JOHN D. LEE II, and for all
)
others similarly situated
)
)
Defendants, Appellants
)
)
versus
)
)
CITY OF KNOXVILLE MUNICPAL
)
Civil Action No. 01-036701
CORPORATION, TENNESSEE
)
Jury of 12 Demanded
Agent for service of process:
)
Class Action
Mayor Victor Ashe
)
400 Main Avenue
)
Knoxville, TN 37902
)
)
VICTOR ASHE, MAYOR
)
400 Main Avenue
)
Knoxville, TN 37902
)
in his official capacity only
)
)
PHIL KEITH, CHIEF
)
Knoxville Municipal Corporation,
)
Department of Police
)
400 Main Avenue
)
Knoxville, TN 37902
)
in his official capacity only
)
)
ED CUMMINGS, COMMANDER
)
Knoxville Municipal Corporation,
)
Department of Police
)
400 Main Avenue
)
Knoxville, TN 37902
)
in his official capacity only
)
)
SHAWNA WILLIAMS, SERGEANT
)
Knoxville Municipal Corporation,
)
Department of Police
)
400 Main Avenue
)
Knoxville, TN 37902
)
in her official capacity only
)
)
RICHARD GRAHAM, OFFICER
)
Knoxville Municipal Corporation,
)
Department of Police
)
400 Main Avenue
)
Knoxville, TN 37902
)
in both his official and individual capacities
)
)
Plaintiffs, Appellees
)
CLASS ACTION ANSWER AND COUNTERCLAIM
CLASS ACTION ANSWER
DEFENSES
1. A civil action has
not commenced against the defendant, pursuant to Rule 4.01 of the
Tennessee Rules of Civil Procedure, which states:
(1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with the necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and his return endorsed thereon shall be proof of the time and manner of service.
2. Rule 4.02 of the
Tennessee Rules of Civil Procedure states:
(1) The summons shall be directed to the defendant, shall state the time within which these rules require him to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint.
3. Rule 4.03 of the
Tennessee Rules of Civil Procedure states:
(1) The person serving the summons shall promptly and within the time during which the person served must respond, make proof thereof to the court and shall identify the person served and shall describe the manner of service.
4. Rule 4.04 of the
Tennessee Rules of Civil Procedure states:
Service shall be made as follows:(1) Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally, or if he evades or attempts to evade service, by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service.
(12) Service by mail of a summons and complaint upon a defendant may be made by the plaintiff, his attorney or by any person authorized by statute. After the complaint is filed, the clerk shall, upon request, furnish the original summons, a certified copy thereof and a copy of the filed complaint to the plaintiff, his attorney or other authorized person for service by mail. Such person shall send, postage prepaid, a certified copy of the summons and a copy of the complaint by registered return receipt mail to the defendant…. Service by mail shall not be the basis for judgment by default unless the record contains a return receipt showing personal acceptance by the defendant.
5. Rule 1 of the Tennessee
Rules of Civil Procedure states:
The Rules are not applicable to general sessions courts in the exercise of jurisdiction conferred by general statutes, “except in cases where the court exercises jurisdiction similar to circuit or chancery courts by special or private act.”
6. Rule 1 Annotations states:
While these Rules are applicable after a case is appealed from general sessions court to circuit court, they do not require the filing of additional pleas other than that which have been filed before appeal unless the trial court so orders, pursuant to local court rule or other authority. Vinson v. Mills, Tenn. 530 S. W. 2d 761 (1975).
The meaning of a general appearance is not defined by the Tennessee Rules of Civil Procedure; all appearances are deemed to be general absent something to indicate the contrary. Dixie Savings Stores, Inc. v. Turner, Tenn. App., 767 S. W. 2d 408 (1988).
7. Rule 3 of Tennessee Rules
of Civil Procedure states:
If process remains unissued for 30 days or if process is not served or returned within 30 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of the statute of limitations.
8. City of Knoxville
Municipal Corporation’s Code of Ordinances, Chapter 8, City Court, Section
8-1, states:
The city judge shall issue process on the complaint of any person when it appears to the city judge that any provision of this Code or other ordinance of the city has been violated. He shall try no case until process has been regularly sued out, served and returned.
Under current state law, the Memphis City Court may not collect outstanding judgments by restricting the issuance of state license plates until the applicant has paid outstanding fines. Memphis City Court is not authorized to collect outstanding judgments by suspending the driver’s license of a traffic offender. The statute provides no discretion to the county clerk to refuse to forward an application that is in order and accompanied by the required fees, or to refuse to release to the applicant registration materials the clerk has received from the State. A city ordinance or city court order prohibiting the clerk from forwarding the application or issuing a license plate because the applicant
9. Plaintiff did not comply with these Rules and ordinance requiring personal service or by registered mail to defendant’s dwelling house or place of usual abode as required by law, nor was notice properly served or sworn to, therefore this court lacks jurisdiction over the defendant.
10. Plaintiff did not comply with these Rules and ordinance requiring complaint and summons be directed at defendant. In fact, at no time did plaintiff ever bother to ascertain the name of defendant upon the alleged complaint and alleged summons as required by law.
11. Plaintiff did not comply with these Rules and ordinance requiring complainant’s name, address and sworn oath upon alleged civil warrant.
12. Plaintiff did not comply with these Rules and ordinance requiring name of complainant, instead alleging “KNOXVILLE POLICE DEPARTMENT” is complainant. No such legal entity exists as required under law and such entity is registered with the Tennessee Secretary of State, therefore no complainant exists and thus no complaint exists.
13. Plaintiff did not comply with these Rules and ordinance requiring return of service of process, and did not note the individual personally served with the alleged complaint and alleged summons as required by law. In fact, no person was ever served with the complaint and summons, nor was notice properly served or sworn to.
14. The plaintiff’s
alleged complaint declares:
KNOXVILLE POLICE DEPARTMENTNOTICE TO OWNER OF ABOVE DESCRIBED VEHICLE
IF THIS TICKET IS NOT PAID WITHIN 10 DAYS OR APPEALED WITHIN THREE (3) WORKING DAYS FROM DATE OF ISSUANCE, IT BECOMES DELINQUINT AND WILL RESULT IN ADDITIONAL PENALTY OF NINE ($9.00) DOLLARS. AN APPEAL REGARDING THIS PARKING TICKET MUST BE MADE IN PERSON AT THE TRAFFIC VIOLATIONS BUREAU IN THE SAFETY BUILDING, 800 E. CHURCH AVENUE, MON-FRI, 8AM-4PM.
THIS VEHICLE IS SUBJECT TO IMPOUNDMENT IF THIS TICKET IS NOT PAID WITHIN TEN (10) DAYS (emphasis in original)
Tennessee Code 29-9-108.
