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1 l CATHY V, REBECCA JONES, JONES, MSSOUR APPELLANT, RESPONDENT. SOUTHERN N THE APPELLANT'S DSTRCT BREF Appeal No. SD29176 Davd B. Ponter MO Bar No Raymond M. Gross MO Bar No PONTER LAW OFFCE, P.C. P.O. Box Court Square Ga'mesvlle, MO ( ( (facsmle ATTORNEY CATHY JONES FOR APPELLANT

2 !!!!! TABLE OF CONTENTS TABLE OF AUTHORTES JURSDCTONAL STATEMENT... 4 STATEMENT OF FACTS ARGUMENT PONT PONT PONT CONCLUSON... 21

3 TABLE OF AUTHORTES STATE STATUTES Sectons R.S.Mo Secton R.S.Mo Secton R.S.Mo... 11, 12, 19, 20 Secton R.S.Mo MSSOUR RULES OF CVL PROCEDURE Rule , 12, 14 Rule 55.27(g( , 11 Rule STATE CASES Automoble Club nter-nsur. Exch. v. Nygren, 975 S.W.2.d 235, 239 (Mo. App. S.D , 14 Bauer v. Board of Electon Comm's, 198 S.W.3d 161,164 (Mo. App. E.D , 15 Guyer v. Cty of Krkwood, 38 S.W.3d 412, 413 (Mo. banc Hetz v. Kunkel, 879 S.W.2d 770, 772 (Mo. App. S.D n re Estate ofplla v. Plla_ 735 S.W.2d 103, 105 (Mo. App. E.D Kngsley v. Bttrack, 536 S.W.2d 7, (Mo. bane

4 Laclede County v. Douglass, 43 S.W.3d 826, 827 (Mo. bane Moore v. Swayne-Hunter Farms, nc., 841 S.W.2d 308, 315 (Mo. App. S.D , 17 Murphy v. Carton, 536 S.W.2d 30, 32 (Mo. bane Obadullah v. Kabr, 882 S.W.2d 229, (Mo. App. E.D , 11 Schaeffer v. Moore, 262 S.W.2d 854, 858 (Mo Shelter Mutual ns. Co. v. Crtml_., 102 S.W.3d 560, 561 (Mo. App. S. D State ex. tel Bomefeld v. Kupferle, 44 Mo. 154 (Mo Woods v. Mehlvlle Chrysler-Plymouth, nc., 198 S.W.3d 165, 168 (Mo. App Yellow Freght System, nc. v. Mayor's Comm'n on Human Rghts, 737 S.W.2d 250, 251 (Mo. App. S.D , 11

5 JURSDCTONAL STATEMENT Ths s an appeal of a cvl acton fled n the Crcut Court of Carter County by plantff/respondent Rebecca Jones aganst Cathy Jones requestng declaratory relef, The case was tred to a judge on October 17, 2006, addtonal evdence was heard on August 17, 2007, and the matter was taken under advsement. The Honorable Randy P. Schuller entered hs fnal judgment on May 30, 2008 n favor of Rebecca Jones and declared Rebecca Jones to be the Chef of the Amonsoquath Trbe of the Cherokee Naton and Presdent and Charperson of the Amonsoquath Trbe of Cherokee, a Mssour not-forproft corporaton. Addtonally, the Court declared that defendant!appellant Cathy Jones holds no offce, poston or ttle n the Amonsoquath Trbe of the Cherokee Naton or the Amonsoquath Trbe of Cherokee, a Mssour non-proft corporaton. The Court further declhred that all acts taken by Cathy Jones on behalf of the Corporaton snce February 12, 2000 were null, vod and of no effect. Appellant fled a tmely notce of appeal and perfected the appeal to ths Court. Ths case does not fall wthn the exclusve appellate jursdcton of the Mssour Supreme Court under Artcle 5, Secton 3,of the Mssour Consttuton and ths Court has jursdcton by vrtue thereof.

6 STATEMENT OF FACTS! n 1993, a Mssour not-for-proft corporaton was formed under the name of the Amonsoquath Trbe (heren, the "Corporaton". (Tral Tr. at ; Pla. Ex. 11. The Corporaton was ntended to to gather ndvduals of a certan Natve Amercan hertage, research ther lneage, and apply for and obtan federal recognton as a Natve Amercan trbe. (Tral Tr. at 16-17, , Martn G. Wlson Jr., hs wfe, Blle Jo Wlson, and hs mother, Vrgna Fun', were the ncorporators and ntal board of drectors for the Corporaton. (Pla. Ex. 1, Tral Tr. at 195, 201. To be federally recognzed by the Bureau of ndan Affars, genealogcal work must be performed to establsh suffcent lnks between the members of the Corporaton and Natve Amercans lsted on trbal censuses and/or treates from the 18th and 19th centures. (Tral Tr. at 101, The Amonsoquath Trbe s not recognzed by the federal government as a Natve Amercan trbe. (Tral Tr. at 17, 115. Wthout federal acknowledgment, no trbal authorty exsts outsde of the Corporaton. (Tral Tr. at 115. Cathy Jones was nvolved when the Corporaton was organzed and, by 1999, served as a member of the Board of Drectors (Tral Tr. at and Deputy-Chef or Vce-Presdent of the Corporaton (Tral Tr.,at- 19, 232. n late 1999, a dspute arose wthn the Corporaton relatng to the Presdent's alleged msappropraton of corporate 1References to the legal fle are desgnated "LF," references to the Transcrpt are desgnated "Tral Tr.," references to Plantff's Tral Exhbts are desgnated "Pla. Ex.,".and references to Defendant's Tral Exhbts are desgnated "Def. Ex."

