IN THE DISTRICT COURT OF CLEVELAND COUNTY
STATE OF OKLAHOMA
Michael G. Priestley, in his capacity as Trustee )
of the JOHN J. PRIESTLEY TRUST, under )
Agreement dated August 14, 1997 )
Plaintiffs, )
vs. ) Case Number: CJ-2013-1044
)
)
John Priestley Jr., )
)
Defendant. )
)
_______________________________________________________________________
AMENDED MOTION FOR SANCTIONS
A motion was filed on June 20, 2014 asking for sanctions against Michael Warkentin. The denied motion perhaps did not state with particularity the specific violation of Section 39 ; 2011 (b) and perhaps this was the reason for the motion being denied. The motion was not separate from a motion to show cause, and statute requires a Motion for Sanctions to be separate from other motions which may be a reason for it’s denial.
The Defendant has had three and one half years of lies from his Trustee. These lies are not harmless or insignificant. For instance, the Plaintiff claimed he and his favorite beneficiary were “thinking of buying a couple of properties” in September of 2011. Maricopa County Records show that he had already bought a house months earlier for he and his spouse, Bill Shephard. Bank records show that the house was bought with a wire transfer from trust money, in violation O.S.60; Ch.4; Section 161.
In his initial Petition on 20 August, 2013, Mr. Warkentin pled and signed a petition stating that the Trust had an in terrorem clause. He did not include a copy of the trust, or reference a page or paragraph of the trust with his pleadings, and continued to allege an in terrorem clause in each of his filings, even given notice by Defendant after each that such filing was a violation.
The deadline filing of his Motion to Quash a Statutory Injunction to Order Accounting, he again alleged an in terrorem clause, but produced not one word, paragraph or page when he should be producing the document in it’s entirety for the Judge to be read comprehensively in advance of hearing.
On 22 April the Defendant made note of the perjured statement in a response to the Plaintiff’s to “Motion to Quash.”:
[ ] Finally Mr. Warkentin continually refers to an [imaginary] in terrorem clause contained in the Trust document. It appears that his strategy is to tell a lie often enough that it becomes the truth. [ ] Mr. Warkentin has still provided no information to correct the deficiency of his pleadings about any Trust, other than a date. [ ]
Again On June 20, 2014 the Defendant again filed pleadings pointing towards perjury:
Plaintiff’s council also alleges numerous times that there is an[d] “in terrorem clause” as part of a “Standard” trust form, but has not provided any copy of such document, only a signed pleading that does not conform to Oklahoma Statutes. The Plaintiff’s council has had nine months to correct this [deficiency], for this reason the Defendant asks that the Plaintiff be ordered to appear and produce these documents [ ] accountings [ ] testamentary documents.
On July 10, in hearing the Defendant again alleged that the Plaintiff’s council was lying about the in terrorem clause, and showed other important documents authored by Mr. Warkentin with gross inaccuracies, but waited to see if another forged document would be produced by the Plaintiff.
After the Defendants many attempts to correct Mr. Warkentin by suggestion, Mr Warkentin again attempted another pleading in bad faith, and in violation of . On August 26th Mr. Warkentin filed an Affidavit in Support of Summary Judgment . (See O.S. 12; Ch.2 Section 13 (a):
The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and a statement of argument and authority demonstrating that summary judgment or summary disposition of any issues should be granted. Reference shall be made in the statement to the pages and paragraphs or lines of the evidentiary materials that are pertinent to the motion. Unless otherwise ordered by the court, a copy of the material relied on shall be attached to or filed with the statement.Even with contradiction for each and every time he had lied, he still alleged that there was an In terrorem clause. The Document affidavit is unsigned, references reading and understanding by the Trustee, and which shows mens rea of a plan to suborn perjury.
In addition see AZ Statutes 14-1105. Remedies for unreasonable conduct; definitions
A. If the court finds that a decedent's estate or trust has incurred professional fees or expenses as a result of unreasonable conduct, the court may order the person who engaged in the conduct or the person's attorney, or both, to pay the decedent's estate or trust for some or all of the fees and expenses as the court deems just under the circumstances.
