2 1 12 cr11-2064 coughlin's supplement to mtn to dismiss 22176 60838

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F I L E D Electronically

02-01-2012:04:46:41 PM Joey Orduna Hastings

Document Code: 2645 Clerk of the Court Zach Coughlin, Esq. Transaction # 2736761

Nevada Bar No: 9473 1422 E. 9th St. #2 Reno, NV 89512 Tele: 775-338-8118 Fax: 949-667-7402 [email protected] Attorney for Appellant

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

ZACH COUGHLIN; ))

Appellant, ))

vs. ) CASE NO: CR11-2064 )

CITY OF RENO ) DEPT. NO: 10 )

Respondents. ))

SUPPLEMENT TO MOTION TO DISMISS

COMES NOW, Appellant Zach Coughlin, by and through his attorney, Zachary Barker

Coughlin, Esq , and offers his SUPPLEMENT TO MOTION TO DISMISS. The undersigned was

instructed by the Second Judicial District Court to submit a cd/dvd for filing as an exhibit to a filing

in this manner.

McCrary v. McCrary, 764 P.2d 522, 1988 OK 122 (Okla. Nov 01, 1988) (NO. 62,814)

judgment is deemed rendered only when its *527 terms are announced to the parties by the judge,

and a judgment in absentia is not “rendered” until notice of its entry is mailed to the parties.

McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332 (1981); Rules of Appellate Procedure, 12

O.S.1981, Ch. 15, App. 2, Rule 1.11(b). See: Peralta v. Heights Medical Center, Inc., 485 U.S. 80,

- 1SUPPLEMENT TO MOTION TO DISMISS

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108 S.Ct. 896, 99 L.Ed.2d 75 (1988). We also note that after the trial court's ruling the intervenors

attempted to obtain extraordinary relief from this Court to prohibit the court from proceeding

further, and we denied relief. There undersigned believes, under penalty of perjury, that Pam

Roberts was not even in the courtroom when Judge HOward brought the undersigned back in chains

to correct that which he has been "remiss" in not doing earlier (ie, making rulings related to the Stay

of the Contempt punishment, and the deadline to file a notice of appeal, or even informing the

underisgned of his right to file an appeal and the requirments). Judge Howard did say some stuff

about how he "is sure you know this" or that about the procedural technicalities that Judge Howard

encounters everyday in his job, yet the undersigned really does not know such things. 10 days to file

a notice of appeal? didn't know that. NRCP 6(a) and (e) don't apply to such matters? Its straight

days? Rendition, not notice of entry? Didn't know none of that. Thats what the Sixth Amendment

is for. Further that rule sucks. You get more protection in a civil matter to appeal a lawsuit over a

box of widgets. WE are talking about my law license here, Judge Howard makes the trial a

lynching. But like 2 million Irish people betwen 1848 and 1850 who starved to death while

surrounded by a sea of fish, Judge Howard makes like the English and tries to arrest one for fishing.

The rule shoudl be changed. But, at the least the RMC shoudl have to follow it, and they didn't.

Further, Roberts may have violated prosecutorial conduct rules related to suborning perjury,

propounding or disclosing exculpatory evidence, etc. ,and arguably she should be required to put

such into evidence or refrain from offering that which contradicts such evidence in her possession or

that which she should be required to find upon a reasonably diligent inquiry. Roberts apparently

didn't discover and footage from this behemoth retailer with cameras everywhere in the store

relevant to any of the accused acts. Nope, its all he said she said here, except the interrogation room

videos, which show the 3 witness Roberts offered lied. In the following cases it was held that an


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attorney's contemptuous conduct cannot be excused or justified by the fact that the attorney believed

his conduct to be necessary to the proper and thorough representation of his client, and that an

attorney may summarily be held to be in contempt notwithstanding such good-faith belief. The court

held that a trial attorney's belief that certain action is necessary to protect the record for appellate

review, and to represent his client's interests, does not excuse his deliberate defiance of the trial

judge's orders in Pennsylvania v International Union of Operating Engineers (1977, CA3 Pa) 552

F2d 498, cert den 434 US 822, 54 L Ed 2d 79, 98 S Ct 67, where the court affirmed two summary

orders of criminal contempt entered against a defense attorney. The contempt holdings had been

based on the attorney's insistence upon stating the reasons for his objections to certain holdings by

the trial court, and his refusal to comply with the court's direction pertaining to the cross-

examination of a witness. In essence, said the court, the attorney asserted that he was free to violate

a direct order of a trial judge if he believed that the protection of his client's interests on appeal

required such action. The court recognized an attorney's right to be conscientious, fearless, and

zealous in representing his client's interests, but held that a direct order of the trial judge fixes the

limits of proper advocacy; the vigor permissible in representing a client's interest does not include

the flouting of a judge's rulings. The necessity of preserving the record for appeal, said the court, is

not a talisman which absolves a lawyer from his usual obligation to comply with a trial judge's direct

orders. The attorney also argued that his disregard of the judge's order was necessary to persuade the

judge to retract his restriction on the attorney's method of cross-examination. An appeal, it was said,

would provide an inadequate means of challenging the restriction since the witness was said to have

been cornered, and since the attorney had achieved a momentum which probably never could be

resumed at a new trial after an appeal. The court held, however, that the attorney could not

permissibly defy the judge's order in the interests of seizing an allegedly irrecoverable opportunity.


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An attorney's good-faith belief in the necessity of his actions, in order properly to represent his

client, was held not to justify contumacious behavior in United States v Offutt (1956, DC Dist Col)

145 F Supp 111, mod on other grounds 101 App DC 97, 247 F2d 88, cert den 355 US 856, 2 L Ed

2d 64, 78 S Ct 85, where, on remand, the court held that the trial court properly had summarily held

an attorney to be in contempt based upon insulting and offensive remarks made to the court. The

attorney asserted that what he said was true, and that he said it in order to make a record for appeal,

and in order to comply with the advice given him by counsel with whom he had consulted.