Local ordinances and environmental violations; failure to oppose, states:
(a)(3) The power to punish for contempt conferred by this section may not be used to punish persons who fail to appear for traffic violations or parking violations.The civil warrant sued upon was not a valid complaint and any alleged waiver of requirement for service of process is not valid nor is it binding upon the defendant because the defendant never gave his free assent thereto. To the contrary, the plaintiff feloniously threatened the defendant that if he did not make, execute and deliver to the plaintiff the funds allegedly sued against defendant to Knoxville Municipal Corporation’s Municipal Court at Department of Police Safety Building within 3 days, that the plaintiff would have the defendant immediately arrested and placed in prison and his property immediately seized and possibly forfeited in judgment against defendant, as already illegally attempted against defendant on several occasions. The Knoxville Municipal Corporation’s court administrator, Michael Martin, who at that time admitted to felonious conduct and theft and extortion of funds and said theft and extortion occurred with the city court’s and city attorney’s publicly admitted permissions, personally threatened the defendant with arrest and seizure of his vehicle, and personally refused to allow defendant to appeal the plaintiff’s complaint within the alleged three day ordinance of limitations, as recorded on audio tape, admitted under oath and witnessed by magistrate John Rossen. The defendant’s free will was thereby restrained, and his consent was induced to the special appearance under duress of such threats. In truth and fact, the defendant was not indebted to the plaintiff for anything, and the said waiver of requirement for service of process is wholly without consideration.(b)(3) The power to punish for contempt conferred by this section may not be used to punish persons who fail to appear for traffic violations or parking violations.
15. The alleged civil warrant sued upon implies it is a criminal warrant and his consent was induced to the special appearance under duress of such threats. In truth and fact, the defendant was not indebted to the plaintiff for anything, and the special appearance to contest alleged plaintiff’s unfounded allegation is wholly without consideration.
16. The alleged civil warrant sued upon was unenforceable in that it was made without a show cause hearing before City of Knoxville Municipal Corporation’s magistrate, such that the complaint was an illegal one.
17. The alleged complaint fails to state a claim upon which relief may be granted, pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure in that the alleged complaint fails to list an address for the defendant’s vehicle, which was parked at an address that was not the dwelling house or usual place of abode of the defendant, and which was not public property managed by the City of Knoxville Municipal Corporation, but was in fact private property and thus off limits to employees of City of Knoxville Municipal Corporation, who committed criminal trespass.
18. Code of Ordinances,
Chapter 17, Motor Vehicles and Traffic,
Section 17-287 (e) states:
At any location where parking is prohibited as provided elsewhere in this section, the division of engineering may use yellow curb markings to reinforce such prohibitions and, based upon an engineering and traffic investigation, may use such markings to effect reasonable extensions of the distances over which the specified prohibitions are effective.
Section 17-289 states:
No person shall park any vehicle upon a street in such a manner or such conditions as to leave available less than ten (10) feet of the width of the roadway for free movement of traffic.
Section 17-304 states:
When any parking time limit is established as authorized in section 17-301, or parking is prohibited as provided in section 17-298, 17-299 or 17-300, or special purposes parking spaces designated as provided in sections 17-302 and 17-303, it shall be the duty of the division of engineering to erect appropriate signs giving notice thereof, and no such regulations shall be effective unless the signs are erected in each block and in place at the time of any alleged offense.
Section 17-360
states:
Whenever any restriction on stopping for the purposes of loading or unloading of freight or passengers is established as authorized in sections 17-352 and 17-357 it shall be the duty of the department of engineering to erect appropriate signs giving notice thereof, and no such regulations shall be effective unless the signs are erected in each block and in place at the time of any alleged offense clearly indicating the limits of such restricted zone.
The civil warrant sued upon was unenforceable in that in that no street address was named for location of alleged civil cause of action. Alleged complaint names “Promenade Alley” as location of civil cause of action. No such address exists on any map or deed within Knoxville. No individual street address is named in alleged complaint, therefore it is impossible to ascertain where alleged cause of action took place. In fact, prior to plaintiff’s alleged cause of action, City of Knoxville Municipal Corporations’ Department of Traffic Engineering refused on numerous occasions defendant’s verbal and written requests that street signs naming the correct name of the historic street be installed and an engineering and traffic survey be conducted as required by statute and ordinance, as well as other signs required for public safety such as ONE WAY, DO NOT ENTER, according to information in possession of plaintiff. At no time did defendant park in such a way as to reduce the width of the street available for public traffic to less than ten (10) feet.
19. The alleged civil warrant sued upon implies it is a criminal warrant and his consent was induced to the special appearance under duress of such threats. In truth and fact, the defendant was not indebted to the plaintiff for anything, and the special appearance in court to contest alleged plaintiff’s unfounded allegation is wholly without consideration.
20. Defendant avers that the execution of the purported civil cause of action in the alleged complaint was obtained by fraud and misrepresentations by the plaintiff as follows:
Alleged complainant Richard Graham testified under oath that he did not attempt at any time to ascertain the name or number of the street the alleged cause of action occurred at.
Alleged complainant
Richard Graham testified under oath that he did not attempt at any time
to ascertain whether any street signs were posted to prohibit parking in
the street, and testified under oath that he ignored the fact that the
street included private parking on private property, including numerous
individual spaces, entire parking lots both public and private and an entire
street dedicated to private parking on private property, all accessible
only via the street alluded to in the alleged complaint, and at no time
blocked or restricted or impaired access by defendant’s implied vehicle.
In fact, defendant provided a parking permit duly issued to defendant in
compliance with law authorized by the City of Knoxville Department of Traffic
Engineering which authorizes him and others to block the public lane of
the street if need be, in addition to the lane designated and taxed as
private property.
WHEREFORE, defendant
prays dismissal with prejudice of the alleged complaint with costs against
the plaintiff.
CLASS ACTION COUNTERCLAIM
Now having fully answered the complaint, defendant assumes the role
of counterclaimant and would show the court:
NATURE OF THE CASE
1. The City of Knoxville Municipal Corporation, through its employees have and will continue to enforce certain city parking ordinances and official acts and policies which are unconstitutional under the Equal Protection clauses of the United States Constitution and Tennessee Constitution.
2. The City of Knoxville Municipal Corporation, through its employees have and will continue to enforce certain city parking ordinances and official acts and policies which are unconstitutional under the Due Process clauses of the United States Constitution and Tennessee Constitution.
