reply to response to motion for reoncsideration (ga court appeals)
DESCRIPTION
This is the reply filed to Wachovia's Response to Motion For Reconsideration in Georgia Court of Appeals.TRANSCRIPT
COURT OF APPEALS OF GEORGIA
JAMES B. STEGEMAN, *JANET D. MCDONALD *
Appellants ** APPEAL CASE NO. A07A1846
vs. **
WACHOVIA BANK, N.A., et., al * Appellees *
REPLY TO DEFENDANT/APPELLEE’S RESPONSE TOAPPELLANT’S MOTION FOR RECONSIDERATION
Appellants filed a timely Motion For Reconsideration December 17, 2007
pursuant to Georgia Court of Appeals Rule 37, Appellees filed their Response
December 27, 2007.
Appellants MOVE this Honorable Court to Grant their Motion For
Reconsideration; Appellants MOVE this Honorable Court to Reverse Superior
Court’s Order. Among the reasons for granting Appellant’s Motion For
Reconsideration: “the Court overlooked material fact in the record”; “a statute or a
decision which is controlling authority would require a different judgment from
that rendered”; “erroneously construed or misapplied a provision of law or a
controlling authority”.
Lack of action by this Honorable Court would lead one to conclude that The
Georgia General Assembly and or Congress have amended the Constitutions and
or statutes by removing liability of tortfeasors and removing the Right to relief for
law-abiding, tax-paying citizens with no criminal record, who have not been
charged, arrested or convicted of any crimes, yet who have become victims with
their property seized and damaged without due process of law and having been
subjected to various tortious and fraudulent actions.
Controlling Authorities – Provisions of Law
Appellants have been denied the Georgia and United States’ Constitutional
Right of due process of law; they have been denied the Constitutional guarantees
of the right to “be heard”, and not to be “treated differently” by the Courts than
others in the same situation.
Appellees in this matter have continually been allowed to do as they please.
Appellees are not above having to abide by the rules, regulations, procedures,
statutes. Appellants will show in the following that even the State of Georgia has
had to follow the same rules, regulations and procedures as the normal litigant, yet
Appellees are treated with preference.
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Motions To Dismiss and Defaults
The trial Court improperly granted Appellee’s Motion To Dismiss and the
case should be remanded to Superior Court with instructions to the trial Court
Judge. Superior Court held Appellants to “stringent” rules, procedures, and
statutes to the point that bias, prejudice and discrimination is obvious. Shown
below, even the State of Georgia has been held to “stringent” rules, regulations,
procedures and statutes; Wachovia is not above the law and favoritism should not
be shown to these Appellees.
See:
Azarat Marketing Group, Inc. v. Georgia Department Of
Administrative Affairs, 245 Ga. App. 256, 245 Ga. App. 256,
537 S.E.2d 99, 537 S.E.2d 99 VERSUSLAW (Ga. App.
07/06/2000); Reversed; The opinion of the court was delivered
by: Ellington, Judge.:
at [15]: “…the trial court failed to consider the evidence
presented in the light most favorable to Azarat as non-movant,
*fn1 the trial court erred in allowing the State to claim res
judicata …”; “Res judicata is an affirmative defense that must
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be raised in a timely filed responsive pleading. OCGA § 9-11-8
(c).”
at [16]: “(b) The trial court also erred in finding that a "general
conclusory statement" in the pleadings that there had been a
breach of contract fails to state a cause of action …”
at [17]: “[A] defendant in default is in the position of having
admitted each and every material allegation of the plaintiff's
petition except as to the amount of damages alleged. The default
concludes the defendant's liability, and estops him from offering
any defenses which would defeat the right of recovery. (Citations
and punctuation omitted.) Cohran v. Carlin, 254 Ga. 580, 585 (3)
(331 SE2d 523) (1985). See also OCGA § 9-11-55 (a).”
at [19]: “In this case, Azarat's complaint shows that (1) there
was an agreement for it to sell the State 36 computers for a total
price of $33,984.00; (2) the computers were delivered as
promised; (3) all conditions precedent to Azarat's right of
recovery have occurred; and (4) the State has refused to pay for
the computers pursuant to its agreement. These allegations were
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sufficient to state a cause of action for breach of contract and
were deemed admitted by the State's default. See OCGA §§ 9-
11-8 (a) (2); 9-11-55 (a); see also Morgan v. Ga. Vitrified Brick
&c. Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990) (all
doubts resolved in favor of plaintiff on a motion to dismiss for
failure to state a claim).”
