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tatanka.com home > law > pleadings, motions, & briefs



Pleadings, Motions, and Briefs

Here are some of the pleadings, motions, and briefs I have written. I had or have personal involvement in all of the cases, either as a party or as a principal or officer of a party.

Contents, by case:
⇒ Integrated Systems, Wind River Systems, and Intel Corporation
⇒ Virginia “Sissie” Gallegos TPO
⇒ Austin Roping Club

Integrated Systems and Wind River Systems

Bionic Buffalo licensed some software to Integrated Systems Inc. (ISI), which was to act as a distributor. Bionic Buffalo was to be paid whenever Integrated Systems billed their own customers for a sub-license. ISI billed its customer KETI, but did not pay. In fact, they lied about the existence of the invoice, even after KETI had paid it. After six months or so, Bionic Buffalo cancelled the contract, which terminated the distribution agreement, but the money still owing. ISI filed several arbitration claims, but cancelled each of them before they came to a hearing. Eventually, ISI paid, but refused to recognize the contract cancellation. Finally, Bionic Buffalo filed suit against ISI.

Nevada First Judicial District Court, Dept. 2, No. 98-00268A.

In accordance with the terms of the contract, the Court orders arbitration.

At the time of the Complaint, ISI was still using Bionic Buffalo code. After they were sued, ISI realized their free ride was ending, and they decided to develop replacement software. About a month after they had been served, they hired a contractor to look into creating new code.

American Arbitration Association, No. 79 117 00112 99

The arbitrators (Leland Eugene Backus, Lee Hollaar, and M. Scott Donahey) supposedly had backgrounds in intellectual property and computer software. Maybe, but they were either clueless about the law, or refused to deal with it. Furthermore, they ignored the evidence. Corrupt? or just stupid? Read the record, and decide for yourself.

In their decision, the arbitrators granted one prayer for relief: they ordered ISI not to use the Bionic Buffalo code. However, by that time, ISI had developed replacement code, so it was not difficult for ISI to comply with the order. All of the previous misappropriation and breaches were ignored.

Finally, although the only relief was granted to Bionic Buffalo, they declared ISI the prevailing party. The definition of a prevailing party has been addressed all the way up to the U.S. Supreme Court, and the arbitrators got it wrong. A prevailing party is the party obtaining relief, and ISI obtained no relief. But the arbitrators didn't bother to trouble themselves with the law, they made that up as they went along.

The reason the prevailing party question is significant is that the prevailing party (according to the contract) collects reasonable attorney fees. Effectively, the arbitrators had ordered the winner to pay the losers.

(At some point I'll post the arbitrator's award and some of the exhibits. It's an amazing example of trying to justify a decision by ignoring the evidence, instead of using the evidence to decide the question.)

  • Claimant's Prehearing Brief (2002.05.13), American Arbitration Association No. 79 117 00112 99, Bionic Buffalo v. Integrated Systems. I did the research for this, and wrote over 90% of the text; the attorney took my word processing file and edited my document before filing and service; this is the brief as filed. This was a statement of the plaintiff's claims and supporting authorities.

  • Motion for Change of Award by Arbitrators Designating Claimant as Prevailing Party as for Other Relief [NRS 38.237] (2007.12.26), American Arbitration Association No. 79 117 00112 99, Bionic Buffalo v. Integrated Systems. I did the research for this, and wrote over 90% of the text; the attorney took my word processing file and edited my document before filing and service; this is the motion as filed. This is a motion to a panel of arbitrators for modification of an award.

(after arbitration, back to) Nevada District Court

The foregoing was brought to the attention of the district court judge William A. Maddox. Maddox, however, was about to retire, and apparently didn't give a damn about the cases remaining on his desk. Shortly before he left, he signed an order prepared in advance by one of ISI's attorneys. No explanation, no findings. Nevada expects district court judges to render findings of fact and law, and the Nevada Supreme Court has declared that such prepared orders, submitted prior to decisions by the Court, are a violation of due process. If you're a short timer, as was Judge Maddox, you don't care much about due process anymore, or about the rules.

So Bionic Buffalo appealed to the Nevada Supreme Court. (There is no appellate court in Nevada, the Supreme Court takes all of the appeals from district courts.)

(appeal to) Nevada Supreme Court

Shortly after the appeal was docketed, Bionic Buffalo lost its attorney. It was unable to find a new attorney, they all wanted lots of money, some wanted to be paid before even agreeing to take the case, so I decided to try and represent Bionic Buffalo myself.

