two copies, you carry it over to this lawyer's office, you ask him to sign for one of them, and then you ask for the documentation and verification. Now, we know from this morning who can document and verify that. Can that attorney? No, he can't do it. And I'd already coached him of what to say because I was always already anticipating what would probably be said. That attorney said, "Well, you're here to start your installment payments. We'll get you started." Tim said, "No, I'm here for the documentation of the verification of what I owe." "Oh, well, yeah, we we can document that. We can verify that and we can get you started on some payments. It'll be easy for you to afford them." "No, no, no. I want you to document and verify what I owe." Attorney said, "Well, now, if you're not going to cooperate, we're just going to have to go ahead and sue you." He said, "No, you're not cooperating because I've asked you to document and verify what I owe and you're not doing it. Now then, is that better?"
So what we did is we answered their suit, but we also countersued them for fraud and bad faith because they had advanced documents expecting another person to rely on them, which were they would surrender money, property, or rights that they had to know were false. How did they have to know that they were false? Because that attorney had an obligation under oath to make an inquiry under reasonable circumstances to determine whether or not there was an actual obligation. And when he couldn't document, I mean, how hard could that be to document? And when he couldn't document it, that told us that he had committed fraud. But he had committed fraud in the name of the finance company that was now suing him for a deficiency.
Now, this tea party went on for well over a year, and twice they tried to get a summary judgment against him. The lawyers wanted their money, and it wound up there was a team of three against him, and that's usually how it works out. These guys are so confident in themselves pleading against the pro se that they have to show up with, um, a posse. But let's look at the second response to the motion for summary judgment. That's part of your materials, and that's identified as "Defendant and Counterclaimant John Doe Citizen's Response to Plaintiff and Defendant on Counterclaimant's Motion for Summary Judgment." Okay. What's our, what's our premise we're going to proceed under? Plaintiff and Defendant on Counterclaimant's Motion for Summary Judgment is a substantive and procedural nullity. Pretty heavyweight words for somebody representing themselves going into court. Brief in support. Plaintiff and Counterclaimant has placed no facts on record. No fact appears on record, whether by deposition, admission, answer to interrogatory, or by affidavit, to suggest or to support the averment of Plaintiff and Defendant on Counterclaimant's pleadings. Documents proferred by Dewey Cheatem, it's not the attorney's real name, are unverified, out-of-date, irrelevant, and inadmissible. The record shows that the Defendant and Counterclaimant John Doe Citizen has testified and testifies again infra, establishing that material facts to which there is substantial controversy are at issue in this case.
What's accomplished in this first paragraph? First of all, when you're, when you're in a pleading form, you want to know what it takes to win with that form. And when you want to win against a motion for summary judgment, you've got to state that there is a controversy. If there's controversy, there can't be a summary judgment. And you're stating that there is a controversy. And so the court cannot decide this against you. And you're also saying that the only person that said anything in this tea party is an attorney. And I don't care how high the stack of paperwork gets from an attorney, it never, never rises to a level of fact. If you look at the clear letter of the law as determined by the Supreme Courts, judges are not even supposed to look at it. It's not supposed to be noticed by the court. Just like Sanders Sauls down there in Florida with those stacks of 20,000 ballots in there, it wasn't noticed by the court because it didn't come through a competent witness.
Now we go ahead and, uh, state what we feel the controversy is, and then we come down to the argument and authorities, which is the holdings upon which we are basing our empowerment of the court. This is how we empower the court to make a ruling favorable to us. Argument and Authorities. Statements of counsel in their briefs or argument are not sufficient for purposes of granting a motion to dismiss or for summary judgment. Trenzy versus Paglaro. Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather material facts must be supported by affidavits and other testimony and documents that would be admissible in evidence at trial. And it gives the authority for that. Where there are no depositions, admissions, answers to interrogatories, or affidavits, plaintiff's motion for summary judgment could not be considered under District Court Rule Oklahoma Statute 12, Chapter 12, Rule 13, providing for judgment where facts are not controverted, in as much as there was a complete absence of any requisite basis, misspelled basis, therefore, proper determination that no substantial controversy existed. And it's coming from where are annotated statutes. Any ruling on a motion for summary adjudication must be made on the record parties have actually made and not upon one that is theoretically possible. And then I go ahead to list some other authorities there. But it goes right directly exactly to what we've been talking about. The other side was not entitled to a judgment. They hadn't even established a case yet.
Do you think that this is unusual? I estimate that this has happened 50 million times in this country because our legal system is so rotten. Attorneys are so lazy, incompetent, and utterly stupid.
So, actually happened in the case? Well, what happened is, uh, they fought on for about another month or so after this, and they called him and they said, "We will leave you alone if you'll leave us alone. Will you please leave us alone? Will you please drop your suit? We'll drop our suit if you'll drop yours." Well, I left it for Tim to decide what to do because I wouldn't have dropped it because I want to win. But he had had enough after nearly two years of having these people as if they had a gun at his head, that he was really ready to drop it and and let it go. But I hope you agree that in the time from when he frantically said, "I've been sued," and when the amount that they were claiming that he was going to have to pay was about $6,000, to actually being able to walk away was not just a victory, it was a tremendous victory in the context of a system. If the pleadings are right, you can win. That's the Tim story. Do you like the Tim story?
