Reply Petition for Cert. GA Supreme Court by NootkabearMcDonald

VIEWS: 187 PAGES: 14

									PETITIONER’S SUPPLEMENTAL TO PETITION FOR WRIT OF CERT.
            AND REPLY TO RESPONDENT’S BRIEF

      Petitioner Moves this Honorable Court, when ruling on his Petition for Writ

of Certiorari, to take into consideration this Petitioner’s Supplemental to Petition

for Writ of Certiorari/Reply to Respondent’s Response.

      Because Respondent failed to appear at the peremptory hearings in Superior

Court,1 or file a Brief to the Appeal filed in the Georgia Court of Appeals,

Petitioner was at a disadvantage when preparing his Petition for Certiorari.

Petitioner could only guess at what Respondent’s Response would be. For this

reason, the pro se Petitioner Moves this Honorable Court, that when Ruling, it

considers the contents of this Supplemental/Reply.


                            RESPONDENT’S BRIEF


      Claims by Respondent and the Court of Appeals, that “Petitioner sought a

Reconsideration” is without merit. Obviously the Court of Appeals failed to read

Appellant’s Brief. Petitioner, although disabled and proceeding pro se, does not

lack the intelligence to differentiate between a Motion for Reconsideration and/or

a Motion to Void Judgment and/or an Appeal.


1
  Petitioner watched the docket report and calendar because of his’ unsuccessful
attempts to get a final Ruling which he could appeal, he watched the docket report
and court calendar, and had waited 3.5 years for one.

                                        -1-
      Respondent’s Brief 2, is very confusing; he points out James Stegeman is the

Appellant, and Lillig is the Appellee (RB-3, 1st ¶) he then intentionally mis-uses

Appellant and Appellee throughout. He refers to Petitioner as Appellant, then,

within the same paragraph, refers to Petitioner as Appellee (RB-6 1st ¶); he does

the same to the Respondent, referring to him as Appellee, then as Appellant.

      Respondent addresses the Order dated March 8, 2006, then states that

“Appellee did not take part in the Motion for Ruling in Favor of Appellant, Motion

for Order on Void Judgment, or the Motion for Order on Appeal.” (RB-4)

Opposing counsel perjures himself saying “…only became aware of these actions

to the Supreme Court when the Appellant received notice of such action of Appeal

to the Georgia Supreme Court.”

      Respondent attached both Judge Scott’s Order and Judge Shoenthal’s Order

as Exhibit A and Exhibit B respectively. Not only did Petitioner inquire with the

Courts3 as to Counsel on file representing Lillig, but the Certificates of Service

clearly show that Lillig was mailed copies of all of the filings. Order Granting

2
 Respondent’s Brief referred to hereinafter as RB; when referring to a particular
page, such as page 4: RB-4
3
  Petitioner contacted the Superior Court prior to filing the January 2009 Motion,
contacted this Honorable Court prior to beginning the Appellant’s Brief, and
contacted the Court of Appeals of Georgia prior to preparing the Appellate Brief to
that Court, every court informed Petitioner that there was not an attorney on file for
Respondent at that time. Petitioner finds it questionable why Judge Shoenthal’s
Order was even mailed to opposing counsel rather than to Lillig since there was no
attorney showing on file.
                                         -2-
Motion to Proceed on Appeal in Forma Pauperis, as well as Judge Shoenthal’s

June 26th Order (Petition for Writ Appendix D; Respondent’s Exhibit B) showing

“cc: James Stegeman, Pro Se” “Robert Turner, Esq.” the Court mailed it to

Robert Turner. How Respondent’s counsel can claim surprise when both he and

Respondent were served all documents, is beyond Petitioner’s imagination.

        Respondent attempts to cloud the facts with ludicrous statements:

            “Appellee’s4 request for writ…does not address the decision of
           the Court of Appeals,…does not address the Superior Court’s
           Ruling that the Appellee5 failed…timely basis6…All that
           Appellant is appealing is the DeKalb Superior Court’s dismissal
           of his appeal to Superior Court…”

        Petitioner’s entire Petition addresses Probate and Superior Court’s Denying

the Right to Appeal, by either outright Denial, or by refusal to provide a Final

Ruling, as well as why the early Probate Court Rulings are void.7 None of the

Courts, or Respondent have ever addressed the Void Judgments.

