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IN THE SUPREME COURT OF MISSISSIPPI CASE NO CC,01484 ~T KIM WADE APPELLANT v MISSISSIPPI REAL STATE COMMISSION APPELLEE ~ TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS TABLE OF CONTENT STATEMENT OF THE ISSUES TABLE OF AUTHORITIES I EXHIBITS STATEMENT OF THE CASE SUMMARY OF ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE IN THE SUPREME COURT OF MISSISSIPPI CASE NO CC KIM WADE v MISSISSIPPI REAL STATE COMMISSION APPELLANT APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this. These representations are made in order that Justices of this Court may evaluate possible disqualifications or recusal: Mississippi Real Estate Commission Jolm Maxey, attorney fur Appellee William Hussey, attorney for Appellee Kim Wade, Defendant and Appellant Christy Sievert, Court Reporter The Honorable Sr. Judge Tomie Green RESPECTFULLYSUBMIT1ED KIM WADE /7 APPELLANT~o se / ~ BY:~W , AMENDED STATEMENT OF ISSUES ON APPEAL Appellant, Kim Wade, having designated less than the entire record as being necessary for appeal, pursuant to Miss. R. App. P. 10(b)(4) states that the issues appellant intends to present on appeal are these: 1. The issue oftbe accuracy and validity of Judge Yerger's Dec 16tb 2010 Order; 2. The issue oftbe Circuit Court's finding that I failed to prosecute my appeal; 3. The issue oftbe MREC hearing panel's jurisdjction or lack thereof; 4. The issue of tbe Circuit Court's jurisdiction or lack thereof; 5. The issue of tbe MREC's willful spoliation ofparts of the record in tbe matter or tbeir authorization of same by their court reporter. 6. The issue ofcbristy Sievert's authority or lack thereof to notarize her own signature on documents submitted for use at trial or appeal; 7: The issue ofcbristy Sievert's authority or lack thereofto certify a transcript or record on behalf of the MREC. 8. The issue oftbe Circuit Clerk's failure to issue a writ of certiorari to the Commission. 9. The issue of John Euhlinks being allowed to offer testimony known in advance to be pequry. 10. The issue of whether the MREC must strictly comply with MRCP Rules. 11. The issue of whether tbe MREC and its attorney's are authorized to provide simultaneous J TABLE OF AUTHORITIES STATUTES: Miss Code Ann Miss Code Ann Miss Code Ann (2) Miss Code Ann (Jj Miss Code Ann pg7, pg8 pg8 pg 15 pg9 CASES: Motion For Writ of Certiorari Curtis Cora Green v MREC (Case # ) Maop v Ohio 367 US.463 Hinds County Circuit Clerk Barbara Dunn # 201 O-CS B. Platsky v. CIA, 953 F.2d 25,2628 (2nd Cir. 1991), Woodall v. Fori, 651 F.2d 268, 271 (5th Crr Richardson v. Fleming, 651 F.2d 366, 368 (5 th Crr. 1981}. Matyv. Grasselli Chemical Co., 303 U.S. 197 (1938) pg9 pg9 pg9,jo pg9 pg 13 pg 13 pg 13 pg 14,24 C.~ Puckett v. Cox, 456 F. 2d 233 (I 972) (6th CiT. USCA) pg14 State v. Roberts, 940 S.W.2d 655, on remand 1997 WL (1996) pg 15 State v. LaPier, 961 P.2d 1274,289 Mont. 392,1998 MT 174 (1998 pg 16 State v. Trevino, 556 N.W.2d 638, 251 Neb. 344 (1996 pg 16 Moore v. Florida, 703 F.2d 516 (11th CiT. 1983) Herron v. Beck, 693 F. 2d at 127 Barker v. Norman, 651 F.2d 1107, 1129 (5th CiT. 1981) Woodall v. Foti, 651 F.2d 268, 271 (5th CiT Richardson v. Fleming, 651 F.2d 366, 368 (5 th Cir pg23 pg23 pg23 pg23 pg23 F.D.I.C. v. Hillcrest Assoc., 66 F.3d 566 (2d Cir pg 23 Tannenbaum v. United States, 148 F.3d 1262, 1263 (lith Cir. 1998) pg 23 Grayden v. Rhodes, 345 F.3d 1225 (11th CiT /2003 pg 24 West Covina, 525 U.S. at 241, 119 S. Ct. at 682 pg 24 United States v. Locke, 471 U.S. 84, 108, 105 S. Ct. 1785, pg 24 Jenkins v McKeithen, 395 U.S.4ll, 421 (1959); pg 24 Picking v. Pennsylvania R. Co., 151 Fed 2nd 240 Pucket v. Cox, 456 2nd 233 Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). U. S. v. Sanchez, 88 F.3d 1243 (D.C. CiT. 1996). pg24,25 pg24 pg25 pg25 Bonnerv. Circuit Court ofst. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) pg25 Bramlet v. Wilson, 495 F.2d 714, 716 (8' Cir. 1971). pg 25 Elmore v. McCammon (1986) 640 F. Supp. 905 pg 25 Bridges and Hill v. Board a/supervisors a/clay County, 58 Miss. 817 pg 15 Supreme Court Re: Barbara Dunn NO CS SCT fr:, 9,J SECONDARY AUTHORITIES: Mississippi Rules of Professional Conduct 8.4 (d) pg 6, Mississippi Rules of Professional Conduct 3.4 (b) pg 7 Fedeml Rules of Civil Procedures Rule 8(f) pg 14 Mississippi real Estate License Law and Rules and Regulations pg 53 Mississippi'Notary Law, in accordance with Senate Bill 2647 of the 2007 Session of the Mississippi Legislature, Section et seq. Mississippi Code of 1972 as amended, effective July 1, 2007 page 19 Black's Law Dictionary 8 th Edition page 21 EXHmITS A. Mississippi Rules of Professional Conduct 8.4 (d) B. string from MREC pg 6, pg 7, C. Miss Rules of Professional Conduct 3.4 (b) D. Miss Code Ann E. Miss Code Ann F. Miss Code Ann (2) pg7, pg8 pg8 G. Docket Sheet from Circuit Court