And finally, Mr Warkentin appeared on 28 August 2014, extremely well prepared -to tell the lie again. Other than that, he had readiness; no copy of the Trust to examine, and to beat all he had not even read the document in the full year of being called a liar. The Defendant produced a copy of the Trust for Mr. Warkentin and because of his hubris, the was hearing was shut down, and the proceeding halted for the Judge to attempt to read and interpret a non existent in terrorem clause in the 10 or so pages of Warkentin styled legalese, in haste, in order to make a ruling.
While the earlier Motion for Sanctions was premature, and had other flaws, the Pleadings herein fulfill all requirements under 2011 (B)
REPRESENTATIONS TO COURT. By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
1. It is not being presented for any improper or frivolous purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
And as well this illustrate a need for sanctions. Over a year of parroting the same lie over and over with conflicting pleadings indicates something the Plaintiff discovered three and a half years ago- Mr Warkentin’s is thick headed. Failing to provide the Judge a copy of the Trust Instrument and opportunity to be prepared in advance to make a ruling is irresponsible and causes un necessary delay. Failing to take the time out to spend perhaps ten minutes in a year of letting a decay into a Show Cause Hearing without even reading the document is egregious, and laches already applies to the claims therein. In his response filing of the 26th of August 2014 he argues it “Hasn’t Been a Year yet.” The Defendant here suggests “This fraud has continued for an additional year.”
Mr. Warkentin’s pleadings of an in terrorem Clause are for frivolous and improper purposes. Time is Money, This paper you are holding costs money. Ink on this page is even more expensive. Time at hearing is premium, and Judges’ time is better used reading articles of evidentiary value before hearing, not during. Each time Mr. Warkentin has lied, a response using the Judges’ time, and the Defendant’s time, money, paper and ink has accrued.
See Grazier v. First National Bank of Nowata; 1998 OK CIV APP 117; 964 P.2d 950
69 OBJ 2946 Case Number: 89892 Decided: 06/30/1998 :
12 The United States Court of Appeals for the Tenth Circuit has described the standard of behavior for deciding whether to impose sanctions as follows:
This circuit has adopted the view that an attorney's actions must be objectively reasonable in order to avoid Rule 11 sanctions. Adamson v. Bowen, 855 F.2d 668, 673 (10th Cir. 1988). A good faith belief in the merit of an argument is not sufficient; the attorney's belief must also be in accord with what a reasonable, competent attorney would believe under the circumstances. Id. In addition, it is not enough for an offending attorney to allege that a competent attorney could have made a colorable claim based on the facts and law at issue; the offending attorney must actually present a colorable claim. See Calloway v. Marvel Entertainment Group, 854 F.2d 1452, 1470 (2d Cir. 1988). . . . Thus, plaintiffs may not shield their own incompetence by arguing that, while they failed to make a colorable argument, a competent attorney would have done so. See Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987)(Rule 11 intended to prevent abuses arising from bad faith, negligence, and to some extent, professional incompetence).
Over a year ago, Defendant has in a letter kindly asked Mr. Warkentin to withdraw faulty pleadings but he did not.
We are yet to see if a Judges’ Order is enough to make him do anything, and given a three year history of shirked fiduciary and statutory responsibilities, and responsibilities to my best friend, the Settlor whom he contracted with. The Defendant asks that offensive pleadings be ordered withdrawn according to 2011 statute, and Mr. Warkentin ordered to respond according to statute, and given leave to withdraw or correct his pleadings, pro-bono. The Defendant moves that Motion for Sanctions remain on the table help to insure Mr. Warkentin substitutes wasted time, money, Judicial resources and restrain unreasonable behavior for preparedness reflecting de-minimus factual correctness of all his present and future pleadings.
Respectfully Submitted this _____________day of September, 2014.
______________________________________________________________________
John Priestley Jr.
3709 Quail Drive,
Norman OK 73072
I certify that a true copy of the above document was served to Michael R. Warkentin at 1225 W. Main Street, Norman Oklahoma 73069___________________________
Exhibits- Letter to Mr. Warkentin
Sample Motion
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