However, the court held that advice of counsel is not a defense to a charge of contempt, stating that

neither such advice, nor ignorance, nor zeal for his client, could alter the contumacious character of

the attorney's conduct. The courts in the following cases, while not holding that good-faith vigorous

advocacy may preclude the summary punishment of an attorney for contempt, recognized that an

attorney must be given broad latitude in his representation of his client, and that this factor must be

taken into account in determining whether conduct of an attorney amounts to contempt which is

summarily punishable by the court. In United States v Schiffer (1965, CA6 Tenn) 351 F2d 91, cert

den 384 US 1003, 16 L Ed 2d 1017, 86 S Ct 1914, reh den 385 US 890, 17 L Ed 2d 121, 87 S Ct 12,

the court, in upholding the trial court's summary punishment of an attorney for contempt under Rule

42(a) of the Federal Rules of Criminal Procedure, said that in contempt cases against lawyers the

evidence must be carefully scrutinized in order that there be no undue interference with their right

properly to represent their clients; nevertheless, it was held that the punishment imposed was

warranted in view of the deliberate, continuous, and repeated contumacious acts of the attorney,

extending throughout the trial, which were said to have been wholly unwarranted. The court in Re

Dellinger (1972, CA7 Ill) 461 F2d 389, on remand (ND Ill) 357 F Supp 949 and on remand (ND Ill)

370 F Supp 1304, affd (CA7 Ill) 502 F2d 813, cert den 420 US 990, 43 L Ed 2d 671, 95 S Ct 1425,


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stated that attorneys must be given great latitude in the area of vigorous advocacy, and that an

attorney may with impunity take full advantage of the range of conduct that our adversary system

allows. Nevertheless, said the court, the fact that an attorney is representing his client in good faith

does not immunize all conduct undertaken in that cause, although the court reversed the trial court's

summary imposition of punishment upon two defense attorneys for contempt, and remanded the

numerous specifications of contempt for a hearing before a different judge, on the ground that the

trial judge was required to disqualify himself from hearing the contempt proceedings because he had

been the recipient of numerous and unprecedented attacks and insults by the attorneys charged

during the course of the trial. Where the trial judge is arbitrary or affords counsel inadequate

opportunity to ar-gue his position, counsel must be given substantial leeway in pressing his

contention, said the court, for in this manner the court may recognize its mistake and prevent error

from infecting the record. Appellate courts, the court said, must insure that trial judges are not left

free to manipulate the balance between vigorous representation and obstructions of justice so as to

chill effective advocacy when deciding lawyer contempts. It was said that where the conduct

complained of in a summary contempt proceeding is that of an attorney engaged in the

representation of a litigant, the search for the essential elements of the crime of contempt must be

made with full appreciation of the role of trial counsel and his duty of zealous representation of his

client's interests in United States ex rel. Robson v Oliver (1972, CA7 Ill) 470 F2d 10. Furthermore,

said the court, in close cases where the line between vigorous advocacy and actual obstruction defies

strict delineation, doubts should be resolved in favor of vigorous advocacy. The attorney represented

one of a number of defendants in a criminal prosecution in which the defendants were charged with

mutilating draft records. In cross-examining a codefendant, the attorney referred to a photograph of

a hallway, apparently through which the defendants had passed to reach the office in which the


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records were contained, and asked him if he could make out a little sign stating "abandon ye all hope

who enter here." In view of the extreme liberality afforded trial counsel in their representation of

clients, and resolving any doubts in favor of vigorous advocacy, the court concluded that such

conduct did not rise to the level of misbehavior necessary to support

a contempt citation. Commenting that the attorney's question was related to the defendants'

proffered theory of defense and touched on the insane "preceptions" and "delusions" which the

defendants claimed to have held prior to making the raid on the draft board files, the court reversed

the trial court's holding of contempt. But in the following case, it was held that where an attorney in

good faith believes that his duty of advocacy requires his conduct, a summary contempt conviction

based upon such conduct cannot withstand challenge, at least where the attorney believed that the

court did not understand his position. Thus, it was held in Re Dellinger (1973, ND Ill) 370 F Supp

1304, affd (CA7 Ill) 502 F2d 813, cert den 420 US 990, 43 L Ed 2d 671, 95 S Ct 1425, that an

attorney could not properly be summarily punished for contempt in the presence of the trial court

where the attorney sincerely believed that his acts were necessary because the trial court did not

understand the argument which the attorney was asserting. The trial court had sustained a

government objection to testimony by a witness concerning a certain speech given by a person who

was not a witness at the trial. After the court's ruling, the attorney continued to argue that the speech

was relevant, despite repeated directions from the judge to discontinue that argument, in that such

testimony allegedly would have demonstrated the nonviolent intent of the defendants, who were

charged with violation of the Federal Anti-Riot Act. The court, in hearing the contempt question

upon remand from an appeal[33] of the trial court's action in that regard, held that the attorney was

not guilty of the specification, pointing out that the attorney sincerely believed that the judge had not

given him a reasonable opportunity to be heard and that the judge did not fully understand his


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position. Judge Howard played football at UNR, and, perhaps, like ther undersigned's father, who

played tailback for Tulane in the SEC on scholarship from Dayton Ohio (third fastest white boy in

Ohio circa 1963), Judge Howard's approach here "hits the A gap a little too hard". The undersigned

is no stranger to getting fouled by the fine competitors Hug High School produces, like Charles,

Claude, Duke, Armon, Trey, Shondor, Tye, and Tommy, though: Reno High Basketball Clippings

1897-2008ish: http://cid22e2ebee5aa79fdf.skydrive.live.com/browse.aspx/.Public

http://www.nfhs.org/recordbook/Records.aspx?CategoryId=1073 Impertinence, attacks upon

competency or impartiality, or the like—Conduct held not to warrant summary punishment Under

the particular circumstances of each of the following cases, it was held that remarks by an attorney,

considered by the trial court to be an attack upon its conduct of the trial and therefore to be

contemptuous, did not warrant that court's summary punishment of the attorney. In Parmelee

