Opposition Brief — Andes v. Knox

: Supreme Court, U.S.

® RILED

SEP 26 1996

No. 90-403

In The

Supreme Court of the United States

October Term, 1990

&

4

JOSEPHINE A. ANDES,

Petitioner,

V.

THEODORE R. KNOX,

Respondent.

.

4

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The

Eighth Circuit

a.

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RESPONDENT'S BRIEF IN OPPOSITION

i...

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James R. WyrscH

Counsel of Record

MICHAEL P. Joyce

KoenicsporF & Wryrscu, P.C.

Tenth Floor

1006 Grand Avenue

Kansas City, Mo 64106

(816) 221-0080 TEL

(816) 221-3280 FAX

Attorneys for Respondent

September 28, 1990

CLERK

COUNTERSTATEMENT OF QUESTIONS PRESENTED

5

DID THE COURTS BELOW PROPERLY CONCLUDE

THAT THE CAUSE OF ACTION ACCRUED AT THE

TIME PETITIONER DISCOVERED THE EXISTENCE OF

THE WIRETAP, REGARDLESS OF PETITIONER’S

KNOWLEDGE OR LACK OF KNOWLEDGE OF

RESPONDENT’S INVOLVEMENT IN SAID ALLEGEDLY

ILLEGAL WIRETAP, THEREBY BARRING HER ACTION

UNDER 18 U.S.C. § 2520, PURSUANT TO THE APPLI-

CABLE STATUTE OF LIMITATIONS?

y 3

CAN ARGUMENTS AND THEORIES RAISED BY PETI-

TIONER THAT WERE NOT BEFORE THE DISTRICT

COURT BE CONSIDERED FOR THE FIRST TIME ON

APPEAL?

ii

TABLE OF CONTENTS

Page

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SEPP GERIE PUP UUMEIUs saccades dcccccuscccneas 1

COUNTERSTATEMENT OF THE CASE............ 3

SUMMARY OF ARGUMENT....................... 6

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TABLE OF AUTHORITIES

Page

CasEs

Awbrey v. Great Atlantic & Pacific Tea Co., 505 F.

ee Co idiencicc sev ecsesesccess 10

Barber v. Time, Inc., 159 S.W.2d 529 (Mo. 1942) ...... 24

Board of Regents v. Tomanio, 446 U.S. 478 (1980)...... 22

Brown v. American Broadcasting Co., 704 F.2d 1296

SOE wis eee da whe sd ve dedeescssetes 10

Brown v. St. Louis Police Department, 691 F.2d 393

ee rer ere ee 21

Carlson v. Green, 446 U.S. 14 (1980).................. 19

Fleury v. Harper & Row, Publishers, Inc., 698 F.2d

I, NE cscs waveevcsstwreecscee 24, 25

Johnson v. Railway Express Agency, Inc., 421 U.S.

EC errr ere eT Tree eee 22

Kapp v. Naturelle, Inc., 611 F.2d 703 (8th Cir. 1979) .... 17

Klippel v. Watkins, 667 S.W.2d 28 (Mo. Ct. App.

ET is pina Wee eA Kd seen Sdae eases ees. 11

Korgel v. U.S., 619 F.2d 16 (8th Cir. 1980)............ 18

Kriegesmann v. Berry-Wehmiller Co., 739 F.2d 357

(8th Cir.), cert. denied, 469 U.S. 1036 (1984)

Pe CGE BUEN 4 55's 50560 n os o's Hex s a5 8, 17, 18, 20

Ludwig v. Marion Labs, Inc., 465 F.2d 114 (8th Cir.

CT ee 8, 18

McClain v. Kitchen, 659 F.2d 870 (8th Cir. 1981)...... 21

Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987)

OLS SER Pe Seer eT eS ee Ee Teer 10, 11, 21, 24

Pavlak v. Church, 727 F.2d 1425 (9th Cir. 1984)

ee nest ute wens 9, 10, 22, 27

iv

TABLE OF AUTHORITIES —- Continued

Page

St. Louis Developmental Disabilities Treatment Center

Parents’ Association v. Mallory, 767 F.2d 518 (8th

a RAO eer rrr Severn yr ery erty eee eee 18

Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84

SO I I Ginn ned ncsn na deS ene sedeesedavcscssee 8

Singleton v. Wolf, 428 U.S. 150 (1976)................ 19

Smith v. Esquire, Inc., 494 F. Supp. 967 (D. Md.

Se pig news tape! 1 oe Pe 25

Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979)....... 10

Sohn v. Waterson, 84 U.S. 596 (1873).............---- 27

United States v. Adkinson, 297 U.S. 391 (1936)........ 19

United States v. Frank, 587 F.2d 924 (8th Cir. 1978) .... 18

United States v. Kubrick, 444 U.S. 111 (1979) ...... 12, 16

STATUTES

oe ee et) rr errr rer 1, 4, 19, 25, 26

Fe RS fb ico nnacedckcacdcnunwdne sous passim

er IE ks cine eke ce eneenns 2, 21, 22, 23

Mo. Ann. Stat. § 516.140 (Vernon Supp. 1989)

VKRUE ARH UEEA LER CAM EER ee Oe EAE fe al, am De,

Cal. Civ. Proc. Code § 340(3) (West 1982) ............ 3

ae ee oy re 3

RULEs

I I I Oe gc ese e nce ctcdosrsercvsnannes 27

| Pere rrr reeeeeeeeee 20

Supreme Court Rule 43.7 ............. cc cece eee eens 28

Sh eM coe ha chbs ab end tees ke bddeesssees 19, 20

STATUTES INVOLVED IN CASE

18 U.S.C. § 2511(1)

§ 2511.

(1)

Interception and disclosure of wire, oral, or

electronic communications prohibited

Except as otherwise specifically provided in this

chapter any person who -

(a) intentionally intercepts, endeavors to

intercept, or procures any other person to inter-

cept or endeavor to intercept, any wire, oral, or

electronic communication;

(b) intentionally uses, endeavors to use, or

procures any other person to use or endeavor to

use any electronic, mechanical, or other device

to intercept any oral communication when -

(c) intentionally discloses, or endeavors to

disclose, to any other person the contents of any

wire, oral, or electronic communication, know-

ing or having reason to know that the informa-

tion was obtained through the interception of a

wire, oral, or electronic communication in viola-

tion of this subsection; or

(d) intentionally uses, or endeavors to use,

the contents of any wire, oral, or electronic com-

munication, knowing or having reason to know

that the information was obtained through the

interception of a wire, oral, or electronic com-

munication in violation of this subsection;

shall be punished as provided in subsection (4) or shall

be subject to suit as provided in subsection (5).

18 U.S.C. § 2520(a)

§ 2520. Recovery of civil damages authorized

(a) In general. - Except as provided in section

2511(a)(ii), any person whose wire, oral, or

2

electronic communication is intercepted, dis-

closed, or intentionally used in violation of this

chapter may in a civil action recover from the

person or entity which engaged in that violation

such relief as may be appropriate.

(Emphasis added,.

(Remaining portions of § 2520 set forth in the Petition.)

47 U.S.C. § 415(b)

§ 415. Limitation of actions

(b) All complaints against carriers for the

recovery of damages not based on overcharges

shall be filed with the Commission within two

years from the time the cause of action accrues,

and not after, subject to subsection (d) of this

section.

Mo. Ann. Stat. § 516.140 (Vernon Supp. 1989)

§ 516.140. What actions within two years

Within two years: An action for libel,

slander, assault, battery, false imprisonment,

criminal conversation, malicious prosecution, or

actions brought under section 290.140, RSMo.

An action by an employee for the payment of

unpaid minimum wages, unpaid overtime com-

pensation or liquidated damages by reason of

the nonpayment of minimum wages or overtime

compensation, and for the recovery of any

amount under and by virtue of the provisions of

the Fair Labor Standards Act of 1983 and

amendments thereto, such act being an act of

Congress, shall be brought within two years

after the cause accrued.

Cal. Civ. Proc. Code § 340(3) (West 1982)

§ 340. [Personal injury; Wrongful death; Torts; Statu-

tory penalties; Check payment by bank; Prop-

erty seizure; Good faith improvements]

Within one year:

(3) An action for libel, slander, assault, battery,

false imprisonment, seduction of a person below

the age of legal consent, or for injury to or for the

death of one caused by the wrongful act or

neglect of another, or by a depositor against a

bank for the payment of a forged or raised check,

or a check that bears a forged or unauthorized

endorsement, or against any person who boards

or feeds an animal or fowl or who engages in the

practice of veterinary medicine as defined in Sec-

tion 4826 of the Business and Professions Code,

for such a person’s neglect resulting in injury or

death to an animal or fowl in the course of board-

ing or feeding such animal or fowl or in the

course of the practice of veterinary medicine on

such animal or fowl.

Md. Ann. Code § 5-105 (1957)

§ 5-105. Assault, battery, libel, or slander.

An action for assault, battery, libel, or

slander shall be filed within one year from the

date it accrues.

,%

a

COUNTERSTATEMENT OF THE CASE

Petitioner filed her action to recover damages under

18 U.S.C. § 2520 on November 22, 1988. In that complaint,

Plaintiff alleged that between April, 1984 and December,

1984, Respondent, Theodore R. Knox, among others,

intercepted, disclosed, or intentionally used the home

telephone conversations of Petitioner (formerly Josephine

Frick), without the knowledge or consent of Petitioner, in

violation of Chapter 19 of 18 U.S.C. Petitioner also

alleged that she did not have a reasonable opportunity to

discover either the violation or the fact that her rights

under 18 U.S.C. § 2520(1)(a) had been violated until

December 29, 1987, when Leslie Albin pleaded guilty to a

criminal violation of 18 U.S.C. § 2511(1)(a). Petitioner

admitted since the filing of her complaint that she discov-

ered the alleged illegal wiretap on or about December 7,

1984.

Respondent filed an answer to the complaint.

Respondent then filed a Motion for Judgment on the

Pleadings and suggestions in support thereof, asserting

that Petitioner’s cause of action under 18 U.S.C. § 2520

was barred by the applicable statute of limitations.

(Appendix at p. 1). The exhibits attached to the sugges-

tions in support of the motion indicate that Petitioner

discovered the wiretap on her residence telephone as

early as December 10, 1984. (Appendix at pp. 27-58).

These exhibits also indicate Petitioner knew that Peti-

tioner’s husband (John Frick) conducted or directed the

wiretap activities, and that she was aware of a potential

cause of action against him under 18 U.S.C. § 2520.

In her Suggestions in Opposition to Defendant's

Motion for Judgment on the Pleadings, Petitioner argued

that she was only aware that her husband or his represen-

tatives were responsible for the wiretap, but she did not

know who those representatives were. (Appendix at pp.

4-11). Petitioner argued that it was only after Leslie Albin

entered a plea of guilty to a criminal wiretap violation on

December 26, 1987, did she became aware of Respon-

dent’s involvement. Petitioner also argued that she had

no reasonable opportunity to discover the identity of

Knox prior to the entry of Albin’s guilty plea. Petitioner

raisec no other arguments and theories in opposition to

Knox’s Motion for Judgment on the Pleadings at the

district court level. The district court treated the Motion

for Judgment on the Pleadings as one for summary judg-

ment. The district court found that there was no potential

for a cognizable issue of fact as to when Petitioner discov-

ered the violation of § 2520. (Petitioner’s Appendix at pp.

15-16). Therefore, the court determined her suit was

barred by the applicable statute of limitations.

On June 23, 1989, Petitioner timely filed her notice of

appeal. The United States Court of Appeals for the Eighth

Circuit found that under § 2520, the cause of action —

accrues when the claimant has reasonable opportunity to

discover the violation, not when she discovers the true

identity of the violator or all the violators. Thus, Peti-

tioner’s cause of action accrued on December 7, 1984.

Petitioner raised new arguments to oppose the grant-

ing of the Motion for Judgment on the Pleadings. Her

new arguments were: (1) the district court should not

have applied § 2520(e) retroactively; and (2) Knox’s iden-

tity was fraudulently concealed until December, 1987

and, therefore, statute of limitations tolled until Albin

plead guilty. The Eighth Circuit affirmed the district

court’s Memorandum and Order holding that the cause of

action accrued when Petitioner has a reasonable oppor-

tunity to discover the violation and not when she dis-

covers the true identity of the violator or ali the violators.

The Eighth Circuit found that the statute of limitations

period began to run in 1984 because Petitioner was aware

of the cause of action against Frick at that time. The

Eighth Circuit refused to consider Petitioner’s new argu-

ments because they were not raised before the district

court. The Eighth Circuit filed its decision on May 31,

1990. Petitioner’s Motion for Rehearing En Banc was

denied on July 11, 1990.

,%

—_

SUMMARY OF ARGUMENT

The district court properly concluded that there was

no cognizable issue of fact as to when Petitioner discov-

ered a violation of 18 U.S.C. § 2520 and therefore, her

claim was barred by the applicable statute of limitations.

Before the district court, Petitioner argued that a question

of fact prevented the statute of limitations from running

because, although Petitioner discovered the existence of

the wiretap on or about December 7, 1984, she did not

have any reasonable opportunity to discover Knox’s

involvement in the wiretapping, until Mr. Albin pled

guilty on December 29, 1987. However, as the case law

indicates, her cause of action under 18 U.S.C. § 2520

accrued when she discovered or, by the exercise of due

diligence, could have discovered the existence of the

wiretap. Therefore, the cause of action accrued on or

about December 7, 1984. Under Missouri law, the simple

lack of knowledge of the identity of all possible defen-

dants does not toll the statute of limitations as to those

unknown defendants. Additionally, applying Petitioner’s

own test for when a cause of action accrues, her claim

under 18 U.S.C. § 2520 accrued in December, 1984, or, at

the latest by, March, 1985.