See also:
Jesson v. GCH & Associates, Inc., 248 Ga.App. 97, 545
S.E.2d 645 VERSUSLAW (Ga.App. 02/16/2001); The opinion
of the court was delivered by: Johnson, Presiding Judge. At
[15]: “The trial court also found correctly that Jesson's remedy
was to move to open the default pursuant to OCGA § 9-11-55
(b).” “Under OCGA § 9-11-55 (b), a prejudgment default may
be opened on one of three grounds if four conditions are met.
The three grounds are: (1) providential cause, (2) excusable
neglect, and (3) proper case; the four conditions are: (1) showing
made under oath, (2) offer to plead instanter, (3) announcement
of ready to proceed with trial, and (4) setting up a meritorious
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defense. . . . Generally, the opening of a default rests within the
sound discretion of the trial court. However, compliance with the
four conditions is a condition precedent; in its absence, the trial
judge has no discretion to open the default. *fn2”; “*fn2
(Citations and punctuation omitted.) Stewart v. Turner, 229 Ga.
App. 119, 121 (2) (493 SE2d 251) (1997).”
See also:
"Under the Civil Practice Act a motion to dismiss a
complaint for failure to state a claim upon which relief may be
granted should not be granted unless averments in the complaint
disclose with certainty that plaintiffs would not be entitled to
relief under any state of facts that could be proven in support of
the claim." Hardy v. Gordon, 146 Ga. App. 656, 657 (247 SE2d
166) (1978).”;
"While conclusions may not generally be used in affidavits to
support or oppose summary judgment motions [cit.], conclusions
may generally be pleaded under the Civil Practice Act. 'Under
this "notice" theory of pleading it is immaterial whether a
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pleading states "conclusions" or "facts" as long as fair notice is
given, and the statement of claim is short and plain.' [Cit.] '(T)he
true test is whether the pleading gives fair notice and states the
elements of the claim plainly and succinctly, and not whether as
an abstract matter it states "conclusions" or "facts".' [Cit.]
'(T)here are no prohibitions in the rules against pleading
conclusions and, if pleaded, they may be considered in
determining whether a complaint sufficiently states a claim for
relief. It is immaterial whether an allegation is one of fact or
conclusion if the complaint effectively states a claim for relief.' 1
Kooman, Federal Civil Practice, 250. Accord, Davis &
Shulman's Georgia Practice & Procedure 2-5 (4th Ed. 1975)."
Guthrie v. Monumental Properties, 141 Ga. App. 21, 23 (232
SE2d 369) (1977).”
It has clearly been shown that Appellees had defaulted not only in Superior
Court, but upon Removal to Federal Court failed to timely file an answer in that
Court as well. Superior Court failed to follow procedure concerning default giving
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Appellees more lee-way than this Honorable Court in the past, allowed the State of
Georgia. Appellees failed to file a Motion To Open Default in either Court.
The trial Court violated procedure and statutes when grating Appellee’s
“Motion To Dismiss”. There were questions of disputed material fact, Appellants
could prove many of the counts in their complaint and The Georgia General
Assembly has deemed that “tort” is a recoverable cause of action.