7 mones for the purchase of land ttled to hmself and hs wfe, Blly Jo Wlson. (Tral Tr. at 155, Around the tme that the allegatons of msappropraton surfaced, the Presdent, Martn Wlson, was sentenced to serve three years n federal prson on unrelated charges (Tral Tr. at 55, 69, n late 1999, durng the November meetng of the Board of Drectors, a moton was made and approved to suspend the Presdent from hs responsbltes or dutes. (Def. Ex. R. No mnutes were produced at tral relatng to the board meetngs from November or December of Although there was some confuson, Appellant testfed that notce and an agenda had been provded to the membershp and Martn Wlson of the ntended acton of the Board of Drectors at the November board meetng. (Tral Tr. at , see also Shortly after the November board meetng, the Corporaton splt nto two groups. (Tral Tr. at 22-23, 60. As a result, the funds n a local bank account n the Corporaton's name were nterpled by Southern Mssour Bank. (Tral Tr. at 23-24, A dspute followed between the partes' respectve groups over ownershp of the funds. (Tral Tr. at 6, 23-24, Appellant Cathy Jones and Martn Wlson, both ndvdually and as Presdent and Charman of the Corporaton, were named as partes to the pror acton. (Tral Tr. at 6, 23-24, Judgment n CV100-24CC. n ts judgment dated May 15, 2001, the Crcut Court of Carter County determned that the funds n the Corporaton's account belonged to Defendant Cathy Jones as actng Presdent of the

8 Corporaton. (Tral Tr. at 60-61, , se. ge Judgment n CV100-24CC. Although Respondent was not named as a party to the pror acton, she was aware of the sut, she was Secretary of the Corporaton, and the Corporaton was a party. (Tral Tr. at 6, 23-24, 25, 60-61, see Judgment n CV100-24CC. After the nterpleader was fnal, Appellant requested that Respondent turn over all corporate records, ncludng meetngs of all pror mnutes. (Tral Tr. at The request was gnored. (Tral Tr. at 154. n any event, Appellant contnued to fle annual reports for the Corporaton, pay annual dues, fle taxes f approprate, call and conduct meetngs, host trbal powwows, apply for and receved grants, sends newsletters to members, mantan a webste, and oversee the annual electon of board members. (Tral T. at , , , , 145, Respondent, as "Secretary" or "Chef pro tern" has never fled taxes on behalf of the Corporaton, does not fle annual reports or pay annual dues on behalf of the Corporaton, and has not attended or conducted annual meetngs n order to elect board members. (Tral Tr. at 64-66, Whether he was suspended, removed or stepped down, Martn Wlson dd not return to hs offce wthn the Corporaton after servng hs prson sentence. (Tral Tr. at 69. m.:.!. n early 2000, Respondent Rebecca Jones was present at parallel "board meetngs" beng held by her group of supporters. Those ncluded a meetng conducted on February 12, 2000 where a number of board members and offcers (ncludng Appellant purportedly were removed from ther postons. (Tral Tr. at 28-29, Pla. Ex. 7. Agendas

9 were not prepared or dstrbuted at any tme pror to any of the meetngs where Appellant and other offcers or board members were allegedly removed. (Tral Tr. at There was no evdence that any specal meetngs were conducted or notces provded to members pror to the actons beng taken by Respondent's group to remove members from the board of drectors. (See generally Tral Tr.. Respondent's group of supporters were not payng property taxes or flng ncome tax returns on behalf of the Corporaton, nor were they flng annual reports or payng annual corporate dues for the Corporaton. (Tral Tr. at 65-66, 81-82, Also, they dd not have access to or use of the Corporate bank account pursuant to a prevous judgment. (Tral Tr. at 61, see also Jdgment n CV100-24CC. 4".",_'jC, g

10 ! ARGUMENT STANDARD OF REVEW The standard of revew for a declaratory judgment s the same as that establshed for court-tred cases: the tral court's decson should be affrmed unless there s no substantal evdence to support t, unless t s aganst the weght of the evdence or unless t erroneously declares or apples the law. Guyer v. Cty of Krkwood, 38 S.W.3d 412, 413 (Mo. bane 2001; Laclede County v. Douglass, 43 S.W.3d 826, 827 (Mo. bane 2001 (ctng Murphy v. Carton, 536 S.W.2d 30, 32 (Mo. bane However, where the ssue on appeal s not the suffcency of the evldence, the Court s not bound by and need not defer to the tral court's conclusons. Shelter Mutual ns. Co. v. Crunk, 102 S.W.3d 560, 561 (Mo. App. S. D Moreover, where the evdence s not controverted, no deference s due the tral court's judgment. d at : Questons of jursdcton may be rased at any tme, even for the frst tme on appeal. Rule 55.27(g(2; Hetz v. Kunkel, 879 S.W.2d 770, 772 (Mo. App. S.D Falure to jon an ndspensable party s so fundamental and jursdctonal, the Court must _onsder t even f none of the partes rases the ssue. d. 9

11 !.PONT! L THE TRAL COURT ERRED N RENDERNG JUDGMENT, BECAUSE T LACKED JURSDCTON N THAT NECESSARY AND NDSPENSABLE PARTES WERE ABSENT FROM THE ACTON. Both Secton R.S.Mo. and Rule provde, n pertnent part, that "[w]hen declaratory relef s sought, all persons shall be made partes who have or clam any nterest whch would be affected by the declaraton, and no declaraton shall prejudce the rghts of persons not partes to the proceedngs." See Secton R.S.Mo.; see also Mo Rules of Cv. Pro Ths reflects Mssour law generally, _.h_ch requres that all persons who have an nterest-ether legal or benefcal-n the _ubject matter of the ltgaton are necessary partes and must be ncluded. Schaeffer v. Moore, 262 S.W.2d 854, 858 (Mo Rule provdes that a party s necessary f: (1 complete relef cannot be afforded n the entty's absence; or (2 the entty has an nterest n the proceedngs and s so stuaton that dsposton of the acton may: ( _rnpar or mpede ts ablty to protect that nterest; or ( leave the persons already partes to the acton subject to rsk of nconsstent verdcts. n determnng whether an omtted aecessary party s ndspensable, the Court must consder several addtonal factorsj The 2 These factors are: ( the extent a judgment rendered n that entty's absence mght be prejudcal to that entty; ( the extent to whch the prejudce mght lessened by modfyng the judgment or other measures; ( whether a judgment wthout the entty would be adequate; and (v whether the plansffwll have an adequate remedy f the matter s dsmssed for nonjonder. See Mo Rules of Cr. Pro