3. Enforcement of these ordinances and policies were declared unconstitutional by Judge Robert Taylor in Hale v Tyree, 491 F.Supp. 622, E.D.Tenn., on Nov 15, 1979, or will continue to deny due process to individuals whose automobiles the City has illegally issued parking citations to, illegally rendered judgment for fines and court costs and fees or will render judgment of fines and court costs and fees, seized or will seize defendants’ vehicles, declared default judgment in forfeiture proceedings against defendants’ vehicles or will declare default judgment in forfeiture proceedings.
4. Counterclaimant John D. Lee, II has twice suffered the deprivation of a property, i.e., an automobile, without due process in violation of Judge Taylor's 1979 order, in violation of 42 U.S.C. 1983, the Fourteenth Amendment, and state law over which this court has pendent jurisdiction, once from the identical private property and private parking location of the current litigation, prior to the current civil action and pending in another court, and once from another public location on a city street nearby which occurred since the plaintiff’s filing of the current litigation.
5. In neither of those two seizures was due process observed, in violation of Judge Taylor's 1979 order. In fact, the parking citations issued to the defendant by employees of the City of Knoxville Municipal Corporation have allegedly disappeared completely, denying due process hearings and probable cause hearings to the defendant, resulting in illegal seizure and attempted forfeiture of defendant’s vehicles. After towing and impounding the defendant’s two vehicles, the City of Knoxville Municipal Corporation denied it towed or obtained possession of the two vehicles. In fact, severe damage was perpetrated upon those two vehicles by employees of City of Knoxville Municipal Corporation. Such illegal activities committed by employees of City of Knoxville Municipal Corporation, in pursuit of its illegal ordinances and policies and/or negligence, damages or destroys the ability of defendant to run his businesses and receive a college education.
6. A recent audit conducted
by City of Knoxville Municipal Corporation, Department of Finance, into
mismanagement and misappropriations committed by employees of City of Knoxville
Municipal Corporation’s Municipal Court revealed:
“It is impossible to determine if unrecorded citations were collected but not processed or deposited…. These factors prohibit adequate controls necessary to ensure that all citations have been processed.” $81,716 was kept in unlocked filing cabinets, “and only counted and deposited once a month. These fines can total as much as $6,500 a month.”
The dockets of the civil division of General Sessions Court shall be posted daily in a conspicuous place at the office of the Clerk of the Court of General Sessions, Civil Division, at the City County Building.
7. A hostile witness in this current litigation, Michael Martin, Municipal Court Administrator, subpoenaed by this defendant, testified that he knew nothing about how many citations the City of Knoxville Municipal Corporation’s Municipal Court processes per day, month or year, and further testified he did not keep records of how much money is collected by the Corporation and its Court.
8. Michael Martin, the court’s
administrator, was soon fired (i.e., “forced to resign or be terminated”)
by the City Court’s magistrate, the Honorable John Rossen, for theft and
extortion of his subordinate’s paychecks, i.e., the court employee’s “bonus”
paychecks, as per Tennessee Code 16-18-207:
(b) The… clerk my be removed by the city judge:
(1) Upon conviction of a misdemeanor in office or a felony;
(2) For failing to pay over money or moneys collected officially;
(4) For incapacity, neglect of duty, or misbehavior in office;
[That Martin} "had 'requested' a portion of her bonus in January 2000, in a closed-door meeting between the two of them. The employee stated she did not believe this request was appropriate but that she ultimately consented and gave Mr. Martin one half of her bonus.” [KPD Internal Affairs Unit have] have "now confirmed this employee's allegations through another employee"
"He originally came over to help with computer-related things because we were converting our system over. There's been a strong increase in our productivity since he's come over."
10. Tennessee Code 16-18-205, City judges; compensation and salaries, states:
(1) The salary may be fixed by the governing body by ordinance or resolution prior to the term of office and shall not be increased nor diminished during the term.
The city ordinance for the salary of the city magistrate is actually below that of the city court administrator, who was admittedly salaried $41,308, plus “bonus”.
To Serve All People:
A report from the Commission on the Future of the Tennessee Judicial System
1996, writes:
Strictly local municipal courts offer a separate, substandard justice and warrant a thorough review on their own. . . . At their worst, they are merely revenue-gathering agencies masquerading as courts. Their sole reason for being is the funds that their municipality draws from them. If the funds disappeared, few of the cities would consider the court an important civic service. Their limits and oversight are ill-defined, and their flexibility can sometimes disguise mere arbitrariness. . . . We believe they fall much closer to the worst model than to the best one. A majority of complaints about judges that come to the Administrative Office of the Courts originate with municipal courts. . . . [T]he financial interest of local government clearly rests with the present system.
11. The City of Knoxville Municipal Corporation operates its Department of Police according to an illegal scheme of quotas for citations issued daily for its 400 officers. This defeats the public interest and corrupts the corporation’s court.
A stolen email from
a Department of Police commander, describing an illegal quota for Knoxville
Department of Police, was publicly reported and provided by Eddie Daniel,
attorney for the Fraternal Order of Police:
EAST DISTRICT CONTACTS*UNAWARE OF TRAFFIC PROBLEMS ON BEAT
COUNSELING-
EXPECTATIONS FOR JUNE 1998-
MINIMUM OF 2 CITATIONS FOR MOVING VIOLATIONS PER DAY
WORKED ON THE STREET.
CITATIONS SHOULD BE AIMED A PROBLEM AREAS AND COMPLAINT RESPONSE.
MOVING VIOLATIONS-
SPEEDING, RECKLESS DRIVING, PASSING RED LIGHT, PASSING STOP SIGN/ SIGNALS, FOLLOWING TOO CLOSELY, FAILURE TO YEILD, WRONG SIDE OF ROAD, IMPROPER TURN/PASSING
FAILURE TO MEET EXPECTATIONS WILL BE CAUSE FOR MUCH CLOSER SUPERVISORY SCRUTINY AND CONTROL.
Another publicly reported
document from Department of Police and provided by Eddie Daniel states:
From: Paul Fish
To: SERGEANTS
Date: 6/5/98 7:57am
subject: CAPTAINS MEETINGAT MY THURSDAY MEETING WITH THE OTHER DISTRICT COMMANDERS AND CHIEF COKER IT WAS AGREED TO MODERATE THE STANDARDS WHICH WERE ANNOUNCED AT OUR STAFF MEETING ON WEDNESDAY. THE BLANKET OF TWO MOVING VIOLATIONS PER DAY AND THREE CITATIONS PER DAY PER OFFICER HAS BEEN RESCINDED. THERE WILL BE NO BLANKET POLICY TO PUNISH ALL FOR THE SINS OF A FEW. THE NEW POLICY WILL BE:
THE CONTACTS WILL BE REVIEWED EACH MONTH BY THE DISTRICT SERGEANTS, LEIUTENANTS AND COMMANDER. ANY OFFICER THAT IS PERCEIVED TO BE LOW IN CONTACTS, IN ANY AREA, MAY BE CALLED IN AND COUNSELED BY HIS SERGEANT AND A LEIUTENANT OR CAPTAIN.IF IMPROVEMENT IS NOT SHOWN THE NEXT MONTH MORE SERIOUS SANCTIONS MAY FOLLOW.
