Motion to Object; Motion to Set Aside Order, et al.

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF KENT

___________

ANNALISE MCMENAMIN,

                        PLAINTIFF,                                                   FILE: 03-09173-DC

VS.                                                                                          HON. PATRICK HILLARY

LARY HOLLAND (Pro Se),                                                 OBJECTION TO HEARING AND MOTION TO ASIDE ORDER TO SHOW CAUSE

                        DEFENDANT.

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Lary Holland(Pro Se)

5180 Cedar Lake Rd.

Oscoda, MI 48750

(989) 747-0079

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Peter P. Walsh (P28040)

NAPIERALSKI & WALSH, P.C.

Attorneys for Plaintiff

4790 Cascade Road S.E.

Grand Rapids, MI 49546

OBJECTION TO HEARING

1.      Defendant, Lary Holland, was served via regular postal mail a Petition for Order to Show Cause and Order to Show Cause along with additional unmarked and selective attachments from both parties. (Hereinafter referred to and attached as “Exhibit A”)

2.      John R. Cole, an employee of the Kent County Circuit Court, signed and verified Exhibit A pursuant to MCR 2.114(B)(2) by stating “I declare that the statements above are true to the best of my information, knowledge, and belief.”

3.      John R. Cole is not a “Public Office Holder” and therefore is not required to be sworn to “support the Constitution of the United States and the constitution of this state” see Art VI §1, Mich Const 1963.

4.      John R. Cole, according to an inquiry made to the State of Michigan Bar Association by Holland, is apparently not a licensed attorney, and likewise not sworn to support the various important documents meant to protect the rights of the public.

5.      Holland hereby incorporates by reference the following Federal and State documents as part of these pleadings: (1) all Articles within the Constitution of the United States of America, (2) all Articles within the Constitution of the State of Michigan (1963).

6.      Holland reserves all rights grounded in Common Law or statute whether or not specifically listed in this document.

7.      Holland hereby waives none of his rights or defenses and preserves the same regarding his ongoing objection to the involvement of the Kent County “friend of the court” in Kent County Circuit Court Case No. 03-09173-DC, captioned McMenamin v. Holland.

8.      Holland further waives no rights whatsoever, and reserves the right to raise additional objections.

9.      There exists no contract between John R. Cole and Lary Holland for performance of any services, and any implied or express consent to a Contract is RESCINDED.

10.  Pending arguments exist why the Kent County friend of the court should not be allowed to participate in any proceedings. This most recent action by John R. Cole is another good example of the incompetence associated with the Kent County friend of the court, and the questionable relationships that exist between the “friend of the court” and the “circuit court.”

11.  It is believed that Judge G. Patrick Hillary apparently signed Exhibit A at some uncertain time between November 7, 2005 and November 9, 2005. It is uncertain whether Exhibit A was brought “in an open session of said court” or a closed meeting between John R. Cole and Judge G. Patrick Hillary, as they are co-workers.

12.  The current Order to Show Cause constitutes a VOID Order and therefore solid grounds for objection to a hearing on the Order.

WHEREFORE, Holland prays that this Court enter his Objection to the hearing for Order to Show Cause and allow him to proceed with the remainder of the claims stated in this document.

MOTION TO STRIKE UNSUPPORTED DECLARATION OF JOHN R. COLE

13.  Exhibit A does not comport with the appropriate Michigan statutes and Michigan Court Rules as to allow for the relief requested by John R. Cole that was otherwise erroneously granted by Judge G. Patrick Hillary.

14.  John R. Cole states in Exhibit A (2) a definite statement, which has otherwise not been adjudicated in any court of law and likewise is not supported by any of the facts in the case, but John R. Cole endorsed his signature personally as to the trueness of the pleadings.

15.  John R. Cole has failed to support the allegations with an affidavit and fails to comport with the appropriate authorities to allow the relief sought by Exhibit A.

WHEREFORE, Holland prays that the Petition for Order to Show Cause be stricken from the record and an award of fees and costs be granted to Holland for having to defend the current Order to Show Cause.

MOTION TO SET ASIDE ORDER TO SHOW CAUSE

16.  Exhibit A was brought by John R. Cole against Lary Holland on or around November 7, 2005.

17.  Even if Holland believed that John R. Cole had standing and grounds for bringing this suspect action before his employer (this Court), he miserably fails to meet the required standard to achieve such a goal.

18.  Judge G. Patrick Hillary is well aware by now of MCR 3.606(A) which states: “For a contempt committed outside the immediate view and presence of the court, on a proper showing on ex parte motion supported by affidavits, the court shall … “§1 “order the accused person to show cause, at a reasonable time specified in the order, why that person should not be punished for the alleged misconduct;”

19.  An inspection of Exhibit A as provided to Lary Holland shows no such affidavit AS REQUIRED by MCR 3.606(A) being attached.

20.  Holland brought a Motion to Set Aside Order to Show Cause(see court file) in September 2005 before Judge G. Patrick Hillary regarding a similarly unsupported Petition for Order to Show Cause brought by Attorney Peter Walsh and erroneously granted by Judge Steven M. Pestka. (See attached Exhibit B, Order Setting Aside Plaintiff’s Order to Show Cause)

21.  Judge G. Patrick Hillary, upon granting Defendant’s previous Motion to Set Aside Order to Show Cause, summarily warned Plaintiff’s attorney if a court rule calls for an affidavit and one is not supplied that Holland would be awarded costs and fees.