Transp. Co. v Keeshin (1961, CA7 Ill) 292 F2d 806, a case arising out of a trial court's summary

punishment of an attorney for contempt, and apparently governed by Rule 42(a) of the Federal Rules

of Criminal Procedure,[43] the court held that the record did not support the trial court's action, even

though the trial court had regarded certain conduct of the attorney to be impertinent and

disrespectful. In one of the specifications of contempt, the trial court cited the fact that, upon that

court's sustaining of objections to certain questions put by the attorney to a witness, the attorney had

remarked "that is crazy," but the court, noting that the remark was not intended to be heard by either

the trial court or jury, and that the record failed to show that the trial judge took any notice of the

remark at the time, held that contumacious conduct had not been proved under the specification. The

court also held that the attorney's remark that the trial court had "a sardonic sense of humor," in

commenting upon certain actions taken by that court, did not constitute contempt for which the trial

court had the authority to impose summary punishment.[44] And see United States ex rel. Robson v


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Oliver (1972, CA7 Ill) 470 F2d 10, where the court stated that an attorney's remarks may have

suggested disrespect for the trial court's rulings, but nevertheless reversed the trial court's summary

imposition of punishment upon the attorney for contempt, under Rule 42(a) of the Federal Rules of

Criminal Procedure, on the ground that such remarks did not cause an actual disruption of the trial

proceedings. In Hampton v Hanrahan (1979, CA7 Ill) 600 F2d 600, revd, in part on other grounds

446 US 754, 64 L Ed 2d 670, 100 S Ct 1987, reh den 448 US 913, 65 L Ed 2d 1176, 101 S Ct 33

and reh den 448 US 913, 65 L Ed 2d 1177, 101 S Ct 33 and on remand (ND Ill) 499 F Supp 640 and

on remand (ND Ill) 522 F Supp 140, the court reversed the trial court's summary holding that an

attorney was in contempt on the ground that the attorney's conduct did not obstruct justice, but the

court also pointed out that the attorney's remark, upon which the contempt holding was based, was

misinterpreted by the trial judge as being intended to reflect improperly upon him, where in fact the

remark was made by the attorney in an attempt to clarify a previous statement.[45] An attorney's

mere statement that the trial court's sustaining of an objection to a question of the attorney precluded

the attorney from cross-examining the witness was held in Phelan v Guam (1968, CA9 Guam) 394

F2d 293, not to warrant the summary imposition of punishment upon the attorney for criminal

contempt, under Rule 42(a) of the Federal Rules of Criminal Procedure (U.S.C.A., FRCrP Rule

42(a)). The court pointed out that the attorney had asked for an exception to the court's ruling,

whereupon the court voluntarily took it upon itself to tell the attorney why the court had sustained

the objection. The attorney then defended the properness of his question. In reversing the trial court's

holding of contempt, the court pointed out that there was nothing in the language used by the

attorney which could be construed as hostile or defiant, or in any manner obstructing the procedure

of the trial. Improper questioning [Cumulative Supplement] In the following cases, it was held that

an attorney's persistent improper questioning of witnesses constitutes ground for the imposition of


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summary punishment for contempt by a federal trial court. An attorney's persistence in cross-

examining witnesses with regard to irrelevant matters, after objections had been sustained with

respect to such questioning, was held in Hallinan v United States (1950, CA9 Cal) 182 F2d 880, cert

den 341 US 952, 95 L Ed 1375, 71 S Ct 1010, reh den 342 US 956, 96 L Ed 710, 72 S Ct 623 and

reh den 343 US 931, 96 L Ed 1341, 72 S Ct 756, to justify the trial court's imposition of summary

punishment for contempt under Rule 42(a) of the Federal Rules of Criminal Procedure. The

questioning upon which the trial court's contempt holding was based related to a prior deportation

proceeding against the defendant, which in no way was related to the present prosecution, to alleged

wiretapping of the defendant's telephones in order to obtain evidence in such prior deportation

proceeding, and to the practices of a prosecution witness with regard to his duties as an attorney for

the Bureau of Immigration and Naturalization. Noting that the attorney's proper course of action, if

the trial court erroneously had held that the matters inquired into were irrelevant, was to appeal

those holdings rather than to continue to attempt to introduce irrelevant evidence, the court upheld

the punishment imposed by the trial court. An attorney's improper questioning of witnesses,

including the use of questions which obviously were intended to besmirch those witnesses, was held

to justify a summary holding of criminal contempt, under Rule 42(a) of the Federal Rules of

Criminal Procedure, in Offutt v United States (1953) 93 App DC 148, 208 F2d 842, revd on other

grounds 348 US 11, 99 L Ed 11, 75 S Ct 11, where the court affirmed such a holding by the trial

court, although reducing the punishment imposed. It was noted that on several occasions the

attorney had asked the witnesses questions that were highly prejudicial to those witnesses and for

which there was no foundation. For example, he had asked the victim of an abortion, charged

against the defendant, "when" she was arrested in the case, whereas in fact she never had been

arrested. It was held that such conduct supported the trial court's summary finding of contempt.


