Tuesday, December 15, 2015

Events leading to my wife's broken arm suggest rule of law is almost as extinct in Missouri as it is in Alabama

Missouri Sheriff Jim Arnott
That a Missouri deputy would assault and shatter the left arm of a 55-year-old woman--my wife, Carol--might seem outrageous enough. But a review of court documents shows that events leading to Carol's broken arm were almost as disturbing as the brutal nature of the attack itself.

What might be called Missouri's "justice apparatus"--lawyers from multiple firms, a judge, a sheriff, even a landlord--acted so far outside the rule of law that it almost makes Alabama's dysfunctional court system seem quaint by comparison.

Do concepts found in the Fourteenth Amendment to the U.S. Constitution--due process, equal protection, etc.--mean anything, anywhere, in this country. I'm starting to think the answer is no.

Carol's arm was broken--so badly that it required trauma surgery and probably will return only to 75 percent usage, at best (see X-ray below)--in the course of an attempted eviction. But court documents show that Missouri tenant-landlord law was butchered in the process, bringing to mind the kind of "justice" portrayed in the Smokey and the Bandit movies.

How sour was our first taste of Missouri "justice"? Two documents that I prepared--neither of which drew written opposition from an opposing party--spell it out. First, we'll look at a Motion to Quash Execution, which was filed in Greene County Circuit Court at 11:54 a.m. on September 8, 2015, the day before the eviction was scheduled. (The full motion can be read at the end of this post.) What are the document's key points?

The court had no jurisdiction over the defendants, Carol and me

If you rent property in Missouri and ever have a dispute with a landlord, you quickly will realize the playing field is grossly unlevel in the other guy's favor. Missouri has a special system for tenant-landlord cases where certain niceties that apply to most cases--the need for personal service of defendants, 30 days to respond with an answer, having a counterclaim heard at the same time as the plaintiff's complaint, etc.--are largely ignored. If a tenant association got together and challenged the Missouri system in federal court, the whole shebang almost certainly would be found grossly unconstitutional. (That could be the subject for a post all of its own.)

How did this loosey-goosey system play out in our case. We never were personally served with the complaint, but in tenant-landlord cases, Missouri allows a "posting-mailing" form of service. (See RSMo. 535.030(2).) This lets a landlord "serve" a tenant by posting the complaint on the door, and he can get away with just that . . . almost. But the pesky "mailing" component of the service process remains. This hurdle is so low that a 300-pound snail should be able to clear it. But the Missouri court--and the lawyers involved--were so inept that they could not clear it. The docket (which you can find by going to case.net and searching for "Trent Cowherd v. Roger Shuler") shows that the complaint never was sent via U.S. mail, as required by the second portion of the "posting-mailing" scheme.

X-ray of Carol Shuler's broken arm
This means lawful service never was completed, and Missouri courts (in theory) take that seriously. The law holds: "Proper service of process must be accomplished before a court can obtain jurisdiction over the person or property of defendant." Reisinger v. Reisinger 39 S.W. 3d 80 (Mo. App. E.D., 2001). 

But the law does not stop there. Missouri courts also have held: "[A] personal judgment rendered by a court without personal jurisdiction over a defendant is void and may be attacked collaterally." Crouch v. Crouch, 641 S.W. 2d 86 (Mo., 1982).

Bottom line? The Greene County Court had no jurisdiction over us, and Judge Kelly Halford Rose's order to allow the eviction was void.

A deputy broke Carol's arm because of an order that was void--and every judge, lawyer, and sheriff involved should have known that. My motion spelled it out well in advance of the eviction.

How, for example, did Gregory Lulich, attorney (from the Lowther Johnson law firm) for landlord Trent Cowherd, not know this? It isn't complicated. Public records show that Craig Lowther, the firm's named partner, is quite the landlord himself, but he doesn't have a clue about tenant-landlord law? Does Lowther abuse his own tenants while encouraging Trent Cowherd to do the same?

The Notice of Eviction did not appear to be signed by a judge

An eviction can only be carried out under the authority of a court; it's not something a tenant and a sheriff can effectuate on their own--I believe this is the case in all 50 states. Even Missouri seems to recognize that an eviction is a serious matter--one that is ripe for abuse--and must be authorized by a judge. (See RSMo. 534.350.)

The eviction notice that was attached to our door did not appear to be signed by a judge--either by Kelly Halford Rose or anyone else. I scoured it from one corner to another and could not find anything that looked like a judge's signature. Could I have missed it? That's possible, but at this point, I believe the eviction notice was not signed by a judge, as required by law.

Greene County Sheriff Jim Arnott was on hand for our eviction--Why? I have no idea--and as I tried to explain to him that we had filed a Notice of Appeal that put an automatic stay on execution of the eviction, he shrugged his shoulders and uttered the sheriff's usual phrase, "Well, I've got a court order."

"Is it signed by a judge?" I asked. "The notice that was attached to our door did not appear to be signed by a judge." (Our copy of the notice, like much of our important paperwork, was lost in the chaos of the eviction process. It should be in the official court file.)

