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Tuesday, June 6, 2017

My wife, Carol, goes back before a judge tomorrow in her "assault" case, as evidence surfaces that Missouri eviction was even more unlawful than we thought


Carol Tovich Shuler
It recently came to our attention that we made a mistake in handling the eviction lawsuit that led to Missouri deputies breaking my wife Carol's arm. The good news is our mistake caused us to realize the eviction was even more unlawful than we thought.

Issues related to this discovery should be in play when Carol returns to court at 9 a.m. tomorrow (6/7/17) in an effort to get dismissal of bogus "assault on a law enforcement officer" charges. Insight generated from our mistake adds to the mountain of evidence that there were no lawful grounds for an eviction and no lawful grounds for deputies to be on the property. In fact, there now is doubt that a legitimate eviction notice ever was filed in our case, and we see evidence that at least one deputy and one attorney might have engaged in what appears to be gross court-related fraud.

What was our mistake? After Judge Kelly Halford Rose ruled for landlord Trent Cowherd in his rent-and-possession case, we timely filed a notice of appeal, inside the 10-day window for doing so. On the surface, there was no mistake in that. But we failed to realize that the docket entries when Rose issued the order (on 8/27/15) and filed the order with the court (on 8/31/15) are designated as "interlocutory judgments." (Note: You can view the docket entries by going to case.net and searching for Trent Cowherd v. Roger Shuler, case no. 1531-AC04535.)

The term interlocutory means the judgment was not final -- and that means it was not appealable. Why not? Judge Rose only heard a portion of the case -- the landlord's rent-and-possession claim -- on August 27, 2015. She scheduled a hearing for October 1, 2015 to hear all other aspects of the case, including our counterclaim for breach of contract and other torts.

Interlocutory judgments can be appealed only in limited circumstances, none of which applied to our eviction case. That means we jumped the gun when we filed our notice of appeal. We should have waited until a final judgment was issued and filed, sometime after October 1.

More importantly, this means Cowherd, his lawyers, and Sheriff Jim Arnott jumped the gun -- big time -- on the eviction. As we've reported multiple times, Missouri law provides a 10-day window in which execution of an eviction cannot take place. The window starts on the date judgment is filed with the court; in our case that was on August 31, with the 10 days expiring on Sept. 10. (Amazingly, our eviction was scheduled on Sept. 9, inside the 10-day window. That is one of at least six grounds that make the eviction unlawful.)

The 10-day window gives the defendant (us, in this case) time to file a notice of appeal, and if that happens, it puts a stay on execution. But the 10-day window, we now realize, never started in our case because there was no final judgment. That means we filed our notice of appeal too soon, and the eviction was conducted way too soon, long before there was a final judgment that gave Cowherd the right to evict.

Trent and Sharon Cowherd
How did this happen? Well, we are non-lawyers, and while I was familiar with the term interlocutory and knew what it meant, I never noticed it on the docket entries (until recently). In my defense, the process was confusing because Rose chose to split the case, hearing part of it in late August and holding the rest for early October. My research indicates a judge can do that in rent-and-possession cases, but it sure raises confusion for pro se defendants. Finally, Judge Rose -- while she apparently acted lawfully (that's a shocker!) -- made no effort to explain the interlocutory nature of her judgment to us.

Rose could have said something like this: "Mr. and Mrs. Shuler, I want to make sure you understand that I have ruled in favor of Mr. Cowherd in the rent-and-possession portion of this case. And I have set other issues, including your counterclaim, for hearing on Oct.1. That means my findings here today are interlocutory; they are not final. I've determined that Mr. Cowherd has a right to regain possession of the apartment, but I have not made a determination on other issues in this case. And execution of any eviction cannot take place until I have filed a final judgment, which will be sometime after Oct. 1. Also, the 10-day window for you to file a notice of appeal, which would place a stay on execution, will not start until I file a final judgment after Oct. 1."

Words to that effect would have cleared things up for us. But we learned long ago that judges aren't in the helping business. Most of them aren't in the justice business, either. In fact, I'm not sure what business they are in, other than making easy money for themselves and providing unlawful favors for their friends and fellow members of the legal tribe.

As for tomorrow's hearing, Carol has filed three new motions, one of which deals directly with the issues outlined above. (Those motions are embedded at the end of this post. The first document below -- Amended Motion to Dismiss Charges Under Missouri's Castle Doctrine Law . . . -- deals most directly with issues raised in this post.)