12 determnaton of whether an ndspensable party has been omtted s a jursdctonal ssue that may be rased on appeal. Se ee Mo. Rule of Cr. Pro (g(2; Obadullah v. Kabr, 882 S.W.2d 229, (Mo. App. E.D. 1994; Yellow Freght System, nc. v. Mayor's Comm'n on Human Rghts, 737 S.W.2d 250, 251 (Mo. App. S.D When determnng what partes must be before the court, Mssour courts do not look to the name of the acton, but nstead to the nature of the relef requested and the nterests adjudcated. Kngsley v. Burack, 536 S.W.2d 7, (Mo. banc n ths dase, the relef afforded by the tral court fell prmarly wthn three categores: (1 declarng Rebecca Jones "the Chef, Presdent and Charman of the Amonsoquath Trbe 6f the Cherokee Naton and of the Amonsoquath Trbe of Cherokee, a not-for-proft eorppraton"; (2 declarng that Cathy Jones "holds no offce, poston or ttle n the Amonsoquath Trbe of the Cherokee Naton or the Amonsoquath Trbe of Cherokee, a not-for-proft corporaton; and (3 declarng that "any and all acts done or purported to have been done by Cathy Jones, snce on or about February 12, 2000, n any capacty purportng to represent the Amonsoquath Trbe of the Cherokee naton or of the Amonsoquath Trbe of Cherokee, a not-for-proft corporaton organzed and exstng under the laws of the State of Mssour, are vod and of no effect." Se..ee LF at 56.," A. The Corporaton s a necessary party. Chapter 355 s clear. A corporaton "shall" be made a party to any acton to remove a drector. Se_. ee Secton & R.S.Mo. t s undsputed that the 11

13 Corporaton was never added to ths case-whch purports to order the removal of drector Cathy Jones. Even f Secton dd not apply, the Corporaton nonetheless would be a necessary party under Rule 52.04(a. t not only meets one of the several ndependent bases for beng a necessary party under Rule 52.04(a, t meets all of them. Rule 52.04(a states that a party whose presence s requred to afford "complete relef" to the exstng partes s a necessary party. Here, the judgment purports to say who serves as offcers and drectors of the Corporaton. n the absence of the Corporaton, nether party can be apponted an offcer or drector, thereby makng t mpossble to obtan "complete relef' wthn the meanng of Rule 52.04(a. The second prong of Rule 52.04(a references whether the mssng party has an nterest that could be affected by the judgment. Here, the Corporaton clearly has an nterest n who serves as ts offcers and drectors and whether the Corporaton's past actons mght be rendered vod. Ths nterest s clearly mpared by the exstng judgment. The judgment also places all of the partes (as well as the Corporaton n drect conflct wth the 2001 judgment declarng that Cathy Jones had authorty over the Corporaton's funds. B. Thrd partes to corporate actons declared "vod" by the judgment are also necessary, partes. The Judgment purports to render all past actons taken by Cathy Jones on behalf of 12

14 the Corporaton "vod and of no effect." See LF at 56. At tral, Ms. Jones testfed that she appled for and receved federal grants, operated a thr_.ft store, requested and obtaned a rght of way from the State of Mssour to real estate owned by the Corporaton, fled federal ncome taxes, fled annual reports wth the State of Mssour, took out a one or more loans and purchased/sold real estate all on behalf of the Corporaton from 2000 through tral. See Tral Tr. at , , , , The judgment purports to nvaldate all of these transactons, whch wll have an unknown effect on the many ndvduals or enttes who contracted wth the apparent agent of the Corporaton. Before the Court may render a transacton null and vod, the Court must ensure that the partes to those transactons are afforded an opportunty to partcpate n the ltgaton. C. The Corporaton s an ndspensable party. After frst determnng that a party s necessary and that t s not feasble to jon them to the acton, the Court s then to determne f a party s also ndspensable. "When an ndspensable party to a declaratory judgment acton s not joned n the case, any judgment rendered n that party's absence s a nullty." Automoble Club nter-nsur. Exch. v. Nygrem 975 S.W.2d 235, 239 (Mo. App. S.D. 1998; see also Bauer v. Board of Electon Comm's, 198 S.W.3d 161,164 (Mo. App. E.D The Court n Automoble Club nter-nsur. Exch. noted that "Rule contans no exceptons to the requrement that any person be made a party who has or clams any nterest whch would be affected 13

15 by the declaraton." Automoble Club nter-nsur. Exch., 975 S.W.2d at 240. Mssour cases n other areas of the law have smlarly held that a statutory necessary party s ndspensable. See n re Estate ofplla v. Plla, 735 S.W.2d 103, 105 (Mo. App. E.D (nvolvng probate ssues. Even wthout the statutory party requrements, the judgment s nadequate n the absence of the Corporaton and prejudcal to the Corporaton's health and very exstence. n determnng whether an omtted necessary party s ndspensable under Rule 52.04(b, the Court must consder several factors, ncludng: (1 the extent a judgment rendered n that Corporaton's absence mght be prejudcal to the Corporaton; and (2 whether a judgment wthout the Corporaton would be adequate. See Mo Rules Cr. Pro The remedes requested, and the relef afforded by the tral court all requre some acton on the part of the Corporaton. However, the Corporaton s not a party to or bound by the judgment; t need not recognze the authorty bestowed on Rebecca Jones by Judge Schuller.!t s apparent from the record that the only members of the Corporaton makng efforts to admnster the Corporaton are algned wth Cathy Jones. Appellant's group has held annual meetngs to elect drectors, pad taxes, fled annual reports and pad the annual fees, and Appellant s the only person who has ever fled federal tax returns on behalf of the Corporaton. Se.._ee Tral Tr. at , , , , 145, From the record, t does not appear that Respondent's group has held an electon snce 1999 (when Appellant was stll assocated wth them. Se_._ee Tral Tr. at 64- t,l 14

16 66, t seems clear from the record that the Corporaton's nvolvement n the case s requred for the relef set forth n the judgment. n the absence of an ndspensable party, ths Court has no jursdcton and no opton except to reverse the judgment and remand the cause for dsmssal. Bauer, 198 S.W.3d at 164. '1' 15