[Applause]
Now, we're going to talk about the Dorothy story. Anybody here ever had a credit card that they kind of had some problems with? Well, I tell you, this credit card business is a racket, isn't it? It's horrible. It's horrible. Well, Dorothy, who is now 70 years of age, had a credit card like most of the rest of us do. And you know, those things are just addictive. And that credit card just got to have a bigger and bigger and bigger outstanding balance. And it eventually got to the point that it was just, she was never going to be able to pay it off. All she could do was just manage to make the monthly payment on that thing, which with its excessive interest rate means that you may never pay that thing off. Dorothy paid conscientiously and probably would have on and on and on, except she had another little problem called the IRS. The IRS worked her over, and by the time the IRS got through working her over, she was ready to quit work. And when she quit work, she did not have the financial means to pay that credit card. Credit card went into default. And then what happens when a credit card goes into default, usually? Well, they usually do. They sell it. They sell that obligation unless it, unless that promissory note is transferable, and even then only with proper notice. If you sell it, it's dead. It doesn't exist anymore. It's gone. Killed it. Well, it depends on whether there's a transfer clause in it. And if there's a transfer clause, it can be sold if they give you proper notice. We have a thing on taxes where the so-called county clerk sells it to the sheriff on taxes. Well, we'll have to get to that later. We'll, we'll try to, we'll try to work that one out in the afternoon session.
So anyway, here's Dorothy defaulted on this credit card, and by the time she defaulted on it, the balance on this thing was $6,000. She sued by a lawyer in the name of the company that had the credit card. Now, she had been unfortunately at that time held back by a tether because she thought she might be protected if she wrote on the outside of that summons, "Refused for Fraud," and returned it. Anybody heard that one? Okay. Didn't work. It didn't work. That attorney got a summary decision against her for $6,000.
Now then, a little bit over a year later, she is, uh, compelled to go into court on a hearing on assets. And strangely enough, this $6,000 has managed to inflate to $14,000. How does that happen? I think it's called greed. And so she appeared in court, and that attorney said, "Oh, you better get an attorney. You're in big trouble. You need help. You better get you an attorney. You need an attorney. You better get you an attorney." Well, Dorothy didn't get an attorney. What we did is, because we looked at the record and saw that it was the typical atrocity that had not been done properly, we launched a collateral attack. And this is the last effective pair of pleadings that were filed in that attack. We sued another court. In other words, a collateral attack.
Now, in these cases, these are real cases. What I've done is is go through them and attempt to remove anything that would that would actually identify the people in the interest of their privacy. So if you see something there that leads you to conclude that you might be able to discover who that is, please ignore it. But this is, this is the pleading that we filed because we filed our own petition to vacate this void judgment, and we parried with him for a while. Now, we're going to come along and we're going to file our motion for our summary judgment. We're going to get a summary judgment against them. And so, we'll read a little bit of that. Um, Mark, you want to read the, uh, first page there?
"Plaintiff's Response to Defendant's Motion to Dismiss Plaintiff's Motion for Summary Judgment. Brief in Support of Plaintiff's Response to Defendant's Motion to Dismiss. Defendant's Motion to Dismiss is a substantive and procedural nullity. Defendant's Motion to Dismiss is frivolous on its face. If dismissal motion also tenders for consideration, materials outside of pleadings, summary judgment procedure must be utilized. Bray versus Thomas Energy Systems, Incorporated. Fact is material for purposes of motion for summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action. Brown versus Oklahoma State Bank and Trust and Company of Venita. Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather material facts must be supported by affidavit and other testimony and documents that would be admissible in evidence at trial. Sinko Enterprises, Incorporated versus Beno. Statements of counsel in brief or in argument are not sufficient for a motion to dismiss or for summary judgment. Trenzy versus Paggleero. Where there are no depositions, admissions, answers to interrogatories, or affidavit in support of motion for summary conclusion, the motion cannot be considered. See Oklahoma Statutes Title 12. Pro se litigants cannot be dismissed for failing to state a claim upon which relief can be granted. See Hannes v. Uh Kerner. Although Carl F. Hirsch might presume to advise the United States Supreme Court, this court has knowledge that Dorothy L. Citizen's procedural due process rights require opportunity to present evidence on her claims. Dorothy L. Citizen's petition to vacate a void judgment is procedurally proper, placing substantive fact issues before this court via unrebutted, unrebutted affidavit. See Exhibits A and B."