Eddie Daniel was publicly
quoted in a press release for Fraternal Order of Police:
It is illegal for law enforcement agencies to issue quotas for citations or arrests of individuals.... If it walks like a duck, quacks like a duck, it's still a duck. It's a quota.
Eddie Daniel has in his possession an audio tape recording of commander’s admission that, “Don’t believe what you read in the papers, the quota is still in effect.”
According to a police source within Department of Police, the current illegal quota for officers is four citations or reports per shift, a figure nearly impossible to meet for officers who genuinely work to help the public and provide necessary services to the community, rather than merely citing motorists to gather revenue for the corporation.
The city attorney and city magistrate publicly admitted that its court personnel are paid “bonus” paychecks in excess of limitations established by statute and ordinance, and that this is what was extorted and stolen by its city court administrator.
11. Tennessee Code, Title 39, Chapter 12, Criminal Offenses, states:
39-12-101. Criminal attempt(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the person are as the person believes them to be;
39-12-103. Conspiracy
(a) The offense of conspiracy is committed if two (2) or more people, each having a culpable mental state required for the offense which is the object of the conspiracy and each acting for the purpose of promoting or facilitating commission of an offense, agree that one (1) or more of them will engage in conduct which constitutes such offense;
PART 2—Organized Crime
39-12-201. Short title
This part shall be known and may be cited as the “Racketeer Influenced and Corrupt Organization Act of 1989.”
39-12-202. Findings and intent
(a) The general assembly hereby finds and declares that an effective means of punishing and deterring criminal activities of organized crime is through the forfeiture of profits acquired and accumulated as a result of such criminal activities.
39-12-203. Definitions
(2) “Enterprise” means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association or group of individuals associated in fact although not a legal entity, and it includes illicit as well as licit enterprises, and governmental, as well as other, entities.
(6) “Pattern of racketeering activity” means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents; provided, at least one (1) of such incidents occurred after July 1,1986, and that the last of such incidents occurred within two (2) years after a prior incident of racketeering conduct;
39-12-204. Prohibited activities
(a) It is unlawful for any person who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds or the proceeds derived from the use or investment thereof, in the acquisition of any title to or any right, interest, or equity in, real or personal property or in the establishment or operation of any enterprise.
39-12-205. Fines and penalties
(b)(1) In lieu of a fine otherwise authorized by law, any person convicted of engaging in conduct in violation of the provisions of this part, through which pecuniary value is derived, or by which personal injury or property damage or other loss is caused, may be sentenced to pay a fine that does not exceed three (3) times the gross value gained or three (3) times the gross loss caused, whichever is greater, plus court costs and the costs of investigation and prosecution, reasonably incurred.
39-12-210. Remedies; third parties
(a) Any creditor or innocent person who has an interest in any real or personal property which is the subject of any civil suit filed by the investigative agency shall have the right to intervene in such civil suit.
(b) If there is no civil suit pending, any creditor or innocent person who has an interest in any real or personal property which is the subject of any RICO lien notice may apply to the investigative agency for a release of such property…. If the investigative agency denies the application for relief, the creditor or innocent person may petition the appropriate chancery or circuit court for release of such lien.
(2)(c) The remedies provided to creditors and innocent persons in this section are in addition to any other rights or remedies provided by this part or by law.
Parking citations issued by Department of Police are virtually all issued without proper service of process of complaint and summons and without proper service of notice, and its civil causes of action originate over alleged improper on public streets, including parking at “parking meters”. Allegedly the right for the City of Knoxville Municipal Corporation’s unconstitutional and illegal policies are “justified” by improvement in the availability of parking spaces in the urban sectors, yet lack of free parking harms the community of both businesses and residents. Parking on the same public streets downtown adjacent to United States Post Office is free of charge, including free parking at electronic parking meters for a maximum timed period, which correctly and lawfully fulfills its legitimate public service.
12. The municipal corporation does not earn any profit from such parking meter revenue, which instead pays interest and principal for the debt owed on such parking meters, paid to unknown governmental contractors at unknown bid prices. Extrapolation of corporation’s bidding process in wrecker contracts for non-consentual tows for alleged parking infractions, the bidding process for parking meter contracts is also fraudulent and in violation of antitrust court orders, laws, rules and regulations, as well as blatant violations of contract provisions to the harm of the public. Zero oversight is afforded to the public of such contracts overseen by City of Knoxville Municipal Corporation, many of which fall under the control of the Wrecker Service Commission, which holds secret meetings and fails to materialize when meetings are posted for the City County Building’s Assembly rooms.
13. Equal protection clauses
of U.S. and Tennessee Constitutions pertaining to governmentally managed
public property requires equal access for all members of the public, not
only governmental employees. Equal protection applies in regards to equal
use of parking spaces by members of the public in addition to free parking
afforded to members of governmental agencies.
This case, in part, seeks a declaratory judgment and an injunction
on behalf of a class of motorists against the City of Knoxville, Honorable
Mayor of City of Knoxville Municipal Corporation, the Honorable Police
Chief of City of Knoxville Municipal Corporation, and others, on terms
similar to the Hale v. Tyree.
Counterclaimant also seeks damages against the City defendants for deprivation of property in violation of the Fourteenth, for the tort of conversion, negligent bailment, and for unjust enrichment.
Counterclaimant John D. Lee, II seeks punitive damages from City of Knoxville Municipal Corporation and from Richard Graham over which this court has jurisdiction.
CLASS
The named counterclaimant brings the action on his own behalf and, pursuant to Rule 23 of the Tennessee Rules of Civil Procedure, on behalf of all other persons similarly situated. The class is comprised of all persons who have had in the past year or will have an automobile ticketed for alleged parking infractions in the future. Some of such persons have had their constitutional rights violated by the City. The rights include the right to be due process hearing by receipt of proper service of complaint, summons and notice.
The requirements of Rule 23 are met in that:
(a) The class is so numerous that joinder of all members is impracticable. The exact number of persons in the class is not presently known to counterclaimant, but can be adduced through discovery.