Petitioner fails to mention to this court that on appeal

to the Eighth Circuit, Petitioner raised new arguments

and theories to support her contention that her complaint

raised under 18 U.S.C. § 2520 is not barred by the applica-

ble statute of limitations. These arguments were that the

district court applied 18 U.S.C. § 2520(e) retroactively and

that Respondent's identity was fraudulently concealed

until December 29, 1987. The general rule that a review-

ing court shall consider a case only on the argument and

theory upon which it was tried below was followed by

the Eighth Circuit. This is not a case of plain error as

Petitioner contends, nor is it a decision that conflicts with

other United States courts of appeals that have discussed

the issue of when the statute of limitations begins for

purposes of 18 U.S.C. § 2520. Respondent respectfully

suggests that this Court should also follow this general

rule, and because it is clear that Petitioner’s cause of

action accrued on or about December 7, 1984, her Petition

for Writ of Certiorari should be denied.

1,

DID THE COURTS BELOW PROPERLY CONCLUDE

THAT THE CAUSE OF ACTION ACCRUED AT THE

TIME PETITIONER DISCOVERED THE EXISTENCE

OF THE WIRETAP, REGARDLESS OF PETITIONER’S

KNOWLEDGE OR LACK OF KNOWLEDGE OF

RESPONDENT’S INVOLVEMENT IN SAID

ALLEGEDLY ILLEGAL WIRETAP, THEREBY BARRING

HER ACTION UNDER 18 U.S.C. § 2520, PURSUANT

TO THE APPLICABLE STATUTE OF LIMITATIONS?

The burden of proof on a claim that a party’s cause of

action is barred by the statute of limitations is on the

party alleging facts to avoid the running of the statute.

Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 92 (1930)

(en banc). Petitioner fails to meet that burden.

Petitioner contends that her cause of actior under 18

U.S.C. § 2520 did not accrue until December 29, 1987,

when Leslie Albin pled guilty to an illegal wiretap in

United States v. Albin, Case No. 87-00283-01-CR-W-6,

because that is when Petitioner learned of Knox’s identity

and involvement in the wiretap activity. Knox disagrees.

Assuming arguendo, for the purposes of deciding the

issue in this Petition, that Petitioner is correct in her

assertion that she did not know all the persons involved

in the allegedly illegal wiretap, the assertion is useless to

Petitioner. The timing of her discovery of the identity and

involvement of all possible defendants is immaterial to

when Petitioner’s cause of action accrued. Petitioner also

contends that before December 29, 1987, she did not have

a reasonable opportunity, through the use of due dili-

gence, to discover Knox’s involvement and identity in

said wiretapping until Albin pled guilty. Knox disagrees.

Essentially, Petitioner contends that before December 29,

1987, she did not discover, or through the use of due

diligence could not have discovered, the information nec-

essary to cause the statute of limitations to begin running

on her claim under § 2520. Knox disagrees. Along with

making these contentions, Petitioner makes two other

1 This was Petitioner’s only argument against Knox’s

Motion for Judgment on the Pleadings raised to the Honorable

Howard F. Sachs in the district court. None of the other argu-

ments raised by Petitioner in her Petition were raised and

addressed by Judge Sachs. Kriegesmann v. Berry-Wehmiller Co.,

739 F.2d 357 (8th Cir.), cert. denied, 469 U.S. 1036 (1984); Ludwig

v. Marion Labs, Inc., 465 F.2d 114 (8th Cir. 1979).

statements that this court should find undeniably fore-

close its review of this Petition.

First, Petitioner admits that on or about December 7,

1984, she discovered the allegedly illegal wiretap on her

phone in her residence. (See pp. 2, 6 and 17 and Question

1 and 2 of Questions Presented of the Petition.) Second,

Petitioner recognizes that the standard rule for determin-

ing when a cause of action under § 2520 accrues (when

the statute of limitations begins to run) is when the

Petitioner discovers or, by the exercise of due diligence,

could have discovered the existence of the wiretap. Peti-

tioner uses the phrase “basis for the cause of action” in

replace of “existence of the wiretap” in an attempt to

muddy the otherwise clear holdings of the case law relat-

ing to this issue, as well as the legislative intent of Con-

gress when it passed the 1986 amendment to § 2520

adding subsection (e).

Petitioner contends that there is a conflict between

the Eighth Circuit’s holding in this cause and the holding

in Pavlak v. Church, 727 F.2d 1425 (9th Cir. 1984). Peti-

tioner suggests that there are two requirements for the

statute of limitations to begin to run on Petitioner’s cause

of action: (1) knowledge of the existence of the wiretap;

and (2) knowledge of all the parties responsible for a

violation under 18 U.S.C. § 2510 et seq. However, a simple

review of the cases discussing this issue clearly indicates

that knowledge or discovery of the existence of the wire-

tap starts the statute of limitations running. Petitioner’s

discovery of the wiretap, per her own admissions,

occurred on December 7, 1984 and, thus, no conflict.

10

Petitioner takes the “basis of the cause of action”

language from the Ninth Circuit’s opinion in Pavlak v.

Church, 727 F.2d 1425, 1428 (9th Cir. 1984), to support her

argument. Although the Ninth Circuit does not define

what “basis of the cause of action” means, it cites as

authority: Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979)

(cause of action accrues when through the exercise of due

diligence, plaintiff could have discovered the existence of

the wiretap); and Awbrey v. Great Atlantic and Pacific Tea

Co., 505 F.2d 604, 609 (M.D. Ga. 1980) (cause of action

accrues when plaintiff discovers that her phone calls were

being intercepted); as well as, Brown v. American Broad-

casting Co., 704 F.2d 1296, 1304 (4th Cir. 1983) (cause of

action accrues when plaintiff discovers that his communi-

cations had been intercepted). These cases make it clear

that Petitioner’s cause of action accrued and the limita-

tions period began to run on or about December 7, 1984,

the day she discovered the wiretap. See also Newcomb v.

Ingle, 827 F.2d 675 (10th Cir. 1987) (there are two alterna-

tives in deciding when a cause of action under § 2520

accrues: (1) when plaintiff discovers or, by the exercise of

due diligence, could have discovered that her communi-

cations were intercepted; or (2) as soon as the intercep-

tion was committed.)

Petitioner’s argument that she must also have known

all the parties who were responsible for the wiretap

before the cause of action accrued is an erroneous state-

ment of the law and unfounded, as evidenced by Peti-

tioner’s failure to cite even one case in support of this

theory. Petitioner attempts to distinguish the Court’s

analysis in Newcomb, because Newcomb did not allege

lack of knowledge of all defendant tortfeasors. However,

11

as established above, the lack of this particular allegation

does not distinguish Newcomb, because knowledge of all

possible defendants is immaterial to a determination of

when the cause of action under § 2520 accrues.

It is clear from the pleadings filed by Petitioner dur-

ing the divorce proceedings in Frick v. Frick, Case No.

DR84-1285, she was aware of, at the very least, a cause of

action under 18 U.S.C. § 2520 against her husband, John

Frick, and others. (Appendix at pp. 27-58).

Such wiretapping, conducted by or at the direction

of respondent, was done after he moved from the

residence. . . . Such conduct is clearly illegal and

the fruits thereof inadmissible in evidence. See,

18 U.S.C.A. § 2510-2520. . . . (emphasis added)

(Appendix at pp. 47, 56). With awareness of the cause of

action and knowledge of the identity of at least one of the

defendants, Petitioner could easily have sued Frick pur-

suant to § 2520, and sought the identity of other defen-

dants through discovery. See Klippel v. Watkins, 667 S.W.2d

28, 31 (Mo. Ct. App. 1984).

In Klippel, supra, the court found that Petitioner was

aware of the cause of action for libel and knew the

identity of one of the authors of the documents and could

have sued and learned of the other defendants through

discovery. Therefore, his cause of action as to the second

defendant was time-barred. Similarly, Petitioner’s cause

of action as to Knox is time-barred, and the Petition for

Writ of Certiorari before this court should be denied.

Petitioner’s contention that she did not know, nor

through the exercise of due diligence could have discov-

ered, Knox’s involvement in the allegedly illegal wiretap

12

until Alvin pled guilty, stands alone. She offered no affi-

davit(s) nor other documentation to support this claim.

The deposition excerpt that she did provide to the district

court and to this court simply shows that Knox followed

and took pictures of Petitioner for her husband. Certainly,

this bare contention, without more, fails to meet Peti-

tioner’s burden to bring forth sufficient evidence to allow

a reasonable jury to find in her favor. Therefore, Respon-

dent respectfully requests this Court deny her Petition for

Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit.

Petitioner contends that the district court’s finding

that she discovered the wiretap in December, 1984, and

could have sued her husband and used the discovery

process to learn the identities of other persons involved is

in error and conflicts with United States v. Kubrick, 444

U.S. 111 (1979). Even looking beyond the fact that Kubrick

is a medical malpractice case, and beyond the fact that all

the cases dealing with the statute of limitations issue as it

applies to 18 U.S.C. § 2520 have concluded discovery of

the existence of the wiretap starts the limitation clock (as

discussed above), Petitioner’s own analysis applying

(logically) Kubrick to this case manifests Respondent's

assertion that Plaintiff's cause of action accrued on or

about December 7, 1984.

On p. 36 of her Petition, Petitioner states that:

In order to initiate litigation, a plaintiff

must be able to plead four things: (1) an act or

failure to act; (2) damage resulting from that act

or failure to act (whether presumed in law or

expressed); (3) that one or more specific defen-

dants performed or failed to perform the act,

13

and (4) a theory on which to base recovery

against the defendant(s).

Obviously, Petitioner’s phrase, “[i]n order to initiate liti-

gation” is synonymous with the phrase, “the cause of

action begins to accrue for a statute of limitation pur-

poses.” Based on Petitioner’s position, clearly Petitioner

admits that three of the four “things” required to be pled

to initiate litigation were met on or about December 7,

1984, i.e., (1); (2); and (4). Petitioner contends only that (3)

was not met until Albin plead guilty in December, 1987.

A review of all the facts clearly indicates (3) was also met

more than two years before Petitioner filed her com-

plaint.

The third “thing” Petitioner states a plaintiff must

know, for the statute of limitations to begin to accrue, that

one or more specific persons performed or failed to per-

form the act involved. (See Petition at p. 36). In this case,

the act involved was the wiretapping. Petitioner states on

p. 39 of her Petition that she “assumed” that her husband

(now ex-husband) was involved in the wiretap and then

suggests that her assumption does not rise to the level of

knowledge required to fit into this third element. This is

her contention even though there is no knowledge

requirement within her four “things” needed to be plead.

Additionally, a review of the Petitioner’s pleadings filed

in Frick v. Frick, Case No. DR84-1285, and her suggestions

in opposition to Defendant’s Motion for Judgment on the

Pieadings filed in this case at the district court level,

clearly indicate Petitioner knew that her husband and his

attorneys, and others, were somehow involved in the

wiretapping of her phone.

14

On the seventh page of Petitioner’s Memorandum of

Petitioner’s Report on Status of Discovery Issues Post

Meeting of Counsel, she stated:

Petitioner has located a potentially illegal

wire tap in the home and her attorneys. have

seen and had read to them by respondent’s

attorneys certain transcripts of petitioner’s pri-

vate telephone conversations with persons other

than respondent.

(Appendix at p. 34). This pleading was filed on or about

December 10, 1984.

On the second page of Petitioner’s Motion for Protec-

tive Order in Paragraph 2, Petitioner argued that she

should be protected from further discovery until wire-

tapped conversations were made available to her and her

attorneys. (Appendix at p. 37). This pleading was filed on

or about February 14, 1985.

On the second page of Petitioner’s Suggestions in

Support of Motion for Protective Order, Petitioner stated:

Respondent's attorneys have indicated they

have tapes and transcriptions of telephone con-

versations between petitioner and persons other

than respondent. They have also stated that

these were obtained as a result of wiretap

respondent or his agents established on peti-

tioner’s telephone line in her home.

(Appendix at p. 41). This pleading was filed on or about

February 14, 1985.

On the first page of Petitioner’s Motion to Quash

Subpoena and for Protective Order from Deposition, Peti-

tioner states that her husband “is in possession of ille-

gally made tape recordings of wiretapped conversations

15

of petitioner.” (Appendix at p. 43). This pleading was

filed on or about February 14, 1985.

On the first page of Petitioner’s Suggestions in Sup-

port of Motion to Quash Subpoena and for Protective

Order from Deposition, Petitioner accuses her husband

“and his attorneys” with possessing recordings and tran-

scriptions of wiretapped conversations, and that the wire-

tapping was “conducted by or at the direction of

respondent.” (Appendix at p. 47). This pleading was filed

on or about February 14, 1985.

On the second page of Petitioner’s Motion for Protec-

tive Order from Deposition, Andes stated:

Petitioner is informed and believes that

respondent or his representatives are in posses-

sion of illegally made tape recordings of wire-

tapped conversations of petitioner.

(Appendix at p. 52). This pleading was filed on or about

March 26, 1985.

On the second page of Petitioner’s Suggestions in

Support of Petitioner’s Motion for Protective Order, Peti-

tioner stated that her husband and his attorneys “possess

recordings and transcriptions of wiretapped communica-

tions between petitioner and persons other than respon-

dent,” and that said wiretapping was “conducted by or at

the direction of respondent.” (Appendix at p. 56). This

pleading was filed on or about March 26, 1985.