See White v. Johnson, No. 58117, 1979. GA. 1553 VL, at
[18] (259 S.E.2d 731)(1979) (Ga. App. 345 Sept 14,
1979) “… and did not allege the circumstances
constituting the fraud with particularity as required by §
9B of the Georgia Civil Practice Act (Code Ann. §81A-
109(b)). Appellant’s contention is without merit since “n
Cochran v. McCollum, 233 Ga. 104 (210 S.E.2d 13) it
was held where there is a failure to plead fraud with
particularity that the correct remedy is not a motion to
dismiss or strike but a motion for more definite statement
under CPA §12(e) (Code Ann §81A-112(e)).” Scroggins
v. Harper, 144 Ga. App. 548, 549 (241 S.E.2d 648)
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(1978). The record contains no motion for a more
definite statement and, therefore, the trial court did not
err in denying appellant’s motion to strike.””
Material Fact in the Record
Before filing this Civil action and continuing to date, Appellees have cast
aspersions, demeaned, slandered, defamed the characters of Appellants for the sole
purpose of bringing bias and prejudice in the Courts against the Appellants, thus
ensuring unsuccessful legal action against them. The tortious acts of Appellees
must not be ignored, the Appellants are not the first victims of the fraudulent
scheme bestowed upon them; should this Honorable Court fail to act, they will not
be the last victims.
The Appellant’s complaint alleges causes of action for “tort” in nature and
stated several times that they possess supporting, concrete evidence in support of
their allegations. Appellees are aware of the supporting evidence due to discovery
performed and Superior Court is well aware of the evidence due to Superior Court
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civil action #: 02-cv-9732-8,1 Joyner v. Stegeman in which there was a Motion to
Compel hearing against Appellees as a non-party. Before filing this action,
Appellants had obtained critical evidence against Appellees in which to prove
allegations in their complaint.
Among Appellant’s evidence: The Original agreements and contracts from
the opening of the accounts, Certified Bank Records showing fraud and
mismanagement of accounts; Certified depositions by Senior VP Wachovia
Securities and Senior Compliance Officer stating exactly how the accounts came
about, how the accounts were opened, and to whom the accounts belonged; the
1 Judge Hunter was presiding Judge, therefore the claim in her Order Dismissing
the case dated April 12, 2007 states on page 1, second ¶: “Plaintiffs allege…”;
Plaintiffs had some undefined relationship…”; “… some disagreement with certain
actions taken by the court appointed guardian…” These statements are false, Judge
Hunter presided over the case for two years and had full knowledge of the events
alleged in the complaint. Further, after two and a half years when the Guardian
could produce no evidence against Stegeman, he backed out of the case, and
Appellants regained what was left of their assets.
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lack of Court Orders setting aside Stegeman’s Durable Power of Attorney2 and the
notarized Directive from Caffrey to McDonald.
To address what Appellees and Superior Court contend is confusion of
“account and account(s)” in the complaint, a CAP Account is comprised of more
than one account number, and along with the fact that Certified Bank Records
indicate that the Appellees had moved the assets numerous times and different
account numbers one might surmise as an effort to hide the assets, then in the end
there was only one account.
Appellees would have the Courts believe that: “the funds and property in
Plaintiff’s accounts emanated from Ms. Jean Caffrey”3; and they go on to state:
“Despite the Temporary Guardianship Letter…”4; Appellees continue: “To this
end Plaintiffs appear to complain that Wachovia and Mr. Joyner acted without
2 Special Durable Power of Attorney on file at DeKalb County Courthouse dated
January 21, 1998 Book 9791 pgs. 22-24 as well as Wachovia Bank and Wachovia
Securities
3 pg. 2, I. Summary of Alleged facts, 2nd¶ of “Wachovia Bank, National
Association’s Memorandum of Law In Support Of It’s Renewed Motion To
Dismiss Complaint” dated April 13, 2006
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proper documentation to change both names and addresses on accounts, deny
Plaintiffs access to the accounts, de-link the accounts, close the accounts and sell
mutual funds from the accounts.”5
The reality is that legal documentation shows that: “the funds and property
in Plaintiff’s accounts” belonged to Appellants; a Temporary Guardianship Letter
amounts to nothing without a Judge’s signature and Seal, the document has no
legal significance; and such a document presented by someone that Appellees
claim to have no relationship with does not replace a Court Order and clearly
shows that not only did Appellees have some kind of relationship with, but at the
direction of John Joyner breached the fiduciary duty that banks owe their
customers;
4 pg. 2, I. Summary of Alleged facts, 3rd¶ of “Wachovia Bank, National
Association’s Memorandum of Law In Support Of It’s Renewed Motion To
Dismiss Complaint” dated April 13, 2006
5 pgs. 2-3, I. Summary of Alleged facts, 3rd¶ of “Wachovia Bank, National
Association’s Memorandum of Law In Support Of It’s Renewed Motion To
Dismiss Complaint” dated April 13, 2006
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Appellees admit they had no Court Order signed and sealed by a Judge
appointing a County Guardian, no Court Order dismissing a legal notarized
directive from Caffrey to McDonald, no Court Order allowing access to
Appellant’s accounts, and no Court Order dismissing Stegeman’s special Durable
Power of Attorney. Further, they can provide no evidence that McDonald,
Stegeman or Caffrey agreed to allow the “Guardian” access to any of the accounts
held by Appellees. Without Court Orders or permission, Appellees can prove no
legal authorization that would enable them to take any action regarding Appellant’s
accounts.