22.  Holland believes the conduct of the participants named on Exhibit A is suspect more so when MCLA 552.644(1) is inspected, as referenced at the bottom of Exhibit A. Upon review of Sec. 44(1), John R. Cole neither pleads such condition has been fulfilled or demonstrates in Exhibit A fulfillment of the condition as to allow for the current Petition/Order to Show Cause to even be brought, let alone to actually be granted by a competent and impartial fact finder.

23.  Liberally hypothesizing that if John R. Cole does indeed have standing to bring an action of this nature against Holland; liberally hypothesizing if John R. Cole actually met the conditions of MCLA 552.644(1) and associated statutes; John R. Cole does not meet the rules for bringing a proper Petition for Order to Show Cause against Holland. 

24.  Exhibit A is so grossly inadequate to justify the current Order to Show Cause that one can only assume these proceedings are vexatious and meant to harass Holland before the current Holiday weekend as well as a showing of inexcusable bias within this Court.

25.  The gross inadequacies of Exhibit A brought by John R. Cole further demonstrate that the Order to Show Cause is transparently invalid on its face upon inspection of the documents in comparison to the Michigan Court Rules and Statutes; Exhibit A is not voidable, but FACIALLY VOID and likewise unenforceable.

WHEREFORE, Defendant Holland prays that this Court Set Aside the current Order to Show Cause and grant Defendant his actual costs and fees associated with defending these vexatious proceedings and the Void Order to Show Cause.

MOTION FOR FINDING OF CONTEMPT AGAINST JOHN R. COLE

26.  John R. Cole has knowingly signed a Petition for Order to Show Cause within the jurisdiction of this court that fails miserably to abide by the Michigan Court Rules and Michigan Statutes in which is claimed as authority behind Exhibit A.

27.  John R. Cole signed a verification statement on Exhibit A alleging that the contents of the document are true to the best of his information, knowledge, and belief.

28.  John R. Cole selectively attached other sheets of paper to Exhibit A, which contain untrue or misleading statements by Annalise McMenamin, and has impliedly meant for the attachments to be construed as part of the pleading that he has verified as true, by stapling them all together.

29.  Even if Holland believed that John R. Cole had standing and grounds for bringing this suspect action, John R. Cole fails to meet the condition precedent of MCLA 552.644(1) and certainly failed to plead affirmatively any fulfillment of the condition precedent to Judge G. Patrick Hillary.

30.  John R. Cole has knowingly left out required facts that would be necessary to establish grounds for an Order to Show Cause, deliberately and with apparent intent of depriving Holland of Due Process, a Constitutionally protected right.

31.  John R. Cole’s submission of Exhibit A lacks a legal basis or legal merit and is believed to constitute a frivolous filing of a document containing a verification statement.

WHEREFORE, Holland prays that this Court find John R. Cole in contempt of court and award Holland actual fees and costs for defending the frivolous Order to Show Cause.

REQUEST FOR LIQUIDATED DAMAGES

32.   Exhibit A is a VOID ORDER and a vexatious act committed by John R. Cole.

33.  After a Noticed Motion Hearing Day on October 28, 2005 Judge G. Patrick Hillary adjourned Defendant’s Motion to Suspend Automatic Enforcement and to Strike All Proceedings (Attached as Exhibit C) involving the Kent County friend of the court. Defendant is requesting various forms of relief and challenging the involvement of the Kent County friend of the court with regard to McMenamin v. Holland.

34.  At the hearing on October 28, 2005 Judge G. Patrick Hillary was unsure if Defendant’s motion should be allowed, allegedly due to Defendant filing for Chapter 13 Bankruptcy Protection.

35.  Opposing counsel adjourned a pending Order to Show Cause that was scheduled for October 31, 2005, knowing it could not move forward.

36.  The Kent County friend of the court had an attorney present at this hearing which said he was “going to object to the bankruptcy” and otherwise continue involvement in the case DESPITE DEFENDANT’S PENDING MOTION to prevent such involvement.

37.  Defendant communicated a Letter (Hereinafter referred to and attached as “Exhibit D”) requesting reconsideration from Judge G. Patrick Hillary regarding his surprising decision of October 28, 2005 to adjourn Defendant’s matter.

38.  No response was received with regard to Exhibit D.

39.  Not six (6) days later, instead of a response from Judge G. Patrick Hillary, the Friend of the Court brought their vexatious proceedings against Holland apparently with Judge G. Patrick Hillary’s signature as blessing. Within these short six days, Judge G. Patrick Hillary must have changed his mind about knowing what was allowed.

40.  Holland is entitled to recovery of his damages for having to defend such a blatantly invalid and VOID ORDER.

41.  Pursuant to MCL 552.644(6) a sanction should be awarded for John R. Cole’s bad faith arguments, which are completely unsupported and improperly pled before this Court.

WHEREFORE, Holland prays that this Court grant an Order of Judgment against John R. Cole in favor of Holland for recovery of his costs upon presentment of a Bill of Costs to the Clerk of the Court.

Dated: November 21, 2005                                                     ____________________

                                                                                                Lary Holland

                                                                                                5180 Cedar Lake Rd.

                                                                                                Oscoda, MI 48750

                                                                                                989 747-0079