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CUMULATIVE SUPPLEMENT Cases: Attorney's conduct in continuing to cross-examine police

officer after judge had ruled that police log was not admissible was not contempt where attorney

claimed that he was trying to impeach witnesses' memory, not lay foundation for admission of log,

so that his conduct could not be said to be willful. United States v Giovanelli (1990, CA2 NY) 897

F2d 1227. In criminal prosecution, trial court properly meted out judgments of criminal contempt to

defense counsel for misconduct in cross-examining witnesses where trial judge on several occasions

warned counsel that he would not allow them to pursue lines of questioning that he later held to be

contemptuous, on one occasion he allowed them to explain at length why they thought questioning

was proper, and where judge made full and convincing explanation of actions in written orders

issued shortly after adjuging counsel in contempt. United States v Lowery (1984, CA7 Ill) 733 F2d

441, cert den (US) 83 L Ed 2d 264, 105 S Ct 327. Resort to summary disposition of criminal

contempt proceeding under Rule 42(a), Federal Rules of Criminal Procedure, is permissible only

when express requirements of rule are met and when there is compelling reason for immediate

remedy or when time is of essence. Thus, attorney's conviction for criminal contempt

in pursuing line of questioning forbidden by court would be reversed, since record showed that

there was no compelling need for immediate remedy provided by Rule 42(a), Federal Rules of

Criminal Procedure, and that trial court, by its own actions, did not consider time to be of essence;

trial court should have observed "normal" procedure" of notice and hearing, provided by Rule 42(b),

Federal Rules of Criminal Procedure. U.S. v. Moschiano, 695 F.2d 236, 12 Fed. R. Evid. Serv. 124

(7th Cir. 1982). See United States v Turner (1987, CA11 Ala) 812 F2d 1552, § 14. The undersigned

"continuing lines of inquiry" was not sanctionable. Legitimate rationale exists and or was offered

for all inquiry pursued. Further, Judge Howard admitted in the last part of the audio record that he

had (at the time of making his Summary Contempt finding announcement) be mistaken in believeing


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that the November 14, 2011 original trial date did not go off due to the undersigned's fault, which

was not the case. the undersigned showed up for that trial, its was somebody else fault that it did not

go off. Tardiness or failure to appear—Conduct held not to warrant summary punishment

[Cumulative Supplement] The courts in the following cases have held that an attorney's absence or

tardiness did not justify the trial court's summary punishment of the attorney for contempt. An

attorney's failure to appear at a judicial hearing was held not to warrant the summary imposition of

punishment for contempt, under Rule 42(a) of the Federal Rules of Criminal Procedure, in Jessup v

Clark (1973, CA3 Pa) 490 F2d 1068. The attorney had begun a trial in a state court 2 days prior to

the date scheduled for the federal court trial at which he failed to appear. The state court trial

continued through the day of the scheduled beginning of the federal court trial. The attorney stated

that he had continued to conduct the state court trial believing that he was obligated to do so, and

that he had brought the matter to the attention of the state court judge and was instructed by that

judge to remain at the state court trial. The federal court's finding of contempt was reversed, it being

held that the attorney's conduct did not take place in the presence of the court, as required for

summary punishment under Rule 42 (a), and that there had been no need for immediate penal

vindication of the dignity of the court.[50] And see Re Monroe (1976, CA5 Tex) 532 F2d 424,

where it was held that an out-of-state attorney's failure to appear at trial did not amount to contempt

under the circumstances. It is not clear whether the case falls within the scope of this annotation

since, although the trial court recited as authority Rule 42(a) of the Federal Rules of Criminal

Procedure, that court stated that it was not going to charge the attorney with criminal contempt but

only civil contempt, whereas Rule 42(a) applies only to summary criminal contempt proceedings.

Nevertheless, the appellate court stated that, as a matter of law, there was no contempt, the court

pointing out that the attorney was unable to appear before the trial court because of his participation


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in a murder trial in another state which had begun several months previously. Further, the attorney's

failure to file a motion for continuance at least 10 days before the trial date, as required by local

rules, was in part caused by a delay in the mails and a delay in his ability to obtain replacement local

counsel after his local counsel had withdrawn from the case. His motion for continuance had in fact

arrived at the trial court 1 week before the trial date. Noting that it was not established that the

attorney had actual knowledge of the 10-day rule, or that local counsel had advised him of it, the

court concluded that the attorney's conduct was at most negligent, stating that such conduct did not

contain the elements of intentional or willful action or flagrant disregard of the court's rules or orders

necessary for contempt. Tardiness or failure to appear at a court hearing was held not to justify the

imposition of summary punishment upon attorneys for contempt, under Rule 42(a) of the Federal

Rules of Criminal Procedure, at least where such failure or tardiness is unintentional, in United

States v Delahanty (1973, CA6 Ky) 488 F2d 396. One attorney was approximately 10 minutes late

for a pretrial conference because of his unfamiliarity with the city, traffic congestion, and difficulty

in finding a parking space. A second attorney, who was cocounsel with the first attorney,

intentionally did not appear, because he had other matters to attend to in a different city, but he had

requested the first attorney to represent both of them at the hearing. In reversing the summary

punishment imposed by the trial court, the court held that the conduct complained of, the absence of

the attorneys from the courtroom, did not occur within the actual presence of the court as required

under Rule 42(a), and that the essential element of criminal intent was absent. [51] And see Re Allis

(1976, CA9 Cal) 531 F2d 1391, cert den 429 US 900, 50 L Ed 2d 185, 97 S Ct 267, supra § 11,

where the court, in holding that an attorney's tardiness is not summarily punishable by a court, under

Rule 42(a) of the Federal Rules Criminal Procedure, since it is not conduct committed in the actual

presence of the court, commented that tardiness alone is not contempt, since the reasons for such


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tardiness are important in determining the existence of the requisite wrongful intent on the part of

the attorney. The notice of appeal does and should apply to the Summary Contempt ORder as well,

that order was ridiculous and shameful.33 ALR 3rd 448, Appealability of Contempt Adjudication or

Conviction. Right to counsel The need for appointed counsel in a civil contempt proceeding for

nonpayment of child support turns on an initial determination of indigency, for unless a party is truly

indigent, the State need not provide representation; if an indigent party faces the threat of possible

incarceration for the nonpayment of child support, the court should then seek to balance the private

liberty interest at stake, the government's interest, and the risk of an erroneous finding, taking into

account the complexity of the legal and factual issues and the party's ability to effectively

communicate on his own behalf. Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark,

2004, 102 P.3d 41, 120 Nev. 798, certiorari denied 125 S.Ct. 2905, 545 U.S. 1116, 162 L.Ed.2d 298.

Child Support 491 In determining whether an indigent party in a contempt proceeding based on

nonpayment of child support has a due process right to appointment of counsel, after balancing each

of the due process elements against the other, they as a whole are measured against the presumption

that a right to appointed counsel arises only when the indigent party may lose his personal freedom.

Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark, 2004, 102 P.3d 41, 120 Nev. 798,

certiorari denied 125 S.Ct. 2905, 545 U.S. 1116, 162 L.Ed.2d 298. Constitutional Law 4494 N. R. S.

22.010, NV ST 22.010 ABout 10 minutes into the "Trial" Judge Howard Found the undersigned in

contempt, whereupon the sixth amendment righ to counsel was invoked, which Judge Howard curtly

dismissed. the Summary Contempt ORder is void, avaingst public policy, prevented a fair trial,

demonstrated evident impartialit, and severly curtailed the undersigned faith in the court and belief

that any evidence he offered or testimony would be given fair treatment, but rather, the undersigned

was givne the message that he would be clubbed with anything he said, as such, testimony and


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evidence (that which was not being withheld illegally by Richard HIll, Esq. pursuant to an unlawful

rent distraint) was not given a legitimate opporutnity to be admitted or offered.For purposes of

statute governing summary contempt proceedings for direct contempt committed in judge's

presence, which requires court to “enter an order,” while a trial court's oral contempt order is

immediately enforceable, a written order including the statute's required elements must be promptly

entered. Houston v. Eighth Judicial Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269, 122

Nev. 544. Contempt 52 6. ---- Sufficiency Appropriate remedy for attorney who had been found in

direct contempt of court in divorce proceeding in which he represented wife, where contempt order

had been found to be insufficient by Supreme Court, in that it did not contain a sufficient statement

concerning what conduct was held to be contemptuous, was to permit trial court to enter amended

order, given that Supreme Court's opinion addressed issue of first impression and announced

standard for contents of written contempt order. Houston v. Eighth Judicial Dist. Court ex rel.

County of Clark, 2006, 135 P.3d 1269, 122 Nev. 544. Contempt 66(8) A written summary contempt

order, issued pursuant to statute governing summary contempt proceedings for direct contempt

committed in judge's presence, must set forth specific facts concerning the conduct found to be

contemptuous. Houston v. Eighth Judicial Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269,

122 Nev. 544. Contempt 52 Written summary contempt order finding attorney for wife in divorce

proceeding in direct contempt of court failed to indicate what particular comments by attorney were

held to be contemptuous, and, thus, order was insufficient, under statute governing summary

contempt proceedings for direct contempt committed in judge's presence. Houston v. Eighth Judicial

Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269, 122 Nev. 544 Judge Howard's Summary

Contempt ORder is laughably conclusory and generic. It must be set aside on that an other basis.

Further, the record on appeal demonstrates that the Contempt ORder does


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not seem to have been served, their is no Proof of Service as far as I can tell so far....to either the

undersigned or the City Attorney. AS such, a Notice of Entry is required and the District Court may

not even have jurisdiction yet on this A "pleading" is not a "motion", but... RULE 15. AMENDED

AND SUPPLEMENTAL PLEADINGS Text (a) Amendments. A party may amend the party’s

pleading once as a matter of course at any time before a responsive pleading is served or, if the

pleading is one to which no responsive pleading is permitted and the action has not been placed

upon the trial calendar, the party may so amend it at any time within 20 days after it is served.

Otherwise a party may amend the party’s pleading only by leave of court or by written consent of

the adverse party; and leave shall be freely given when justice so requires. A party shall plead in

response to an amended pleading within the time remaining for response to the original pleading or

within 10 days after service of the amended pleading, whichever period may be the longer, unless

the court otherwise orders. [As amended; effective January 1, 2005.] (b) Amendments to Conform to

the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the

parties, they shall be treated in all respects as if they had been raised in the pleadings. Such

amendment of the pleadings as may be necessary to cause them to conform to the evidence and to

raise these issues may be made upon motion of any party at any time, even after judgment; but

failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at

the trial on the ground that it is not within the issues made by the pleadings, the court may allow the

pleadings to be amended and shall do so freely when the presentation of the merits of the action will

be subserved thereby and the objecting party fails to satisfy the court that the admission of such

evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The

court may grant a continuance to enable the objecting party to meet such evidence. [As amended;

effective January 1, 2005.] (c) Relation Back of Amendments. Whenever the claim or defense


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asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading, the amendment relates back to the date of the

original pleading. (d) Supplemental Pleadings. Upon motion of a party the court may, upon

reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading

setting forth transactions or occurrences or events which have happened since the date of the

pleading sought to be supplemented. Permission may be granted even though the original pleading is

defective in its statement of a claim for relief or defense. If the court deems it advisable that the

adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

Nevada NRCP 60(b)(3) allows a party to move for relief from a judgment which is void, and while

motions made under NRCP 60(b) are generally required to "be made within a reasonable time" and

to be adjudicated according to the district court's discretion, this is not true in the case of a void

judgment. Necessarily a motion under this part of the rule differs markedly from motions under the

other clauses of Rule 60(b). There is no question of discretion on the part of the court when a motion

is made under [this portion of the Rule]. Nor is there any requirement, as there usually is when

default judgments are attacked under Rule 60(b), that the moving party show that he has a

meritorious defense. Either a judgment is void or it is valid. Determining which it is may well

present a difficult question, but when that question is resolved, the court must act accordingly. By

the same token, there is no time limit on an attack on a judgment as void. . . . [E]ven the requirement

that the motion be made within a "reasonable time," which seems literally to apply . . . cannot be

enforced with regard to this class of motion. Understandably, the parties were not attuned to our

recent Jacobs decision during oral argument. Accordingly, it was determined at that time to allow

the parties to supplement their briefs in order to determine with certainty whether, in fact, no default

had been entered against Garcia prior to the entry of the default judgment. Garcia's supplemental


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material supplied additional evidence that no default was ever entered, including an affidavit by

Clark County Court Clerk Loretta Bowman attesting that no such filing exists in the case file.