17 l PONT H. THE TRAL COURT ERRED BY RENDERNG AN NCONSSTENT JUDGMENT, BECAUSE SSUE PRECLUSON BARRED REBECCA JONES FROM SEEKNG RELEF N THAT A PROR PROCEEDNG HAD ALREADY ADJUDGED CATHY JONES TO BE AN OFFCER AND DRECTOR OF THE CORPORATON. Appellant argued at tral that Respondent's clams are barred by collateral estoppel. See Tral Tr. at Mssour law holds that collateral estoppel apples to both partes and those n prvty wth partes as a bar aganst reltgatng ssues whch have been prevously ltgated. Moore v. Swayne-Hunter Farms, nc., 841 S.W.2d 308, 315 (Mo. App. S.D. 1992; Woods v. Mehlvlle Chrysler-Plymouth, nc., 198 S.W.3d 165, t68 (Mo. App Under the doctrne of ssue precluson, a party s barred from rasng an ssue n a subsequent proceedng f: (1 the ssue decded n the pror proceedng was dentcal to the ssues presented n the current acton; (2 the pror judgment resulted n a judgment on the merts; (3 the party aganst whom ssue precluson s asserted was a party or n prvty wth the party n the pror proceedng; and (4 the party [n the frst case] had a full and far opportunty pror proceedng. Woods, 198 S.W.3d at 168. to ltgate the ssues n the Anon-party to the prevous ltgaton s sad to be n prvty wth a party f"they are so closely related to the nterests of a party, that the nonparty can farly be consdered to have had hs day n court." Moore 841 S.W.2d at 315. n early 2000, the Defendant, the Corporaton and other members of the 16

18 Corporaton were named as partes n an nterpleader acton fled n Carter County, Mssour by Southern Mssour Bank - Case No. CV100-24CC. See Tral Tr. at 6, After hearng evdence, the prevous tral court ruled that the funds n the Corporaton's account belonged to Appellant Cathy Jones as Presdent of the Corporaton. See Judgment of Case No. CV100-24CC. Whle the prevous court's rulng dd not drectly affect control of the Corporaton, the sole effort of each party would have been to substantate ther clam to the fund. The determnaton of whch group controlled the corporate funds necessarly requred a determnaton of whch group controlled the corporate entty. Judge Heller concluded that "Defendant Cathy Jones s the Presdent and Charman of the Board of the Amonsoquath Trbe" and that the mones "should be delvered over to Cathy Jones as and for the beneft of the Amonsoquath Trbe of Cherokee." See Judgment n Case No. CV100-24CC. As appled to these facts, the analyss L,ncases such as Moore prevents any of the dssdent corporate group (ncludng Respondent from once agan ltgatng the ssue of whch of these two groups controls the Corporaton. Moore 841 S.W.2d at Whle Respondent was not named ndvdually as a party n the prevous case, the Corporaton was named, Respondent was Secretary of the Corporaton at the tme, and she was personally aware of the ltgaton. See Tral Tr. at 6, 23-24, 25, Respondent's nterests would have been adequately represented n the prevous sut by the Corporaton and/or Martn Wlson, the "Chef" of the Amonsoquath Trbe from whom 17

19 Respondent clams her authorty. See Tral Tr. at By agreement of the partes, the tral court took judcal notce of the prevous ltgaton. See Tral Tr. at

20 PONT. THE TRAL COURT ERRED N RENDERNG JUDGMENT N FAVOR OF RESPONDENT, BECAUSE THE CORPORATON LACKED AUTHORTY TO REMOVE CATHY JONES AS A DRECTOR N THAT THE PROVSONS OF CHAPTER 355 R.S.Mo. WERE NOT MET. Chapter 355 creates two vehcles for removng an elected drector of a non-proft corporaton: (1 by vote of the members at a specal meetng called for that purpose; or (2 by proceedng n the Crcut Court. See Sectons and R.S.Mo. A thrd method for removng apponted drectors exsts under Secton R.S.Mo. Mssour courts have long held that offcers of a prvate corporaton are enttled to a presumpton that they are duly elected and enttled to hold offce untl the contrary s shown. State ex. rel Bornefeld v. Kupferle, 44 Mo. 154 (Mo The by-laws of the Corporaton are slent as to the methods for removal of a drector. Se ge Pla. Ex. 1. The orgnal by-laws actually suggest that servce on the Board of Drectors s "perpetual." d. Whle later revsons to the by-laws allow for drectors to be removed for certan enumerated offenses, the revsons do not create a method for removal separate from standng Mssour law. d. As set forth above n Pont, a effort by members to remove a drector by proceedng n Crcut Court under Secton requres that the members brngng sut represent no fewer than ten percent (10% of the votng power of any class. See Secton (1 R.S.Mo. To remove a drector n a court proceedng, the plantff 19

21 must prove that the drector engaged n fraudulent or dshonest conduct, or gross abuse of authorty or dscreton, wth respect to the corporaton and that removal s n the best nterest of the corporaton. d. Whle there was evdence that she was apponted to her poston as Vce-Presdent of the Corporaton, there was no evdence that Cathy Jones was apponted to the board of drectors. Further, nothng n the record suggests that Cathy Jones was not enttled to her poston of authorty or that Rebecca Jones represents ten percent of any votng class of the Corporaton. No specal meetng was called, notced or held of the membershp wth the specal purpose of removng Appellant as a drector. nstead, those drectors frendly to Respondent and Martn Wlson smply made moton at a "regular meetng" for the removal Cathy Jones from "any and all appled, real and magned authorty, postons, powers and dutes." See Pla. Ex. 7. On ths record, there s nsuffcent evdence to support the removal of Cathy Jones as a drector under any of the methods created by Mssour law. 20