        Because the first rulings were Void, and the perpetrators knew they were

4
    Should’ve stated Appellant’s
5
    Should’ve stated Appellant’s
6
 Petitioner stated that Probate Court refused to allow an Appeal, mailed the check
back after time to file Notice of Appeal had expired.
7
  Neither attorney Robert Turner, TGP, nor Lillig were present at the first Probate
hearing, the Court gave the only recording to TGP and Turner who claimed they
destroyed the tape because it was inaudible, thereby no transcript of that hearing
that doesn’t appear on the Docket Report either. There is no one that could even
argue against the fact that the Ruling was and is Void. This also shows that
Petitioner was denied the Right to Appeal that hearing/ruling as well.

                                         -3-
void, all of their actions after the Void Rulings, were knowingly, willingly,

wantonly, malicious criminal.

        Petitioner cited ample caselaw on failing to provide a party final rulings, and

denying a party it’s Rights of Appeal. The only thing that Petitioner failed to

address was the claim that the Motions were Moot. In contrast, in order for the

doctrine of mootness to come into play, there can no longer be any actual

controversy.

           Moot. adj. 1. Archaic. Open to argument, debatable. 2. Having
           no practical significance; hypothetical or academic <the question
           on appeal became moot once the parties settled their case.> -
           mootness.8

        The United States Supreme Court has held that a matter is not moot if the

conduct originally complained of is "'capable of repetition, yet evading review.'"

Murphy v. Hunt, 455 U.S. 478, 482 (1982). The injurious conduct complained of

is both “capable of repetition”, and “evading review”.

     The Court of Appeals claimed that “…he filed three motions essentially seeking

a ruling on appeal – a ruling that had already been rendered…. these motions can

be construed as motions for reconsideration…not directly appealable.” Common

sense dictates that, had the Court of Appeals read the Brief, and Docket Report

(Exhibit 1), they would have seen that Petitioner was denied the Ruling, thereby

preventing an Appeal. The Brief clearly states numerous times Petitioner was

8
    Black’s Law Dictionary, 7th Ed. page 1024.
                                          -4-
denied a ruling. June 26, 2009 Judge Shoenthal saw to it that Petitioner obtained a

copy of the claimed March 2006 ruling; at the same time, according to Judge

Shoenthal, his June 2009 ruling supplied Petitioner with an Appealable Ruling.

          UNDISPUTED, UNREBUTTED FACTS AND EVIDENCE

    A few of the grounds Rulings are Void: denial of due process, access to court,

fraud upon the court.

         “When rule providing for relief from void judgments is
         applicable, relief is not discretionary matter, but is mandatory,”
         Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).

         “Void order which is one entered by court which lacks
         jurisdiction over parties or subject matter, or lacks inherent
         power to enter judgment, or order procured by fraud, can be
         attacked at any time, in any court, either directly or collaterally”
         People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d
         66 (Ill.App. 2 Dist. 1994).

       Grounds for which Probate and Superior Court’s Orders are Void:

    1. Rulings for which Probate Court lacks subject matter and/or personal

       jurisdiction, Probate Court is limited jurisdiction, cannot rule on equity

    2. Rulings made by Probate Clerk without power or authority to Rule.

    3. Decedent signed an Irrevocable Durable Power of Attorney9 with an Interest

       (Exhibit 2) in 1998, naming Petitioner as Attorney in Fact; the Irrevocable

       Durable Power of Attorney with an Interest has never been set aside in
9
  Respondent and attorney Robert Turner have continuously made falsum claim
that the Irrevocable Durable Power of Attorney with an Interest was a General
Power of Attorney, resulting in fraud upon the Court to obtain rulings.

                                         -5-
         writing or otherwise, Probate Court lacks jurisdiction to set it aside.

     4. Ms. Caffrey’s primary physician deemed her incompetent in 2001; Under

         Oath, the attorney who drew up the new Will, admitted that he knew there

         was a question of decedent’s competency in DeKalb County10.

     5. The Original Will, had been on file at DeKalb County since 1992, eleven

         years; a hearing never concluded on the validity of the new Will.11

     6. With two Wills, and without having a hearing, the day after Respondent

         Petitioned for Temp. Administrator appointment,12 Probate Court Clerk

         appointed Respondent as Temp. Administrator, the appointment was

         obtained through fraud and fraud upon the court.