H. Curtis Cora Green v MREC (Case # ) I Mapp v Ohio 367 US J. Transcript pages 140 lines 3-9 and142, page 192 lines 1-8 of pg 9,10 pg9 pg 9,10 pgll Jl transcript pages quashing of subpoenas, pg 12 J2 copy of original subpoena and MREC rewritten subpoena pg 12 K. Statement of Facts from Appellee reply brief L Affidavit from attorney Jim Caldwell M Transcript page 83 lines Chairman Gillis N Amended Statement of Issues o Miss Real Estate Commission Rules and Regulations 2006 P Miss Code Ann (1) pg12 pg 12 pg13 pg 13 pg 14 page 15 Q Appellee letters and s in lieu of motions page 17 R Ms Code Ann R.E. Commission created; organization; seal; records. pg 18 S Court Reporter Christy Sievert's self notarized certificate T Christy Sievert affidavit denying being a employee ofmrec pg 18 page 20 J REPLY Appellant is compelled to start by making arguments regarding the misconduct ofthe MREC and its attorneys and their clear violation(s) of Mississippi Rules of Professional Conduct (Miss.R.Prof.Conduct or Rules). Appellee and/or their attorney's violated the Miss. Rules ofprof.conduct by allowing an unnecessary hearing to be conducted in violation of Rule 8.4(d). The hearing before the Mississippi Real Estate Commission (MREC) was unnecessary because there was no valid charge against appellant Wade and even if this court finds that there was, the charge(s) made by Mr. John Eubanks, which served as the basis for any hearing, were rescinded prior to the hearing on the matter. (See Exhibit A ) The Commission and its attorneys were aware of and acknowledged receipt of the full and complete rescission of Eubanks' charges against Wade and yet they proceeded on with a hearing against me using Eubanks as their star witness, knowing that Eubanks would have to peljure himself in the testimony and evidence solicited by the Commission and their attorney's. Blinded by the desire for a win at the hearing, the Commission and their attorney's offered peljured testimony to the Commission hearing panel to satisfy their burden of proof. The Commission and their attorney's never sought to resolve this matter before the hearing. Instead 6 of doing so they proclaimed that they had to go forward because they invested so much time in this. (See Exhibit B) In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. Miss.R.Prof.Conduct 3.4(b). (See Exhibit C) This scheme was perpetrated to convince the Commission hearing panel that a falsehood was a fact. What attorney John Maxey did do was place a witness, John Eubanks, on the stand to testify that he had a valid complaint against appellant Kim Wade despite the fact that Eubanks previously submitted a notarized rescission of his complaint and made MREC aware of that fact. That action was a crystal clear violation of Rule 3.4(b). (See Exhibit C) The violation of Rule 3.4(b) is clear and convincing evidence of a violation of Mississippi Rules of Professional Conduct(a). It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engages in conduct that is prejudicial to the administration of justice... Finally, all such conduct violated Miss. Code Ann. (1972) , the attorney's oath, which requires the attorney to: demean himself... with all good fidelity as well to the court as to the client... (and) to use no falsehood or delay any person's cause for lucre or malice. (See (Exhibit D) The transcript and the court file clearly demonstrate that Appellee's knowingly placed a witness on the stand to testify to a falsehood. This should never be allowed and when discovered, it should be dealt with aggressively and firmly. 7 Appellee argues that the Circuit Court of Hinds County ruled on Wade's challenges to the content of the Commission record and properly exercised its discretion to dismiss Kim Wade's Appeal for failure to file his appeal brief as ordered by that Court. Appellee seems to assign no weight or significance to the fact that the Circuit Court carmot rightly be viewed as having ruled on appellant's challenges to the content ofthe Commission record while there is a pending Motion for Reconsideration before the Circuit Court which has not been ruled on to this day. Appellant contends that the Circuit Court should have allowed a hearing on appellant's motion and appellee's motion's wherein appellant could raise its arguments and objections to the issues relevant to him, thereby giving him a meaningful opportunity to be heard. It is unfair to allow the Appellee to state what appellant's arguments are or would be. Appellee's agree that appellant has objected to and challenged many perceived violations of his procedural due process rights and the application of the law related to the same, this being among them. Appellant, Wade contends that where a decision of an administrative agency is appealed to the circuit court pursuant to a writ of certiorari as provided by Miss. Code Ann. ( ) (See