Doctrine of Separation of Powers and Rule of Stare Decisis
Neither the Superior Court nor this Honorable Court has the power to
change, inflate or diminish the meaning of either Georgia law or The State of
Georgia Constitution or decisions of the Supreme Court. See the following:
2003 Ga. App. LEXIS 1463,*264 Ga. App. 252, 590 S.E.2d
386, 2003 Fulton County D. Rep. 3600 at [*27]: “The three
justice plurality opinion in Thompson v. Crownover is not
authority to the contrary. Because the Court of Appeals is bound
by the Georgia Constitution and the doctrine of stare decisis to
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follow the decisions of the Supreme Court, we are not at liberty
to decline”
See also [*32]: “to follow the "patent defect" rule as decided
by that Court. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI.
Accordingly, Bastien, 209 Ga. App. 881 (434 S.E.2d 736) and
Watts v. Jaffs, 216 Ga. App. 565 (455 S.E.2d 328) (1995) (which
relied on Bastien and the three justice plurality in Thompson v.
Crownover to reach a similar result), should be overruled to the
extent they contravene the decisions of the Supreme Court
establishing and applying the "patent defect" rule in tort claims
by tenants against landlords. n25”
See also Etkind et al v. Suarez et al S98G1978 (271 Ga. 352)
(519 SE2d 210) (1999) V/LEX which shows: “More
importantly, the doctrine of separation of powers is an immutable
constitutional principle which must be strictly enforced.
McCutcheon v. Smith, 199 Ga. 685, 691 (2) (35 SE2d 144)
(1945). Under that doctrine, statutory construction belongs to
the courts, legislation to the legislature. We can not add a line to
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the law, nor can the legislature enlarge or diminish a law by
construction.” ‘[Cits.]” Modern Homes Constr. Co. v. Burke,
219 Ga. 710, 715 (135 SE2d 383) (1964).” And: “Courts like
individuals, but with more caution and deliberation, must
sometimes reconsider what has been already carefully considered
and rectify their own mistakes…”
Georgia and Federal Constitutions
Appellants have been victims of an unconstitutional and illegal taking of
property. Superior Court failed to protect the property when the protection from
waste was requested, and the Appellees admittedly aided a County Guardian6 in the
illegal seizure and taking of the assets.
6 Certified Bank records clearly show, and Appellees freely admit a lack of legal
documentation appointing Guardian (Appellants will hereinafter refer to John
Joyner as “John Joyner”, “Joyner”, “Guardian” or “the Guardian”). Clearly,
Appellees had no legal documentation enabling the seizure or access to Appellant’s
assets, thereby Appellees breached their contract with and their fiduciary duty to
Appellants, both recoverable causes of action for which Appellees are liable.
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Appellants were denied their Right to produce evidence in support of the
complaint, the only hearing that had a date set was cancelled by the trial Court,
what the hearing set was to address was changed and a decision made while
Appellant’s supporting briefs and documents were held un-filed in the Court.