Additionally, in Petitioner’s Suggestions in Opposi-

tion to Defendant’s Motion for Judgment on the Plead-

ings, Petitioner stated:

Until the date of December 26, 1987, Plain-

tiff, Josephine Andes, was only aware that her

16

husband, John W. Frick, or his representatives,

had legally installed an electronic wiretapping

device on her telephone line, but did not know

who John W. Frick’s representatives were.

(Appendix at p. 9). This pleading was filed before the

district court on April 11, 1989.

Even under Plaintiff's application of Kubrick to this

case, there is no question but that as of December 7, 1984,

or at the very latest, March 26, 1985, Petitioner knew

“that one or more specific defendants performed or failed

to perform the act”, as required by the third element of

Petitioner’s own analysis. It is clear from the pieadings

Petitioner filed during her divorce action, and before the

district court in this action, that she discovered the wire-

tap and knew that her husband, his attorneys, and others,

were involved in the wiretapping activities. Petitioner’s

own analysis does not require that Petitioner know each

and every defendant that may have been involved in the

act performed to start the statute of limitations to accrue.

As the district court properly held and the Eighth Circuit

properly affirmed, Petitioner discovered the wiretap and

knew that at least her husband was involved. Therefore,

this Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit should be denied.

2.

CAN ARGUMENTS AND THEORIES RAISED BY

PETITIONER THAT WERE NOT BEFORE THE DIS-

TRICT COURT BE CONSIDERFD FOR THE FIRST

TIME ON APPEAL?

It is a well established general rule that a reviewing

court will not consider arguments and theories not

17

properly presented or raised in the district court.

Kriegesmann v. Berry-Wehmiller Co., 739 F.2d 357, 358 (8th

Cir. 1984); Kapp v. Naturelle, Inc., 611 F.2d 703, 709 (8th

Cir. 1979).

In Kriegesmann, supra, the plaintiff sued for age dis-

crimination under the Age Discrimination and Employ-

ment Act. Defendant filed a motion for summary

judgment asserting that plaintiff’s action was untimely.

Id. Before the district court, plaintiff argued that the time

for filing did not begin to run until the severance benefits

ended, as the employer’s actions constituted a continuing

violation. Id. at 358. The district court granted the motion

for summary judgment. On appeal, the plaintiff alleged,

for the first time, that the employer’s failure to post a

notice of his rights under the Age Discrimination in

Employment Act, violated the Act and, therefore, the

filing period was equitably tolled. The Eighth Circuit did

not consider that argument because it was a theory not

presented to the district court. Id. This court denied

Kriegesmann’s Petition for Writ of Certiorari. Kriegesmann

v. Berry-Wehmiller Co., 469 U.S. 1036 (1984).

In Kapp v. Naturelle, Inc., Kapp filed an adversary

proceeding claiming that disallowance of creditors’

claims against him individually was required because the

debts were corporate debts. 611 F.2d 703 (8th Cir. 1979).

The bankruptcy court agreed and the district court

affirmed. On appeal to the Eighth Circuit, in defense of

his position, Kapp argued, inter alia, that the default

judgments obtained against Kapp prior to the filing of the

bankruptcy proceeding were fraudulently obtained. Id. at

708-09. This court noted that fraud was not pled or con-

sidered by the bankruptcy court. Id. at 709. Arguments

18

and theories not raised in the proceedings below are not

considered by appellate courts when raised for the first

time on appeal. Id. at 709. See also St. Louis Developmental

Disabilities Treatment Center Parents’ Association v. Mallory,

767 F.2d 518 (8th Cir. 1985); Korgel v. United States, 619

F.2d 16, 18 (8th Cir. 1980); United States v. Frank, 587 F.2d

924, 928 (8th Cir. 1978); Ludwig v. Marion Labs, Inc., 465

F.2d 114, 117 (8th Cir. 1972).

As in each of these cases, Petitioner presented, for the

first time on appeal, arguments and theories not raised in

the proceedings to the trial court. As pointed out in the

Counterstatement of the Case, Petitioner argued, in the

proceedings Gelow, that the statute of limitations did not

begin to run simply because she did not know of Respon-

dent’s identity or involvement in the alleged illegal wire-

tap until Mr. Albin pled guilty to a criminal violation of

18 U.S.C. § 2510 et seq. on December 29, 1987. On appeal

to the Eighth Circuit, Petitioner raised additional argu-

ments and theories in an attempt to obtain a reversal of

the trial court’s finding that Petitioner’s claim was barred

by the applicable statute of limitations. Petitioner’s argu-

ments and theories that 18 U.S.C. § 2520(e) should not be

applied retroactively and that Knox’s identity and

involvement was fraudulently concealed, thereby tolling

any statute of limitations, were arguments and theories

raised for the first time on appeal and the Eighth Circuit

declined to consider them. As in Kriegesmann, Petitioner’s

request for Writ of Certiorari should be denied.

Additionally, Petitioner raises a new argument to this

court. Petitioner now contends that a retroactive applica-

tion of 18 U.S.C. § 2520(e) denies Petitioner her constitu-

tional rights of due process, specifically, the “taking

19

clause” of the Fifth Amendment. Once again, an argu-

ment not raised below, and one not supported within her

Petition.

Though the Supreme Court does not normally decide

issues not presented below, it is not precluded from doing

so. Carlson v. Green, 446 U.S. 14 (1980). It is within the

discretion of the appellate courts to determine, on a case

by case basis, what questions may be taken up and

resolved for the first time on appeal. Singleton v. Wolf, 428

U.S. 150 (1976). The court may review arguments or theo-

ries for first time on appeal where the proper resolution

is beyond any doubt, or where injustice might otherwise

result. Id. at 121; United States v. Adkinson, 297 U.S. 391,

392 (1936).

The Eighth Circuit’s refusal to consider an argument

not heard below does not work substantial injustice upon

the Petitioner. Petitioner suggests that she may suffer

substantial injustice should this petition not be granted

simply because she could not then pursue her claim for

relief under § 2520, the civil remedy for a criminal viola-

tion of § 2511.2 However, if substantial injustice was

suffered every time a plaintiff was prevented from pursu-

ing a claim, this Court would be granting petitions for

writ of certiorari with each blink of an eye!

In an effort to provide the court with a valid reason

for reviewing this case, Petitioner suggests a “plain error”

review is appropriate under Fed. R. Civ. P. 51. However,

2 This Court should also be aware that Respondent was

indicted for violating Chapter 19 under 18 U.S.C. § 2511 and

was acquitted on all counts.

20

Rule 51 deals with jury instructions and their objections.

Rule 51 is not applicable to this case in that there are no

jury instructions at issue. The Petitioner’s appeal to the

Eighth Circuit came as a result of the district court’s

granting of Respondent’s Motion for Judgment on the

Pleadings. Therefore, Petitioner’s request for a Rule 51

“plain error” review is without merit.

Petitioner also asserts that plain error review is

appropriate under Supreme Court Rule 24.1(a). The inter-

ests of justice and efficient judicial administration dictate

against the exercise of this power. Petitioner alleges plain

error in the district court’s arguably retroactive applica-

tion of § 2520(e) to her claim which accrued December 7,

1984. However, Petitioner did not challenge an alleged

retroactive application of the statute at the district court

level. Thus, the only issue decided by the district court

was the date Petitioner’s claim actually accrued. The

district court properly determined that Petitioner’s claim

accrued more than two years prior to the bringing of the

suit. The failure of Petitioner to raise the retroactivity

argument precluded the trial court from an opportunity

to adjudicate it on the merits. Therefore, Petitioner effec-

tively waived this argument. Clearly, the Eighth Circuit

acted within its discretion in refusing to consider the

retroactivity argument. The court did not find plain error

in the district court’s decisicn, and cannot be said to have

committed plain error in refusing to consider the retroac-

tivity argument since Petitioner failed to assert it before

the district court. See Kriegesmann, supra.

2 et

a a A

— — —_ o ——

21

A. Should this court choose to review Petitioner's

argument, raised for the first time on appeal,

that 18 U.S.C. § 2520(e) should not be applied

retroactively, her claim for violation of 18

U.S.C. § 2520 is still barred by the most appro-

priate or most analogous, the applicable statute

of limitations.

It is well established that as the reviewing court, this

court may affirm the lower court’s order on any ground

supported by the record, even if the issue was not

pleaded, tried, or otherwise referred to in the proceedings

below. Brown v. St. Louis Police Department, 691 F.2d 393,

396 (8th Cir. 1982); McClain v. Kitchen, 659 F.2d 870, 873

(8th Cir. 1981).

In his Memorandum and Order, Judge Sachs con-

cluded that Petitioner’s suit under 18 U.S.C. § 2520 was

barred by the applicable statute of limitations because

there was “no potential for a cognizable issue of fact as to

when plaintiff discovered a violation of sec. 2520.” (Peti-

tioner’s Appendix at pp. 15-16). By her own admissions,

discovery of the existence of the wiretap occurred on or

about December 7, 1984. (Petition in Questions Presented

1 and 2; pp. 1, 6 and 17). Petitioner argues, for the first

time on appeal, that § 2520(e), the limitation provision,

cannot be applied retroactively, yet her Petition provides

this court no guidance as to an appropriate alternative.

Respondent proffers 47 U.S.C. § 415(b) and Mo. Ann. Stat.

§ 516.140 as appropriate alternatives.

In Newcomb, the Tenth Circuit concluded that it shall

apply the most appropriate or most analogous state stat-

ute of limitations to the most analogous state private

cause of action to a claim under § 2520. 827 F.2d at 677-78

22

(citing as authority Board of Regents v. Tomanio, 446 U.S.

478, 488 (1980)). The court held that a cause of action for

invasion of privacy was the most analogous state private

cause of action to a claim under § 2520 because, “the

protection of privacy was an overriding congressional

concern in enacting 18 U.S.C. § 2510-2520.” Id. at 678. The

court applied Kansas’ 2-year statute of limitations

because the Kansas Supreme Court had already held that

this statute of limitations applied to invasion of privacy

actions. Id. at 677, fn.3. Neither the Missouri Supreme

Court nor any Missouri intermediate appellate courts

have determined which statute of limitations applies to a

cause of action under § 2520 or invasion of privacy.

In Tomanio, this Court held that where there is no

specifically stated or otherwise applicable relevant fed-

eral statute of limitations for a federal substantive claim

enacted by Congress, federal courts must apply the most

appropriate or most analogous statute of limitations pro-

vided by the state law. 446 U.S. 478, 488 (1980). See also

Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975).

In Pavlak, the Ninth Circuit held that the 2-year stat-

ute of limitations under 47 U.S.C. § 415(b) barred Pavlak’s

cause of action under not only 47 U.S.C. § 207 and 605,

but also 42 U.S.C. § 1983 and 18 U.S.C. § 2520, unless

Pavlak could prove fraudulent concealment. 727 F.2d at

1427-29. Pavlak argued that even if 47 U.S.C. § 415(b)

barred her claims under the Federal Communications

Act, it could not be applied to her other civil rights claims

(ie., 42 U.S.C. § 1983 and 18 U.S.C. § 2520). Id. at 1427.

The Court of Appeals disagreed. The Ninth Circuit cited

Johnson, 421 U.S. 454 (1975), noting that since, in Johnson,

ee nes ws ele

23

there was “no specifically stated or otherwise relevant fed-

eral statute of limitations for a cause of action under § 1981,

the controlling period would ordinarily be the most

appropriate one provided by state law.” Id. at 1427. How-

ever, for its case, § 415(b) specifically addressed the

alleged violation of Pavlak’s rights (wiretap of the tele-

phone of her residence). Id.

Where a federal statute of limitations is directly

applicable to the facts, is the most analogous

statute of limitations, and provides a reasonable

opportunity to present civil rights claims, it is

the proper statute of limitations to be applied.

Id. at 1427-28. The court concluded that “[a]pplying

§ 415(b) does not bar, defeat, or inhibit the timely asser-

tion of civil rights claims” under 42 U.S.C. § 1983 or 18

U.S.C. § 2520. Id. at 1428. Applying § 415(b) to Peti-

tioner’s claim under 18 U.S.C. § 2520 as the applicable

statute of limitations would not bar, defeat or inhibit the

timely assertion of her claim. Therefore, as stated above,

since her cause of action arose on or about December 7,

1984, she had until on or about December 7, 1986, to file

her lawsuit. Petitioner’s cause of action was properly

dismissed by the district court and affirmed by the Eighth

Circuit.

Knox asserts that applying the most appropriate or

most analogous state statute brings the court to the same

conclusion, Petitioner's cause of action under § 2520 is

time barred because, the most appropriate or most analo-

gous state statute is the 2-year statute of limitation under

Mo. Ann. Stat. § 516.140. This statute of limitations limits

the bringing of a cause of action for intentional and

quasi-intentional torts (e.g., assault, battery, libel,

24

slander) to two years from the date the cause of action

accrued. However, the question in this case, should this

court choose to even consider this argument raised only

on appeal, is: what is the most appropriate or most analo-

gous state statute of limitations to apply to a § 2520 claim,

or according to Newcomb, an invasion of privacy claim?

In Barber v. Time, Inc., the defendant published an

article about a physical ailment of plaintiff and printed

her picture. 159 S.W.2d 291 (Mo. 1942). Petitioner sued

based on a violation of her right to privacy. Id. The

Supreme Court discussed the right to privacy, recognized

an individual's rights to such, concluded that such an

article of news could involve both libel and an invasion of

privacy, and the action could be stated in separate counts.