All right, you know, stop right there. So, starting to sound a little bit familiar. See, a lot of this stuff is just so simple that we cross over it several times before we actually realize what the deal is. Did this go to appeal or you did this after they granted the summary judgment? Is that it? It was after the summary judgment had been granted by more than a year, and and you didn't appeal. You just could. No, Dorothy didn't know to take it to appeal, but I wouldn't have taken it to appeal anyway because I want to collaterally attack that void judgment. Collaterally attack means that you file your own suit for its removal. See, because. Oh, this is a new suit. It's a new suit. It's a new suit. Dorothy was clobbered with a suit against her. Now she turns around and she's going to clobber them. 2011 provides the sanctions against attorneys if they've got a fraud. Do you ever bring that into the picture of claims that you're advancing? Attack? Yeah. Did everybody hear the question? The question is that statute in Oklahoma provides for sanctions against lawyers that have advanced a false suit. In our pleadings, it was there. We're not done with this yet. In our original pleading, it was there. Do you bring in the, uh, request for damages as a result of the sanctions against the attorneys after there's been a decision rendered in the collateral attack, or you try to bring that as part of, as a decision? You bring it up front. That's what we did. So when the judgment is rendered, that's included. Yeah. Yeah. And see, when you can take as many chances at justice as you can. See, it's just like the question on appeal. We won this deal, but what if we hadn't won it? And it's just like we did ask for the sanctions, and we didn't get the sanctions, but we can still sue in this case. What if you've already put in the? Doesn't matter. It doesn't matter. It doesn't matter. It doesn't matter because actions for void are the queen of the chessboard. You can do them any time, any place, anywhere in any court of competent jurisdiction. You can have an appeal pending and still attack it in a collateral attack. It's why it's called collateral. Can you reinjure the same way? I don't know. No, I don't know. I don't know. This collateral attack, when you file it, do you file it in the same court as a different case? The question is, in a collateral attack, is it filed in the same court as a different case? And it depends on the state. Some states will ask you to go back into the same court. Some will ask you to merely go back in the same venue. In Oklahoma, you have to go back in the same venue, but you want to file a separate suit, which gets you before a different judge. You're not asking the judge to review his work. That's why although it is possible to move for vacation of a judgment, I don't recommend it. The latest question before that was, does the law of voids apply to grand juries? And my answer is, I don't know.
Uh, Deborah, you want to come up and, uh, read a couple of pages?
Now, in this, um, in our motion for summary judgment against them, they responded, and we have to their response. Now, I did this for two reasons. First of all, because their response was not legally sufficient, but also I wanted to give Dorothy, who is 70, was supported by Deborah and a couple of other friends, a little bit of emotional currency when she went into that courtroom to argue against one attorney with two backups. I mean, I guess they think they're strength in numbers or something. I don't know. But there were actually three attorneys involved against a 70-year-old woman. And she was terrified. Said, "Dartha, you've just got to think about what's at stake here. If you don't get this $14,000 judgment against you removed, you're ruined financially. You're just absolutely ruined because you'll never pay it off. They'll take any property you have, and it, it's just terrible."
So, what we did is we objected to their answer, and Deborah is going to read the, uh, objection there.
Okay, this is, uh, page one of the last two pages that are attached to that pleading. "Objection. Plaintiff's Objection to Defendant's Unverified Motion to Dismiss and Defendant's Unverified Response to Plaintiff's Motion for Summary Judgment Report. Defendant's Motion to Dismiss cannot be lawfully considered by this court. Defendant's Motion to Dismiss pleads matters off record. If dismissal motion also tenders for consideration material outside of pleadings, summary summary judgment procedure must be utilized. Bray versus Thomas Energy Systems. Fact is material for purposes of motion for summary judgment is proof of that fact would have the effect of establishing or refuting one of the essential elements and of a cause of action. Brown versus Oklahoma State Bank and Trust of Venita, Oklahoma. Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather materials. Material fact must be supported by affidavit, affidavit, and other testimony and documents that would be admissible in evidence of trial at trial. Sino Enterprises versus Beno, Oklahoma. Defendant's response to Plaintiff's Motion for Summary Judgment cannot be lawfully considered by this court. Defendant's response to Plaintiff's Motion for Summary Judgment contains objectionable hearsay articulated as fact number one through fact number 11, and additional material facts not in controversy articulated as Exhibit A through J. Statements of counsel in brief or argument are not facts before this court. Statements of counsel in brief or in argument are not sufficient for a motion to dismiss or for summary judgment. Treny versus Paggleero. Where there are no depositions, admissions, answers to interrogatories, or affidavit in support of motion for summary. Conclusion. The motion cannot be considered. Oklahoma State Title 12, Chapter 12, Rule 13. Conclusion. Determination by this court that Carl F. Hirs has not named a fact witness for any of his unverified allegations and has not supported his allegations with affidavit, affidavit of competent witnesses, justly requires that neither oral oral or written pleadings on behalf of the defendants be part of the record."
Thank you, Deborah. Starting to, starting to get real familiar or somewhat familiar, and see, it's simple, isn't it? Am I, am I delusional, or isn't this really pretty simple? It looks simple. Okay. Question. Attorney and power of attorney, would he speak and give evidence? The question is, if the attorney had a power of attorney for the witness, would he be able to speak in the court? I'm going to give you my opinion. My opinion is no. That's not the purpose of a power of attorney. The purpose of power of attorney is for, uh, documentary, uh, utility. It's not for the purpose of witnessing. And the reason that I believe that, and I've actually seen attorneys do this, you know, I've actually seen attorneys file affidavits. Can an attorney file an affidavit? They can, they can, they can file an affidavit only on what they're charging. They can only swear to what they've charged a client. They can't file an affidavit of it. Actually seen attorneys in two cases file an affidavit and begin it based on "reasonable information and belief." That's not an affidavit. That's not an affidavit. It has to be based on actual knowledge. Now, if you want a pro forma for an affidavit, look at the affidavit in the case that I called Tim that we looked at first there. Your affidavit: short, positive statements of fact. An example, if you're writing an affidavit, don't say, "I don't owe these people money." It's an opinion. Say, "I am not in receipt of any document which verifies that I owe them money." That's a fact. All in how you say it.
