IN THE COURT OF APPEALS STATE OF GEORGIA JAMES B. STEGEMAN, APPELLANT vs. HERITAGE BANK, APPELLEE APPEAL NO.

: A10A0420

MOTION FOR RECONSIDERATION PURSUANT TO RULE 37 Pursuant to Rule 37, Appellant timely1 files Motion for Reconsideration, and shows that the Court overlooked many material facts in the record, as well as controlling authority which would require a different judgment from that rendered. Appellant further shows that the Court has erroneously construed or misapplied provisions of law and controlling authority. Appellant’s Motion for Reconsideration falls well within the guidelines of Rule 37(e) Basis for Granting: “A reconsideration will be granted on motion, … the Court overlooked a material fact in the record, a statute or a decision which is
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Rule 37(b)

controlling…would require a different judgment .., erroneously construed or misapplied a provision of law or a controlling authority.” Nowhere in the Ruling, does this Court state that Heritage Bank failed to respond to, dispute or rebut the Verified Answers and Counterclaim, motions in the trial court; and failed to file a Brief in this Court. Further, this Court has failed to treat Appellant the same as they have treated others in the same, or in similar circumstances. This court has not acted with neutrality or impartiality as required of an Appellate Court; this Court has in fact, acted on behalf of the Appellee and done the work of Appellee’s counsel; the results of this Court’s and it’s clerk’s actions is disparate treatment of a disabled litigant and manifest injustice. This Court’s whole ruling is spent criticizing the Appellant. Appellant

Moves this Court to reconsider it’s Ruling. Having been exposed to the corruption, unfair and unethical treatment bestowed upon many litigants, especially pro se and/or disabled litigants, Appellant has lost faith in Justice and the Judicial system. I. UNDISPUTED FACT The record clearly shows the following undisputed facts:
1.

Appellant is a disabled adult, a member of a protected class, and is to be

protected under O.C.G.A. §30-5-1 through 30-5-10 The Disabled and Elder
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Persons Protection Act. 2 Appellant has never been indicted, charged, arrested or convicted of a crime. The disabled in this county are among the most

discriminated against, economically disadvantaged persons in this country.3
2.

Appellant has been denied the fundamental of due process, the Right to

be heard. The trial court ignored Appellant’s Verified Answer and Counterclaim, Demand for Jury Trial, and every Motion filed by Appellant.
3.

The record is devoid of Responses, Objections, and/or Rebuttals,

2

30-5-3. As used in this chapter, the term: (1) 'Abuse' …willful infliction of

…, mental anguish, …willful deprivation of essential services to a disabled adult…; (8) 'Essential services' …, legal services necessary to safeguard … rights and resources … (9) 'Exploitation' …illegal or improper use of a disabled adult …or that persons resources for another’s profit or advantage. (10) 'Neglect' means the absence or omission of essential services ….
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U.S.C.42 §12101(b) disabled persons: “relegated to a position of political

powerlessness…”, “inferior status… severely disadvantaged …, economically…”, “unfair and unnecessary discrimination and prejudice denies …the opportunity to compete on an equal basis…”, “have often had no legal recourse to redress”.
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indicative of conspiracy to find in favor of the opposition.4
4.

The record, devoid of anything except Appellant’s filings, supports

Appellant’s enumeration of errors. This Court continually complained that Appellant failed to show his claims “by the record” [pgs.4-6]. Not true, the record clearly shows – no opposition, objections or rebuttals, and no Rulings/Orders.
5.

This Court complained that the Appellant failed his duty to “include in

the appellate record the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment” [pg.4]. Appellant asked nothing be omitted from the record, which the clerk, not the Appellant, is responsible for and she certified the record complete. [pg.3].
6.

Appellant’s Brief showed that Heritage Bank changed attorneys without

notice or permission from the court, and without withdrawal or entry of appearance. Heritage Bank was no longer represented by counsel.
7.