"Well, it's in my car," Arnott said.

"Can I see it?"

"I'll show it to you before I leave."

Did I ever get to see it? Nope--Arnott's deputies were too busy brutalizing my wife.

The judge was disqualified because she received an improper ex parte communication

On August 24, one day before the docket hearing in our case, my attorney-brother, David Shuler, sent a letter to the trial judge, Kelly Halford Rose. It was one of the most vile and nasty pieces of correspondence I've seen written about anyone--much less about my wife and me, by my own brother. In so many words, David trashed Carol and me and said he was going to do everything in his power to ensure that landlord Trent Cowherd prevailed in the case, and we lost--no matter what the facts and the law showed.

Trent Cowherd
(From Facebook)
Again, we lost our copy of the letter during the eviction, but it is part of the official docket. (Interestingly, my brother has a duty to serve me as a party in the case, but he has never done it. I've asked him via e-mail three times to serve me with a copy, and he hasn't done it yet.) The letter proves that an attorney who supposedly was in the case to represent our mother actually was striving to help another party, the landlord. In essence, the record suggests, my brother was pulling a con on the court. If that letter was not prejudicial to the point that it required the judge's recusal, I'm not sure what would be. (I plan to have more on this letter in an upcoming post.)

(When we were growing up together in the same household, I always thought of David as an intelligent, honorable guy--and he could be funny as heck when the time was right. I was proud to have him as my little brother. Apparently all of those positive characteristics, go out the window when one goes to law school. I know my warm feelings toward him have been long gone for a while now.)

I moved for Rose to recuse herself, and in denying my motion, acted as if she had been accused of being a member of ISIS.

As for me, I would have preferred having a member of ISIS as a judge--I would take that over Kelly Halford Rose any day. She actually makes some of the Alabama judges I've encountered look honorable and regal by comparison.

The eviction was unlawfully scheduled during a 10-day window when no such action can be lawfully taken

This probably is the most important legal point of all. And it might be best explained by quoting directly from the Motion to Quash:

The Notice of Eviction in the instant case indicates eviction is scheduled for 9 a.m. on September 9. That is inside the 10-day period that defendant has to file a notice of appeal that would stay the execution. RSMo. 534.350. The docket shows that judgment was entered in this case on August 31, 2015, and the 10-day period, per Rule 44.01, ends on Sept. 10, 2015. Cowherd is attempting an unlawful eviction, during the 10-day period after judgment when eviction is not allowed. Again, eviction is due to be quashed because it is unlawful.

What do we learn from all of this?

* A court issued an order against Carol and me, without having jurisdiction over either of us. That means the court's order was void.

* We've seen no sign of an eviction order signed by a judge, but it really does not matter because the judge (and the court) had no jurisdiction over us anyway.

* The judge was disqualified because she received a flagrantly prejudicial ex parte communications.

* My brother, David Shuler, was not really in the case to represent my mother--Trent Cowherd had no lawful grounds to sue her, and David either knew that or he's one ignorant lawyer. The truth? David was only in the case to help hurt Carol and me--and his letter to Judge Rose proves it. Got to love that family love and support!

* The eviction was conducted during a 10-day period when it could not lawfully take place.

Have Carol and I suffered because of all these screw-ups and the intentional malfeasance/corruption? Well, she has a broken arm that likely will never be the same. We both were handcuffed for no valid reason, she was arrested and taken to jail for no valid reason, an undetermined amount of our personal belongings were stolen by members of Cowherd's eviction crew (per an eye witness who saw them take items and place them in their personal vehicles and drive away.)

Has anyone in my family expressed the slightest concern about the injuries Carol suffered and the trauma we both experienced--I had an assault rifle pointed right at my face? Nope, they still want to have us declared incompetent, although I've heard no news about that case in a while. Has anyone in my family expressed the slightest concern about all of our property that was stolen, thanks to Trent Cowherd's eviction crew? Heck, no. In fact, my brother David has made it clear, in writing, that he backs Trent Cowherd all the way in these proceedings.

Many Americans see the famous image of lady justice, who is blindfolded as she holds a set of perfectly balanced scales. We see that and maybe feel a sense of pride that such a symbol represents our justice system.

The next time you see that image, I hope it will cause you to think of this post. Because this describes the real world of American "justice." The system is badly broken in Alabama, and I'm seeing signs that it's every bit as bad in Missouri.

It's so broken, in fact, that my own brother--with whom I've always gotten along and had a good relationship--has no qualms about stabbing my wife and me right between the shoulder blades. And he's probably helping to provide cover for the individuals who heaped abuse on us.

At the very least, you might think David Shuler would say something like, "Hey, I know a good attorney who I think could help you, both with the case against the sheriff and landlord in Missouri and against the cops and lawyers who abused you in Alabama. I would be glad to contact him (or her) on your behalf." He has said nothing of the sort--not even anything close to that.