22 CONCLUSON Lackng jursdcton, the Court should reverse the judgment and remand the cause for dsmssal. To the extent that the tral court had jursdcton, ts judgment s n drect conflct wth a pror judgment and should be set asde under the doctrne of collateral estoppel or because Respondent faled to establsh suffcent grounds for the removal of Cathy Jones as a drector of the Corporaton. n ether case, the tral court's judgment should be set asde. BY: Respectfully Submtted, PONTER LAW OFFCE, P.C. D MO Bar No Raymond M. Gross MO Bar No P.O. Box Court Square GanesvUe, MO ( ( (facsmle ATTORNEY FOR APPELLANT CATHY JONES 21

23 RULE CERTFCATON The undersgned certfes that the foregong bref comples wth Supreme Court Rule 84.06, contans 4,079 words (accordng to the word count functon of WordPerfect 8.0 exclusve of cover, Certfcate of Servce, the Certfcaton and sgnature block. The undersgned further certfes that the dskette fled herewth contanng ths bref n electronc form has been scanned for vruses and s vrus-free. A_ey_r Appellant 22

24 CERTFCATE OF SERVCE hereby certfy that two copes of the foregong bref and the attached appendx thereto and one dskette were served by U.P.S. Next Day Ar, postage prepad, to Wllam B. Gresham, 619 Vne Street, Poplar Bluff, MO 63902, ths _-_!_day of November, BY: 23 PONTER LAW OFFCE, P.C. Dfl_d M OBar No Raymond M. Gross MO Bar No P.O. Box Court Square Ganesvlle, MO ( ( (facsmle ATTORNEY FOR APPELLANT CATHY JONES

25 CATHY Vo REBECCA JONES, JONES, N THE MSSOUR COURT OF APPEALS APPELLANT, RESPONDENT. SOUTHERN DSTRCT Appeal No. APPENDX TO APPELLANT'S BREF SD29176 Davd B. Ponter MO Bar No Raymond M. Gross MO Bar No PONTER LAW OFFCE, P.C. P.O. Box 400 Ganesvlle, MO ( Court Square ( (facsmle ATTORNEY FOR APPELLANT CATHY JONES

26 TABLE OF CONTENTS Judgment (Appealed from... A1-A2 Sectons R.S.Mo... A3-A4 Secton R.S.Mo... A5 Secton R.S.Mo... A6 Secton R.S.Mo... A7 Rule A8 Rule 55.27(g(2... A9-A11 Rule A12 Judgment (CV100-24CC... '... A13-A14

27 m STATE OF MSSOUR ss. COUNTY OF CARTER N THE CRCUT COURT OF CARTER COUNTY, MSSOUR Rebecca Jones Pettoner, VS. Cathy Jones, Respondett. - Case No. 02CV FLED OCT_Nl CATHYDUNCANTERRY CRCUT CLERK carter county, MO JUDGMENT On the 17th day of October, 2006, the Court called ths case for hearng on Pettoner's Frst Amended Petton for Declaratory Judgment. The Pettoner appeared n person and wth counsel, Wllam B. Gresham. The, Defendant appeared n person and wth counsel, Jacob Y..,,..f!.,:.,,...,-,,. Garrett. The partes announced ready fo.r tral.. _o,. "' : ; '.,_'.::.'.'."t :. _. - - ':: ":,..,.,.,'- r :as"_ :--"_- "+,' :''' ;'" '" % 0' Whereupon, evdence was adduced. At the con.cluson.o.fthe evdenee,'both partes requested that the record be held open for the presentaton of addtonal evdence, whch request was granted..and, later, on the 17m day of August, 2007, the court agan.took up ths matter for the presentaton of'addtonal evdence_>:the Pettoner appeared n.person and wth counsel. The Defendant appeared n.person and wth counsel. Evdence was adduced and c.oncluded and the cause was submtted. Atler consderng the pleadngs, the evdence and the testmory, tle Court fnds the allegatons of the Pettoner's Frst A_,neEded.Petton for Declaratory Judgment are true and that "_,_" "-_f- L]_. f3,_k,}.}o,.,,>., r, _.,., x_.., Pettoner s endtted to the relef squg.ht.. vl_' ' z., :,... *_" "" " -... " ::.!"-[... : " _-". - ' : A. d'c.... "

28 T S THEREFORE ORDERED AND ADJUDGED that the Pettoner, Rebecca Jones, s enttled to occupy the poston of, and s hereby declared to be the Chef, Presdent and Charman of the Amonsoquath Trbe of the Cherokee Naton and of the Amonsoquath Trbe of Cherokee, a not-for-proft corporaton organzed and exstng under the laws of the State of Mssour. T S FURT_R ORDERED AND ADJUDGED that the Respondent, Cathy Jones, holds no offce, poston or ttle n the Amonsoquath Trbe of the Cherokee Naton or the Amonsoquath Trbe of Cherokee, a not-for-proft corporaton organzed and exstng under the laws of the State of Mssour, and that.any and all acts done or purported to have been done by Cathy Jones, snce on or about February 12, 2000, n any capacty.purportng to represent the Amonsoquath Trbe of the Cherokee Naton or of the Amonsoquath.Trbe 0fCherokee, a notfor-proft corporaton organzed and exstng under.the.laws of the State of Mssour, are vod and of no effect. T S FUR. TlER ORDERED AND ADJUDGED that the Respondent, Cathy Jones, s hereby ordered to turn over to Pettoner, Rebecca Jones, all records of the A_nonsoquath Trbe of the Cherokee Naton and the Amonsoquath Trbe of Cherokee, a not-fo_:-proft corporaton organzed and exstng under the laws of the State of Mssour, ncludng fnancal records and membershp ]Date:. Costs rolls. are taxed_ t0 Respondent. o-/s--_ 7 Honorable Ra_. 'Schulle" _. Assocate Crcut Judge Carter County, Mssour A2