It's common for courts to require attorneys to represent artificial entities such as corporations. In other state and Federal jurisdictions, the courts often waive the rule when there is a hardship, especially with small, closely held companies such as Bionic Buffalo. In Nevada, however, the lawyer's union (the Nevada State Bar) has a fairly tight lock on things, and hates competition. The Nevada Supreme Court (all lawyers, of course) backs them up. They say the rule is to protect “the public”, presumably from unqualified or unethical attorneys, but there is no “public” in this case: the officers, stockholders, employees, and directors are the same two people.

Eventually, the Nevada Supreme Court dismisses the appeal, apparently feeling that the interests of the union take precedence over the requirements of due process.

  • Petition for Review of Rules (2010.08.07), Nevada Supreme Court No. 56567, Ex Parte Marking and Fleming. This is a petition for extraordinary relief, arguing that inflexible adherence to a rule requiring that a corporation be represented by an attorney can deny such a corporation due process rights under some circumstances.

Virginia “Sissie” Gallegos TPO

Austin Township Justice Court No. 09 PO 002/003

We're not sure what actually started this problem. There are some good people in Austin. However, there are many whose fondest pasttimes are bullying, schadenfreude, kicking anyone who is down, and giving rein to greed and other base impulses. For them, “ethical” means whatever you want that you can do without getting caught.

Austin is situated among ranches and a few mines. In days past, the Austin Roping Club conducted cattle roping and other such events, and even had practice times when you could go down and try your hand at roping steers just for fun. Yes, in the city, you might take in a show or game, or go shopping; in Austin, some of the townspeople and neighbouring ranchers might show up at the roping arena to hang around with friends and livestock. Most of the mines shut down, most of the people left, and the Austin Roping Club degenerated into a corral leasing operation that hasn't conducted a roping event for years.

At its low point in 2008 and 2009, you could count the members on one hand, and a couple of them, Ruben and Sissie Gallegos, had ninety percent of the corrals and horses themselves. They weren't paying their share of the dues, according to the bylaws, and they said they didn't want to reactivate the club because “a lot of people joining the Club might cause trouble”. In other words, Ruben and Sissie didn't want to lose their below-cost corrals.

We noticed that civility flew out the window after we tried to re-activate the club, to bring roping back to Austin, and, in the process, to get the Club to follow the laws and its own by-laws.

All of this might not be actionable, except that the Roping Arena is Lander County property, and the Roping Club is a quasi-public body. Ruben and Sissie, and Sissie's uncle Ray Williams, Jr, who is a Lander County Commissioner and also had a corral at the Roping Grounds, acted as if the statutes were unimportant, and the by-laws belong in bathroom stalls. The way Ruben put it, the laws don't matter, and “we don't do things that way in Austin”.

Ruben and Sissie began to harass us. They threatened to kill our horse (with a .357 magnum), tried to take down the fence which held it in (presumably so that it would get loose, so they'd have an excuse to shoot it), Ruben put his fist in my face and tried to provoke a fight, and so on. Ruben and Sissie let their horses run loose on the Roping Grounds, sometimes over a dozen at a time, in violation of the bylaws; his horses included mares in heat, and our horse was a stallion. With only a corral fence to separate the stallion from the mares, Ruben was begging for trouble. The usual things people do when they go whacko, I guess. They wanted to run us out of the Club.

Finally, in August 2009, we distributed two open letters to the Roping Club members at a meeting. That apparently was the straw that broke the camel's (horse's?) back. Sissie promptly when down to the Court and claimed that we were harassing her(!) and that she was afraid we would do something bad, and filed for a TPO to keep us away from them and from the Roping Club meetings and the Arena.

Enter Joe Dory, Austin's Justice of the Peace. Joe Dory and Sissie have a history: they share a child Mary Hammon. This is common knowledge in Austin. She was fifteen, he was and is considerably her senior, so it would have been a felony at the time, but, hey, this is Austin, we don't worry about the law here, right?

We learned that in Joe Dory's court, the accused has the burden of proof (he said that from the bench), and serving copies of motions on the opposing party as required by court rules is just another form of harassment. (Yes, he said this from the bench, too, on multiple occasions.) So, if we tried to show we were innocent, that was just more evidence that we were harassing Sissie. Sounds kind of like one of those medieval torture procedures: the only way to prove you weren't possessed by the Devil was to die a horrible death, because if you survived, then your survival certainly proved that you were in cahoots with Satan, and you'd get executed anyway, by some other painful technique.

Joe Dory admits he doesn't understand the law, that he rules with his heart. (I'm not sure it's his heart, but that's what he said.) So when he needs to get legal advice, he violates the rules and privately consults with an attorney. He sees no problem if this just happens to be the attorney for one of the parties. You can't make this stuff up.