Id. at 296. The court noted that recovery could be had on

the libel count if the statements made were untrue, while

recovery for true statements would be limited to the

invasion of a privacy count. Id.

Knox asserts that Barber and more recent cases in

Missouri discussing a cause of action for invasion of

privacy, although finding invasion of privacy a separate

cause of action from libel, continue to compare these two

causes of action, thereby evidencing that, in Missouri, a

cause of action for invasion of privacy is most analogous

to a cause of action for libel.

The Ninth Circuit has held that California’s one year

statute of limitation governing defamation actions also

applies to actions for invasion of privacy. Fleury v. Harper

& Row, Publishers, Inc., 698 F.2d 1022, 1027 (9th Cir. 1983).

In Fleury, the plaintiffs filed suit against the publisher for

25

invasion of privacy, libel, intentional infliction of emo-

tional distress and injunctive relief. Id. The district court

granted defendant’s motion for summary judgment based

on the applicable state statute of limitations, dismissing

the entire action and the Court of Appeals affirmed.

The district court in Smith v. Esquire, Inc., held Mary-

land’s one-year statute of limitations governing libel and

slander applicable to an invasion of privacy action based

on a false light theory. 494 F.Supp. 967, 970 (D. Md. 1980).

The court noted that although Maryland appellate courts

had not addressed this issue, it felt that the Maryland

court would find the libel statute of limitations applica-

ble, given the similarity between the libel claim and the

invasion of privacy claim based on false light theory. Id.

“To hold otherwise would severely undercut the policy

considerations which led to the enactment of the one-year

statute governing defamation cases.” Id.

The holdings in Fleury and Smith support the logical

conclusion that an action for invasion of privacy is most

analogous to an action for libel. Therefore, if this Court

chooses to apply a state statute of limitations in its deter-

mination of this Petition for Writ of Certiorari, it should

apply the 2-year statute of limitations under Mo. Ann.

Stat. § 516.140. As additional support for this court apply-

ing § 516.140 to this alleged violation of Chapter 19 of 18

3 In Fleury, plaintiffs also attempted to argue on appeal

that the one year statute of limitations denied them due pro-

cess of law. However, the Ninth Circuit refused to consider the

argument because it was not made in the district court, nor in

Plaintiffs’ Motion to Alter or Amend the Judgment. 698 F.2d at

1027.

26

U.S.C., Chapter 19 requires the defendant to: intentionally

intercept wire, oral, or electronic communication (18

U.S.C. § 2511(1)(a)); intentionally use electronic, mechani-

cal, or other device to intercept any oral communication

(18 U.S.C. § 2511(1)(b)); intentionally disclose contents of

any wire, oral, or electronic communication (18 U.S.C.

2511(1)(c)); or intentionally use of any wire oral communi-

cation (18 U.S.C. § 2511(1)(d)).

Knox asserts that to recover under § 2520, Petitioner

must essentially present proof of a tort, invasion of pri-

vacy, intentionally committed, in other words, present

proof that an intentional tort was committed. Therefore,

pursuant to the Missouri 2-year statute of limitations

relating to intentional torts, Mo. Ann. Stat. § 516.140,

Petitioner’s claim under § 2520 is barred by the most

appropriate or most analogous state statute of limitations.

As Judge Sachs concluded, Petitioner’s claim is barred by

the applicable statute of limitations. (Petitioner’s Appen-

dix at p. 16).

CONCLUSION

Petitioner discovered the existence of the wiretap on

December 7, 1984. Before the district court, Petitioner

argued solely that because she did not know of Respon-

dent’s involvement in the wiretapping of her house until

Albin pled guilty in December of 1987. Both the United

States District Court for the Western District of Missouri

and the United States Court of Appeals for the Eighth

Circuit held that such lack of knowledge does not toll the

statute of limitations and her cause of action is barred by

es a ee

5. neabea sealiah tai ty baste oe -one

Oa re pee ree

abe bere.

ed ee wees Sree Se bom tn ot oc Me

27

the applicable statute of limitations. Contrary to what

Petitioner suggests, there is no direct conflict between

this decision of the Eighth Circuit and the decision of this

Court in Sohn v. Waterson, 84 U.S. 596 (1873). A reviewing

court shall not consider arguments and theories not prop-

erly presented or raised in the district court. Therefore,

Petitioner’s argument of retroactivity should not be

addressed by this Court. Regardless, the courts below

properly concluded that Petitioner’s claim was barred by

an applicable statute of limitations.

There is no conflict between the decision of the

Eighth Circuit in this cause and the Ninth Circuit's

decision in Pavlak, relating to when the cause of action

under 18 U.S.C. § 2520 accrues. All cases discussing when

the statute of limitations period begins to accrue for

purposes of a civil action pursuant to 18 U.S.C. § 2520

have concluded that the period begins when the plaintiff

discovers, or should have discovered the existence of the

wiretap. In this case, when Petitioner discovered the exis-

tence of the wiretap is undisputed. Additionally, even

utilizing the “critical facts” analysis discussed by Peti-

tioner, it is clear that all of such “critical facts” were clear

to Petitioner on December 7, 1984, or at the very latest, by

the end of March, 1985. Her claim was untimely and

properly dismissed. Therefore, her Petition for Writ of

Certiorari should be denied.

As noted in Supreme Court Rule 10, “review on a

writ of certiorari is not a matter of right, but of judicial

discretion. A petition for a writ of certiorari will be

granted only when there are special and important rea-

sons therefore.” As discussed in this Brief in Opposition,

there are no special nor important reasons for this Court

28

to grant this Petition. There are no conflicts between

decisions of the United States courts of appeals as Peti-

tioner suggests.

WHEREFORE, for the foregoing reasons, Respondent

respectfully prays this Court deny the Petition for Writ of

Certiorari to the United States Court of Appeals for the

Eighth Circuit filed by Josephine A. Andes, grant Respon-

dent double costs under Supreme Court Rule 43.7, and

for any and all other relief this Court deems just and

proper.

Respectfully submitted,

James R. WyrscH

Counsel of Record

MIcHaAEL P. Joyce

KoenicsporF & Wyrscu, P.C.

Tenth Floor

1006 Grand Avenue

Kansas City, MO 64106

(816) 221-0080 TEL

(816) 221-3280 FAX

Attorneys for Respondent

et ie

App. 1

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

JOSEPHINE A. ANDES, )

alt Se

¥. ) 1152-CV-W-6

LESLIE E. ALBIN, ‘

and )

THEODORE R. KNOX, ‘

Defendants. )

MOTION FOR JUDGMENT ON THE PLEADINGS

COMES NOW, individual Defendant Theodore R.

Knox, by and through counsel, and moves this Honorable

Court for a Judgment on the Pleadings pursuant to Rule

12(c) of the Federal Rules of Civil Procedure.

Attached hereto and incorporated herein by reference

are Suggestions in support of Defendant Knox’s Motion

for Judgment on the Pleadings.

WHEREFORE, based upon the foregoing, Defendant

Knox herein prays for an order of this Court granting his

motion for Judgment on the Pleadings and any and all

other relief this Court deems just and proper.

App. 2

Respectfully submitted,

KOENIGSDORF & WYRSCH, P.C.

By: /s/ Michael P. Joyce

: H #20730

MICHAEL P. JOYCE #38501

1006 Grant Avenue

10th Floor

Kansas City, Missouri 64106

(816) 221-0080

ATTORNEYS FOR DEFENDANT

KNOX

I hereby certify that a copy of the foregoing was mailed,

this 30th day of March, 1989, to:

Mr. William H. Pickett

William H. Pickett, P.C.

Interstate Building

Fourth Floor

417 East 13th Street

Kansas City, Missouri 64106

/s/ Michael P. Joyce

App. 3

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

JOSEPHINE A. ANDES,

Plaintiff,

ee eee

)

)

) Case No. 88-

v. ) 1152-CV-W-6

| LESLIE E. ALBIN,

and )

. THEODORE R. KNOX,

Defendants. )

SUGGESTIONS IN SUPPORT OF

MOTION FOR JUDGMENT ON THE PLEADINGS

COMES NOW, Defendant Knox, and in support of his

Motion for Judgment on the Pleadings, states as follows:

ee eee ee ee. Ore See

Background

In her Complaint for Damages, Plaintiff alleges that

| between April, 1984, and December, 1984, Defendant

; Knox intercepted, disclosed or intentionally used the

home telephone conversations of Plaintiff (formerly Jos-

ephine Frick), without the knowledge or consent of Plain-

tiff, in violation of Chapter 119 of 18 U.S.C. Plaintiff also

alleges that Plaintiff did not have reasonable opportunity

to discover either the violation or the fact that her rights

under 18 U.S.C. § 2511(1)(a) had been violated until

December 29, 1987, when Leslie Albin pleaded guilty to

! criminal violation of 18 U.S.C. §2511(1)(a).

tiene meena

App. 4

Discussion

18 U.S.C. §2520 provides for the recovery of civil

damages for the violation of 18 U.S.C. §2510, et seq. 18

U.S.C. §2520(e) provides that:

A civil action brought under this section may

not be commenced later than 2 years after the

date upon which the claimant first has a reason-

able opportunity to discover the violation.

Plaintiff commenced her civil action on November 22,

1988, therefore, for Plaintiff to survive a statute of limita-

tion defense, she must show she did not have a reason-

able opportunity to discover the violation prior to

November 22, 1986.

Although pleadings are generally inadmissable in

evidence in the same trial, such is not true of abandoned

pleadings or pleadings in another lawsuit. Manahan v.

Watson, 655 S.W.2d 807, 809 (Mo. App. 1983); Littell v. Bi-

State Transit Development Agency, 423 S.W.2d 34 (Mo. App.

1967). A pleading filed by a party in a cause which states

facts relevant to issues in another cause on trial, in which

the party filing the pleading is a party, is admissible

against the party making it as an admission. Ross v. Philip

Morris & Co., 328 F.2d 3, 14-15 (8th.Cir. 1964); Simmons v.

Kansas City Jockey Club, 66 S.W.3d 119 (Mo. 1933).

In the prior civil proceeding, In re the Marriage of

Josephine Antionette Frick v. John William Frick, Case No.

DR84-1285, in the Circuit Court of Jackson County, Mis-

souri, the Petitioner, Josephine Frick (now Josephine

Andes, Plaintiff in this matter), filed a number of plead-

ings that indicate that Plaintiff and her attorneys had, in

fact, discovered the alleged violation or the fact that her

7 EE

App. 5

rights had been violated under 18 U.S.C. §2511(1)(a) well

before November 22, 1986.

As early as December 10, 1984, in Plaintiff's Mem-

orandum of Petitioner Reporting the Status of Discovery

Issues Post Meeting of Counsel (attached hereto and

incorporated by reference as Exhibit A), Plaintiff discov-

ered the alleged violation.

Petitioner has located a potentially illegal wire-

tap in the home and her attorneys have seen and

had read to them by respondent's attorneys cer-

tain transcripts of petitioner’s private telephone

conversations with persons other than respon-

dent. (See Exhibit A, Page 7.)

On February 14, 1984, Plaintiff through her attorneys,

filed a Motion for Protective Order, Suggestions in Sup-

port of said Motion, as well as, a Motion to Quash Sub-

poena and for a Protective Order from Deposition, and

Suggestions in Support of said Motion to Quash. (See

Exhibits B-E, attached hereto and incorporated by refer-

ence). In the Suggestions in Support of the Motion for

Protective Order, Plaintiff stated that Mr. Frick’s attor-

neys indicated that they had tapes and transcriptions of

telephone conversations between Plaintiff and persons

other than Mr. Frick. Also,

[s]uch wiretapping and taping is clearly illegal

and the making and dissemination of same is

prohibited under the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C.A.

§2510-2520. . . . (See Exhibit C, Page 2.)

Again, in Plaintiff's Suggestions in Support of Mrs.

Frick’s Motion to Quash, she states that the wiretapping

conducted by Mr. Frick or at his direction, is “clearly

App. 6

illegal” and cites 18 U.S.C. §2510-2520. (See Exhibit E,

Page 1.)

On March 26, 1985, Plaintiff, through her attorneys,

filed a Motion for Protective Order from Depositions and

Suggestions in Support thereof. (See Exhibits F and G,

attached hereto and incorporated by reference.)

Petitioner is informed and believes that respon-

dent or his representatives are in ion of

illegally made tape recordings of wireta —

conversations of petitioner. (See Exhibit F, Page

2.)

In the Suggestions in Support, Mrs. Frick indicates

her knowledge of the wiretapping and states that such

activity is “clearly illegal” citing 18 U.S.C.A. §2510-2520.

(See Exhibit G, Page 2.) In addition, the recordings and

transcriptions from the tapes were requested by Plaintiff

in the divorce case, in her First Request for Production of

Documents, filed on September 7, 1984. (See Exhibit G,

Page 3.)

WHEREFORE, for the foregoing reasons, Defendant

Knox respectfully moves this Court to grant his Motion

for Judgment on the Pleadings and any and all other

relief this Court deems just and proper.

App. 7

Respectfully submitted,

KOENIGSDORF & WYRSCH, P.C.

By: /s/ Michael P. Joyce

? H #20730

MICHAEL P. JOYCE #38501

1006 Grand Avenue

10th Floor

Kansas City, Missouri 64106

(816) 221-0080

ATTORNEYS FOR DEFENDANT

KNOX

I hereby certify that a copy of the

foregoing was mailed, this 30th

day of March, 1989, to:

Mr. William H. Pickett

William H. Pickett, P.C.