29 C Vemon's Annotated Mssour Statutes Currentness Ttle XX. Corporatons, Assocatons and Partnershps Chapter 355. Nonproft Corporaton Law (Refs & Annos -_ Removal of drectors 1. The members may, wthout cause, remove one or more drectors elected by them. 2. fa drector s elected by a class, chapter or other organzatonal unt, or by regon or other geographc groupng, the drector may be removed only by the members of that class, chapter, unt or groupng. 3. Except as provded n subsecton 9 of ths secton, a drector may be removed under subsecton 1 of ths secton or subsecton 2 of ths secton only f the number of votes cast to remove the drector would be suffcent to elect the drector at a meetng to elect drectors. 4. f cumulatve votng s anthorzed, a drector may not be removed f the number of votes, or f the drector was elected by a class, chapter, unt or groupng of members, the number of votes of that class, chapter, unt or groupng, suffcent to elect the drector under cumulatve votng s voted aganst the drector's removal. 5. A drector elected by members may be removed by the members only at a meetng called for the purpose of removng the drector and the meetng notce must state that the purpose, or one of the purposes, of the meetng s removal of the drector. 6. n computng whether a drector s protected from removal under subsecton 2, 3 or 4 of ths secton, t should be assumed that the votes aganst removal are cast n an electon for the number of drectors of the class to whch the drector to be removed belonged on the date of that drector's electon. 7. An entre board of drectors may be removed under the provsons of subsectons to 5 of ths secton. Page 2 of 3 Page 1 8. A drector elected by the board may be removed wthout cause by the vote of two-thrds of the drectors then n offce or such greater number as s set forth n the artcles or bylaws; but a drector elected by the board to fll the vacancy of a drector elected by the members may be removed wthout cause by the members, but not the board. 9. f, at the begnnng of a drector's term on the board, the artcles or bylaws provde that the drector may be removed for mssng a specfed number of board meetngs, the board may remove the drector for falng to attend the specfed number of meetngs. The drector may be removed only f a majorty of the drectors then n offce 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. A3 http ://web2.west1aw.c_m/prnt/prntstream.aspx?prft=-htmle&destnat_n=atp&sv=sp_t... 11/4/2008

30 Page 3 of 3 V.A.M.S Page 2 vote for the removal. Cm_DT(S (L.1994, H.B. No. 1095, A, elf. July 1, Statutes are current through the end of the 2008 Second Regular Sesson of the 94th General Assembly, pendng correctons receved from the Mssour Revsor of Statutes. Consttuton s current through the November 7, 2005 General Electon. (e 2008 Thomson Reuters/West END OF DOCUMENT 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. A4 11/4/2008

31 Vemon's Annotated Mssour Statutes Currentness Ttle XX. Corporatons, Assocatons and Partnershps Chapter 355. Nonproft Corporaton Law (Refs & Annos Removal of drector by amendment to artcles or bylaws-removal of apponted drect- ors 1. A drector may be removed by an amendment to the artcles or bylaws deletng or changng the desgnaton. 2. Apponted drectors: (1 Except as otherwse provded n the artcles or bylaws, an apponted drector may be removed wthout cause by the person _appontng the drector; (2 The person removng the drector shall do so by gvng wrtten notce of the removal to the drector and ether the presdng offcer of the board or the corporaton's presdent or secretary; (3 A removal s effectve when the notce s delvered unless the notce specfes a future effectve date. CREDT(S (L.1994, H.B. No. 1095, A, eff. July 1, Statutes are current through the end of the 2008 Second Regular Sesson of the 94th General Assembly, pendng correctons receved from the Mssour Revsor of Statutes. Consttuton s current through the November 7, 2006 General Electon. (e 2008 Thomson Reuters/West _ ofdoctr_nt 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. A5 Page 2 of 2 Page m/prnt/prntstream.aspx?prft=htmle&destnat_n=atp&sv=sp_t... 11/4/2008

32 ! w&law. V.A.M.S O Vemon's Annotated Mssour Statutes Currentness Ttle XX. Corporatons, Assocatons and Partnershps Chapter 355. Nonproft Corporaton Law (Refs & Annos Removal of drector by crcut court 1. The crcut court of the county where a corporaton's prncpal offce s located may remove any drector of the corporaton f:om offce n a proceedng commenced ether by the corporaton, ts members holdng at least ten percent of the votng power of any class, or the attorney general n the case era publc beneft corporaton f the court fnds that: (1 The drector engaged n fraudulent or dshonest conduct, or gross abuse of authorty or dscreton, wth respect to the corporaton, or a fnal judgment has been entered fndng that the drector has volated a duty set forth n sectons to ; and (2 Removal s n the best nterest of the corporaton. 2. The court that removes a drector may bar the d_ector from servng on the board for a perod prescrbed by the court. 3. f members or the attorney general commence a proceedng under subsecton 1 of ths secton, the corporaton shall be made a party defendant. Page 2 of 2 Page 1 4 f a publc beneft corporaton or ts members commence a proceedng under subsecton 1 of ths secton, they shall gve the attorney general wrtten notce of the proceedng. CREDT(S (L.1994, H.B. No. 1095, A, elf. July 1, Statutes are current through the end of the 2008 Second Regular Sesson of the 94th General Assembly, pendng correctons receved from the Mssour Revsor of Statutes. Consttuton s current through the November 7, 2006 General Electon. (c 2008 Thomson Reuters/West END OF DOCUMENT 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. A6 11/4/2008

33 Page 2 of 2! V.A.M.S Page 1 C Vernon's Ttle XXXV. Annotated Statutory Mssour Actons Statutes and Currentness Torts Chapter 527. Declaratory Judgments; Actons nvolvng Land Ttles; Ls Pendens; Change of Name (Refs &!!!!!! l Annos -_ Partes When declaratory relef s sought, all persons shall be made partes who have or clam any nterest whch would be affected by the declaraton, and no declaraton shall prejudce the fghts of persons not partes to the proceedngs. n any proceedng whch nvolves the valdty of a muncpal ordnance or franchse, such muncpalty shall be made a party, and shall be enttled to be heard, and f the statute, ordnance or franchse s alleged to be unconsttutonal, the attorney general of the state shall also be served wth a copy of the proceedng and be enttled to be heard. CREDT(S (R.S.1939, Statutes are current through the end of the 2008 Second Regular Sesson of the 94th General Assembly, pendng correctons receved from the Mssour Revsor of Statutes. Consttuton s current through the November 7, 2006 General Electon. (c 2008 Thomson Reuters/West END OF DOCUMENT 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. A7 11/4/2008

