A man suing St. Clair County Circuit Clerk Kahala Clay for allegedly failing to notify him that his suit against the City of Belleville had been dismissed now argues that Clay obstructed justice by misstating the date of service.
Plaintiff Larry Price filed a petition for relief against Clay on Nov. 27.
He argues that Clay failed to notify him or his counsel that a prior complaint against the City of Belleville had been dismissed by former circuit judge Robert LeChien on Aug. 2. LeChien later died on Aug. 31.
Price claims Clay’s negligence caused him to pay more than $1,800 in additional attorney fees that were needed to file inquiries and motions to the court “that would not have been necessary had the Circuit Clerk’s Office performed the duties they are mandated by law to perform.”
Price filed an amended complaint on Feb. 20, noting an order filed by Circuit Judge Stephen McGlynn, finding “appropriate remedy for plaintiff to petition for relief from judgment. Said petition should be granted due to lack of notice of plaintiff of adverse decision.”
Clay filed a motion to dismiss the first amended complaint on April 2 through attorney Katherine Melzer of Becker, Hoerner, Thompson & Ysursa PC.
Clay argues that Price’s argument “tortures the wording of Judge McGlyn’s order.”
“Judge McGlynn’s order simply finds there was a lack of notice; fault does not enter into his order, and this court should not draw this inference now,” the motion states.
Clay also argues that Price has “failed to correct any of the previous defects in his pleading.”
“In his first amended complaint, plaintiff fails to plead any facts to support his allegation that the Circuit Clerk’s Office owed plaintiff’s duty to mail him or his attorney Judge LeChien’s August 2, 2017 order,” the motion states.
Clay alleges the provision Price points to in support of his contention that the clerk has a duty to provide notice of orders instead uses permissive language, such as “may.”
“Plaintiff does not provide any evidence to suggest that Circuit Clerk Clay – first – has in place a system of providing electronic notice of the entry of specific court orders to a specific party – second – that such a system was in use in August of 2017 – or third – that the Plaintiff or his attorney elected to use such a system in August of 2017,” the motion states.
Clay argues that just because Price’s attorney, Eric Rhein, failed to monitor his case closely enough to know about the order, does not render the Circuit Clerk’s Office laible.
She also argues that Price’s cause of action is barred by the Local Governmental and Governmental Employees Tort Immunity Act.
Price responded to Clay’s motion to dismiss his first amended complaint on April 23, arguing that it is “a remake of the defendant’s previous vitiated motion to dismiss.”
In his response, Price says Clay and her counsel obstructed justice by allegedly providing an incorrect date of service.
Price argues that Clay’s motion incorrectly states that Price was informed that service was completed on the circuit clerk’s office on Dec. 11, 2017, rather than Dec. 7, 2017.
“Once more the defendant’s attorneys presentations are at odds with the truth,” the response states.
Price argues that Clay fails to address why it took 10 days for the summons to be served by the sheriff.
“In the normal course of action, it does not take 10 days to have a summons served in St. Clair County unless it was by design!” the response states.
Price alleges Clay and her counsel obstructed justice, enabling Clay’s motion to dismiss to be timely filed.
“Plaintiff requests this court to look at the defendant’s intentionally keeping the plaintiff’s lawsuit from being served and the defense attorney’s contemptuous behavior in fabricated the date(s) of the defendant being served.
“Both parties are officers of the court and complicit in misleading the court about the receipt date of the plaintiff’s summons. Their contemptuous behavior has tarnished the integrity of St. Clair County’s legal system,” the response states.
According to an April 23 affidavit, Price alleges he filed the case on Nov. 27, 2017, and watched an employee in the circuit clerk’s office file stamp the lawsuit, walk to an office located at the rear of the main office and hand Clay the lawsuit after a brief conversation.
Price further argues that Clay had a duty to notify his attorney of LeChein’s Aug. 2, 2017, ruling and that she is not immune from a lawsuit when “the employee commits an act of negligence that injures a member of the public.”
“When Judge LeChein’s August 2, 2017 ruling was not entered in open court, with plaintiff’s counsel present, the circuit clerk assumed the duty to mail out to all counsels, a copy of the ruling,” Price wrote. “The plaintiff’s attorney relied on the circuit clerk’s standard operating procedure that was not followed by the defendant.”
Price is representing himself pro se.
According to his complaint, Price filed a lawsuit against the City of Belleville following a Dec. 21, 2016, FOIA request seeking “access to review the plans and specifications that was approved by the City of Belleville for the issuance of the City’s Building Permit to the Holfbraugaus Project” and “any changes that were made to the approved construction after the City issued the Building Permit.” Specifically, Price alleges that “the City failed to timely respond to the FOIA request” and that “the City has asserted an invalid exemption to the FOIA”
LeChien granted the defendant’s motion to dismiss on Aug. 2, finding that failure to comply with the request within five business days. “Of course, considering that the subject project is a private building, such a denial is appropriate …”
LeChien explains that projects not constructed or developed in whole or in part with public funds are exempted from FOIA
The plaintiff argues that the City’s extension of sewer services to the general project site somehow affects the exemption
“The fact remains that, because it is not a redevelopment project cost for which tax-increment financing incentives are provided, the subject building is not constructed with public funds,” LeChien wrote. “Taken to its logical extreme, Plaintiff’s contention that the extension of infrastructure such as sewer service re-defines a private project as public would subject construction plans of every home in various residential developments across St. Clair County to public disclosure, which is clearly an absurd result that this Court is required to avoid in statutory interpretation.”
However, Price and Rhein, his counsel in the case at issue, allege they did not learn about the order dismissing the suit until Oct. 24 through an email from defense counsel.
St. Clair County Circuit Court case number 17-L-695