(b) The common issue of fact with regard to the class is whether plaintiff City of Knoxville Municipal Corporation has ticketed parked cars without due process of law. The issue of law common to the class is the taking of property without due process and the continued application of an unconstitutional ordinance, as found in Hale v Tyree, 491 F.Supp. 622, E.D.Tenn., Nov 15, 1979.
(c) The claims of the representative party are typical of the claims of the class; the named counterclaimant's interests are not antagonistic to the claims of other members, but in fact, his action if successful will protect the rights and interests of other members of the class.
(d) The representative party will fairly and adequately protect the interest of the class.
(e) Plaintiff City has by its policy and practice acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
(f) Common questions of law and fact as to the legality of the City's ticketing policy predominate over questions of computation of claims affecting individual members, which can be easily determined by reference to City records of individual parking complaint victims. A class action is the superior and the only available method for the fair and efficient adjudication of the controversy.
COUNTERCLAIMANT
Counterclaimanant John D. Lee, II as proposed class representative has had a car ticketed for alleged parking causes of action upon request and by color of law by the City of Knoxville Municipal Corporation.
Upon information and belief, no defendant, including the representative defendant, has been informed of the their rights in City Court as required by Tennessee Rules of Court.
This action is brought and may properly be maintained as a class action pursuant to the provisions of Tennessee Rules of Civil Procedure. This action satisfies the numerosity, commonality, typicality, adequacy, superiority and predominancy requirements of those provisions.
Counterclaimant proposes
the Defendant' class definition as follows:
(a) All persons who have had their vehicles ticketed for parking or towing by order of the City of Knoxville, in the past six years; and
(b) All persons hereinafter who will have their vehicles ticketed for parking or towing by order of the City of Knoxville in the future.
Excluded from the Class are Plaintiffs herein, any entity in which any of the Plaintiffs have a controlling interest, any officers, directors or employees of any of the Plaintiffs, and legal representatives, heirs, successors, and assignees of any of the Plaintiffs.
COMMON FACTS
Defendants have had or will have their cars ticketed for parking by order of the City of Knoxville Municipal corporation.
Upon information and belief, neither counterclaimant nor any other person whose car has been ticketed has received a copy of Knox County Local Rules of Court for General Sessions Court or an accurate copy of city court’s local rules. Such Rules are neither available in City Court nor in General Sessions Court, but only from the Circuit Court clerk. The new 2-page handout currently provided by City Court is misleading in that it incorrectly alleges to defendants that parking citations are criminal offenses punishable by incarceration, thus intimidating defendants to take judgment against them in civil matters without jurisdiction by the court. The governmental handbook, PRO SE HANDBOOK, EXCERPTS FROM THE TENNESSEE RULES OF APPELLATE PROCEDURE CREATED TO ASSIST PRO SE LITIGANTS IN PREPARATION OF AN APPEAL, is not provided to defendants or appellants. This is contrary to state law.
The class of defendants can be notified by means of their addresses required to be maintained by city court clerk under city and state law.
Upon information and belief, neither counterclaimant nor any person whose car has been ticketed has received a hearing as required by the laws of the United States, Tennessee or under local ordinance.
Upon information and belief, the plaintiff Richard Graham and others unknown violated Federal Law, State Law and local ordinance by ticketing a legally parked car without ticketing such car as follows:
Sec. 17-76. Citation on illegally
parked vehicle.
Whenever any motor vehicle without a driver is found parked, standing or stopped in violation of any of the restrictions imposed by ordinance of the city or by state law, the officer finding such vehicle shall take its registration number and may take any other information displayed on the vehicle which may identify its user, and shall conspicuously affix to such vehicle a parking citation for the driver to answer to the charge against him within five (5) days during the hours and at a place specified in the citation.
Such parking citations often lead to impoundment of vehicles,. Since the city court illegally refuses to provide proper service of process of complaints, summons and notice, defendants often never learn where their vehicle was impounded and subject to forfeiture. Since city court illegally refuses to keep records of parking citations, defendants who report vehicles as stolen are never notified that their vehicle was in fact recovered. Since the corporation refuses to require its department of police and its towing contractors to abide by the law regarding towing, pricing, reporting and forfeiture of vehicles, citizens are illegally deprived of due process and deprived of personal property and liberty.
Sec. 17-98. Vehicles subject
to impoundment.
Members of the police department shall have the authority to impound any vehicle, by towing such vehicle to the vehicle pound, under the following circumstances:Sec. 17-101. Release of vehicle from impoundment.(6) At any place where official signs or markings designate a no parking or tow away zone.
Sec. 17-99. Notice to registered owner.
(a) After a vehicle has remained unclaimed in the pound for forty-eight (48) hours, the officer in charge of the pound shall send a notice by certified mail, return receipt requested, to the registered owner of the impounded vehicle. The officer shall determine the name and address of the registered owner from state registration records using the vehicle's license plate number and vehicle identification number.
(b) The officer in charge shall deliver the same notice to owners or authorized agents who appear at the impoundment lot to claim a vehicle. The owner or authorized agent shall acknowledge in writing receipt of the notice. If any person required by this section to sign a notice refuses to do so, the officer in charge shall note this fact in writing, which shall constitute prima facie evidence of delivery of notice as required by this section.
(a) The owner of a vehicle impounded pursuant to this division or his authorized agent may make application to take possession of the vehicle and remove such vehicle from the vehicle pound upon presentation of an application for certificate of title or a certificate of title, and upon payment of the cost of towing the vehicle and all charges which may have accrued for the storage of the vehicle. However, payment of towing and storage fees shall not relieve the owner of responsibility for the violation.(b) Any owner who requests a hearing pursuant to section 17-102 may obtain the release of his vehicle from the pound without prepayment of any towing or storage costs; provided, however, as security for the impoundment costs, he shall either make a cash deposit or execute a bond with one (1) or more sureties as approved by the director of public safety, payable to the city, in a sum equal to the total impoundment fees at the time of release of the vehicle.
Upon information and belief, defendant asserts that City ordinance Sec. 17-102 violates Federal Law and Judge Taylor's order in Hale because the ordinance requires payment of a bond or deposit BEFORE the hearing. Appeal of parking citations to circuit court requires prepayment of $625 in appeal bonding at double rate. Alleged codes enforcement violations for residents parking in their own driveways, under so-called “abandoned or inoperable vehicle” ordinances, costs defendants $375 per day for every day their car will not start, in addition to 30 days imprisonment for every day their car will not start, plus seizure and forfeiture of their vehicles whether they are operable or inoperable, without due process of law or receipt and service of process for parking civil action. These ordinances, court rules, police policies and practices are Cruel and Unusual Punishment as prohibited by the United States Constitution and Tennessee Constitution.