Interstate Building

Fourth Floor

417 East 13th Street

Kansas City, Missouri 64106

/s/ Michael P. Joyce

App. 8

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

JOSEPHINE A. ANDES, )

)

Plaintiff, ) Case No.

v. ) 88-1152-CV-W-6

LESLIE E. ALBIN, et al., ;

Defendants. )

PLAINTIFF’S SUGGESTIONS IN OPPOSITION TO

DEFENDANT’S MOTION FOR JUDGMENT

ON THE PLEADINGS

COMES NOW the plaintiff herein, and respectfully

submits the following Suggestions in Opposition to

Defendant Theodore R. Knox’s Motion for Judgment on

the Pleading.

Background

This case arises out of illegal wiretapping activities

performed by the defendants of the plaintiff's telephone

line leading to and in her home located at 1724 North

11th Street, Blue Springs, Missouri, during the time

period beginning sometime in April 1984, through and

including December 1984, while plaintiff Josephine A.

Andes was involved in a divorce proceeding. During that

period of time, defendants Leslie E. Albin and Theodore

R. Knox installed electronic wiretapping devices upon the

telephone lines leading to and inside the residence of

plaintiff Josephine A. Andes, and thereafter made elec-

tronic recordings of private telephone conversations of

App. 9

plaintiff with third persons. Plaintiff discovered the ille-

gal wiretapping on or about December 7, 1984.

Argument

At the time of discovery, plaintiff believed her hus-

band, John W. Frick, to be the only person responsible for

the-electronic wiretapping devices to be installed on her

telephone lines.

Prior to the date of December 26, 1987, plaintiff Jos-

ephine A. Andes had no knowledge of the identity of

defendants Leslie E. Albin and Theodore R. Knox or of

their participation in the installation of said electronic

wiretapping devices. Plaintiff’s knowledge of the defen-

dants’ participation came only after defendant Leslie E.

Albin entered a plea of guilty in the case styled United

States of America v. Leslie E. Albin, cause number

87-00283-01-CR-W-6. Until the date of December 26, 1987,

plaintiff Josephine A. Andes was only aware that her

husband, John W. Frick, or his representatives, had ille-

gally installed an electronic wiretapping device on her

telephone line, but did not know who John W. Frick’s

“representatives” were. Only after the plea entered by

defendant Leslie E. Albin in the above-mentioned crimi-

nal action did plaintiff become aware of the identity of

the defendants in the instant action.

Therefore, plaintiff did not have a reasonable oppor-

tunity to discover the violation committed by defendants

Leslie E. Albin and Theodore R. Knox until after the date

upon which defendant Albin entered his plea of guilty in

the criminal case against him.

App. 10

Clearly, plaintiff is within the statute of limitations to

bring this action against defendants Leslie E. Albin and

Theodore R. Knox, and discovery should go forward to

determine if she had any knowledge of defendants Leslie

E. Albin and Theodore R. Knox prior to defendant Leslie

E. Albin’s plea of guilty in the criminal case before defen-

dant’s Motion for Judgment on the Pleadings should be

granted.

It is plaintiff’s position that the question of when she

had actual knowledge of defendants Leslie E. Albin and

Theodore R. Knox’ participation in the installation of the

electronic wiretapping device on the telephone line lead-

ing to and in her residence is a factual issue and should

not be resolved by the Court as a question of law. As

shown in E. D. Systems v. Southwestern Bell Tel., 674 F.2d

453 (Sth Cir. 1982), the court held unless there is no room

for ordinary minds to differ as to the proper conclusions

to be drawn from the evidence, the issue of notice is

factual and should not be resolved by the court. The facts

in the instant case clearly show that the plaintiff had no

reasonable opportunity to discover the identity of defen-

dants Leslie E. Albin and Theodore R. Knox prior to

defendant Albin’s plea of guilty in the criminal case

against him, and therefore no knowledge of the violation

of §18 U.S.C. 2510 by defendants Leslie E. Albin and

Theodore R. Knox.

Even as shown in the various attachments to defen-

dant’s Suggestions in Support of Motion for Judgment on

the Pleadings, nowhere are there any references to defen-

dants Leslie E. Albin and/or Theodore R. Knox, nor do

the attachments name defendants Albin or Knox as the

representatives of John W. Frick.

App. 11

In fact, as can be seen from the attached Exhibits “C”,

“D”, and “E”, that are from the deposition of John Will-

iam Frick taken June 4, 1984, which was a typographical

error and should read as June 4, 1985, and continued on

the date of June 20, 1985, (Exhibits “A” and “B” hereto), it

is clear, on page 85 of the deposition attached hereto, Mr.

Frick affirmatively, under oath, stated that he only

employed Ted Knox to take photographs, not to do any-

thing else. The plaintiff specifically was told under oath

by her husband at that time what Ted Knox representa-

tion was and it did not include wiretapping.

Likewise, the plaintiff testified in her deposition

taken on the date of August 30, 1985, and as shown in the

attached Exhibits “F”’, “G”, “H” and “I” the extent of

plaintiff’s knowledge and information of the wiretapping

on the telphone line leading to and in her in her home.

WHEREFORE, in light of the above and foregoing,

plaintiff respectfully suggests this Honorable Court deny

defendant’s Motion for Judgment on the Pleadings.

Respectfully submitted,

/s/ WHP

William H. Pickett #21324

WILLIAM H. PICKETT, P.C.

417 East 13th Street

Kansas City, Missouri 64106

816/221-4343

ATTORNEY FOR PLAINTIFF

I hereby certify that a copy of

the above and foregoing was

mailed, postage, prepaid, this

11th day of April, 1989, to:

App. 12

James R. Wyrsch, Esq.

Michael P. Joyce, Esq.

KOENIGSDORF & WYRSCH, P.C.

1006 Grand Avenue

10th Floor

Kansas City, Missouri 64106

/s/ WHP

Attorney for Plaintiff

EXHIBIT “A”

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re The Marriage Of

JOSEPHINE ANTOINETTE FRICK,

)

)

)

Petitioner, ) No. DR84-1285

and .

JOHN WILLIAM FRICK, )

Respondent. )

DEPOSITION OF JOHN WILLIAM FRICK,

produced, sworn and examined on Tuesday, the 4th day

of June, 1984, between the hours of 8 o’clock in the

forenoon and 6 o’clock in the afternoon of that day,

pursuant to notice, at the law offices of Thayer, Bernstein

& Bass, 9200 Ward Parkway, Kansas City, Jackson County,

Missouri, before

THERESA M. TAYLOR

Certified Shorthand Reporter

a Notary Public in and for the State of Missouri, in a

certain cause as set out above; taken on the part of the

Petitioner.

ey ee

App. 13

APPEARANCES:

The Commissioner:

For the Petitioner:

For the Respondent:

Ms. Laura A. Cochet

Suite 206-8800 Blue Ridge

Blvd. -

Kansas City, Missouri 64138

Ms. Charlotte P. Thayer

Thayer, Bernstein & Bass

Suite 175 — 9200 Ward

Parkway

Kansas City, Missouri 64114

Ms. Rose Anne Nespica

219 North 7-Highway

Blue Springs, Missouri 64015

For: Dorothy C. Parker

8609 East 78th Terrace

Kansas City, Mo. 64138

—

EXHIBIT “B”

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re The Marriage Of

JOSEPHIi’—, ANTOINETTE FRICK,

Petitioner,

and

JOHN WILLIAM FRICK,

Respondent.

DEPOSITION OF

No. DR 84-1285

ee ee eee eee Se”

JOHN WILLIAM FRICX,

(continued)

App. 14

produced, sworn and examined on June 20, 1985,

between the hours of 8 a.m. and 6 p.m. of that day, at the

law offices of Thayer, Bernstein & Bass, Suite 175, 9200

Ward Parkway, Kansas City, Jackson County, Missouri,

before:

Dorothy C. Parker

Certified Shorthand Reporter

a notary public in and for the State of Missouri, in the

enue and style set out above; taken on behalf of the

Petitioner.

APPEARANCES

THE COMMISIONER: MS. LAURA A. COCHET

8800 Blue Ridge Blvd. — Suite

206

Kansas City, Missouri 64138

For the Petitioner: MS. CHARLOTTE P. THAYER

Thayer, Bernstein & Bass

9200 Ward Parkway - Suite 175

Kansas City, Missouri 64114

For the Respondent: MS. ROSE ANNE NESPICA

219 North 7 Highway

Blue Springs, Missouri 64015

and

MR. MICHAEL ALBANO

Paden, Welch, Martin,

Albano &

Graeff

311 West Kansas

Independence, Missouri 64050

Also Present: Josephine A. Frick, Petitioner

Sai Nah, danse

App. 15

EXHIBIT “C”

* * *

(p. 85) A. She has been seen dating Bob McDaniels.

Q. What do you mean she’s been seen dating him?

Explain that to me.

A. Someone followed her. They went to a restaurant

and went to a movie.

Q. Who followed her?

Ted Knox.

Who is Ted Knox?

He’s a private investigator.

Yes.

A

Q

A

Q. Someone you employed to follow her?

A

Q. When did you first employee him to follow Jo

?

A. Right after we separated.

Q. And how recently has he followed her?

A. That was basically it. I found out, you know,

what I wanted to know as far as whether or not I could

make the relationship — whether she was being honest

with me. And I basically knew before that. But I guess

you just want to know for sure.

Q. How much money have you paid Ted Knox?

A. I don’t remember. It was probably about - I don’t

remember. $300 or $400.

App. 16

Q. Did you employ Ted Knox to do anything other

than follow Jo Ann?

A. No. Oh, he took some pictures.

EXHIBIT “D”

(p. 86) Q. When did he take pictures?

A. The day he followed her.

Q. The day? He followed her only one day?

A. I really don’t know how often he followed her.

But I know, you know, he told me about Bob McDaniels,

and he took pictures on that day.

Q. Pictures of Jo Ann going out to dinner and going

to a show?

A. Yes. And it was like a week after we were sepa-

rated or very shortly thereafter.

Q. And you think that’s evidence she was having an

affair with Bob McDaniels?

A. Well, as I said when you said had she had rela-

tionships, I said, “I don’t know how far you want to go.”

Q. Do you consider that that she was having an

affair with Bob McDaniels?

A. No. I’d say that was a date.

Q. All right. Did Ted Knox take pictures of Jo Ann

with anyone else?

App. 17

A. No. Not that I know of.

Q. Did he follow‘her when she was involved in any

activities with anyone else?

A. Not to my knowledge.

Q. Did a person named DeMoe, under either the

EXHIBIT “E”

(p. 87) direction of Ted Knox or directly for you, follow or

otherwise attempt to obtain information on Jo Ann’s

activities?

A. He didn’t do anything under my direction,

nobody by that name.

Q. You know who this man is; do you not?

A. I know who DeMoe is.

Q. Does Ted Knox have an occupation, other than as

a detective, private detective?

A. I don’t know.

Q. You don’t know whether he is employed by a

police department?

A. No.

MS. THAYER: I'd like to take a break for a few

minutes.

(A recess was taken.)

App. 18

Q. (By Ms. Thayer) Mr. Frick, did you ever cause

any wiretapping devices to be established in the home at

1724 North 11th Street Court?

A. I wish to invoke the Fifth Amendment privilege

against self-incrimination, and I decline to answer that

question on the grounds that it might tend to incriminate

me.

-

MS. THAYER: If the Court please, I object to

that. If cne is going to invoke the

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

JOANN FRICK,

Plaintiff,

VS.

CLAUDE W. JONES and

CHRISMAN-SAWYER BANK,

Defendants.

No. CV85-013050

ee ee ee ee

DEPOSITION OF JOSEPHINE ANTOINETTE FRICK,

produced, sworn and examined on Friday, the 30th day of

August, 1985, between the hours of 8:00 o’clock in the

forenoon and 6:00 o’clock in the afternoon of that day, at

the law offices of Blackwell, Sanders, Matheny, Weary &

Lombardi, 600 Five Crown Center, 2480 Pershing Road,

Kansas City, Missouri, before:

App. 19

SUSAN G. BYERS, C.S.R.

Registered Professional Reporter

of

JAY E. SUDDRETH & ASSOCIATES

450 Ozark National Life Building

906 Grand Avenue

Kansas City, Missouri 64106

(816) 471-2211

a Certified Shorthand Reporter within and for the State of

Kansas (the character of the Notary having been

expressly waived by the parties herein);

Taken on behalf of Defendants pursuant to Notice to take

Depositions.

* * *

EXHIBIT “F”

(p. 25) Q What else did he say to you?

A. That’s all, sir.

Q. Has your telephone ever been tapped?

A. Yes, sir.

Q. Who tapped it?

A. I assume my husband, John William Frick.

Q. Do you know what he has on those recordings?

A. No, I don’t.

Q. Do you know who the conversations were with?

A. No, I don’t

Q. Were those recordings made while you were liv-

ing with your husband, John Frick?

App. 20

A. No, he was out of the home at the time.

MR. PICKETT: Do you mean he was no longer

living there?

A. Yes, he was no longer living there.

Q. (BY MR. SANDERS) Have you ever been able to

learn anything at all about what evidence he has in those

taped telephone conversations of yours?

MR. PICKETT: Object to the form of the ques-

tion. It implies something of that nature, it rises to a level

of what legally is called

EXHIBIT “G”

(p. 26) evidence, therefore, I object to the form of the

question, calls for -

MR. SANDERS: I'll reword it.