     7. Petitioner, as Creditor of the Estate, filed Objection to Discharge of

         Administrator on the grounds that Administrator committed perjury claiming

         he had satisfied all debts of the Estate13; Exhibit 3 shows unpaid debts of

         the estate and/or cases filed against Petitioner for the debts.

     8. Rather than respond to the Objection, almost six months later, Respondent
10
  The unconcluded January 14, 2004 hearing does not show on the docket report;
Respondent’s attorney’s sister transcribed it, she swore that she was not related to
any of the parties or their attorneys, perjury
11
  It must be judicially noted that the new Will shows decedent signed her last
name using 3 f’ s: Cafffrey, instead of 2: Caffrey.
12
     Respondent had already obtained a $100,000 Bond before filing petition.
13
   Both settlement agreements signed by Respondent’s attorney stated that they
were responsible for debts of the estate; one of the debts was being mailed directly
to Respondent’s home while decedent was living, it was never paid.

                                             -6-
          filed for Summary Judgment so that they could claim it was a Civil case.

     9.    Probate Court violated due process of law: refused to allow Response to

          Summary Judgment, Summary Judgment Memo, Petition to Revoke

          Letters of Testamentary, Motion to Compel be filed into the Record, after

          the filing fees were paid, Exhibit 1;14 then refused to allow Petitioner to

          Appeal the ruling; Petitioner Appealed directly to Superior Court only after

          Probate Court mailed back the check used for appellate fees Exhibit 415

     10. Probate Court ruled, claiming Petitioner was a beneficiary16; Petitioner was

          not named in the new Will; the Order is void on it’s face.

     11. February 22, 2006 Petitioner filed in Superior Court a separate Notice of

          Intent to Appeal each of the issues before the Court, see “Exhibit 5”.

     12. Petitioner did not receive a copy of Respondent’s Motion to Dismiss.

     13. March 24, 2006 Petitioner filed Motion for Order on Appeal and Motion
14
   Exhibit 1 contains the Docket Report, and communication between Ms.
McDonald and DeKalb Courts Operations Manager, Ms. Gretchen Landau about
the documents having not been filed.
15
  Please note that Notice of Appeal filed in Probate Court (the Notice is stamped
“Filed”) was properly, timely filed; then after time had expired for which Notice of
Appeal could timely be filed, they X’d out the “Filed” and mailed the check and
Notice back to Petitioner. This is outright Denying The Right to Appeal.
Furthermore, the Docket Report shows that no hearing had ever happened, there is
no record of a hearing, no transcripts, nothing to show a hearing.
16
   Beneficiary (ben-Ə-fish-ee-er-ee or ben-Ə-fish-Ə-ree), n. A person who is
designated to benefit from an appointment, disposition, or assignment (as in a will,
insurance policy etc.); one designated to receive something as a result of a legal
arrangement or instrument. Black’s Law Dictionary, 7th Ed. pg. 149

                                            -7-
   for Order on Void Judgment, attempting to get the Court to Rule Exhibit 6;

   for 3.5 years, Superior Court held the matter without ruling, evidenced by

   appearing on the peremptory hearing calendar; results in a non-amendable

   defect.

14. Petitioner, without being Noticed for any of the four scheduled peremptory

   calendar hearings, attended three of the hearings, the first and third attended

   were scheduled as peremptory, the second as a Jury Trial, see Exhibit 1.

15. Before the January 2009 scheduled peremptory Jury Trial hearing,

   Petitioner filed Motion for Judgment in his favor, the Court at the previous

   peremptory hearings, had granted the same relief to others (disparate

   treatment).

16. The Docket Report shows the grounds for Respondent’s Motion to Dismiss

   were: Failure to State a Claim, Lack of Subject Matter Jurisdiction,

   Lack of Appellate Jurisdiction, Improper Venue, Failure to Join

   Necessary Parties, and Res Judicata, Exhibit 1.

17. Petitioner had to wait until June 26, 2009 to get an Order that he could

   appeal, Respondent failed to file a Brief in the Court of Appeals, who

   dismissed the Appeal two days after Petitioner filed Appellant’s Brief, a

   whole term before it was scheduled to be decided.