Judge Taylor held that the Ordinance is unconstitutional insofar as it does not provide for a hearing by a neutral official before payment of towing and storage fees, and insofar as it provides for summary seizure of abandoned vehicles which are not blocking traffic. It is a proper Ordinance, however, insofar as it provides for removal of vehicles which impede the flow of traffic.
The unconstitutional ordinance
is Sec. 17-102. Hearing:
(a) An owner whose vehicle has been towed and impounded pursuant to this division shall have an opportunity for a hearing in municipal court on the parking or traffic violation which resulted in the impoundment.
(b) If the court enters a dismissal as to the violation, the court may order the release of the impounded vehicle to the owner, the return of the cash deposit to the owner, or the release of the bond, whichever is applicable.
On these facts Defendants
seek a declaratory judgment and injunctive relief, claiming that the Ordinance
is unconstitutional in that it:
(1) Does not provide for prior notice or opportunity for hearing before seizure of a vehicle.
(2) Requires payment of a deposit or bond for towing and storage fees without opportunity for a hearing before an owner can recover his impounded vehicle.
On these facts, Defendants seek a declaratory judgment and injunctive relief claiming that the policy and practice of the City of Knoxville does not in any event provide for any type of hearing before an impartial decision maker on the merits of the violation giving rise to the tow.
INDIVIDUAL FACTS
Defendant owned a 1991 Ford Tempo and legally parked this car behind his family’s place of business, 422 S. Gay Street, Knoxville, Tennessee, on private property at a legally required loading area alongside Fire Street (so named for the former Fire Department located there).
The car was not blocking the public street, which is the only access for numerous parking lots on Fire Street, both public pay-parking and private parking lots and individual spaces.
On December 28, 2000, Richard Graham, on behalf of City of Knoxville Municipal Corporation, filed a civil complaint for an alleged cause of action for parking in a public street while blocking a fire lane.
Defendant “appealed” this false allegation, demanding a hearing in city court.
Five adverse witnesses were subpoenaed by defendant, including court clerk, bailiff, two officers and a commanding officer. None of the subpoenas were correctly issued by the city court clerk as to day, month and year. Numerous witnesses disobeyed the subpoenas without sanction by the court, despite motions by defendant. Court ruled against defendant and defendant appealed judgment to circuit court.
A towing incident for alleged parking civil action occurred after appeal to circuit court. Plaintiff alleges destruction of the parking citation and city court docket.
A previous parking complaint was filed by City of Knoxville Corporation against defendant. In this cause of action, plaintiff refused to serve process upon defendant resulting in illegal seizure and destruction of his car, and damage to his business and education. Plaintiff alleges destruction of the parking citation and city court docket. The following witnesses testified in city court regarding the current parking citation.
Defendant owned a 1990 Honda ACCORD 4D and legally parked this car behind his residence at 422 Gay Street, Knoxville, Tennessee, on private property.
The car was not blocking the 2-lane "alley" and was safely positioned in plaintiff's commercial loading zone along Fire Street, under or next to the Promenade Garage near the corner of State Street and Union Avenue.
Defendant had routinely parked in that location, as many others continue to park their cars, and had never been ticketed or warned that doing so violated any laws.
On one occasion the city compensated defendat approximately $120 after a city vehicle caused minor damage to defendant's car parked legally in the exact place from which the car was towed.
At about 3 A.M., early on a Saturday morning, January 15, 2000, Defendants Flores, " Sgt. John Doe","Eddy" (KPD Vehicle Impoundment Report, possibly Eddie Lynch) and other employees of Sutherland Avenue Wrecker Service, Inc., E911 dispatchers Angela Johnson and Heather D'Allesandro and others unknown to plaintiff John D. Lee, II conspired to unlawfully take defendant's car.
Defendant asserts that the causes of action against these unknown "John Does" are tolled because defendat cannot through reasonable diligence determine the identity of such persons.
A review of the 911 Dispatch tapes reveal that Knoxville Police Department Officer Ryan Flores was ordered to look specifically at plaintiff's car, a 1990 Honda Accord, despite other cars being parked in the alley at that time.
Officer Flores declared publicly
via his recorded radio discussion at about 3 A.M. on Saturday morning,
January 15, 2000, as follows:
There's a car in the alley but it's not blocking anything. You can pass all the way through there. I was down there. There's a guy in his little orange service truck and he advised there was no problem. I'll be back around.Upon making these statements upon the publicly accessible channel, Officer Flores was told by dispatcher Heather D'Allesandro to communicate with his supervisor via a change to Channel 1-F, then to Channel 1-H, after which he returned to plaintiff's car and assisted in the tow by Defendant Sutherland Avenue Wrecker Service.
Approximately thirteen (13) hours later, after plaintiff realized his car was missing, plaintiff called KPD, Sutherland Avenue Wrecker, Cedar Bluff Towing and KPD Impound Lot, all of whom denied that a Honda Accord had been towed.
KPD Teleserve declared publicly
via its recorded telephone service at about 5:35 P.M. on Saturday afternoon,
as follows:
Teleserve: Knoxville Police Department, Officer Gallop.
John Lee: Yeah, I'm calling to see if you may have towed a car. Cedar Bluff Towing gave me this number.
Teleserve: What kind of car was it?
JL: It was a 1990 Honda Accord, 4 door, burgundy.
Teleserve: Let's see here. Hang on a moment. Do you have your tag number?
JL: Yeah.
Teleserve: What is it?
JL: 695-QBL.
Teleserve: OK. One moment. Where would it have been towed from?
JL: An alley behind Gay Street, where my house is. It was parked in my loading dock.
Teleserve: What was your tag number?
JL: 695-QBL.
Teleserve: There's a blue Honda Civic?
JL: Nope.
Teleserve: I'm not showing one.
JL: OK. That means it's stolen. Appreciate it. Thanks.
Defendant reported his car stolen (KPD report # 000000002925).
It is unknown where Sutherland
Avenue Wrecker Service driver "Eddy" (from KPD Vehicle Impoundment Form)
towed the Honda Accord. However, a tow to anywhere but to KPD Impound Lot
is a violation of city ordinance, and KPD General Order 3.3, IV. Parking
violations.
KPD General Order 3.3, IV. Parking violations.Any vehicle towed for the parking violations listed in Knoxville Code 17-98 will be towed to the Vehicle Impoundment Lot by an area wrecker.
On February 23, 2000, Sutherland Avenue Wrecker sent plaintiff a letter alleging that $753.62 was owed for towing, and was increasing at about $100/week. This communication was the first communication confirming that Plaintiff's car had been towed. These rates violated the Motorists Bill of Rights and Sutherland Avenue Wrecker Service's contract with the City. The time limit of notification violated City ordinance.