34 Page 2 of 2 Supreme Court Rule Page 1 C SUPREME VERNON'S ANNOTATED COURT RULESMSSOUR RULES RULES OF CVL PROCEDURE PART. RULES GOVERNNG CVL PROCEDURE N THE CRCUT COURTS,,_RULE 52. PARTES Jonder of Persons Needed for Just Adjudcaton (a Persons to Be Joned f Feasble. A person shall be joned n the acton f: (1 n the person's absence complete relef cannot be accorded among those already partes, or (2 the person clams an nterest relatng to the subject of the acton and s so stuated that the dsposton of the acton n the person's absence may: ( as a practcal matter mpar or mpede the person's ablty to protect that nterest or ( leave any of the persons already partes subject to a substantal rsk of ncttrrng double, multple, or otherwse nconsstent oblgatons by reason of the clamed nterest. f the person has not been joned, the court shall order that the person be made a party. f the person should jon as a plantffbut refuses to do so, the person may be made a defendant. (b Determnaton by Court Whenever donder Not Feasble. f a person as descrbed n Rule 52.04(a(1 or Rule 52.04(a(2 cannot be made a party, the court shall determne whether n equty and good conscence the acton should proceed among the partes before t or should be dsmssed, the absent party beng thus regarded as ndspensable. The factors to be consdered by the court nclude: ( to what extent a judgmant rendered n the person's absence mght be prejudcal to that person or those already partes; ( the extent to whch by protectve provsons n the judgment, by the shapng of relef, or other measures, the prejudce can be lessened or avoded; ( whether a judgment rendered n the person's absence wll be adequate; and (v whether the plantffwll have an adequate remedy f the acton s dsmssed for nonjonder. (c Pleadng Reasons for Nonjonder. A pleadng assertng a clam for relef shall state the names, f known to the pleader, of any persons as descrbed n subdvsons (a (1-(2 hereof who are not joned, and the reasons why they are not joned. (d Excepton of Class Actons. Ths rule s subject to the provsons of Rule Statutes are current through the end of 2008 Second Regular Sesson of the 94th General Assembly, pendng correctons receved f:om the Mssour Revsor of Statutes. Consttuton s current through the November 7, 2006 General Electon. END OF DOCUMENT 2008 Thomson Reuters/West 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. -AS 11/4/2008

35 Page2 of 4 Supreme Court Rule C VERNON_S ANNOTATBD MSSOUR RULES SUPREME COURT RULES RULES OF CVL PROCEDURE PART '. RULES GOVERNNG CVL PROCEDURE N THE CRCUT COURTS _RULE 55. PLEADNGS AND MOTONS Defenses and Objectons--How Presented--By Pleadng or Moton--Moton for Judgment on the Pleadngs (a How Presented. Every defense, n law or fact, to a clam n any pleadng, whether a clam, counterclam, cross-clam, or thrd-party clam, shall be asserted n the responsve pleadng thereto f one s requred, except that the followng defenses may at the opton of the pleader be made by moton: (1 Lack of jursdcton over the subject matter, (2 Lack of jursdcton over the person, (3 That plalntffdoes not have legal capacty to sue, (4 nsuffcency of process, (5 nsuffcency of servce of process, (6 Falure to state a clam upon whch relef can be granted; (7 Falure to jon a party under Kule 52.04, (8 That plantff should furnsh securty for costs, (9 That there s another acton pendng between the same partes for the same cause n ths state, (10 That several clams have been mproperly unted, ( 1 That the counterclam or cross-clam s one whch cannot be properly nterposed n ths acton. A moton makng any of these defenses shall be made: (A Wthn the tme allowed for respondng to the opposng party's pleadng, 03 f no responsve pleadng s permtted, wthn thrty days after the servce of the last pleadng. Motons and pleadngs may be fled smultaneously wthout waver of the matters contaned n ether. No defense or objecton s waved by beng joned wth one or more other defenses or objectons pleadng or moton. or n a responsve f a pleadng sets forth a clam for relef to whch the adverse party s not requred to serve a responsve plead Thomson Reuters/West. No Clam to Org. US Gov. Works. A9 Page /4/2008

36 Page 3 of 4! Supreme Court Rule ng, the adverse party may assert at the tral any defense n law or fact to the clam for relef. f, on a moton assertng the defense numbered (6 to dsmss for falure of the pleadng to state a clam upon whch relef can be granted, matters outsde the pleadngs are presented to and not excluded by the court, the moton shall be treated as one for summary judgment and dsposed of as provded n Rule All partes shall be gven reasonable opportunty to present all materal made pertnent to such a moton by Rule (b Moton for Judgment on the Pleadngs. After the pleadngs are closed but wthn such tme as not to delay the tral, any party may move for judgment on the pleadngs. f, on a moton for judgment on the pleadngs, matters outsde the pleadngs are presented to and not excluded by the court, the moton shall be treated as one for stunmary judgment and dsposed of as provded n Rule 74.04, and all partes shah be gven reasonable opportunty to present all materals made pertnent to such a moton by Rule (e Prelmnary Hearngs. The defenses specfcally enumerated (1-(11 n subdvson (a of ths Rule, whether made n a pleadng or by moton, and the moton for judgment mentoned n subdvson (b of ths Rule shall be heard and determned before tral on applcaton of any party, unless the court orders that the hearng and determnaton thereof be deferred untl the tral. (d Moton for More Defnte Statement A party may move for a more defnte statement ofuny matter contaned n a pleadng that s not averred wth suffcent defnteness or partcularty to enable the party properly to prepare responsve pleadngs or to prepare generally for tral when a responsve pleadng s not requred. f the moton s granted and the order of the court s not obeyed wthn ten days after notce of the order, or wthn such other tme as the court may fx, the court may strke the pleadng to whch the moton was drected or make such order as t deems just. (e Moton to Strke. Upon moton made by a party before respondng to a pleadng or, f no responsve pleadng s permtted by these rules, upon moton made by a partywthn thrty days after the servce of the pleadng upon any party or upon the court's own ntatve at any tme, the court may order strcken f_omany pleadng any nsuffcent defense or any redundant, mmateral, mpertnent, or scandalous matter. (f Consoldaton of Defenses n Moton. A party who makes a moton under ths Rule may jon wth t any other motons heren provded for and then avalable to the party. f a party makes a moton trader ths Rule but omts therefrom any defense or objecton then avalable that ths Rule permts to be rased by moton, the party shall not thereafter make a moton based on the defense or objecton so omtted, except a moton as provded n Rule 55.27(g(2 on any of the grounds there stated. (g Waver or Preservaton of Certan Defenses. (1 A defense of: (A Lack of jursdcton (B nsuffcency (C nsuffcency of process, over the person, of servce of process, (D That plantff should furnsh securty for costs, 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. A10 Page 2 m/prnt/prntstream.aspx?sv=sp_t&prft=-htmle&mt=mss_ur&v... 11/4/2008