Respondents also acknowledged that no default was ever entered but argue in their supplemental

brief that Jacobs should not be applied retroactively, noting that the default judgment at issue herein

was entered prior to our Jacobs decision. This argument is without merit. The court in Jacobs

determined, consistent with law from other jurisdictions, that the default judgment entered in Jacobs

was void. We accordingly ordered the district court to grant relief from the void judgment, despite

the fact that the ruling in Jacobs was, of course, preceded by entry of the default judgment against

Jacobs. If this case, rather than Jacobs, were before us as a case of first impression, we would have

reached the same conclusion. A void judgment is void for all purposes and may not be given life

under a theory based upon lack of legal precedent. Garcia v. Ideal Supply Co., 110 Nev. 493, 874

P.2d 752 (Nev. 5/19/1994). The defective service rendered the district court's personal jurisdiction

over Gassett invalid and the judgment against her void. For a judgment to be void, there must be a

defect in the court's authority to enter judgment through either lack of personal jurisdiction or

jurisdiction over subject matter in the suit. Puphal v. Puphal, 669 P.2d 191 (Idaho 1983). In Price v.

Dunn, 106 Nev. 100, 787 P.2d 785 (1990). We now hold that the filing of a motion to set aside a

void judgment previously entered against the movant shall not constitute a general appearance. See,

e.g., Dobson v. Dobson, 108 Nev. 346, 349, 830 P.2d 1336, 1338 (1992). Nonetheless, since the

order was void, a judgment based thereon would likewise be void.. Nelson v. Sierra Constr. Corp.,

77 Nev. 334, 364 P.2d 402. Under NRCP 60(b) a motion to set aside a void judgment is not

restricted to the six months' period specified in the rule. NRCP 54(a) provides that the word

"judgment" as used in these rules includes any order from which an appeal lies. Therefore there is no

merit to appellants' contention that the motion to vacate the judgment was not timely made. Foster v.


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Lewis, 78 Nev. 330, 372 P.2d 679 (Nev. 6/19/1962). A void judgment is subject to collateral attack;

a judgment is void if the issuing court lacked personal jurisdiction or subject matter jurisdiction; See

49 C.J.S. Judgments § 401, at 792 (1947 & supp. 1991); 46 Am.Jur.2d Judgments §§ 621-56 (1969

& supp. 1991). New Mexico If a court's decision is plainly contrary to a statute or the constitution,

the court will be held to have acted without power or jurisdiction, making the judgment void for

Rule 1-060(B) purposes, even if the court had personal and subject-matter jurisdiction. See, e.g.,

United States v. Indoor Cultivation Equip., 55 F.3d 1311, 1317 (7th Cir. 1995) (forfeiture statute

required that complaint be filed within sixty days of certain action; failure to meet that deadline

meant that court had no power to order forfeiture, and its order was void); Watts v. Pinckney, 752

F.2d 406, 409 (9th Cir. 1985) (after judgment awarded, defendant paid, then found out this was

action in admiralty that should have been brought solely against United States; court held that

judgment was void); Compton v. Alton S.S. Co., 608 F.2d 96, 104 (4th Cir. 1979) (judgment by

default awarded penalty wages under inapplicable statute; court held that judgment was void, not

just erroneous); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir. 1979) (noting

that judgment can be void if court's action involves a "plain usurpation of power"); Crosby v.

Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963) (court had no power to impose unconstitutional

prior restraint on publication of true statements, so thirty-year-old consent judgment was void). In

APCA, APCA as a defendant filed a cross-claim against defendant Martinez, but it was void

because not served on Martinez. On February 28, 1968, entry of judgment was made on APCA's

cross-claim against Martinez. Four years later, Martinez' heirs moved to set aside the APCA

judgment under Rule 60(b) and in December, 1972, the 1968 judgment was set aside because it was

void. No time limit applies where a void judgment is entered. Albuquerque Prod. Credit Ass'n v.

Martinez, 91 N.M. 317, 573 P.2d 672 (1978). Since the 1973 judgment was void, the 1976 district


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court was required to set it aside pursuant to N.M.R. Civ.P. 60(b)(4) [§ 21-1-1(60)(b)(4)], N.M.S.A.

1953 (Repl. Vol.1970). There is no discretion on the part of a district court to set aside a void

judgment. Such a judgment may be attacked at any time in a direct or collateral action. Chavez v.

County of Valencia, 86 N.M. 205, 521 P.2d 1154 (1974). At this point we call attention also to

language found in the opinion in Moore v. Packer, 174 N.C. 665, 94 S.E. 449, 450, noticed by us

and quoted with approval in the Ealy case. It was there said: "A void judgment is without life or

force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it

may and will be ignored everywhere, and treated as a mere nullity." All the appellees rely upon this

general rule in answer to appellants' challenge that they never took an appeal from the order and

judgment setting

aside the June, 1937 default judgment and decree. The court being without jurisdiction to set aside

its earlier judgment and decree, quieting title, appellees might ignore it as a void order or judgment,

they say, and for this reason were not required to take an appeal therefrom, and may question the

jurisdiction of the court and the validity of the order or judgment at any time. Board of County

Commissioners of Quay County v. Wasson, 37 N.M. 503, 24 P.2d 1098; Fullen v. Fullen, 21 N.M.

212, 153 P. 294; Baca v. Perea, 25 N.M. 442, 184 P. 482; De Baca v. Wilcox, 11 N.M. 346, 68 P.