And, uh, this war is a long ways from over. There's still going to be some bloodshed in these courtrooms, but the judicial industry is starting to pay attention for two reasons. They're seeing an increasing number of pleadings that are correct. Do your pleadings correctly. And they're also starting to look over their shoulder because they realize that they are being watched, and that the tide is turning, and they're going to have to decide where they want to be when the whole thing sorts out. The tide is turning. So, if you're in need of an affidavit, and you will be, there are rare occasions when I will submit any pleading without an affidavit because if it goes to a fact issue and it is not rebutted, that is an automatic win in a court of competent jurisdiction.
So, what happened in Dorothy's case? Did the attorney get to clobber her for $14,000? That judge was kind of like the wicked witch of the West. And oh, she struggled and struggled, but she finally vacated that judgment as a void. And I don't think it was because she has an overwhelming sense of justice. I think she was painted into a corner and realized that the only safe way out was to vacate that judgment according to the proper pleadings. Dorothy told her then she did not basically gave her. She said, uh, that she said, "Judge, she says, I can see that I'm not going to get a fair hearing, so I'm going to ask you to recuse yourself." Everybody hear that? Okay. Don't be afraid to do that. Don't be intimidated by them. Um, attorneys and even judges are in a slave master relationship. Excuse me, servant master relationship. Guess who the servant is and guess who the master is? That's exactly right. And it's the theme that's going to keep coming across when we're talking about the courts. They're our servant. They're there to serve us, but we've got to know how to make them serve us. And we'll never make them serve us if we don't do our pleadings correctly. Even though they are the guardians of our liberty, we can't count on them to tell us everything. Okay.
So, that's another, that's another victory for the little people in the situation with the judge has failed and moved forward improperly and issued a motion for summary judgment, awarded this motion for summary judgment, and there are any facts in the case, he's duty. Do you include him in the collateral? Bringing together the. The question is, is if a judge issues a void judgment, do you include the judge in your collateral attack? Is that the question? The answer is no. Is the judge immune from attack? No. I think I've got a document for you on that. Judge without jurisdiction, he loses all. He does lose immunity. And I've spent a lot of time studying judicial immunity, and I can guarantee you that many times in print, in the law books, and even in the annotated, you'll see a statement like this: "Judge who acts in clear absence of all jurisdiction is deprived of immunity." Sight omitted. Sight omitted. They don't want you to know that. Sight. But I've got probably the very best one. I thought I brought it with me, but I can't lay a hand on it. But I'll see if I can find it later because you can sue that judge because he didn't have jurisdiction. There's only two things that you can sue a judge for. One is acting without jurisdiction, and the other is for commission of an act that's clearly unlawful, which includes fraud, by the way.
So the question being, why did you not bring the judge back? Question is, why don't you bring the judge back into the collateral attack? That's the question. The answer is, he's not a proper party. You don't have standing to sue him for that. You do have standing to sue him, but not for that. There are also sightings, um, having to do with the judge or the court taking jurisdiction where he didn't have it, that it is not the defendant's place to have to bring that out. The judge is supposed to know it, and he's not supposed to take jurisdiction unless he has it.
Okay, I think I understand the, the statement or question. A court, meaning a judge, can determine their own jurisdiction. That doesn't mean shall. It means can. It means that they can look at a matter and say, "Well, I can't do this one." Or they can look at it and say, "Yeah, I've I've got jurisdiction here." That doesn't necessarily mean that they have jurisdiction, but they can make their own determination on jurisdiction. And that's why you do not do a direct attack by motion because you're asking that judge, "Did you have jurisdiction here?" He's going to say, "Yeah, sure did." They have a problem. If that's the case, though, and they take a case, they should stay right up front, shouldn't they? Why they have jurisdiction? Oh, yes. I think you'll see that. You'll see that in the pleadings. In the pleadings, you will see the jurisdiction because that's what you want to do is you want to tell the court what's their authority to act. But there's a second half to your commentary. And that half is that once jurisdiction is challenged, it's incumbent on the other side to prove the jurisdiction, not the court. So, in other words, if you say, "Well, this court didn't have personal jurisdiction over me on this because I didn't know about it," they have to prove that you got service. The court doesn't have to prove it. They have to prove it. So whenever jurisdiction is challenged, it's incumbent on the opposing party to prove the jurisdiction.
I think my question is that if a court unlawfully took jurisdiction and you didn't challenge it in court, I don't believe that you have to in order to bring up the issue later. You're absolutely right. Did everybody hear the question? The question is, if you don't challenge jurisdiction, can you bring it up later? And the, the answ, the answer is absolutely because the jurisdictional question can always be raised, and subject matter jurisdiction is never waived. It's never waived. Even if you fail, it's impossible to waive subject matter jurisdiction. Absolutely impossible. Which means that if they have personal jurisdiction and they get a default, if there was no subject matter jurisdiction, subject to attack. Subject to attack.