The Appellants claimed to have a contract, Appellees claimed Appellants
had no contract. There should have been a hearing, a hearing had been set, no
objection to a hearing was filed. The hearing was requested in order for Appellants
to present their evidence and since there appears to have been rebutted evidence, a
hearing should have been had to make the determination.
Our Georgia Constitution provides:
“No person shall be deprived of life, liberty, or property, except
by due process of law.” Code Ann. 2-103. The Federal
Constitution’s equivalent of this is contained within the Fifth and
Fourteenth Amendments. The Georgia Constitution also
provides: “Legislative acts in violation of this Constitution, or
the Constitution of the United States, are void, and the Judiciary
will so declare them.” Code Ann. 2-402
See also:
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IN RE LAW SUITS, 235 Ga. App. 551, 510 S.E.2d 91
(Ga. App. 12/02/1998) VERSUSLAW, at [235 Ga. App. Page
556] [31]: "Both the Georgia and United States Constitutions
prohibit the state from depriving `any person of life, liberty, or
property, without due process of law.' United States Const.,
amend. XIV, sec. 1; see also Ga. Const., [Art. I, Sec. I, Par. I].
The fundamental idea of due process is notice and an opportunity
to be heard." *fn14 As stated in Citizens &c. Bank v. Maddox,
*fn14 "[t]he benefit of notice and a hearing before judgment is
not a matter of grace, but is one of right." "A party's cause of
action is a property interest that cannot be denied without due
process. (Cit.)"; *fn14: at[47] “*fn14 OCGA § 9-15-2 (d).”
CONCLUSION
Appellants have clearly shown that the trial Court as well as Appellees
violated rules and statutes; Appellees defaulted in both US District Court as well as
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Superior Court 7; The Appellants in this matter have been held to a more
“stringent” standard than have the Appellees showing prejudice, bias,
discrimination toward the Pro Se Appellants which in turn has shown them
inequality in the Courts.
It is up to this Honorable Court to ensure fairness and to see that Rules,
Regulations, Procedures and Statutes are abided by and all parties treated equally.
This Honorable Court so far has failed to do this.
Appellants MOVE this Honorable Court to Reconsider it’s Order, Reverse
Superior Court’s Order and find in favor of the Appellants.
Respectfully Submitted this 3rd day of January, 2008
7 When making statements about US District Court, Appellees clearly perjured
themselves by claiming Fed. R. Civ. P. 81(c) controlled when their responsive
pleading was due and claiming that the Court allowed them longer to file an
answer than 30 days see Appellee’s Brief, pg3, 2nd ¶; Appellees further perjured
themselves by claiming that they didn’t know when US District Court Remanded
the case when it was sent to them the same day electronically see Appellee’s Brief
pg.4, fn2.
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BY: ___________________________JAMES B. STEGEMAN, Pro Se
821 Sheppard RdStone Mountain, GA 30083
(770) 879-8737
BY: __________________________ JANET D. MCDONALD, Pro Se
821 Sheppard RdStone Mountain, GA 30083
(770) 879-8737
CERTIFICATE OF SERVICE
I hereby certify that I have this 3rd day of January 2008, served a copy
of the within and foregoing REPLY TO DEFENDANT/APPELLEE’S
RESPONSE TO APPELLANT’S MOTION FOR RECONSIDERATION
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upon Appellees/Defendants in this matter through their attorney by causing to be
deposited in the U.S. Mail, proper postage prepaid, a true and correct copy of same
addressed to each of their attorneys as follows:
William J. Holley, IIJodi Emmert ZysekPARKER, HUSON, RAINER & DOBBS, LLP1500 Marquis Two Tower285 Peachtree Center Avenue, NEAtlanta, GA 30303
___________________________JAMES B. STEGEMAN, Pro Se
___________________________JANET D. MCDONALD, Pro Se
821 Sheppard RdStone Mountain, GA 30083
(770) 879-8737
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