Needless to say, and with Joe Dory still apparently smitten by Sissie thirty five years after their congress, the TPO was granted; he refused to remove it.

We went to appeal, but Joe Dory told his clerk not to accept our notice of appeal. So we went to the next higher court for a writ to force things along.

Nevada Sixth Judicial District Court No. CV 9953

District Judge Richard Wagner agreed that the Austin clerk ought to have filed the notice of appeal. He cited a Nevada opinion which held that the clerk's duties were purely ministerial, that he or she must file all documents given to her, and that it wasn't for her to decide if the case was appealable.

Then, Judge Wagner decided that, since the statutes didn't authorize appealing TPOs, they weren't appealable, so trying to appeal them wouldn't do any good, anyway. To grasp what this means, you have to realize that the statutes rarely explicitly give a right to appeal anything. By Wagner's reasoning, almost nothing would be appealable.

So, the obvious next step was to appeal the Sixth Judicial District Court's decision. Then (you can't make these things up) Wagner instructed his own clerk not to process our notice of appeal. He had done the same thing which had been done by Joe Dory, below, after an opinion maintaining that it was improper to have done it.

Without the ability to appeal, we had to go to the Nevada Supreme Court for another writ.

Nevada Supreme Court No. 55539

The Nevada Supreme Court determined that we weren't entitled to a writ, because the District Court's decision was appealable. We were invited to come back for a writ if the District Court clerk failed to file the notice of appeal.

(back to District Court)

After the Supreme Court's decision, the District Court reconsidered and filed our notice of appeal to the Nevada Supreme Court.

Nevada Supreme Court No. 56064

The Supreme Court decided that since the TPO wasn't in the record, and they needed the TPO to decide if it was appealable, then the lower court decision was affirmed. Eh? Consider these three points: (1) The reason it wasn't in the record was that the lower court had refused to file the notice of appeal, which would have caused the record to be transmitted. If the TPO was needed to decide if it was appealable, then the District Court rendered its decision without the necessary evidence. (2) Appeals are made on the record, and extraneous material, not on the record, isn't to be included, so it would have been improper for us to attach it. (3) Judge Wagner's decision was on a point of law, it didn't pertain to any specific TPO, so it doesn't matter whether the TPO was valid or not, it was irrelevant; the validity of that specific TPO was to be determined by the appeal, which wasn't allowed to happen. Catch-22.

We asked for a re-hearing, pointing out that the Supreme Court had missed the unambiguous, obvious point of the appeal. They said no. Then, as allowed by the rules, we sought en banc reconsideration. We're waiting. Meanwhile, in Nevada, a corrupt judge can issue a TPO and there is nothing you can do about it. (You might file an ethics complaint against the judge, but that wouldn't do anything about the TPO itself. Joe Dory's not standing for office again, so the ethics complaint wouldn't bother him anyway, he makes up his rules as he goes along, and ethical matters don't concern him unless they get in his way.)

By the way, the Supreme Court has declared that all justice court cases are appealable. Now they say no. Which is it? Whatever is expedient, it appears.

In Nevada, concern for legal ethics seems to lacking, and the Nevada Supreme Court doesn't understand, or care, about safeguards (such as appeals) to protect against corruption and even against simple errors. This is almost a classic case of sleeping with the judge. I told an attorney about the problems, and learned that many attorneys are frustrated about the situation. I asked if it was possible to corrupt the Supreme Court by sleeping with one of the justices. Without hesitation, the answer was: the way to corrupt the Supreme Court is to sleep with the Supreme Court law clerks. Examples followed. I don't even know any of the law clerks, so it doesn't seem quite fair.

  • Appellants' Opening Brief (2010.06.29), Nevada Supreme Court No. 56064, Marking v. Gallegos, arguing that TPOs issued in Nevada justice courts are appealable.

  • Petition for Rehearing (2011.10.03) Nevada Supreme Court No. 56064, Marking v. Gallegos, arguing that the Court misapprehended the case, misread the record, and completely ignored the question of law presented to it.

  • Petition for En Banc Reconsideration (2011.12.06) Nevada Supreme Court No. 56064, Marking v. Gallegos, arguing that the Court (once again) completely ignored the question of law presented to it, and that the issues warranted en banc review.

Austin Roping Club

This follows from the saga of the Gallegos TPO, started above.

  • Complaint (2012.01.26), Nevada Sixth Judicial District Court, Lander County, Dept. 1, No. 10197, Marking v. Austin Roping Club. Complaint of breach of contract, violation of law, and tort; seeking specific performance and damages.

Other documents will be added here, for all of these cases, in the future.

Copyright 2011 Michael Marking. All Rights Reserved.
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