MR. PICKETT: I’m not through yet. Are you

withdrawing your question?

MR. SANDERS: Yes.

Q. (BY MR. SANDERS) Do you have any idea of

what information or conversations are recorded -

A. No, sir, I wouldn’t have -

Q. —- in those recordings that your husband made

when he tapped your telephone?

A. No, sir, | wouldn’t have any idea.

App. 21

Q. Do you know what prompted your husband to

tap your telephone?

MR. PICKETT: Object to the form of the ques-

tion. Calls for the mental state of mind of somebody else,

calls for speculation and conjecture.

Go ahead.

A. No, I don’t.

Q. (BY MR. SANDERS) What has been your rela-

tionship with Dr. Whitley, your physician?

A. My relationship with Dr. Whitley is he is my

doctor, first off, has been since 1978, since my husband

and my separation we have been to

EXHIBIT “H”

(p. 36) Q Yes, there is on the first floor.

A. Okay.

Q. Where else have you been to dinner, we have

mentioned the American Restaurant, the Raphael Hotel?

A. I can’t remember the others.

MR. PICKETT: Just your best recollection is all

you are entitled to.

Q. (BY MR. SANDERS) Were you married at the

time?

App. 22

I am still married, sir.

Was he married?

No, sir.

Did he know you were married?

I was separated, sir.

Did he know you were married?

> Oo > O > 0 >

Yes, sir.

Q. Have you had any telephone conversations with

Dr. Whitley?

A. Yes, sir.

Q. Do you know if your husband recorded any of

those telephone conversations with Dr. Whitley?

A. I have no idea.

Q. Have you ever asked your husband if he had any

recordings?

EXHIBIT “I”

(p.37) A I have asked my husband if he has record-

ings, yes, tapes, yes.

Q. What has he told you?

A. No, he has no tapes.

MR. PICKETT: That’s what he told you?

——————

App. 23

THE WITNESS: Yes, sir.

MR. PICKETT: You have to make that clear for

the record.

Q. (BY MR. SANDERS) How did you discover that

the was tapping your telephone?

A. Ed Spalty, which was my attorney at that time, |

think Mr. Albano told Ed Spalty that John had been

wiretapping my phone.

Q. Have you ever said any words of endearment or

affection to Dr. Whitley?

A. I can’t think of any, no, sir.

Q. Has he ever said any to you?

A. I can’t think of any, no, sir.

Q. Well, we also subpoenaed today, but he had to

go out of town, one David Andes, do you know Mr.

Andes?

A. Yes, sir.

Q. Have you had sexual relations with Mr. Andes?

App. 24

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

JOSEPHINE A. ANDES, )

ee )

Plaintiff, > ‘Case Ne.

Vv. ) 88-1152-CV-W-6

)

ee E. ALBIN, ) (Filed

THEODORE R. KNOX, . Apt. 17, 1989)

Defendants. )

REPLY SUGGESTIONS IN SUPPORT OF MOTION

FOR JUDGMENT ON THE PLEADINGS

COMES NOW Defendant Knox, by and through

counsel, and, in support of his Motion for Judgment on

the Pleadings, states as follows:

1. 18 U.S.C. Section 2520(e) requires that a lawsuit

under this section cannot be brought later than two years

after the date upon which the Plaintiff first has a reason-

able opportunity to discover the violation. (Emphasis

added.)

2. Courts have discussed the issue of when a cause

of action under Section 2520 accrues. See Brown ». Ameri-

can Broadcasting Company, 704 F.2d 1296 (4th Cir. 1983)

(when plaintiff discovers that communications have been

intercepted); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979)

(when through the exercise of reasonable diligence plain-

tiff could have discovered the existence of the wiretap);

Awbrey v. Great Atlantic & Pacific Tea Company, 505 F.

Supp. 604 (D.C. Ga. 1980) (when the plaintiff discovers

1 —_

App. 25

that phone calls were being intercepted); Cole v. Kelley,

438 F. Supp. 129 (C.D. Cal. 1977) (when plaintiff acquires

knowledge that he may have a potential claim). Plaintiff

admits in her Suggestions in Opposition that she “discov-

ered the illegal wiretapping on or about December 7,

1984.” (See p. 1). Plaintiff’s contention that because she

did not know the names of all the parties that may have

been involved in the wiretapping, the statute of limita-

tions tolls, is clearly an erroneous statement of the law.

Section 2520(e) and case law indicate that the statute of

limitations begins to run at the time plaintiff discovers or

through exercise of due diligence could have discovered

the existence of the wiretap. The identity of Defendant

Knox and his alleged participation in the installation of

electronic surveillance equipment could have been

learned upon the timely filing of this lawsuit through the

discovery process.

3. In Newcomb v. Ingle, the Tenth Circuit affirmed

the district court’s ruling that the filing of a motion to

suppress intercepted recordings established the plaintiff's

actual knowledge of a violation and, therefore, barred his

Section 2520 claim. 827 F.2d 675, 679 (10th Cir. 1987). The

plaintiff contended that the defendant fraudulently con-

cealed a conspiracy to use the tapes illegally in a criminal

proceeding against him, and therefore the statute should

be tolled. The court rejected that argument, concluding

“as set out in [the plaintiff’s] own pleadings, there is no

potential for a cognizable issue of fact on a theory of

fraudulent concealment.” Newcomb, 827 F.2d at 679. As in

the case at hand, as set out in Plaintiff’s own pleadings in

this case and in the pleadings of the prior divorce action

(attached to Defendant’s Suggestions in Support of

App. 26

Motion for Judgment on the Pleadings), there is no poten-

tial for a cognizable issue of fact as to when the Plaintiff

discovered a violation of Section 2520. Therefore, Plain-

tiff’s cause of action against Defendant Knox is barred by

the statute of limitations. —

WHEREFORE, for the reasons stated herein and in

his Suggestions in Support of the Motion for Judgment on

the Pleadings, Defendant Knox respectfully moves this

court to grant his Motion for Judgment on the Pleadings

and any and all other relief this court deems just and

proper.

Respectfully submitted,

KOENIGSDORF & WYRSCH, P.C.

By: /s/ Michael P. Joyce

‘ H #20730

MICHAEL P. JOYCE #38501

1006 Grand Avenue

Tenth Floor

Kansas City, MO 64106

(816) 221-0080

ATTORNEY FOR DEFENDANT

I hereby certify that a copy

of the foregoing was mailed

this 17th day of April, 1989,

to:

William H. Pickett

417 E. 13th Street

Kansas City, MO 64106

/s/ Michael P. Joyce

Attorney for Defendant

App. 27

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re the Marriage of:

JOSEPHINE ANTIONETTE

)

)

) Case No.

FRICK, ) DR84-1285

Petitioner, Division 10

V. )

JOHN WILLIAM FRICK, )

Respondent. ‘

MEMORANDUM OF PETITIONER

REPORTING STATUS OF DISCOVERY

ISSUES POST MEETING OF COUNSEL

COMES NOW Petitioner, through her attorneys, and

herewith submits the following report of the meeting

between counsel for the parties and Mr. David Stover,

attorney for Roger Prock per the Court’s Order of

November 27, 1984:

Respondent’s Motion for Protective Order

Respondent moved to limit access to records of busi-

nesses in which he is involved on the basis that confiden-

tial information might disseminate to competitors or

others for an improper purpose. Petitioner also has such

concerns although no protective order effort on her

behalf has been made at this time.

1. Areas of Agreement:

The parties agree only to use information obtained

during the course of discovery for the purpose of this

action and to refrain from disclosing same to competitors,

App. 28

etc. Of course, admissable evidence so obtained may be

used in depositions or at trial.

2. Areas of Disagreement:

None.

Petitioner’s First and Second Requests

for Production of Documents

Petitioner has filed her First and Second Requests for

Production of Documents which ask respondents to pro-

duce various business records of his, J R Management

Company, Prock Drug Co., Inc. and MoWinco, Inc..

Respondent has not produced documents in response to

the First Request as the same is subject to his Motion for

Protective Order. The Second Request sought production

on December 6 but there has been no response to this as

well. Respondent objects that the Requests are burden-

some and oppressive in their scope. Respondent and his

business associate, Mr. Roger Prock, whose interests were

represented by attorney David Stover at the meeting, also

are concerned that certain personal financial information

of Mr. Prock’s might be disclosed. Petitioner requires the

information to value the businesses since she is co-signer

of a note for Prock Drug, Inc. and the shares in said

concern together with MoWinco, Inc. are marital prop-

erty. J R Management Company was also operated during

the marriage and respondent was involved therein.

1. Areas of Agreement:

The parties agree that appraisals of the value of any

interests owned jointly or separately in Prock Drug Com-

pany, Inc., MoWinco, Inc. and J R Management Co. are

App. 29

appropriate. An appraisal of the value of certain stock in

petitioner’s name in Hamiltonian Industries is appropri-

ate as well although respondent has not yet commenced

discovery in this regard.

The parties and Mr. Stover generally agree that docu-

ments or things pertaining solely to respondent’s activ-

ities, assets or interests may be obtained by petitioner. In

addition, records from Prock Drug, MoWinco and J R

Management for the past five (5) years would be appro-

priate for petitioner to obtain.

Petitioner’s attorneys have agreed to further confer

with the accountants retained to appraise this property in

an effort to cull certain documents from the First and

Second Requests to reduce the amount of paperwork

involved. The accountants will write to Mr. Albano and

include this list in said correspondence. Respondent and

the businesses will produce the documents listed so long

as petitioner reduces the number of documents

requested. The parties also recognize that on-site inspec-

tions are appropriate and the same will be allowed. All

individuals involved including personnel of the various

businesses will be cooperative and courteous. Photo-

copies will be made available upon request at a reason-

able charge.

2. Areas of Disagreement or No Agreement and

Reasons Therefore:

Petitioner has indicated that prior to the marriage

approximately six (6) years ago and shortly thereafter she

worked for the drug concerns and certain of her pay was

App. 30

diverted into the business. Petitioner requests the docu-

ment time limitation be extended to include any such

period if the requested documents concern this subject.

The subject will remain open until a refined list of

business records is presented. Counsel for the parties and

Mr. Stover will cooperate in resolving issues related to.

this particular discovery.

Petitioner, other than one or two Interrogatories, has

not received any discovery requests concerning the Ham-

iltonian Industries stock and any issue in this regard

necessarily may not be resolved at this time. Petitioner

does have a limited amount of access to this information.

Motion for Contempt Against CharterBank

Petitioner noticed up and took the deposition of the

custodian of records of CharterBank of Independence.

Petitioner subpoenaed the contents of a $740,000 loan file

upon which she is a co-signer. The records custodian

refused to produce various records in the file except for

the note and security agreement which bore petitioner’s

signature. Petitioner moved to have the custodian held in

contempt. Respondent, not the bank or Mr. Roger Prock,

prior to the date and time noticed for the deposition,

moved for a protective order on the ground certain of the

documents contained personal financial information. The

bank felt it could not produce the entire file without

risking liability to Mr. Prock.

1. Areas of Agreement:

The parties agree that the bank-may provide the

entire contents of the loan file to the Court for incamera

App. 31

inspection. Respondent will submit those documents he

has that are also in the loan file to the Court. Except for

the documents listed below and upon verification that the

same documents appear in the bank file, the petitioner

will accept same from respondent rather than the bank.

2. Areas of Disagreement or No Agreement and

Reasons Therefor:

The petitioner will persist in attempting to obtain the

bank records respondent does not have.

Mr. Prock’s attorney, Mr. Stover, insists that a per-

sonal financial statement and an appraisal of real prop-

erty exclusive to Mr. Prock are not discoverable.

Petitioner believes they are discoverable as their produc-

tion is calculated to lead to the discovery of admissable

evidence. The respondent and Mr. Prock were and are

closely engaged in joint business ventures, including at

one time a partnership. The financial statement may

include valuations by Mr. Prock of the businesses which

would be relevant to the appraisals of respondent's inter-

ests in said businesses. This information is not privileged

and there is otherwise no bar to discovery of it.

Petitioner also is in disagreement with the present

description of the contents of the file. The records custo-

dian of the bank stated an inventory of the drug stores

was in the file and the deposition clearly shows he

viewed the file just a short time before making this state-

ment. There is also no set of audited financial statements

in this file.

No agreement could be reached with respect to peti-

tioner’s request for costs and attorneys fees in connection

App. 32

with the fruitless deposition of the bank’s record custo-

dian.

Motion to Compel

Answers to Interrogatories and

Motion for Sanctions

1. Areas of Agreement:

The parties agreed generally that if the other party

answered all pending Interrogatories that Motions for

Sanctions would either be withdrawn or not filed.

2. Areas of Disagreement or No Agreement and

Reasons Therefor:

Petitioner will answer all pending Interrogatories to

her but would preserve objections, if any, for the trial and

by answering would not waive the same. Petitioner sug-

gests that if respondent would do likewise then petitioner

would refrain from filing a Motion for Sanctions as well.

Petitioner will determine her course with respect to a

Motion for Sanctions upon hearing whether respondent

will answer all non-answered portions of the First and

Second Interrogatories to respondent.

Petitioner’s Motion for Temporaries

Petitioner seeks temporary maintainance, attorneys fees,

suit monies, restraining order and injunction.

1. Areas of Agreement:

The parties agree to an order prohibiting the parties

from communicating with each other at their places of

App. 33

employment. Respondent shall be excluded from the fam-

ily home and shall not threaten to or actually break into

the home.