All right. These, uh, these are two cases that were fought on the defensive. So the question probably occurs to some of you. Can, can we fight on the offensive? What happens when we go on the attack against them? Do it. Do it. Just do your homework. This is a real case. And this is Bobby's case. And Bobby's two sons were driving down a McLain County road in a rainstorm back a couple of years ago, almost a couple of years ago, and the county doing maintenance on that road had dumped a pile of gravel completely across a culvert, about 3 feet high. They ran into that pile of gravel, totaled the pickup truck. Both of them were injured, a lot of them pretty badly. A lot of cuts in his face, glass and everything. And they went to a licensed bar associate attorney, took their case, kept it for over a year, then without requesting to do so, he dismissed the case and and resigned. Said, "Well, you don't have a case. You don't have a case." And his logic was, "There are quote a myriad of defenses for the county of McLain County under the Oklahoma Municipal Tort Liability Act." Well, to me, what this immediately meant to me is that this attorney didn't smell enough pay dirt in this one to make it worth his time. But instead of being honest and saying, you know, "I'm a greedy sleaz. I'm a greedy sleaz. And as well, unless I can really make some big bucks, I don't care about your problem." That's what he should have said. But instead, he lied to them. Anybody ever encounter an attorney that tells a lie? Okay. That's a real good possibility. Gentleman's commentary was he might have received more money from the other side. Does anybody not believe that that happens? Okay.
So, where does this leave Bobby and his two sons in this whole deal? Well, what we did is we repleaded this case, and we didn't have much to go on because they wouldn't tell us anything. We had to use a deposition to find out who dumped the gravel. We also coincidentally, at great shock and surprise to their attorney, used the deposition to prove the case because before I went into the pleadings, I went to what? Yes. The state annotated. I found out what you have to prove. What is your burden of proof? What do you have to show? And everything that we had to show in the suit was posed as a question in that deposition. "Were you doing maintenance on the county road?" "Yeah." "Thank you." And so we just crossed all the tees, dotted all the eyes, and we had already put pictures as well as affidavits in the file. File those affidavits. Testify. They're not rebutted. They become evidence. They're not challenged. They are testimony. And so this one worked along for a while. And, um, it looked like they were going to, they being the other side, uh, the county commissioners as well as their attorney, was going to try to drag it out for as long as possible and was probably going to try to block it. And so this is what we filed. Uh, Deborah, you want to come up and read the first page of this? Read a couple of pages if you can.
"Application to Amend Petition and Claim. Bobby Dean Citizen Senior, Judy Citizen, and Bobby Dean Citizen Jr. and Matthew Butch Citizen. Agreed. Parties petitioned this court for redress of injuries to persons of Bobby Dean Citizens Jr. and Matthew Butch Citizen. Damage to the personal property of Matthew Butch Citizen and collateral damages of Bobby Dean Citizen Senior and Judy Citizen caused by the breach of duty by employees and officials of McLain County. First Cause of Action. McLain County employee Ronnie Lynn McKascal, supervised by McLain County employee Terry Daniel, performing proprietary functions on a McLain County road on April 26 of 1999 was negligent, causing injury and damages testified to infer. Mr. Macascal performing proprietary functions completely blocked an open and commonly used road by dumping a pile of gravel that completely covered the passable roadway, totally preventing safe passage. The pile of gravel gravel dumped by Mr. McKascal made it impossible to drive over or around the obstruction. The negligence of Mr. McKascal was compounded by his willful negligent to mark a frequently used county road under maintenance with safety warning signs and barricades. Bobby Dean, Citizen, Senior, and Matthew Butch, Citizen, exercising proper care and caution that reasonably prudent persons would have used under the same circumstances and devoting full time and attention to driving had no means to know of the hazard in the roadway for want of proper warning signs and barricades. The citizen vehicle struck the gravel totally obscured by a heavy rainstorm. If Mr. Muscascal had placed proper warning signs and barricades, Bobby Dean Citizen Jr. and Matthew Butch Citizen would have stopped, averting injury and damage, even if rainfall obscured their vision. McLain County had a duty to protect the driving public by the supervision of placements of signs and barricades. McLain County had a duty to protect the driving public from harm. See Neil versus Donahghue. Mr. McKascal breached McLain County's duty not to make the roadway dangerous for ordinary use under these circumstances and not to permit the highway to become dangerous for ordinary use under the circumstances. McLain County's breach of duty resulted in injury to Bobby Dean Citizen Jr. and Matthew Butch Citizen. See Transcon Lines Corporation versus Cornell Construction Company. The accident did not relate to discretionary placement of traffic control devices, but the placement of hazard warning signs. A municipality had has an ongoing duty to warn of known dangerous conditions of the road. The duty to exercise reasonable care to maintain safe streets includes an obligation to barricade or light the dangerous conditions or in the alternative to prohibit use of the street. McLain County is not immune from suit. There shall be