Exhibit E) the circuit court's review of the decision of state agencies is to be confmed to the examination of questions of law arising or appearing on the face of the record and proceedings. Pursuant to Section (2) ''Notice of appeals shall be filed in the office of the of the court who shall have a writ of certiorari directed to the Commission conunanding it within thirty (30) days after service thereof, to certify to such court it's entire record in the 8 matter in which the appeal has been taken. (See Exhibit F ) The requirement ofthe clerk issuing a writ of certiorari is not permissive, it is mandatory, as well as jurisdictional and it was never done. Wade contends that when there is no mandatory writ issued by the clerk of the circuit court, the Commission can violate the spirit of the law regarding record production and accuracy of transcripts and if challenged claim that they are not in violation of a writ. This failure to follow the law invites abuses similar to the ones present herein. Wade further contends that the circuit court lacked jurisdiction to hear and examine any questions of law arising or appearing on the face of the record and proceedings in this matter because no writ of certiorari was issued serving as the basis for any jurisdiction of the circuit court. Although appellant filed various motion (see docket sheet # ,19,20,21,23,25,27 itemg ) demanding that the circuit court order its clerk to issue a writ of certiorari, the court never ruled on appellant's motion and the clerk never issued a writ of certiorari as required by Mississippi Law. Appellant Wade even filed a motion requesting that the court require its clerk to issue a writ of certiorari. (Feb 15 th 2011) (See Exhibit G item # 28) Thus, Wade contends that the circuit court lost subject matter jurisdiction for failing to proceed based on a writ of certiorari which should have been issued by the circuit clerk. Barbara Dunn. Circuit Clerk Barbara Dunn was cited by the Supreme Court in case # 2010-CS Ct for failure to follow the rules of the court, just as she has failed to do in my case. She was instructed by the court to remedy the problem in her office. However, the court cited her office again for failure to follow the rules of the court. The court noted, the potential for additional errors remains . Appellants case occurred during this very same time period. 9 Appellee does not seem to challenge the wording or the applicability of Mississippi Law which requires the circuit clerk to issue a writ of certiorari. They just seem to ignore it in the hopes that this Court will do the same. Appellant contends that he was denied equal protection under the law. In the case of Curtis Cora Green, Broker vs. Mississippi Real Estate Commission (Case # ), (See Exhibit H ) the circuit clerk issued a writ of certiorari as required by law. However, the clerk failed and refused to issue said writ in this case. Appellant believes that this failure is jurisdictional and appellant urges this Court to agree with Supreme Court Justice Thomas Clark's 1961 observation. Supreme Court Justice Thomas Clark made this observation in his majority opinion in the 1961 case of Mapp v Ohio: ''Nothing can destroy a govermnent more quickly than its failure to observe its own law, or worse, its disregard for the charter of its own existence. (See Exhibit I ) The Commission and its attorneys failed to observe its own law when it proceeded against Wade in knowing violation of Mississippi Law and with full knowledge of the fact that Wade was not receiving equal protection under the law as they have provided to other similarly situated individuals. This should not be allowed to continue and masquerade as fair and just. Regarding the appellee's argument that the Hinds County Circuit Court's Order dismissing Wade's Appeal was proper based upon his failure to file the Appeal brief as ordered by the' Court on December 16,2010, appellant argues that the Appellee has selectively ignored pertinent issues regarding this matter. Appellee quotes only a partial and incomplete portion of appellant's argument namely ... the timeline for submittal of Appellant's brief in this matter is flawed without addressing appellant's full and complete reason for asserting that the appellee's timeline for its alleged 10 expectation of appellant's briefis flawed. Appellant argues and Appellee admits that Wade filed a motion for reconsideration which the record demonstrates was not ruled on. Wade argues that the timeline to appeal is tolled until such time as there is a ruling on his pending motion( s) before the court. (See Exhibit G docket sheet Dec 28 th 20 I 0) The Appellee has not directly disagreed with or objected to this argument. In that a circuit court's denial of a motion for reconsidemtion is reviewed under an abuse of discretion standard, there can be no review of an