One would logically conclude something amiss in the Court of Appeals. Two


                                     -8-
days after Petitioner filed Appellant’s Brief, without allowing Respondent twenty

days to file Appellee’s Brief, they Dismissed the Appeal claiming that it was a

Motion for Reconsideration.

   The Court of Appeals has joined the lower court’s pattern and practice, under

color of law, of denying a disabled pro se litigant his statutory and Constitutional

Right to Appeal.

                         CITATIONS OF AUTHORITY

      The single, unconcluded hearing to determine the validity of the new will,

had none of the necessary Will’s witnesses available for examination:

         “Probate in solemn form requires that 'all the witnesses' be
         produced, if they be in life and within the jurisdiction of the
         court." Bloodworth v. McCook, 193 Ga. 53 (17 SE2d 73). "To
         make out a prima facie case, and to be entitled to a judgment of
         probate in solemn form, the propounder must introduce at the
         hearing all the subscribing witnesses, if living and accessible, or
         proof of their signatures, if dead or inaccessible. Code 113-602.
         They must be introduced, for examination, even though the
         propounder knows that their testimony will be unfavorable to
         him." Spivey v. Spivey, 202 Ga. 644, 649 (44 SE2d 224). To the
         same effect see Brown v. Anderson, 13 Ga. 171; Redfearn on
         Wills and Administration of Estates, 114. "Upon the trial of an
         application to prove a will in solemn form, they [witnesses] are,
         all of them, unless accounted for, indispensably necessary
         witnesses; . . ." Gillis v. Gillis, 96 Ga. 1, 15 (23 SE 107, 30 LRA
         143, 51 ASR 121); Brown v. Anderson, supra.

      The case of Gillis v. Gillis, 96 Ga. 1, 17, supra, held: "The main reason of

the rule for calling all witnesses in a proceeding for probate in solemn form is, to

give the other party an opportunity of cross-examining them.” Petitioner was

                                        -9-
denied this Right.     Probate Court’s appointment of Respondent as Temp.

Administrator without a hearing shows bias/prejudice.

      Further, fact remains that Respondent and his attorney (an officer of the

Court) committed fraud and fraud upon the Court to obtain the ruling in their favor.

Petitioner was extorted into a Withdrawal of Caveat, but he cannot be estopped

from seeking to have the judgment set aside:

         "The judgment of a court having no jurisdiction of the person or
         subject-matter, or void for any other cause, is a mere nullity, and
         may be so held in any court when it becomes material to the
         interest of the parties to consider it." (Emphasis ours). Such
         assent does not operate as a waiver or an estoppel so as to
         prevent the plaintiff from pursuing a suit to set aside a void
         judgment of probate. Miller v. Miller, et., al., (104 Ga. App. 224)
         (121 SE2d 340) (1961)

      This Court has held that “Courts of equity shall17 assist creditors in reaching

equitable assets in every case where to refuse interference would jeopardize the

collection of their debts.” See Dukes, et., al., v. Cairo Banking Company, et., al.,

140 S.E.2d 182, 220 Ga. 507 (1965)          Probate Court has no jurisdiction over

matters involving equity. The Superior Court abused discretion by not setting

aside Probate Court’s rulings, including the Summary Judgment Ruling.

       During almost three years of involvement with Probate Court, only one

hearing shows on the record, that one was nine months after decedent’s death; well

17
  Even a pro se litigant understands that the words shall and must remove the
Court’s discretion and the statute must be applied as written.

                                        - 10 -
past the six months available to name a proper Administrator/Personal

Representative. Respondent held the position of Temp. Administrator for one

year, and Superior Court allowed a case to proceed without a proper party Plaintiff.

       Withdrawal of Caveat was part of a Superior Court settlement agreement18

between Petitioner and Respondent. The agreement was obtained through fraud

and fraudulent representations. Petitioner honored his duty; Respondent and his

counsel, immediately used the Withdrawal to get Letters of Testamentary, then

refused to honor Respondent’s obligation and went out of the way to hinder what

was guaranteed Petitioner by the agreement.