a remedy afforded for every wrong. Oklahoma has waived counties' immunity for occurrences arising from proprietary functions. Maintenance of a county road is a proprietary function. Counties are liable for tortious conduct arising from proprietary function. McLain County as well as McLain County's commissioners have cognized concordance of the, they know about it, proprietary nature of a county road work. The April 26th, 1999 action of McLain County by and through Ronnie Lynn McKascal were not for the purpose of governing the people of McLain County, but for the private advantage of inhabitants of the locality and the county. Bobby Dean Citizen Jr. and Matthew Butch Citizen have each suffered personal injuries in the amount of at least $2,500. Matthew Butch Citizen suffered damage to personal property of at least $3,000. Second Cause of Action. Aggravated I'm sorry, that wasn't following that one. Aggravated with the injuries of Bobby Dean Citizen Jr. and Matthew Butch Citizen, Bobby Dean Citizen, Senior, and Judy Citizen have suffered discomfort, annoyance, and inconvenience as derivative of the breach of duty of McLain County, which resulted in injuries to Bobby Dean Citizen Jr. and Matthew Butch Citizen. Bobby Dean Citizen Je Senior and Judy Citizen were compelled to furnish Matthew Butch Citizen with a vehicle, had an added jeopardy of having to cosign on a new vehicle loan for Matthew Butch Citizen, and suffered emotional anguish, discomfort, annoyance, inconvenience directly due to the bad faith and irresponsibility or irresponsible demeanor of McLain County officials. See C. Walker versus City of Moore and Cunningham versus City of Ardmore, Oklahoma. Rehearing denied. Certiorari denied. Bobby Dean Citizen Senior and Judy Citizen's injuries are not less than $5,000. Third Cause of Action. McLain County's officials have been grossly negligent, committing acts that if done by a private citizen would immediately rise to a level of malicious mischief. McLain County's officials failed to properly train and supervise Ronnie Lynn McKascal according to the universally applied mandates of the Manual on Uniform Traffic Control Devices and in the present occurrence specifically part six, even after informed of the incident, McLain County's officials failed to arc the hazard and also failed to inform, train, and supervise Ronnie Lynn McKascal. A jury's determination that McLain County officials have been grossly negligent warrants exemplary damages significant enough to be instructional to McLain County officials to bring about proper and responsible concern for public safety. The matter of Bobby Dean Citizen Jr. versus McLain County is ripe for adjudication. In a good faith effort to resolve this matter, Bobby Dean Citizen Jr. have exhausted all remedies, including the procedural, uh, requisites of the Oklahoma Governmental Tort Claims Act. The notice given by Bobby Dean Citizen Jr. and Matthew Butch Citizen is significant as so as not to preclude the claims of Bobby Dean Citizen Senior and Judy Citizen arising from the same transaction occurrence. Calker, supra. Arguments and Authorities. There shall be a remedy afforded for every wrong. Oklahoma Bill of Rights Article 2, Section 6. Oklahoma has waived county immunity in so far as counties are concerned. An indicia of a proprietary function is that it is quasi-private in nature and exercised not for the purpose of governing its people, but for the private advantage of inhabitants. Maintenance of county roads is a proprietary function. Counties are not immune from liability for tortious conduct occurring during the performance of a proprietary function. The liability of the state for tortious conduct conduct arising from the performance of a proprietary function is analogous to that of a municipal corporation. Terry versus Edgen, Oklahoma. Remedy Sought. A jury's determination that McLain County breached duties causing injury and damage justly requires compensating Bobby Dean Citizens Jr. in the amount of $2,500, Matthew Butch Citizen in the amount of at least $5,500, and Bobby Dean Citizen Senior in an amount of at least $5,000, plus costs and compensation for time spent litigating. A jury's determination that McLain County's officials have exhibited a demeanor that is outrageous warrants exemplary damages a jury should decide."
You deserve it. You deserve a hand for that. Uh, thanks for reading that. Okay. So, we can play offense, too. We don't have to just play defense. When we have something that's, uh, that needs there needs to be a suit for, we can play offense. Uh, how did this one work out? It's not quite done yet. And I'm not sure that that attorney on the other side cried and wet his pants, but he did say, "Would you please write up a settlement proposal and tell us what you'll settle for?"
Okay. What were the remedies that you were required to exhaust to the Oklahoma? The question is, under the Oklahoma Tort Liability Act, what are the remedies that you're required to exhaust? Uh, the answer is, you have to actually submit a proposal to the municipal government stating your damages and the occurrence. Um, they have an opportunity to examine the claim and pay or make an offer on the claim. If you don't do that, you can't proceed. That's your administrative remedy. In this case, they denied it. They totally denied it. We didn't do anything wrong. I went out and looked. This culvert completely was underneath the roadway. If you had have driven on either side of it, you'd have rolled your car. The gravel was that tall. And to show you what a dummy this attorney was in the deposition. Oh, we really ambushed him because he told this Ronnie Lynn Macascal, "Just go in there and lie and say the roadway was passable." And he thought that little lie would establish a controversy that they could hang their hat on.