What about the deputy and attorney who might have engaged in serious chicanery related to this case? We will address them and their actions in an upcoming post.










18 comments:

Anonymous said...

Best of luck to Carol. Hope she kicks ass.

Anonymous said...

Carol will have a public defender this time?

legalschnauzer said...

Yes, the PD's name is Patricia Lillian Poe. Think she is straight out of law school, so this might be her first taste of just how ugly our "justice system" can get. Carol's has talked with her via phone, but we have not met her.

Anonymous said...

So, the cops evicted you without a court order? That's a slight problem isn't it?

legalschnauzer said...

@12:15 --

Yes, it appears we were evicted without a court order because the judge had issued no final judgment. And yes, that's a slight problem.

Anonymous said...

I see the "interlocutory judgment" that you noted in the docket. I don't see how, based on that, a judge could then turn around and sign an eviction order when she clearly had not issued a final judgment.

As you state, the docket shows a hearing set for Oct. 1 to take up additional issues, so it seems likely any eviction order would have come after that date.

legalschnauzer said...

@12:52 --

Good questions. The answer is: The judge couldn't sign an eviction order when there had been no final judgment in the case. On top of that, we've seen no sign that she did issue an eviction order. The documents that were attached to our door were not signed by a judge. That's what I'm referring to re: shenanigans pulled by at least one deputy and one lawyer.

Anonymous said...

I'd say Mr. Cowherd has a problem on his hands. To cause one of your tenants to be evicted without a court order -- and then to have a cop break a tenant's arm on premises that you own -- smells real bad. If Mr. Cowherd is too busy to know the tenant/landlord law, maybe he shouldn't be a landlord. Or maybe he should make darned sure he hires a lawyer who is competent in such matters. Apparently, he did not do that.

Anonymous said...

Do they hire lowland gorillas to be cops, lawyers, judges, and landlords in Missouri? I've never heard of such a bunch of ding dongs in my life -- and I live in Alabama, so I'm used to ding dongs.

legalschnauzer said...

@1:25 --

Please don't insult lowland gorillas by comparing them to Missouri cops. If you think these thugs are stupid now, wait until I start published documents we've received during discovery on Carol's case. These are just a bunch of lying, cheating cretins -- maybe even worse than the thugs in Alabama, if that's possible.

Anonymous said...

So, you've got the incident report and related documents? You will be posting them?

legalschnauzer said...

Yes and yes. And it all proves cops can't keep their lies straight.

Anonymous said...

Looking forward to seeing the cops' version of events.

legalschnauzer said...

Well, you will see them here. You also will see key portions of Carol's medical records, which provide details about just how serious her injuries were -- and that cops are lying about what caused her injuries.

Anonymous said...

Guess we should all prepare for your scathing expose of Ms. Poe's shortcomings. Nothing is ever your fault.

legalschnauzer said...

@8:03 --

You can prepare for whatever you'd like, but for the record, I'm not a party in this case, and I'm not an attorney. (I can represent myself, but not Carol, and Carol is the defendant.) Not sure how something is supposed to be my fault when I'm involved only as a spectator. But you apparently are too busy being a wiseacre to even consider the real issues at hand -- and they are important, if you consider yourself a believer in our democracy and our constitution.

As for Ms. Poe, Carol already has filed documents showing the case should be dismissed, and it appears Ms. Poe has filed more on top of that -- although we have not been served with copies of those. I don't see this case turning on Ms. Poe's performance. I've never dealt with a PD before, but I suspect she will do the best she can, given that she works in one of the nation's most underfunded, overworked PD systems.

The case will come down to whether Judge Margaret Holden Palmietto is honest and competent, and actually reads the documents presented. If she is (and does), the case should be dismissed tomorrow. If she isn't (and doesn't), it won't be dismissed -- even though, by law, there never was probable cause to arrest or imprison Carol, and there certainly is no probable cause to take her to trial.

Anonymous said...

Hey, @8:03 --

Why don't you give us an example where Mr. Schnauzer was at fault, but failed to take the blame for something.

As it stands, your comment does nothing but show that you are a smart ass. How about putting a little substance behind it?

Anonymous said...

Knock it out of the park, Carol! (And, Ms. Poe, too!)