         Petitioner found within his attorney’s files, documentation where she had

given Respondent’s attorney permission to sign her name to whatever documents

he drew up. A specific agreement had been approved by Petitioner, both attorneys

had signed it. Respondent’s attorney changed the agreement, then neither attorney

would file it. The two attorneys committed fraud and fraud upon the court , to get

the Superior Court to remove the case from the Jury Trial calendar, set to start in

two days.

         After six months of trying to get the agreement filed in Superior Court,

Petitioner was extorted into a new agreement when Superior Court set the case on

the Jury Trial Calendar while Petitioner was unrepresented by counsel. New

18
     Petitioner was approached on settling, he did not approach Respondent.

                                         - 11 -
counsel had to be obtained to file Motion to Enforce the agreement; Superior

Court refused to Grant the Motion forcing a new agreement to be drawn up, one

less favorable to Petitioner “Exhibit 6”.

      Nevertheless, both agreements show Respondent was obligated for all debts

of the estate. Respondent refused to pay the debts, then perjured himself while

under Oath. Petitioner had been paying one the debts the whole time, and demands

made by Petitioner for payment of the debt ignored.

      The Federal Rules of procedure and the Georgia Civil Practice Act are

almost identical. For that reason, we can look at the United States Supreme Court

cases brought from Federal Courts to determine if Rulings by State Courts are

proper. The U.S. Supreme Court has held time and again:

         The logical conclusion to be drawn …from the historical
         development of the principle of mootness, is that while an
         unwillingness to decide moot cases … may be overridden ... The
         "capable of repetition, yet evading review" exception is an
         example. So too is our refusal to dismiss as moot those cases in
         which the defendant voluntarily ceases, at some advanced stage
         of the appellate proceedings, whatever activity prompted the
         plaintiff to seek an injunction. See, e. g., City of Mesquite v.
         Aladdin's Castle, Inc., 455 U.S. 283, 289, n. 10 (1982); United
         States v. W. T. Grant Co., 345 U.S. 629, 632 (1953). See Honig
         v. Doe, et., al., 108 S. Ct. 592, 484 U.S. 305, 98 L. Ed. 2d 686,
         56 U.S.L.W. 4091, 1988. SCT. 40449.




                                        - 12 -
                         CONCLUSION AND PRAYER

      Petitioner has shown that Probate Court’s Rulings are not merely Voidable,

but are in fact Void and must be set aside.

      There has been no competent evidence produced to rebut Petitioner’s

evidence, no competent denials to rebut Petitioner’s stated facts, which have now

become judicially admitted. Still, justice has been denied.      One can come to

only one conclusion, there is no justice, and the Courts, the Clerks, and the

attorneys can do as they please without consequence.

      Because what Petitioner is complaining of, that which has caused him injury,

is the Courts’ Denials of his statutory and Constitutional Rights to Appeal, and

because the denials to Appeal have continued, they are matters “capable of

repetition, yet evading review”, they are not in fact moot.

      Petitioner has met the requirements of showing “extraordinary nature”,

“great concern, gravity and importance to the public” and Petitioner has not asked

for a “review of the sufficiency of evidence”; therefore Petitioner Prays his Writ be

Granted.

Respectfully Submitted, this 31st day of December, 2009

                                           By: _________________________
                                               JAMES B. STEGEMAN, Pro Se
                                                     821 Sheppard Road
                                                 Stone Mountain, GA 30083
                                                       (404) 300-9782


                                         - 13 -
              IN THE SUPREME COURT OF GEORGIA

                          No. S10C0509
           __________________________________________

           JAMES B. STEGEMAN                        Appellant/Petitioner,

                                     Versus


           FRANK J. LILLIG, III                     Appellee/Respondent

 ________________________________________________________________

                    CERTIFICATE OF SERVICE
  _______________________________________________________________

      I hereby Certify that I have this 31ST day of December, 2009 served a true

and correct copy of the foregoing Petitioner’s Supplemental to Petition for Writ

of Certiorari/Reply to Respondent’s Response upon Appellee/Respondent in this

matter through his attorney on file by causing same to be deposited with the United

States Postal Service, First Class Mail with proper postage affixed thereto as

follows:


Robert E. Turner
111 North McDonough St.
Decatur, GA 30030
                                                _____________________________
                                                  JAMES B. STEGEMAN, Pro Se
                                                         821 Sheppard Rd.
                                                    Stone Mountain, GA 30083
                                                           404-300-9782

      -

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