The above vehicle was towed
to our storage facility on 1-15-00 from the location shown. According to
division of motor vehi you are the last registered owner of this vehicle.
As of this date of this letter,the accumulated charges on t vehicle total
$753.62. This includes a towing charge of $40. Storage is $13.00 pre day
plus tax and charge will continue until the vehicle is picked up. There
is also a $10.00 research fee. Yvonne Mullins, Sutherland Avenue Wrecker
Service, Inc.
Sec. 26-277. Nonconsensual towing rates."Nonconsensual tow" or "nonconsensual towing" is towing without the prior consent or authorization of the owner or operator of the vehicle to be towed. The rates for nonconsensual tows for which a towing company may charge when services called for originate within the city include the following:
(1) Class A vehicles of one (1) ton or less:
a. Initial, or subsequent tows if $75.00 maximum necessary, from public or private property to any location:....
b. Dolly charge (if required):.... 15.00 maximum
c. Winching charge, per hour 25.00 maximum (if required):....
d. Storage charge for open or 13.00 maximum covered storage, per day (if required):....
(4) Charges for any other services than these specifically enumerated above constitute a violation of the article and subject the offender to the provisions of section 26-288.(Ord. No. O-210-98, § 1, 4-7-98)
Sec. 26-282. Compliance with instructions of owner as to place to which vehicle is to be towed.
The driver of a wrecker shall tow, transport or convey the vehicle to be towed to any place designated by the owner of such vehicle. It shall be unlawful for the owner, driver, driver's helper or operator of the wrecker, or an agent, employee or representative of the owner or driver of the wrecker at the scene of any accident, to coerce, insist or solicit any owner or operator of a vehicle to sign a work order or agreement at the scene of any place from which the vehicle is to be transported for any repairs to be made on such vehicle. The driver of a wrecker, in all cases, before moving the vehicle to be towed, shall ask the owner or operator of the vehicle the place to which he desires the vehicle to be taken, and shall so transport such vehicle to such place upon the towing charges being paid or secured. Otherwise, the vehicle shall be towed or transported to the wrecker operator's storage lot.
If the vehicle to be transported is involved in an accident and the owner or operator thereof is unable to give any instruction in his own behalf, the driver of the wrecker shall transport the wrecked vehicle to the location or facility designated as his place of storage in his application for a certificate or any supplement thereto, and, it will be presumed and considered prima facie evidence that the owner or operator of such vehicle consents to and desires that his vehicle be transported to such place or facility.
(Ord. No. O-210-98, § 1, 4-7-98)
Sec. 26-283. Prohibited acts.
It is unlawful:
(1) For any certificate holder to proceed to an accident scene at which vehicles requiring towing service, unless first summoned by a law enforcement officer. The exception is that a wrecker from the company having a contract with the city to perform specified towing services within a particular area may arrive on the scene prior to being summoned, but its driver shall not exit the wrecker until the law enforcement officer arrives on the scene.
(4) For the certificate holder to violate any provisions of this article or the laws of the state.
(6) For any certificate holder:
b. To remove or transport any vehicle, the owner of which is in violation of any law of the city or state, except through instructions of a law enforcement officer.
c. To disregard the instruction of any law enforcement officer during the transporting of a vehicle to its destination.
e. To drive along any street or bridge and solicit towing work or to engage in cruising except in those places and under circumstances which the department by rule and regulation may permit and allow.
h. To fail to comply with any of the provisions of this article or the rules and regulations of the department or to fail to comply with the laws of the city, the state or the United States when such noncompliance reflects unfavorably upon the fitness of the driver or employee to be employed in the operation of a wrecker or wrecker service.i. To transport a vehicle other than by the most direct, safe route and without delay from the point of pickup to the point of assigned destination.
(7) It is unlawful for any person to knowingly or willfully summon a wrecker or to report that a wrecker is needed when such person knows that the services of a wrecker are not needed.
(Ord. No. O-210-98, § 1, 4-7-98)
Sec. 26-284. Storage lot.
With the exception of a request of the owner or operator of a vehicle to transport the vehicle to a specific location within or without the city, all certificate holders shall tow vehicles within the city to a storage lot within the city maintained by the certificate holder, which location must be properly zoned, lighted and screened in accordance with the requirements of the city; have an attendant with authority to transact business available at all times; have a telephone available to the public; and, have sufficient area available to accommodate all vehicles towed to the lot.
(Ord. No. O-210-98, § 1, 4-7-98)
DIVISION 5. ENFORCEMENT
Sec. 26-288. Penalty for violation of article.
Anyone who violates any of the provisions of this article shall, upon conviction, be guilty of a misdemeanor and subject to punishment as provided in section 1-9 and sections 26-246, 26-247, and 26-248 (Suspension or revocation) of the City Code. If any person operates a wrecker without a certificate within the city limits, each separate tow or offer to make a trip shall be deemed a separate violation.
(Ord. No. O-210-98, § 1, 4-7-98)
March 24, 2000
City Law Department
fax: 865-521-2643MOTORIST BILL OF RIGHTS
CITY OF KNOXVILLE, TENNESSEEThis form is being provided as part of the ongoing effort to secure adequate, safe and quality service to the citizens and visitors to the City of Knoxville for the transportation of abandoned, wrecked, disabled or inoperative vehicles within the City of Knoxville, Tennessee.
YOU HAVE THESE OPTIONS!
Option #1 (City Contract Tow) - If you do not designate a towing service of your choice or are unable to communicate a preference, the area city contract towing service can provide the initial tow for the transportation of your vehicle to any destination within the city limits of Knoxville. The cost for the initial tow destination is governed by contract between the towing company and the City of Knoxville. Currently, charges for this initial tow range between $-0- and a maximum of $25.
Option #2 - At any time you have the right to request the towing service of your choice be notified to tow your vehicle wherever you choose to have it towed, for whatever mutually agreeable price you are able to negotiate with the towing company. These charges are unregulated and there may be additional charges for storage and other services provided to you.
Under either option #1 or Option #2, it is strongly advised that you obtain a written confirmation of towing charges prior to your vehicle being moved.
AT ANY TIME YOU HAVE THE RIGHT TO REQUEST THE ASSISTANCE OF A POLICE OFFICER.
The maximum price allowed
by Sutherland Avenue Wrecker Service's contract with the City, for nonconsentual
tows of cars and trucks less than 1/1 ton cargo capacity is $15.