There are a few people on the internet that have, uh, named me the Michelangelo of legal writing. That makes me feel good. Makes me feel good. Uh, I hope I someday actually deserve it. But in this, I'll tell you a little secret. I went to the state annotated and I learned what it took to make the case. And then I went to the court files and I pulled the actual file of the actual case that Oklahoma relies on as the landmark case on municipal tort liability in traffic claims. And I made notes. I didn't plagiarize any of the work, but I did make notes because I wanted to know what, what do we need to show to win, and what can they do as a defense. That's why I covered a base. Here's a defense that they could have said. They could have said, "Well, these guys weren't paying attention to what they were doing. If they'd have been careful, they wouldn't have been in an accident." Wait a minute. We're going to open that gate and close it before they get there. Here. We're going to say, "No, they were devoting time and attention to driving just like a prudent person was." Not only that, buddy, here's the affidavit on it. Again, statements of fact. It doesn't state an opinion, but it states a fact. As far as what we have to prove, you can discover what you need to prove your case. We needed to prove that McLain down McLain County has a duty to protect, that they have a responsibility for the supervision and placement of signs and barricades. That they have an obligation to the public not to subject the public to harm, that they breached those duties, making the road, the roadway dangerous. You put that all in your pleadings, your whole argument there, and support it with affidavit. You open those gates and close them before they have a chance to go there and argue against you. A defense, they could have said, "Well, you know, we don't have any obligation to put up traffic control devices." Well, yeah, you do in this case because this is not about traffic control devices. This is about hazard warnings. So, we're going to make that clear that we're talking about the absence of any.
Hazard warning being placed there. You had an obligation to do that, to light it and barricade it, and you didn't do that. And this was a proprietary function that you guys were out there doing anywhere because if you let a municipality claim that they were doing something that was a governmental function, they're going to win. You say, "No, no, this wasn't a governmental function. This was a proprietary function." And you know what? Not only do these things that we had to be able to effectively plead, rightness, gross negligence, and all of these other elements were posed as questions to their witness. He testified for us. We got him to do that. His attorney said, "I just go in there and tell him you left the roadway passable." Phil, sorry. Not show up at the deposition. Uh, the question is, did the other attorney not show up at the deposition? And the answer is yes, he was there. My inference is that he had told the guy, "Just answer that you left the roadway passable. You'll do all right." He didn't think ahead of us and realize that we were going to have 25 questions that proved our case and we were going to get him to say you were there doing proprietary function. Yeah. We were going to cross every single one of those. How was that a proprietary function? Because it was done for the residents of the locality and not in the interest of exercising the powers of government. So, in other words, if you have, um, road work that needs to be done in front of your house, that's really for your benefit, you and your neighbors. That's a proprietary function. And when you establish that on the record, now we've got our witness, we've got his witness, that proves our case. And so, after they saw this, they were ready to throw in the towel. We haven't got the payoff yet, but I expect we will. How did you propose? I don't have a copy of the settlement with me. Go to the county. Question is, how did we, uh, submit a, uh, a settlement proposal? And, uh, I wrote a settlement proposal and then it was mailed to the attorney from the other side, and they're supposed to give us an answer by, um, I think a week from today. That was after the case started. Oh, yeah. It's not something you do before. No, it's something they solicited. Something that they said they, in effect, you're going to win and we're going to lose. So tell us what you will settle for so we can save ourselves the expense of going to court, is exactly what they were saying in as many words. But I wrote a settlement proposal, but the first statement in that settlement proposal is that their attorney will actually write the settlement contract. And I did that for a reason. And remember this, anytime you have an opportunity to enter a contract with somebody else, make sure that they are the author of that contract, unless you are supremely confident in that contract. And the reason why, if there are any vagaries, inconsistencies in that contract, it's interpreted against the person that wrote it. So remember that. So that's the first thing to say, okay, we're ready to settle, but the first thing you guys are going to write the settlement contract.
The settlement did require that they conduct a, um, risk management seminar based on the manual. I mean, you guys are dangerous. You're carrying you out there dumping gravel on roads and not even put up a warning sign. So what if it was raining? What if it had been dark? You're going to get somebody killed. Stop it. So that's one of the things that we put in the settlement is they have to conduct a risk management seminar so that they can learn how to start marking these roads and it asks for damages that probably even after the horse trading is done will be about three times what they would have settled for in the beginning. Might even been enough to attract the attention of a licensed bar associate. I don't know. But, uh, so you spoke of the importance of discoveries in particular. Are you aware of any procedure that can be used, uh, to conduct pre-trial discovery? The question is, am I aware of any procedure that can be used to conduct pre-trial discovery? Is that the question? The answer is absolutely. You're entitled to discovery and withholding discovery is actually a felony. The case even being filed or any file? No, not prior to the case being filed because you don't have any authority to ask for this discovery. You can ask for it, but you don't have any authority to do it. After the pleadings begin, you ask for your discovery and if you don't get your discovery items, you can, uh, file a motion to compel. And if you still don't get your discovery items, you can file a motion to sanction. But that's often done. They will often block the case by refusing to give you evidence. But, um, you can get that evidence. And that's one thing where the courts, if there is an area where the courts tend to lean in our favor, it's on that because it's just absolutely too outrageous to deny you a clear request for the information that will enable you to plead your case. That's one place where they're really not going to play games with you.