2. Areas of Disagreement or No Agreement and

Reasons Therefor:

The respondent will not pay any temporary attorneys

fees or suit monies because he asserts he has his own

litigation and appraisal expenses and he alleges peti-

tioner is employed and has a recent inheritance. Peti-

tioner asserts respondent earns approximately twice her

earnings, she has recently been unable to work, and she is

not so capable given her present obligations, particularly

that of a minor son not born of the marriage.

The respondent cannot agree to temporary maintai-

nance beyond his paying one-half of the monthly mort-

gage payment of approximately $1,200, which obligation

is presently in default. The petitioner seeks respondent to

pay this mortgage payment as he has been making it in

the past and she has other substantial bills such as medi-

cal bills and child care for her minor son. She also

requests additional maintainance so that she may main-

tain the living standard acquired during the marriage.

The respondent has agreed to reconsider his position

upon receipt of bills and a list of debts from petitioner

and these will be provided.

The parties have also discussed selling marital assets

to pay current debts. Petitioner desires to sell the bass

boat in respondent’s possession. Respondent desires to

sell the Blazer in petitioner’s possession.

App. 34

Further Discovery

Respondent desires depositions of petitioner and Mr.

C. W. Jones and perhaps others. Petitioner desires deposi-

tions of respondent and Mr. Roger Prock and perhaps

others.

1. Areas of Agreement:

Petitioner and respondent’s depositions will be

scheduled on convenient dates subject to the provisos set

forth below.

2. Areas of Disagreement or No Agreement and

Reasons Therefor:

Petitioner cannot produce Mr. Jones as he is not a

party and can be deposed only pursuant to a subpoena

personally served upon him.

Respondent asserts that Mr. Jones is and has been

represented by a partner of the firm which represents

petitioner herein, and that Mr. Jones’ previous subpoena

was released as a result of negotiations with said partner

over a conflict preventing the witness from appearing

pursuant to said subpoena.

Petitioner intends to file a protective order prohibit-

ing further discovery by respondent pending depositions

of him and perhaps others. Petitioner has located a poten-

tially illegal wire tap in the home and her attorneys have

seen and had read to them by respondent’s attorneys

certain transcripts of petitioner’s private telephone con-

versations with persons other than respondent. These

wiretaps may have included eavesdropping upon com-

munications between petitioner and her attorneys. Peti-

tioner would be severely prejudiced in proceeding with

App. 35

discovery without immediate access to the manner in

which these transcripts were obtained and the contents

thereof.

Respectfully submitted,

DI CH, DAVIS, DICUS,

ROWLANDS,

SCHMITT & GORMAN

By /s/ Edward R. Spalty

wa . Spalty #26086

Philip A. Klawuhn #31012

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

(816) 221-3420

ATTORNEYS FOR

PETITIONER

Certificate of Hand-Delivery

I hereby certify a copy of the foregoing was hand-

delivered this 10th day of December, 1984, to Ms. Rose

Anne Nespica, 219 North 7 Highway, Blue Springs, Mis-

souri and to Mr. Michael J. Albano, 311 West Kansas,

Independence, Missouri, attorneys for respondent.

/s/ Edward R. Spalty

ATTORNEY FOR PETITIONER

App. 36

IN THE CIRCUIT COURT OF

JACKSON COUNTY MISSOURI

In Re the Marriage of:

JOSEPHINE ANTIONETTE FRICK,

Petitioner, Case No.

o. DR84-1285

JOHN WILLIAM FRICK,

Respondent.

ee ee ee ee ee ee ee ee ee

MOTION FOR PROTECTIVE ORDER

COMES NOW the petitioner, Jo Ann Frick, through

her attorneys, and herewith moves for a protective order

against a certain Notice to Take Deposition attached here-

to as Exhibit A and incorporated herein. This discovery

should not be had for the following reasons:

1. Insufficient notice of the time and place of the

deposition was given to the petitioner and her attorneys.

The Notice, Exhibit A, purports mailing to petitioner's

attorneys occurred on February 9, 1985. However, the

envelope in which same was enclosed, a copy of which is

attached as Exhibit B and incorporated herein, is clearly

postmarked February 11, 1985. Said Notice was not

received by petitioner’s attorneys until February 13, 1985.

This is not sufficient notice for a deposition on February

18, 1985. .

Even assuming that the Notice was mailed on Febru-

ary 9, 1985, such Notice would nonetheless be insuffi-

cient. Missouri SupremeCourt Rules 57.03(b) and 44.01(e)

require ten days notice, excluding the date of mailing,

when a notice to take deposition is served in that manner.

——eeeee EE

App. 37

2. Petitioner should be protected from further dis-

covery in this case until at least after certain wiretapped

conversations are made available to her and her attor-

neys. In fact, respondent, through her attorneys, agreed

not to undertake further discovery until after recordings

of the wiretapped conversations were produced for peti-

tioner. To do otherwise would be oppressive to petitioner

and would allow unfair advantage to be taken by respon-

dent from his or his agent’s clearly illegal acts.

3. The deposition is noticed for the day when Wash-

ington’s birthday is to be observed, and is therefore

impermissably scheduled on a legal holiday and to allow

same to proceed would be oppressive as well.

4. Petitioner’s attorney, Edward R. Spalty, has a pre-

vious engagement on that day. A business meeting has been

scheduled on that date which will involve an out of town

participant whose travel schedule cannot be changed.

WHEREFORE, petitioner prays for the Court’s protec-

tive order providing that the discovery requested in the

Notice to Take Deposition on February 18, 1985 not be had.

Respectfully submitted,

DIETRICH, DAVIS, DICUS,

ROWLANDS, SCHMITT

& GORMAN

By /s/ Philip A. Klawuhn

Edward R. Spalty #26086

Philip A. Klawuhn #31012

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64101

(816) 221-3420

ATTORNEYS FOR PETITIONER

App. 38

Certificate of Mailing

I hereby certify that a copy of the foregoing Motion

for Protective Order was mailed via U. S. Mail, postage

prepaid, this 14th day of February, 1985, to: Ms. Rose

Anne Nespica, 219 North 7 Highway, Blue Springs, Mis-

souri, 64015 and Mr. Michael J. Albano, 311 West Kansas,

Independence, Missouri 64050, attorneys for respondent.

/s/ Philip A. Klawuhn

Attorney for Petitioner

Exhibit A

NOTICE TO TAKE DEPOSITIONS

IN RE: The marriage of:

josephine Antionette Frick, ) In the Circuit Court

) of Jackson County,

a ) Missouri at __

VS. )

John William Frick, ) No. DR84-1285

) Div. ___

Respondent )

To the above named Petitioner and Mr. Edward R.

Spalty, 1700 City Center Square, 1100 Main, Kansas City,

Missouri 64105

YOU ARE HEREBY NOTIFIED, That the depositions

of witnesses to be used in evidence on the trial of the

above entitled action, in behalf of the Respondent will

be taken at the law offices of Paden, Welch, Martin,

Albano and Graeff, 311 West Kansas Avenue, _in the City

App. 39

of Independence , County of Jackson , the State

of Missouri , on Monday the 18th day

of February _, 19 85, between the hours of 8 o’clock

a.m. and 6 o’clock p.m. and that the taking of the same

will be adjourned from day to day, between the same

hours, until said depositions are completed.

The hour at which the depositions will be taken

is 9:00 A.M.

The deposition of ) Rose Anne Hespica

Josephine Antionette ) Michael J. Albano

Frick is to be taken )

at this time and place. ) Attorneys for Respondent

Mailed: February 9, 1985 }

Exhibit B

(Front of Envelope containing the following information)

GERALD M. HOLCOMB, Court Reporter

Box 1922

Harry S. Truman Station

Independence, Missouri 64055

RECEIVED

PAK

FEB 13 1984

Mr. Edward R. Spalty

1700 City Center Square

1100 Main

Kansas City, Missouri 64015

App. 40

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re the Marriage of:

JOSEPHINE ANTIONETTE FRICK

)

)

)

Petitioner, ) Case No.

) DR84-1285

vs. )

JOHN WILLIAM FRICK, )

Respondent. )

SUGGESTIONS IN SUPPORT OF

MOTION FOR PROTECTIVE ORDER

In support of her Motion For Protective Order from

the deposition to be taken from her on February 18, 1985,

petitioner states:

It is a fundamental principal of procedural due pro-

cess that a party to civil litigation receive adequate notice

of a deposition. The standard is manifested in Missouri

Supreme Court Rule (hereinafter “Rule”) 57.03(b). It

states a party desiring to take the deposition of another

person:

“

. . Shall give not less than 7 days’ notice in

writing to every other party to the action.”

Rute 44.01(e) adds three days, excluding the day of ser-

vice, to the amount of notice required when service, such

as was attempted here, is made by mail.

Rule 43.01(d) clearly provides that “Service by mail is

complete upon mailing.” As shown on the envelope

within which the notice to take deposition was contained,

mailing occurred on the date of the postmark, February

11, 1985. Mailing on such a date is clearly insufficient to

scans aemanineeaeiaiieamaamiiinintiiaindas

App. 41

notify petitioner of a February 18, 1985 deposition since

there has not been and cannot be ten days’ written notice.

The notice was not received until February 13, 1985. Even

if it had been mailed February 9, there are still not the

requisite ten days’ notice.

2 A motion for protective order may also prevent the

discovery from proceeding “to protect a party or person

from annoyance, embarrassment, oppression or undue

burden or expense”. Rule 56.01(c). Res, ondent’s attor-

neys have indicated they have tapes and transcriptions of

telephone conversations between petitioner and persons

other than respondent. They have also stated that these

were obtained as a result of a wiretap respondent or his

agents established on petitioner’s telephone line in her

home.

Such wiretapping and taping is clearly illegal and the

making and dissemination of same is prohibited under

the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C.A. §§2510-2520; Stamme v. Stamme, 589 S.W.2d 50

(Mo. App. 1979) (Federal statute making it a criminal

offense to willfully intercept any wire or oral communica-

tion or to use the contents thereof applies to interspousal

wiretaps, and evidence obtained by interspousal wiretaps

was not admissable in a dissolution of marriage proceed-

ing). See also, Kratz v. Kratz, 477 F. Supp 463 (D. Penn.

1979).

It would clearly be oppressive and unfair to allow

respondent to take the petitioner’s deposition while

respondent has illegally obtained tape recordings of peti-

tioner’s telephone conversations, without at least

iid

App. 42

petitioner first having the opportunity to know the con-

tents of said recordings.

The deposition is noticed for the day upon which

Washington’s birthday is to be observed and petitioner’s

appearance cannot be compelled on this legal holiday

(Rule 44.01). Additionally, petitioner’s attorney, Mr.

Edward Spalty, is committed to attend a meeting on

February 18 which cannot be changed since an out of

town participant cannot change his travel plans.

Respectfully submitted,

DIETRICH, DAVIS, DICUS,

ROWLANDS, SCHMITT

& GORMAN

By /s/ Philip A. Klawuhn

ward K. Spalty #26086

Philip A. Klawuhn #31012

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

(816) 221-3420

ATTORNEYS FOR PETITIONER

Certificate of Mailing

I hereby certify that a copy of the foregoing Sugges-

tions in Support of Motion for Protective Order was

mailed via U. S. Mail, postage prepaid, this 14th day

February, 1985, to: Ms. Rose Anne Nespica, 219 North 7

Highway, Blue Springs, Missouri, 64015 and Mr. Michael

J. Albano, 311 West Kansas, Independence, Missouri

64050, attorneys for respondent.

/s/ Philip A. Klawuhn

Attorney for Petitioner

App. 43

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re the Marriage of:

JOSEPHINE ANTIONETTE FRICK,

)

)

)

pe ) Case No.

Petitioner, ) DR84-1285

vs.

JOHN WILLIAM FRICK, )

Respondent. )

MOTION TO QUASH SUBPOENA AND FOR

PROTECTIVE ORDER FROM DEPOSITION

COMES NOW petitioner, JoAnn Frick, through her

attorneys, and herewith moves for the Court’s Order

quashing the subpoena for deposition to Mr. C. W. Jones,

notice of which is attached hereto as Exhibit A, and

issuing a protective order providing said discovery not be

had. This relief is appropriate for the reasons that:

1. Respondent is in possession of illegally made

tape recordings of wiretapped conversations of petitioner

with persons other than respondent. Respondent’s attor-

neys have indicated that C. W. Jones was one of the

parties whose conversations with the petitioner were

intercepted. It would be oppressive to petitioner to

require her to proceed without her first having access to

these recordings.

Said recordings and transcriptions were requested by

petitioner in her First Request for Production of Docu-

ments filed and serve on September 7, 1984. These items

have not been produced by respondent. Additionally,

during a discovery conference ordered by the Court (a

App. 44

report of which was filed herein on December 10, 1984)

counsel for respondent agreed to suspend discovery until

after the tapes were made available.

2. The deposition is scheduled for a legal holiday

set aside for the observance of Washington’s birthday and

cannot be held on such a date. In addition, petitioner’s

attorney, Mr. Edward Spalty, is otherwise engaged for a

business meeting which cannot be rescheduled.

WHEREFORE, petitioners prays for the Court’s

Order providing that the subpoena to take deposition to

Mr. C. W. Jones be quashed and for a protective order

directing said discovery not be had.