The August rescheduled hearing, and the September 10, 2009 hearing, were

both held in Magistrate Court, presided over by the Magistrate Judge LeShaw.
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Uniform State Court Rules: Rule 6. Motions In Civil Actions 6.2Reply

…, each party opposing a motion shall…file a response, reply… not later than 30 days after service … or on the date of the hearing …whichever occurs sooner.
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The DeKalb County State Court Judges are: Div.1: Judge Wong; DelCampo; Div 3: Judge Purdom;

Div.2 Judge

Div4 Judge Panos; Div5: Judge Mobley;

Div 6 Judge Carriere, Jr.; Div7 Judge Gordon; no State Court Judge LeShaw. No notice of transfer to Magistrate Court, and nothing within the record to authorize a transfer [pg.7 ¶2]. Judge LeShaw ( Magistrate Judge), held a hearing 1st Floor, Courtroom 1200C (Magistrate Courtroom), Appellant was not listed on the State Court calendar5 ( was listed on the Magistrate Court calendar) and the hearing was for Writ of Possession, the proceedings and pretrial were conducted as in Magistrate dispossessory proceedings. The Writ form shows a ten year old date: 19___, (we are in 2010). The Writ had no written order with it, no findings of fact and conclusions of law; This Court implies that because there is nothing in the record showing the transfer that Appellant lied [pg.5@2]; The trial court obviously knows this Court would do NOTHING about the transfer to Magistrate Court. This Court is too concerned with protecting the guilty and their criminal acts, to take steps to correct and halt the trial court’s criminal behavior.
5

Appellant May 11, 2010 was able to obtain the State Court, September 10 th Court

Calendar for State Court Div 3, Appellant is not on calendar, which Appellant has attached to this Motion as “A”; Magistrate Clerk is Melanie F Wilson.
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8.

This Court goes on to condemn Appellant for not producing a transcript. At

the hearing, Appellant in wheelchair; had to be taken directly to the Judge’s bench, the Courtroom is not handicapped friendly, the microphones do not reach down far enough for persons in a wheelchair. Even if there had been a court reporter, the Judge gave Appellant no more than five minutes, and the court reporter would not have been able to hear what was said. Writ was already filled out prior to hearing.
II.

DEMAND FOR JURY TRIAL [App. Brief pgs. 9-11]

This Court references [Order pgs.1,2,5] Appellant’s Demand for Jury Trial, and states that Appellant’s claims of error are “either unsupported by the record or without merit”. Appellant, through caselaw, proved that the case should have been reversed and Remanded. The trial court docket clearly shows a Non-Jury hearing. Further, the record is devoid of a necessary pre-trial Order (Rule 7.2), and fails to show which courtroom. This Court stated there is nothing in the record to show whether or not there was a jury hearing, the court then immediately insinuated Appellant had not even appeared for the hearing.[pg.5]. This Court’s claims are quite convenient given that Appellant’s Brief and caselaw on ignoring Jury Demands shows without question that this case had to be remanded due to “nonamendable defect” Redding v. Commonwealth of America,
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143 Ga. App. 215, 216 (1) (237 S.E.2d 689) (1977); Wise, Simpson &c. Assoc. v. Rosser White &c., Inc., 146 Ga. App. 789, 795-796 (247 S.E.2d 479) (1978); Coker v. Coker, 251 Ga. 542 (307 S.E.2d 921) (1983); Scott v. W. S. Badcock Corp., 161 Ga. App. 826 (289 S.E.2d 769) (1982). The Constitution of Georgia as well as the Civil Practice Act guarantees the right to a jury trial for civil litigants. See Raintree Farms v. Stripping Center, 1983.GA.1020 <http://www.versuslaw.com>, 166 Ga. App. 305 S.E.2d 660, 848 (judgment reversed) in holding: “Constitution 1976, Art. VI, Sec. XV, Par. I

(Code Ann. § 2-4401) (unchanged, insofar as relevant here, in the Constitution of Georgia of 1982, effective July 1, 1983); OCGA § 9-11-38 (formerly Code Ann. § 81A-138 (Ga. L. 1966, pp. 609, 652)). The right may be "expressly waived" by "written stipulation filed with the court…" OCGA § 9-11-39 (formerly Code Ann. § 81A-139 (Ga. L. 1966, pp. 609, 652))” This court cited Robenolt v. Chrysler Fin Servs Corp., which actually says:

The record reveals…rule nisi …on the petition for writ of possession,…parties agree…hearing was continued…, appellant contends the rescheduled … evidentiary hearing did not take place, while appellee, in its brief, states that the hearing was held…but that appellant failed to appear….parties do not agree,…
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record does not indicate affirmatively …hearing was held …whether appellant was present. Stegeman are: The big differences between Robenolt, and Heritage Bank v 1) Appellee filed a Brief 3) 2) the brief filed disputed

Appellant’s claim

The record on Appeal would include a Docket Report,

which would show that there was never a Jury Trial scheduled; and 4) An evidentiary hearing and a Jury Trial are two very different hearings.
III.

STATE -MAGISTRATE COURT TRANSFER [App Brf. Pgs.11-15]

This Court stated that Appellant “claims” the trial court “erred in transferring” the action from State to Magistrate Court”[Ruling pg.5] bringing up that there was no documentation showing that there was a transfer; EXACTLY Appellant’s point; there was nothing showing the transfer, it was illegally done. This Court insists that State Court Granted the Writ of Possession. Appellant’s response is: 1)

Judge Gary Leshaw is a Magistrate Court Judge; 2) The hearing was held in Courtroom 1200C, the Magistrate Courtroom; Purdom’s Courtroom is 3C; 3) State Court Judge

4) The State Court would have been required to

file a real Order, not merely a Writ with no written Order; 5) A State Court, and Heritage Bank would have been required to follow the Georgia Civil Practice Act and Uniform State Court Rules, but did not, they used Magistrate Court Rules.
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IF State Court held the hearing, where is the Order with findings of fact and conclusions of law, or is that just for non-disabled persons that the Court picks and chooses is deserving of such. And why is there only a Writ of Possession? This Court has repeatedly held “the lack of findings of fact and conclusions…in the order, however overcomes the presumption of regularity” Barnett v Freeman, 157 Ga. App. 760, 761 (2) (278 SE2d 694)(1981). This Court held “it may not be appropriate to examine a hearing transcript or the requisite findings” Franklin Credit Mgmt. Corp. v Friedenberg, 275 Ga. App. 236,241(2)(b)(620 SE2d 463) (2005); Maryland v Brown 276 Ga. App. 229,231 n.2 (622 SE2d 901)(2005)
IV.

COUNTERCLAIM & MOTIONS IGNORED (App.Brf.Pgs.15-19]

This Court failed to address the Counterclaim and the lack of ruling thereon. Further, for Counterclaims and Motions that the trial court ignored, there isn’t a more affirmative way to show it was ignored, it is not in the record. This Court claims it is acceptable for State (or magistrate) court to close the case, remove it from the records, into the dead case file with an undecided Counterclaim and Motions without them being ruled on.
V.

APPELLEE FAILED TO FILE A BRIEF

The Appellee having failed to file a Brief, and the record being devoid of any
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Orders, speaks for itself. This Court in past cases held: “Because appellee has failed to file a brief with this court”, the Court “will accept appellant's statement of the case as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof”. Cincinnati &c. R. Co. v. Hilley, 121 Ga. App. 196 (1) (173 SE2d 242) (1970); see Colson v. State, 138 Ga. App. 366 (1) (226 SE2d 154) (1976); Clark v. Stafford, 239 Ga.App. 69, n. 1, 522 S.E.2d 6 (1999); Daniel v. Allstate Ins. Co., 660 SE2d 765 (2008). “We note that appellee has failed to file a brief on appeal. Accordingly, ‘we will accept appellant's statement of the case as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof.’" Jones v. Cooke, 169 Ga.App. 516(1), 313 S.E.2d 773 (1984). “Curtis Products failed to file an appellee's brief. However, this does nothing more than admit the appellant's statement of facts, "which …, this court may accept as being prima facie true." (Emphasis supplied.) Montford v. State, 164 Ga.App. 627, 628, 298 S.E.2d 319 (1982).
VI.