We have been discussing jurisdiction a little while ago and in the federal courts, the things that I've noticed is on every jurisdiction state which invokes the court. However, in Oklahoma, in the state, it appears that there's even no requirement for the attorneys not to require, uh, Uh, I think you're asking for a comment on Oklahoma's, um, court customs as far as pleading to jurisdiction. We pled our jurisdiction to act. It's under the Oklahoma Governmental Tort Liability Act and it's also under the Constitution. So when you get back here to argument and authorities, we pled our authority to act. Though they can't challenge us on lack of subject matter jurisdiction because between this right here and the affidavits, we put four legs on that table. It's true that attorneys are very, very sloppy about not stating the court's jurisdiction. Uh, that doesn't mean that the court doesn't have subject matter jurisdiction. It just means that it makes it easier to challenge the court's jurisdiction if they don't say what you know where they're coming from. I guess specifically the way I would reference that question is given a civil matter and, um, the other side is proceeding against you and you don't know what statute they're proceeding under which has court's jurisdiction. Uh, it therefore seems to me if you apply the federal standard for lack of jurisdiction statement that you have avoid judgment argument for lack of subject failure to the authority. Okay, that's, yeah, that's a little long to try to repeat, but you're saying is it does it pose a jurisdictional challenge if they don't state their jurisdiction up front? And the answer is it does, but it's not a card I would play in that way. What I would do is file a motion to dismiss for failure to state a claim upon which relief can be granted. What's that motion to dismiss? Okay. Okay. IRS. Failing to state a claim upon which relief can be granted means that you are not proceeding under a common law authority as a person with standing to proceed under that common law authority. You have to establish two things. And that's why I'm going to state the common law authority, but I'm also going to show that I have standing. See, these people had standing because they claimed that they were injured. They're the injured parties. That gives them standing. Now then, in the reverse of that argument under Hannes v. Kerner, you can't be dismissed for not stating that. The court has an obligation to tell you what you should be proceeding under. But that's a pro se litigant. That's not a, that's not an attorney. And going back to the original statement, are these people sloppy? Yeah, they're terrible. They're terrible, but the more terrible they are, the more I love it. I just, you know, I just absolutely love to take on attorneys or teams of attorneys and beat them at their own game. Going back to his last example, a motion to dismiss. Does the opposing party, the attorneys for the opposing party, have the right to correct it or do you have the advantage of double? The question is, when you file a motion to dismiss for failing to state a claim upon which relief can be granted, the question is, do they have an opportunity to amend their pleadings? And they do as a matter of law, and so do you. They have an opportunity to amend because the motion to dismiss for failing to state a claim upon which relief to be is to be granted is aimed at eliminating a totally frivolous lawsuit. It's not aimed at eliminating a vowed lawsuit that just happens to not have the correct paperwork. It's a chance to correct the paperwork.
On the idea of jurisdiction. Just another something happened back in 1978 that, uh, I sued two IRS agents for criminal trespass and so I sued in federal court. The judge wrote back said that the court was going to limit the jurisdiction. So therefore, he didn't have jurisdiction to take the case and sue the two IRS agents in federal court. So I turned around and sued the agent in state court. Well, the US attorney removed it from state court back to federal court. The same judge threw it out the first time, threw it out the second time, and told the, uh, US attorney, "Don't bring this case back into my court because it doesn't belong here." So it went back to state court. And in the removal statute, the judge said that once a removal from federal court back to state court, you know, cannot be refiled to put back into federal court. So the case was still set in state court, but unfortunately, I was transferred out of state. So they were falling back these two agents in state court, but I thought it's kind of interesting where the judge said, "Well, these are federal agents who violate my rights." So I thought, well, that's logical to assume that that's where you go. But that's, but I'm saying that's what I'm saying is that what he said was that the court, the federal court is the one with limited jurisdiction. So, yeah, this particular judge, Ralph Thompson, who's still there, but that's what he was saying. It's one limited jurisdiction, so you have to establish that. You want to answer that? I have tons of cases that state very clearly that when a government employee is acting within their authority and based on being doing what the law says to do, you can't sue them. You can't touch them, you can't touch the government. However, these agents were acting outside of their authority. Therefore, they're no longer acting or the government has an agent. This is in the court case. So therefore they are, well, that's, and what we have to, they just came said, "Well, we look over Bobby's tax return for the last, you know, 10 years, so we're here to redo your rights, we're looking to pay a fine." Well, so what? They need you. You don't have any jurisdiction. And so I told them to leave, and they left.
Okay, I'm going to start on a story and we're going to finish it after a lunch break. Back about, um, probably about six weeks ago, I had somebody call me from Arizona that had learned about me on the internet. And, uh, the call went something like this. "Next Thursday," and this was Thursday, and it was talking about the following Thursday, "there's going to be a sheriff's sale on our property, and we've got a $6.8 million judgment against us. Can you help us?" You know what I answered? "Probably." "Probably." The reason I said probably, the reason I said probably is because I have looked at so many cases and I can tell you that in at least half of them, if not more of them, you can depend on the attorneys to screw it up so bad that it will be an absolute atrocity and can be attacked. But, uh, can you imagine being in their position? And these are ordinary folks. They're just common ordinary folks. $6.8 million in judgment against them. And their property was going to be taken in a sheriff's sale. We will pick up on this story after lunch. If everybody wants to take a lunch break, let's try to be back. You talk about your lawyers or their lawyers? Their lawyers. Their lawyers. Their lawyers can all, you can almost depend on their lawyers making mistakes almost always. I shouldn't say almost always. A lot of the time. Let's put it that way. Uh, let's, let's be back here, uh, ready to go by two. There's a place called Barbecue just not too far.