abuse of discretion when the record shows that the circuit court never made a finding and never ruled on appellant's motion for reconsideration thus, never exercising any of its discretion on the matter unless the court considers the discretion of dismissal without a hearing. Appellant argues that the circuit court cannot maintain subject matter jurisdiction when it ignores Wade's properly filed motions and then enters an order of dismissal without ruling on Wade's pending motion(s). Moreover, Wade contends that the circuit court acts without jurisdiction when it acts without inherent or common law authority, nor any authority by statute or rule. Wade further argues that the circnit had no authority to ignore his pending pleadings when entering its orders. In the Statement of Facts section of appellee's brief, Appellee argues that neither Wade nor his lawyers challenged the jurisdiction of the Commission to proceed with its hearing (Record Transcript). (See Exhibits J page 140 lines 3-9 and page 192 lines I-8).Page 192 of transcript Appellant raisedjurisdiction again as was raised in Motion to Dismiss which the Appellee never ruled on (see exhibit L) is the Motion to Dismiss. April 4th 2010 Contrary to what the appellee does contend, the hearing transcript proves that the MREC and its lawyers are making false statements to this court and that they were aware of appellant 11 Wade's challenge to the hearing panel's jurisdiction prior to Wade's hearing before the Commission. On page 140 of the hearing transcript around line 3 the transcript quotes Mr. John Maxey, attorney for MREC and states: MR. MAXEY: Mr. Chairman, he's -you can assign the weight to this testimony for which you wish. It's not relevant, I'll admit, to the charge itself, but it rounds out the closing and the claim that Mr. Wade has made, that since the complaint was withdrawn by Mr. Eubanks, then this hearing shouldn't go forward. (See Exhibit J ). Appellee was attempting to elicit testmony that could only be refuted by subpoenaed witnesses Appellee quashed for what Appellee termed abusive . This was after Appellee rewrote the subpoena submitted by Appellant 0 their satisfaction and specifications. Then at the 11 th hour got them quashed days before the hearing though some witnesses submitted notices albeit not conforming with the law. Appellee held their notice for a month.. Appellee termed the subpoenas issued that they wrote as abusive .(see exhibit JI,J2) Here Mr. Maxey clearly admits knowledge of appellant Wade's challenge to the jurisdiction of the hearing panel despite their incredible assertion on page 3 of their brief, and elsewhere, that neither Neither Wade nor his lawyers challenged the jurisdiction of the Commission to proceed with its hearing (Record Transcript). (See Exhibit K from their Mar 20 th 2012 reply). Appellee also ignores the April 1 Motion to Dismiss and my questioning why the case had not been dismissed after my Motion to Dismiss was filed 1 was told they were considering the extortion charges. The extortion was disproved under oath at the hearing.. Additionally this representation to the hearing panel acknowledges the appellee's agreement with the appellant that (1) Mr. Eubanks as complainant rescinded his complaint, and (2) that the MREC had no Jurisdiction to hear this matter when John Eubanks as complainant rescinded his complaint. 12 Appellant Wade alleges that the charges read aloud at the beginning of the hearing indicate that John Eubanks was the complainant. (See Exhibit L- Affidavit of Jim Caldwell) The Commission's fmdings and decision are based on Eubanks's complaint as can be seen from a reading of their fmdings, decision and order. Also, the Commission chair Mr. Gillis indicated that same mis understanding when he, quote, on page 83 lines of the transcript, we're getting off of the - of what we're actually here for with the complaint that's beenfiled . The Commission itself had no sworn complaint filed. He, they to were mislead by the reading of the charges. Mr. Gillis thought Eubanks was the complainant because the charges read by Jim King said he was the complainant. The Order reads that same belief. (See Exhibit M) In order to take away from the appellant any opportunity to make this argument, the MREC redacted the transcript. Then, MREC refused to explain its failure to include the reading of the charges against Wade in the transcript which they claim is accurate. This is because the appellee's deliberately and selectively redacted certain portions of the proceeding from the transcript in the hopes that appellant could not have an opportunity to make his jurisdictional and due process arguments and have a fair hearing based on what actually happened. Apparently they hoped nobody would read it or figure it out. Wade argues that he cle
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