922. In the case of Upjohn Co. v. Board of Commissioners of Socorro County (Stephenson,

Intervener) 25 N.M. 526, 185 P. 279, 280, we held a judgment against a garnishee void where

service of the writ of garnishment was made by a person other than the sheriff, where we said: "The

proceeding is wholly statutory, and compliance with the statute is essential to confer upon the court

jurisdiction of the res." And held that the court was vested with power to set aside and vacate such

void judgment at any time. A void judgment is one that has merely semblance, without some

essential element or elements, as where the court purporting to render it has not jurisdiction. An


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irregular judgment is one entered contrary to the course of the court, contrary to the method of

procedure and practice under it allowed by law in some material respect, as if the court gave

judgment without the intervention of a jury in a case where the party complaining was entitled to a

jury trial, and did not waive his right to the same. Vass v. Building Association, 91 N. C. 55; McKee

v. Angel, 90 N. C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be

attacked collaterally at all, but it must remain and have effect until by appeal to a court of errors it

shall be reversed or modified. An irregular judgment may originally and generally be set aside by a

motion for the purpose in the action. This is so because in such case a judgment was entered

contrary to the course of the court by inadvertence, mistake, or the like. A void judgment is without

life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be

void it may and will be ignored everywhere, and treated as a mere nullity." Moore v. Packer, 174 N.

C. 665, 94 S. E. 449, at page 450. [T]he applicable ground [for relief] would be Rule 60(B)(4), void

judgment, under which the failure to move to vacate within one year after the entry of judgment

would not be controlling. Classen v. Classen, 119 N.M. 582, 893 P.2d 478, 34 N.M. St. B. Bull. 24

(N.M.App. 02/27/1995). The appellants contend that the court lost jurisdiction over the action thirty

days after the judgment was vacated. They argue that the appellees never appealed the order which

vacated the judgment, consequently, thirty days later the court was divested of authority to entertain

any motion concerning these parties and the same cause of action, and that for these reasons the

motion to amend the cross-claim was improperly granted. This point is not well-taken. The pertinent

portions of Rule 60(b) state: On motion and upon such terms as are just, the court may relieve a

party or his legal representative from a final judgment, order, or proceeding for the following

reasons:... (4) the judgment is void.... An order granting a motion for relief under 60(b) must be

tested by the usual principles of finality; and when so tested will occasionally be final, although


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probably in most cases it will not be. Thus where the court, in addition to determining that there is a

valid ground for relief under 60(b), at the same time makes a re-determination of the merits, its order

is final since it leaves nothing more to be adjudged.... Since Martinez never received notice of the

cross-claim, the stipulated judgment was void as to him. Therefore, it was completely proper for his

heirs to move to set aside that void judgment under Rule 60(b)(4). When the original judgment was

vacated as to Martinez, the status of the case was as though no judgment had been entered as to him.

Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (1972); Benally v.

Pigman, 78 N.M. 189, 429 P.2d 648 (1967); Arias v. Springer, 42 N.M. 350, 78 P.2d 153 (1938).

Rule 60(b) of the Rules of Civil Procedure abolishes the common law writ of coram nobis but

authorizes relief from a "final judgment, order, or proceeding" on six specified grounds. Ground (2)

involves newly discovered evidence; ground (4) involves a void judgment; and ground (6) involves

"any other reason justifying relief". Although Rule 60(b) is a civil rule, State v. Romero, supra, held

that where a prisoner had served his sentence and had been released, this civil rule could be utilized

to seek relief from a criminal judgment claimed to be void. This result was based on an intent to

retain all substantive rights protected by the old writ of coram nobis. See State v. Raburn, supra;

Roessler v. State, 79 N.M. 787, 450 P.2d 196 (Ct. App. 1969), cert. denied, 395 U.S. 967, 89 S. Ct.

2115, 23 L. Ed. 2d 754 (1969). Continuing jurisdiction over final judgment. The judgment entered

on April 25 was a final judgment. The City argues that Brooks could obtain relief from the writ

issued on May 1 only under SCRA 1986, 3-704(B) (Repl. Pamp. 1990), which limits relief to (1)

mistake, inadvertence, surprise or excusable neglect; (2) fraud, misrepresentation or other

misconduct; (3) a void judgment; or (4) satisfaction, release or discharge of the judgment or the

reversal or vacation of a prior judgment upon which it is based. However, NMSA 1978, Section 34-

8A- 6(E) (Repl. Pamp. 1990), states that "All judgments rendered in civil actions in the metropolitan


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court shall be subject to the same provisions of law as those rendered in district court." Under

NMSA 1978, Section 39-1-1 (Repl. Pamp. 1991), final judgments and decrees entered by the district

courts remain under the control of such courts for thirty days after entry thereof. Therefore, the

metropolitan court retained control of its judgment and had the right to set it aside after granting a

rehearing on the matter. See, e.g., Nichols v. Nichols, 98 N.M. 322, 326, 648 P.2d 780, 784 (1982)

(district court is authorized under Section 39-1-1 to change, modify, correct or vacate a judgment on

its own motion) (citing Desjardin v. Albuquerque Nat'l Bank, 93 N.M. 89, 596 P.2d 858 (1979)).

The fact that the void judgment has been affirmed on review in an appellate court or an order or

judgment renewing or reviving it entered adds nothing to its validity. Such a judgment has been

characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable

of bearing no fruit to plaintiff but constituting a constant menace to defendant." WALLS v.

ERUPCION MIN. CO. 6 P.2d 1021 November 3, 1931. Judge Howards Judgment and Summary

Contempt ORder are both void for all the reasons listed above in view of all the pleadings and

papers and attachments on file in this matter, especially when one adds in all the filing and materials

that should be in the Record on Appeal, but strangely are not. correcting clerical errors in judgments:

Nevada Alamo Irr. Co. v. U.S., 81 Nev. 390, 404 P.2d 5 (1965) — Supp Channel 13 of Las Vegas,

Inc. v. Ettlinger, 94 Nev. 578, 583 P.2d 1085 (1978) — Supp Finley v. Finley, 65 Nev. 113, 189

P.2d 334 (1948) — Supp Gottwals v. Rencher, 60 Nev. 35, 98 P.2d 481, 126 A.L.R. 1262 (1940) —

Supp Iveson v. Second Judicial Dist. Court, 66 Nev. 145, 206 P.2d 755 (1949) — Supp Kirkpatrick

v. Temme, 98 Nev. 523, 654 P.2d 1011 (1982) — Supp Koester v. Administrator of Estate of