Respectfully submitted,

DIETRICH, DAVIS, DICUS,

ROWLANDS, SCHMITT

& GORMAN

By /s/ Philip A. Klawuhn

ward RK. Spalty #26086

Philip A. Klawuhn #31012

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

(816) 221-3420

ATTORNEYS FOR PETITIONER

Certificate of Mailing

I hereby certify that a copy of the foregoing Motion

To Quash Subpoena And For Protective Order From

Deposition was mailed via U. S. Mail, postage prepaid,

this 14th day of February, 1985, to: Ms. Rose Anne

Nespica, 219 North 7 Highway, Blue Springs, Missouri,

App. 45

64015 and Mr. Michael J. Albano, 311 West Kansas, Inde-

pendence, Missouri 64050, attorneys for respondent.

/s/ Philip A. Klawuhn

Attorney for Petitioner

EXHIBIT A

NOTICE TO TAKE DEPOSITIONS

IN RE: The marriage of:

Josephine Antionette Frick, ) In the Circuit Court

) of Jackson County,

Petitioner ) Missouri at __

vs. )

aot ) No. DR84-1285

John William Frick, ) Div. __

Respondent _)

To the above named Petitioner and attorney Mr. Edward

R. Spalty, 1700 City Center Square, 1100 Main, Kansas

City, Missouri 64105

YOU ARE HEREBY NOTIFIED, That the depositions

of witnesses to be used in evidence on the trial of the

above entitled action, in behalf of the Respondent will

be taken at the law offices of Paden, Welch, Martin,

Albano and Graeff, 311 West Kansas Avenue, in the City

of Independence , County of Jackson the State

of Missouri , on Monday the 18th day

of February _, 1985, between the hours of 8 o’clock a.m.

and 6 o’clock p.m. and that the taking of the same will be

adjourned from day to day, between the same hours, until

said depositions are completed.

App. 46

The hour at which the depositions will be taken

is 3:00 P.M.

The deposition of ) Rose Anne Nespica and

Mr. C. W. Jones is to be’ ) Michael J. Albano

taken at this time )

and place. ) Attorney for Respondent.

Mailed: January 29, 1985}

App. 47

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re the Marriage of:

JOSEPHINE ANTIONETTE

)

)

FRICK, ‘

Petitioner, ) Case No.

) DR84-1285

vs. )

JOHN WILLIAM FRICK, )

Respondent. ‘

SUGGESTIONS IN SUPPORT OF PETITIONER’S

MOTION TO QUASH SUBPOENA TO TAKE

DEPOSITION AND FOR PROTECTIVE ORDER

In support of her Motion to Quash the subpoena to

take deposition of C. W. Jones on February 18, 1985,

petitioner states:

Allowing the deposition to proceed would be highly

prejudicial and oppressive to petitioner. The respondent

and his attorneys possess recordings and transcriptions

of wiretapped communications between petitioner and

persons other than respondent. Such wiretapping, con-

ducted by or at the direction of respondent, was done

after he moved from the residence and while petitioner

harbored a reasonable expectation of privacy in said resi-

dence and in the telephone system therein.

Such conduct is clearly illegal and the fruits thereof

inadmissable in evidence. See, 18 U.S.C.A. §§ 2510-2520;

Stamme v. Stamme, 589 S.W. 2d 50 (Mo. App. 1979) (Fed-

eral Statute making it a criminal offense to willfully inter-

cept any wire or oral communication or to use the

contents thereof applies to interspousal wiretaps, and

App. 48

evidence obtained by interspousal wiretaps was not

admissable in a dissolution of marriage proceeding). See

also, Kratz v. Kratz, 477 F. Supp. 463 (D. Penn. 1979).

The Court, under Missouri Supreme Court Rule

56.01(c), has the authority to prevent discovery from pro-

ceeding “to protect a party or person from annoyance,

embarrassment, oppression or undue burden or

expense.” Petitioner submits to allow the deposition of

C. W. Jones to proceed would be highly oppressive in

view of the illegal wiretap. Respondent's attorneys have

indicated conversations between Mr. Jones and the peti-

tioner were intercepted.

Counsel for the parties recently met to discuss dis-

covery issues at the request of the Court. Counsel for

respondent agreed that it would be appropriate for peti-

tioner to have access to the intercepted material before

their discovery proceeded.

Respondent is now and since September 30, 1984, has

been under the duty to provide said tapes and transcrip-

tions. Request No. 16 of petitioner’s First Request For

Production Of Documents filed and served on September

7, 1984, requested:

“Any and all documents or things pertaining to

any investigation or surveillance of your spouse

herein, including but not limited to investiga-

tion reports, correspondence, activity logs, pho-

tographs, tape recordings, films or video tapes

and any documents or things obtained by or

during the course of any such investigation or

surveillance.”

App. 49

This request has not yet been met, even though respon-

dent’s counsel agreed to do so at the recent discovery

conference.

The subpoena to take deposition should be quashed

and protective order issued for the additional reasons

that it is scheduled on a national holiday, Washington's

birthday, Rule 44.01, and attorney Edward Spalty has

another engagement which cannot be cancelled.

For the foregoing reasons, petitioner respectfully

suggests the Court’s order quashing the subpoena to take

deposition and providing this discovery not be had.

Respectfully submitted,

Dierricu, Davis, Dicus, ROwLANDs,

Scumitt & GormMANn

By /s/ Philip A. Klawuhn

Epwarp R. Spatty #26086

Pur A. KLAWUHN #31012

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

(816) 221-3420

Attorneys for Petitioner

Certificate of Mailing

I hereby certify that a copy of the foregoing

Suggestions In Support Of Petitioner‘s Motion

To Quash Subpoena To Take Deposition And For

Protestive Order was mailed via’ U.S. Mail, post-

age prepaid, this 14th day of February, 1985, to:

Ms. Rose Anne Nespica, 219 North 7 Highway,

Blue Springs, Missouri, 64015 and Mr. Michael J.

App. 50

Albano, 311 West Kansas, Independence, Mis-

souri 64050, attorneys for respondent.

/s/ Philip A. Klawuhn

Attorney for Petitioner

App. 51

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re the Marriage of:

JOSEPHINE ANTIONETTE

)

)

FRICK, ‘

Petitioner, ) Case No.

) DR84-1285

vs. )

JOHN WILLIAM FRICK, )

Respondent. ‘

MOTION FOR PROTECTIVE ORDER

FROM DEPOSITION

COMES NOW petitioner, JoAnn Frick, through her

attorneys, and herewith moves that the Court issue a

protective order providing that the deposition noticed for

her on March 28, 1985 not be had. This relief is appropri-

ate for the reasons that:

1. Attorneys for respondent are required by the

Missouri Supreme Court Rules to give petitioner ten days

notice, exclusive of the day of mailing, of her deposition.

The instant notice to take depositions purports to

have been mailed on March 18, 1985 but mailing on that

date is not sufficient to provide ten days notice of the

deposition exclusive of the date of mailing. In any event,

it does not even appear that the notice was mailed on

March 18, 1985, since the postmark is dated March 19,

1985.

2. Petitioner is informed and believes that respon-

dent or his representatives are in possession of illegally

made tape recordings of wiretapped conversations of

App. 52

petitioner. As stated in petitioner’s Motion to Quash Sub-

poena and For Protective Order From Deposition, filed

February 15, 1985, it would be oppressive to petitioner to

require her to proceed without her first having access to

these recordings.

WHEREFORE, petitioner prays that the Court issue a

protective order providing that the deposition of the peti-

tioner noticed for March 28, 1985 not be had.

Respectfully submitted,

DietricH, Davis, Dicus, ROWLANDs,

Scumitt & GORMAN

By /s/ Philip A. Klawuhn

EDwaArD R. SPALTy #26086

Puiuie A. KLAWUHN #31012

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

(816) 221-3420

Attorneys for Petitioner

~ Certificate of Mailing

I hereby certify that a copy of the foregoing

Motion For Protective Order From Deposition

was mailed via U.S. Mail, postage prepaid, this

26th day of March, 1985, to: Ms. Rose Anne

Nespica, 219 North 7 Highway, Blue Springs,

Missouri, 64015 and Mr. Michael J. Albano, 311

West Kansas, Independence, Missouri 64050,

attorneys for respondent.

/s/ Philip A. Klawuhn

Attorney for Petitioner

App. 53

EXHIBIT “A”

NOTICE TO TAKE DEPOSITIONS

Josephine Antionette

-

)

Frick, )

a ) In the

reenenet ) Circuit Court

VS. ) of Jackson

John William Frick, County, _

Respondent ) No. DR84-1285

) Div. ___

)

)

To the above named Petitioner and attorney Mr. Edward

R. Spalty, 1700 City Center Square, 1100 Main Street,

Kansas City, Missouri 64105

YOU ARE HEREBY NOTIFIED, That the depositions

of witnesses to be used in evidence on the trial of the

above entitled action, in behalf of the Respondent will be

taken at the law offices of Paden, Welch, Martin, Albano

and Graeff, 311 West Kansas Avenue in the City of Inde-

pendence, County of Jackson, the State of Missouri, on

Thursday the 28th day of March, 1985, between the hours

of 8 o’clock a.m. and 6 o’clock p.m. and that the taking of

the same will be adjourned from day to day, between the

same hours, until said depositions are completed.

;

App. 54

The hour at which the depositions will be taken in

9:30 A.M.

The deposition of

Josephine A. Frick is to

be taken at this time

and place.

Mailed: March 18, 1985

Mr. Michael Albano

Ms. Rose Anne Nespica

Attorney for Respondent

eee ee ee ee ee”

App. 55

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

In Re the Marriage of:

JOSEPHINE ANTIONETTE

)

)

FRICK,

Petitioner, ) Case No.

‘oie ‘ DR84-1285

JOHN WILLIAM FRICK, )

Respondent. ‘

SUGGESTIONS IN SUPPORT OF PETITIONER’S

MOTION FOR PROTECTIVE ORDER

In support of her Motion For Protective Order From

Deposition of petitioner on March 28, 1985, petitioner

states:

Missouri Rule of Civil Procedure 57.03(b)(1) states

that a party desiring to take the deposition of any person

upon oral examination shall not give less than 7 days’

notice in writing to every party to the action. In addition,

Rule 44.01(e) states that when a notice is served upon a

party by mail, three days are added to the proscribed

period. Finally, Rule 44.01(a) states that in computing any

period of time prescribed by these rules, the day of the

act, event or default after which the designated period of

time begins to run is not to be included. Consequently,

attorneys for respondent, by mailing notice on March 19,

1985 of the deposition of petitioner on March 28, 1985,

have failed to provide sufficient notice under the Mis-

souri Rules of Civil Procedure.

.

=.

NE

\.

‘

x

~

App. 56

As was stated in Suggestions in Support of Peti-

tioner’s Motion to Quash Subpoena to Take Deposition

and For Protective Order filed on February 15, 1985,

allowing this deposition to proceed would be highly prej-

udicial and oppressive to petitioner. The respondent and

his attorneys possess recordings and transcriptions of

wiretapped communications between petitioner and per-

sons other than respondent. Such wiretapping, conducted

by or at the direction of respondent, was done after he

moved from the residence and while petitioner harbored

a reasonable expectation of privacy in said residence and

in the telephone system therein.

Such conduct is clearly illegal and the fruits thereof

inadmissable in evidence. See, 18 U.S.C.A. §§ 2510-2520;

Stamme v. Stamme, 589 S.W. 2d 50 (Mo. App. 1979) (Fed-

eral Statute making it a criminal offense to willfully inter-

cept any wire or oral communication or to use the

contents thereof applies to interspousal wiretaps, and

evidence obtained by interspousal wiretaps was not

admissable in a dissolution of marriage proceeding). See

also, Kratz v. Kratz, 477 F. Supp. 463 (D. Penn. 1979).

The Court, under Missouri Supreme Court rule

56.01(c), has the authority to prevent discovery from pro-

ceeding “to protect a party or person from annoyance,

embarrassment, oppression or undue burden or

expense.”

These recordings and transcriptions were requested

by petitioner in her First Request for Production of Docu-

ments filed on September 7, 1984. Also, during a discov-

ery conference ordered by the Court, a report of which

was filed on December 10, 1984, counsel for respondent

App. 57

agreed to suspend discovery until after the tapes were

made available. Respondent has not to date produced

these items.

Petitioner cannot be certain that the Court overruled

its Motion to Quash Subpoena and For Protective Order

From Deposition, filed February 15, 1985, based on the

rejection of the above-mentioned argument. Petitioner

again advances said argument in this Motion in order

that she is not interpreted to have abandoned or waived

her objection to respondent's refusal to provide the ille-

gally obtained tape recordings prior to the taking of her

deposition.

For the foregoing reasons, petitioner respectfully

suggests the Court’s protective order from the deposition

of petitioner noticed for March 28, 1985.

Respectfully submitted,

DietricH, Davis, Dicus, ROwWLANDS,

Scumitt & GORMAN

By /s/ Philip A. Klawuhn

EDWARD R. SPALTy #26086

Puitie A. KLAWUHN #31012

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

(816) 221-3420

Attorneys for Petitioner

Certificate of Mailing

I hereby certify that a copy of the foregoing

Suggestions In Support Of Petitioner’s Motion

For Protective Order was mailed via U.S. Mail,

postage prepaid, this 26th day of March, 1985,

App. 58

to: Ms. Rése Anne Nespica, 219 North 7 High-

way, Blue Springs, Missouri, 64015 and Mr. Mic-

hael J. Albano, 311 West Kansas, Independence,

Missouri 64050, attorneys for respondent.

/s/ Philip A. Klawuhn

Attorney for Petitioner