CONTRACT SPECIFICATIONS
WRECKER CONTRACT SPECIFICATIONSCATEGORY 2 being police authorized tows or the towing of illegally parked, abandoned or seized vehicles to a City-owned lot
Initially, Sutherland Avenue Wrecker would not allow defendant to see his car, even with a Bill of Sale to John Lee. Since the vehicle was listed as stolen in the NCIC system, it was impossible for DMV to print a lost title. There was no required posting of the Motorists Bill of Rights, nor was there a public telephone available for use by customers.
In March, defendant finally got to see his car, and at that time realized that the car stereo and CD player were stolen. There was also theft of other personal items.
When asked where defendant's stereo and CD player was, a Sutherland employee stated that it was all missing before they got to tow it.
Officer Flores's Tow-In Report (KPD Vehicle Impoundment Form # 00-002147) noted some minor pre-existing damage to the steering wheel, but did not mention anything about a missing stereo. The missing stereo is now much more noticeable than the minor damage to the steering wheel.
Defendant filed a stolen stereo report (KPD # 000000019098). No one at KPD or District Attorney General's office would enforce the law against Sutherland, nor will anyone at KPD investigate these allegations of stolen property.
CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION(SUBSTANTIVE DUE PROCESS VIOLATION)
Defendants reallege paragraphs 1 through 30 of this complaint.
On these facts Defendants seek a declaratory judgment and injunctive relief, claiming that the Ordinance is unconstitutional in that it:
(1) Does not provide for
prior notice or opportunity for hearing before seizure of a vehicle.
(2) Requires payment of
a deposit or bond for appeal fees without opportunity for a hearing before
an owner can recover his impounded vehicle.
On these facts, Defendant seek a declaratory judgment and injunctive relief claiming that the policy and practice of the City of Knoxville does not in any event provide for any type of hearing before an impartial decision maker on the merits of the violation giving rise to the tow.
SECOND CAUSE OF ACTION
Unjust Enrichment
Defendants reallege paragraphs 1 through 30 of this complaint.
Defendant John D. Lee, II alleges that City of Knoxville was unjustly enriched by ticketing defendant's vehicle on three occasions and by taking various items of personal property belonging to defendant.
Defendant seeks all damages related to this unjust enrichment including punitive damages.
THIRD CAUSE OF ACTION
Conversion
Defendant reallege paragraphs 1 through 30 of this Complaint.
Defendant alleges that Officer Graham and Knoxville Police Department engaged in a conspiracy to convert illegally defendants' property under color of law.
Defendant seeks all damages related to this conversion including punitive damages.
PRAYER FOR RELIEF
Defendants respectfully request that this court:
(a) certify this action to proceed as a class action under Rule 23;(b) declare the challenged practice of defendant City to be in violation of the Defendant' Constitutional Rights;
(b) require defendant City, the Mayor, and the Chief of Police, and their successors to furnish all owners of vehicles ticketed in the past six years or in the future with Local Rules of Court in accordance with Tennessee Code and Federal Constitutional law so that all such persons know their rights and have the ability to act upon those rights;
(c) require plaintiff City to refund to defendant and applicable members of their class all fines, appeal charges, and court costs previously collected;
(d) require plaintiff Graham and City of Knoxville to pay all damages to defendant John D. Lee, II related to the unjust enrichment and conversion, and to pay punitive damages;
WHEREFORE, defendant
prays the judgment that the plaintiff take nothing and that the defendant
recover of the plaintiff the amount of 100 Dollars, or, in the alternative,
demands judgment against the plaintiff for said amount to be credited against
any the plaintiff shall recover in this action.
Respectfully submitted:
John Lee, pro se and in forma pauperis
P. O. Box 683
Knoxville, TN 37901
c/o (865) 544-0101
AFFIDAVIT OF JOHN D. LEE II
STATE OF TENNESSEE
COUNTY OF KNOX
Comes the affiant, after being duly sworn, and does depose and say the following: I, John Davis Lee II, am over 18 years of age and make this affidavit in support of the Motion for Extension of Time in the above listed case based upon my own personal knowledge.
1. Richard Graham failed to personally serve process of complaint and summons upon me or any member of my household. Richard Graham failed to provide service of process by registered mail. Richard Graham did not mail to me a written request to waive requirements for service of process.
2. The attorney of City of Knoxville Municipal Corporation failed to provide me personal service of process of complaint and summons. The attorney of City of Knoxville Municipal Corporation failed to provide me service of process by registered mail. The attorney of City of Knoxville Municipal Corporation did not mail to me a written request to waive requirements for service of process.
3. Richard Graham left a copy of his complaint and summons on my vehicle at an address that was not my house or usual abode. Richard Graham failed to personally serve process of complaint and summons upon me or any member of my household. Richard Graham failed to provide service of process by registered mail. Richard Graham did not mail to me a written request to waive requirements for service of process.
4. The attorney of City of Knoxville Municipal Corporation failed to provide me personal service of process of complaint and summons. The attorney of City of Knoxville Municipal Corporation failed to provide me service of process by registered mail. The attorney of City of Knoxville Municipal Corporation did not mail to me a written request to waive requirements for service of process.
5. The attorney for the City of Knoxville Municipal Corporation, Hillary Browning, verbally agreed to approve a stipulation and agreed order for continuance of motion hearing and jury trial, then, after defendant prepared said pleadings as per specifications agreed to by assistant city attorney, said attorney refused to meet with and sign said pleadings. Instead, said attorney ordered a clerk to phone circuit court clerk in regards to seeking legal advice from a person who was not licensed to practice law, in violation of Tennessee Court Rules. Said clerk of city attorney then proceeded to allege to defendant unsound legal advice that allegedly prevented said attorney from signing the prepared pleadings and letting defendant file them with court clerk, thus wasting the court’s time by requiring a full hearing on the motions, when an agreed continuance may have prevented the need for a hearing to contest the matters.
Further affiant sayeth
not.
__________________________
John D. Lee II
STATE OF TENNESSEE
COUNTY OF KNOX
Sworn to and subscribed before
me on this ________ day of May, 2001.
___________________________
Notary Public
My commission expires:
____________________
CERTIFICATE OF SERVICE
The undersigned hereby certifies
that a true and exact copy of this pleading has been served upon counsel
for all parties at interest in this case by delivering a true and exact
copy of said pleading to the offices of said counsel, or by placing a true
and exact copy of said pleading in the United States Mail, addressed to
said counsel at his office, with sufficient postage thereon to carry it
to its destination.
City of Knoxville Municipal Corporation
Hillary Browning
Department of Law
City County Building
Knoxville, TNRichard Graham
C/o Knoxville Police DepartmentThis ______ day of May, 2001.
_________________________
John D. Lee II
P. O. Box 683
Knoxville, TN 37901
C/o 865-544-0101