Koester, 101 Nev. 68, 693 P.2d 569 (1985) — Supp McKissick v. McKissick, 93 Nev. 139, 560

P.2d 1366 (1977) — Supp Opaco Lumber & Realty Co. v. Phipps, 75 Nev. 312, 340 P.2d 95 (1959)

— Supp Silva v. Second Judicial Dist. Court in and for Washoe County, 57 Nev. 468, 66 P.2d 422


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(1937) — II, IX, XII, XIII, XV, XVIi, XIX Smith v. Epperson, 72 Nev. 66, 294 P.2d 362 (1956) —

Supp

CONCLUSION

Regardless, the "Judgment" or "Order" here was not appropriately served on the undersigned

on November 30th, 2011. Further, the undersigned made many, many calls and written attempts

and trips to the RMC to obtain a copy of the Contempt Order, the Guilty Judgment, and the audio

recording of the Trial and all were either not granted, not provided, or provided in such a delayed

manner as to create an unduly prejudicial situation adversely effecting the undersigneds rights

sufficient to impermissibly compromise fundamentals notions of fairness and due process.

Further, the Order is "rendered" when Judge Howard says it is "rendered", and Judge Howard

clearly indicated, on the record, as demonstrated in the audio record, which will be available to the

District Court ultimately, the 10 day deadline for filing a Notice of Appeal would not begin running

until after the 3 day Summary Contempt Order's three day jail sentence concluded. Damn, this

stuff is complicated. Sure it nice to see the government goign hard as a mother to protect lil ol'

Wal-Mart whom is rumored to be the subject of a documentary about how they have a intricate

system of weasling out of their "Return Policy" and retaliating against those who call them on it.

AFFIRMATION Pursuant to NRS 239B.030

Also, this document does not contain any social security number or other inappropriate material

pursuant to NRS 239B.030.

Dated this February 1, 2012

/s/ Zach Coughlin_________________ Zach Coughlin, Esq.

Pro Se Attorney Appellant


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-----------------------------

PROOF OF SERVICE

I, Zach Coughlin, declare:

On february 1, 2012, I, Mr. Zach Coughlin served the foregoing document by faxing and delivering and serving upon registered efilers and depositing a true and correct copy in the US Mail addressed to:

PAM ROBERTS, ESQ JOHN KADLIC, ESQ Reno City Attorney's Office - Criminal Division P.O. Box 1900 Reno , NV 89505

Phone Number: 7753342050 Fax number: 7753342420 Attorney for Respondent, City of Reno

Zach Coughlin AGENT OF APPELLANT


00602

•• .EXHIBIT #1

EXHIBIT #1

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Document Code: 2645 Zach Coughlin, Esq. FILED Nevada Bar No: 9473

• 2UI2 FEB - I PM 5: 0, I1422 E. 9th St. #2 Reno. NY 89512 Tele: 775-338-8118 Fax: 949-667-7402 Zaclle ough I i [email protected] Attomey for Appellant

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEY ADA

IN AND FOR THE COUNTY OF WASHOE

ZACH COUGHLIN; ) )

Appellant. ) )

vs. ) CASE NO: CRII-2064 )

CITY OF RENO ) DEPT. NO: 10 )

Respondents. ) )

SUPPLEMENT TO MOTION TO DISMISS

COMES NOW, Appellant Zach Coughlin, by and through his attomey, Zachary Barker

Coughlin. Esq. and offers his_SUPPLEMENT TO MOTION TO DISMISS. The undersigned was

instrucled by the Second Judicial District Court to submit a cd/dvd for filing as an exhibit to a filing

in this manner.

- 1

SUPPLEMENT TO MOTION TO DISMISS 00605

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AFFIRMATION Pursuant to NRS 239B.030

Also. this document does not contain any social security number or other inappropriate material

pursuant to NRS 2398.030.

Dated this February 1.2012 ,

---'"'

/s/ Zach Cou in//" Zach Cou m, J5iSq.

~rp Se Attorney Appellant .J

- 2


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PROOF OF SERVICE

I, Zach Coughlin. declare:

On february 1. 2012. I, Mr. Zach Coughlin served the foregoing document by faxing and delivering and serving upon registered eiilers and depositing a true and correct copy in the US Mail addressed to:

PAM ROBERTS, ESQ JOHN KADLIC, ESQ Reno Clty Attorney's Offlce - Cnmmal 01vls10n

P.O. Box 1900 Reno. NV 89505

Phone Number. 7753342050

fax number: 7753342420

Attorney for Respondent, City of Reno

/--------:J d ) ___J/~-- C --- --

-------- -::: - "'-.- - -----~ Zach C ghlm AGE OF APPELLANT

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NDEX TO EXHIBITS:

. EXHIBIT 1 cd OF AUDIO OF II 30 11 TRIAL IN RMC 11 CR 22176 FROM RMC; ONE cd

- 4


****** IMPORTANT NOTICE - READ THIS INFORMATION *****PROOF OF SERVICE OF ELECTRONIC FILING

A filing has been submitted to the court RE: CR11-2064

Judge: STEVEN ELLIOTT

Official File Stamp: 02-01-2012:16:46:41

Clerk Accepted: 02-02-2012:08:31:50

Court: Second Judicial District Court - State of Nevada

Case Title: ZACH COUGHLIN VS. CITY OF RENO (D10)

Document(s) Submitted: Supplemental ...

Filed By: ZACHARY COUGHLIN, ESQ.

You may review this filing by clicking on the following link to take you to your cases.

This notice was automatically generated by the courts auto-notification system.

If service is not required for this document (e.g., Minutes), please disregard the below language.

The following people were served electronically:

ZACHARY COUGHLIN, ESQ. for ZACH COUGHLIN

PAMELA ROBERTS, ESQ. for CITY OF RENO

The following people have not been served electronically and must be served by traditional means (see Nevada electronic filing rules):

00609

https://wceflex.washoecourts.com/notify?pageAction=ViewCases

2 1 12 cr11-2064 coughlin's supplement to mtn to dismiss 22176 60838

Documents