In law schools around the country, there must be a large trash bin where students are instructed on the first day of class to place their consciences. Once any sign of a moral compass has been sent to the trash compactor--you likely are never to see it again--the student heads to class.

Three years later, with good luck on the bar exam, a lawyer emerges from the assembly line. But any sign of humanity probably will be gone. I know that's how it's been in my family.


Anonymous said...

Praying for peace in all this, Roger, for you and your family. I know that may not seem like much, but it's all I know to do.

legalschnauzer said...

Your prayers are appreciated, @11:34. While you are at it, you might also pray for justice. We need that more than peace. There will be no peace without justice.

Anonymous said...

11:34 here again. No need to post this...I just know that when I have continually sought justice as I understand or perceive it, I have often ended up a bitter person. Peace did come to me when I finally realized that I had to forgive and move on. It was the greatest day of my life and let me move on peacefully. So, I will continue to pray that you find peace in your life. Life is toooo short to not forgive.

Not trying to preach...Just a very concerned long time reader expressing his opinion.

legalschnauzer said...

Appreciate your thoughts, @11:34, but I don't see why seeking justice and peace have to be separate from each other. In fact, I see them as companion ideas. My definition of forgiveness differs from yours. In my view, there can be no real forgiveness until the wrongdoer acknowledges he has done wrong, and caused harm, asks for forgiveness, and seeks to make things right. Without that, in my view, forgiveness is a worthless exercise--it's just the injured party trying to put pain out of his mind, on a one-way street. In my view, forgiveness is a two-way street, a "transactional" process, if you will. I think the word itself--"for" and "give"--indicates that. It involves a coming together of the injured and the one who caused injury. It involves the wrongdoer taking responsibility and trying to make amends. I don't believe forgiveness means giving evil people (or wrongdoers) a free pass. I don't claim to be a Biblical scholar, but I believe Jesus' actions and words in the New Testament support my view--forgiveness is a complex, multi-person process; it's not something one of us can do on his own. All of this, of course, could be the subject of another blog. It's a deep subject, one I care a lot about.

Anonymous said...

You're right...this could be a long discussion...and one probably not held very well in this forum and method. I will just say that biblical forgiveness is based on grace...the unwarranted forgiveness offered to us by a loving God. Biblically we are taught that nothing WE do can ever pay back a loving God for all He gives us. So all we have to do to accept it is to just accept it.

My personal experience was that I was trying to get someone to "right a wrong" they had done to me. They were by going to do it, no matter how hard I tried. I realized that the more I tried to "make them own up" the more they controlled every bit of my life...and I became this bitter person that no one liked. I then reallized that my peace would have to come from within...and not be based on another's actions. I was, therefore, granting them the grace that I am continually granted by a loving God. And, a "peace which passeth all understanding" came over me. I am no longer that bitter person.

Again...no reason to post. Just sharing how it played out in my life. Peace to you, Roger!

legalschnauzer said...

Thanks for your kind words and for sharing your experiences. I wanted to post because I thought this discussion might have value for readers.

Anonymous said...

Looks like Trent Cowherd is a good ole boy, huntin and fishin type. That's a real shocker. I guess he gets a charge out of killing animals.

Anonymous said...

You have some mistaken ideas about the law wrt to eviction.

You should consult competent counsel - and not trust to your own judgement, as it is faulty, and led you to make some very bad choices.

You should have prepared to leave your apartment or negotiate a longer stat with the landlord who gave you notice to quit. You had no right to extend the lease unilaterally, and you and your wife would have been better off preparing to find a new domicile.

legalschnauzer said...

How am I mistaken, regarding eviction law in Missouri, @12:35? Please provide specifics and citations.

By bad choices, I assume you mean choices that are contrary to law. Please cite what choices we made that were contrary to law.

Looking forward to your reply.

Anonymous said...

Your brother won't acknowledge Carol's injuries because he's partly responsible for it. That's how lawyers think. They try to avoid responsibility at all costs.

Anonymous said...

Hope you find out name and contact information for the officer who did this to Carol. I would like to personally pistol whip his ass. In fact, I would be happy to dispense with the pistol and beat his ass with my fists. Let's see how well tough guy does when he takes on someone his own size, without all of the "toys" he has strapped to his waist to help him abuse people.

What a pussy and a disgrace to the badge.

Skeez said...

I'll run down 280 buck naked if @12:35 actually responds to your questions. My bet: He doesn't have a frickin clue what he's talking, and he couldn't make a proper citation to law if his life depended on it.

Probably just another landlord who's pissed that a tenant tried to exercise what few rights he has.

Anonymous said...

It was the same with Jerry Sandusky. He was the victim of a lot of misunderstandings, miscarriages of justice, and conspiracies to undermine his good reputation.


Keep fighting, Schnauzer! Do it for Jerry!

Anonymous said...

LS...I pray that one day, you and your bride, are able to obtain both justice and damages as a result of this travesty. Merry Christmas to you and yours sir.