37 Page 4 of 4 Supreme Court Rule (E That plantff does not have legal capacty to sue, (F That there s another acton pendng between the same partes for the same cause n ths state, (G That several clams have been mproperly unted, or (H That the counterclam s waved f t s: (A Omtted from a moton n the crctunstances or cross-clam s one whch cannot be properly nterposed n ths acton, descrbed n Rule 55.27(f, or (B Nether made by moton under ths Rule nor ncluded n a responsve pleadng. (2 A defense of falure to state a clam upon whch relef can be granted, a defense of falure to jon a party ndspensable under Rule 52.04, and an objecton of falure to state a legal defense to a clam may be made n any pleadng permtted or ordered under Rule 55.01, or by moton for judgment on the pleadngs, or at the tral on the merts, or on appeal. (3 Whenever t appears by suggeston of the partes or otherwse that the court lacks jursdcton of the subject matter, the court shall dsmss the acton. Statutes are current through the end of 2008 Second Regular+Sesson of the 94th General Assembly, pendng correctons receved from the Mssour Revsor of Statutes. Consttuton s current through the November 7, 2006 General Electon. END OF DOCUMENT 2008 Thomson Reuters/West 2008 Thomson Reuters/West. No Clam to Org. US Gov. Works. All Page /4/2008

38 Page 2 of 2 Supreme Court Rule C VERNON'S ANNOTATED MSSOUR RULES SUPREME COURT RULES RULES OF CVL PROCEDURE PART H.RULES RELATNG TO SPECAL ACTONS.,RULE 87. DECLARATORY JUDGMENTS Jonder of Partes--Muulcpaltes--Attorney General When declaratory relef s sought, allpersons shall be made partes who have or clam any nterest whch would be affected by the declaraton, and no declaraton shall prejudce the rghts of persons not partes to the proceedhags. n any proceedng whch nvolves the valdty of a muncpal ordnance or franchse, such muncpalty shah be made a party, and shall be enttled to be heard, and, ffthe statute, ordnance or f'anchse s alleged to be unconsttutonal, the Attorney General of the state shall also be served wth a copy of the proceedng and be enttled to be heard. Statutes are current through the end of 2008 Second Regular Sesson of the 94th General Assembly, pendng correctons receved from the Mssour Revsor of Statutes. Consttuton s current through the November 7, 2006 General Electon. END OF DOCUMENT 2008 Thomson Reuters/West Page Thomson Reuters/West. No Clam to Org. US Gov. Works. A2 http ://web2.wesflaw.c_m/prnt/prntstream.aspx?sv=sp_t&prft=htmle&mt=-mss_ur&v... 11/4/2008

39 - _ T_ C_C_r COURT OF CAR'-_'_R CO'_TY V_S S O_! SOUTHERN MSSOUR BANK & TRUST VS. COMPANY, Plantff, MARTN WLSON, Charman and Chef of the Amonsoquath Trbe of Cherokee, a Mssour corporaton, and MARTN WLSON, ndvdually, and M_ARTN WLSON and CATHY JONES, d/b/a The Amonsoquath Trbe of Cherokee, Defendants. DMSON \ JUDGMENT ONE Case No. CV100-24CC _AY coatnyduncan RCUTCLE v.,,' [ ER RY CARTE R,,_ w'uorder RCOUNTY,NU ON ths 15 _ day of May, 2001, the Defendant Cathy Jones appears n person and wth her Attorney Jacob Y. Garrett. The Defendant Martn Wlson does not appear although havng fled.responsve pleadngs. The Defendant Cathy Jones announces ready and evdence s heard, and the Court havng consdered the ssues does now fnd as follows: 1. A Pettoner for nterpleader was fled heren on the 2 na day of March, 2000, by the Plantff Southern Mssour Bank & Trust Company. 2. The subject of the nterpleader was funds beng held n a bank account for the Amonsoquath Trbe of Cherokee whch contans the sum of $2, A dspute had arsen between the Defendants as to who was enttled to the funds and the $2, was deposted nto the regstry of the Court pursuant to the Judgment fled on the 22 ndday of May, Pursuant to sad judgment the Plantff was awarded attomey fees n the amount of A3

40 $ leavng a balance n the regstry of the Court of $2, t s found that the Amonsoquath Trbe of Cherokee, formerly the Amonsoquath Trbe, s a not-for-proft corporaton currently n good standng n the State of Mssour. 6. t s further found that the Amonsoquath Trbe of Cherokee dd on the 13_ day of November, 1999, remove from offce as Charman of the Board, Martn Wlson. 7. t s further found that the Defendant Cathy Jones s the Presdent and Charman of the Board of the Amonsoquath Trbe of Cherokee, a Mssour not-for-proft corporaton. 8. t s further found that the sum of $2, belongs to the Amonsoquath Trbe of Cherokee and should be delvered over to Cathy Jones as and for the beneft of the Amonsoquath Trbe of Cherokee. T S THEREFORE ORDERED that the Crcut Clerk of Carter County, Mssour, delver to the Amonsoquath Trbe of Cherokee n care of Cathy Jones the sum of $2, Costs taxed equally agal'nst _e Defendants. SO ORDERED. Honorable Robert M. Heller A4