THE RECORD

Apparently, the Court puts too much emphasis on Appellant’s failure to concoct a transcript from memory. Nevertheless, this Court’s past cases shows that in a
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case that never had more than a bench trial lasting five (5) minutes in a Magistrate Court, a transcript is not fatal to the Appeal because the record clearly shows the Motions, lack of opposition thereto, and no Orders. In fact the record clearly supports enumerations of error. The record clearly shows that although Appellant filed several unopposed Motions, they were not ruled on. The record further clearly shows that Appellant’s Verified Answer and Counterclaim w/evidence was never rebutted, disputed, opposed, or addressed. This Court complains that Appellant failed “to include in the appellate record the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment”. The record, which this Court states was “Certified” and sent by the trial court, clearly shows that there was nothing in the record other than what Appellant filed, nothing to reference; cannot be laid upon the Appellant as this Court attempts to do. Further, the trial Court failed to provide any written Orders, even the Writ, and failed to make “required express findings of fact and conclusions of law”, this Court had to “remand the case for reconsideration”. "A judgment devoid of these findings must be vacated and the case must be remanded for reconsideration." Bailey v. McNealy, 277 Ga. App. 848, 849 (1) (627 SE2d 893) (2006).
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the blame for this

In Gilchrist v. Gilchrist, 650 S.E.2d 795, 287 Ga.App. 133 (Ga.App. 08/07/2007), this court held: “As the trial court's order omitted these mandatory findings, we must remand this case ‘with direction that the trial court either include in its order findings of the conduct that authorized the award or vacate its order. [Cit.]’" Justice v. Musselman, 214 Ga. App. 762, 763 (450 SE2d 460) (1994). The facts surrounding the record, the enumerations of error and lack of Appellee’s Brief clearly shows that the trial court’s ruling had to be reversed and remanded, but this Court in Appellant’s Appeal, has refused to do so; subjecting Appellant to disparate treatment, and acting as counsel for appellee. Nevertheless, this Court in other appeals has held that “trials’ court oral findings in the transcript are not sufficient to satisfy the requirement for express findings of fact and conclusion of law” Maynard v. Brown, 276 Ga. App. 229, 231 n.2 (622 SE2d 901) (2005)
VII.

APPELLANT’S CIVIL AND CONSTITUTIONAL RIGHTS

Appellant, a disabled adult, is a member of a protected class. Further, the state of Georgia receives Federal funding for the protection of and prevention of discrimination against the disabled. The 11th Circuit in Sheely v MRI Radiology Network, P.A., 2007 WL 3087215 (11th Cir. Oct. 2007) held: “When an entity
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accepts federal funding…it does so in exchange for a promise not to discriminate”; “a foreseeable consequence… is emotional distress to the victim”.
A.

Title 42, Chapter 21, Subchapter V-Federally Assisted Programs “Program of activity” and “program” defined: mean all

§ 2000D-4a.

operations of: (1)(A) a department, agency, … instrumentality of a State or of a local government; or (B) the entity of such State or local government that distributes such assistance …, in the case of assistance to a State or local government; any part of which is extended Federal financial assistance.
B.

The Georgia Department of Resources

Date: 10/19/01, Review date: 11/01/2007, Index: POL5500, Subject: Adult Protective Services: “Policy: to protect the welfare of the disabled adults …subject to abuse, neglect or exploitation ….” A. Authority: O.C.G.A. § 30-5-1 to

O.C.G.A. § 30-5-10 (Protection of Disabled Adults and Elder Persons) B. References: Title XX of the Social Security Act, Social Services Block Grant,
C.

18, U.S.C., § 242 Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the
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Constitution and laws of the U.S. …include acts not only done by federal, state, or local officials within …their lawful authority, but also acts done without …their lawful authority; …This definition includes, … Judges… CONCLUSION Heritage Bank, has been estopped by this court of collecting a money judgment. Had the Court ruled that Ms. Caffrey’s death was not a default, the Estate would have been liable for the debt, Administrator of Caffrey’s Estate has ample funds to satisfy the debt. Instead, the Courts falsified the records, to protect Joyner and Lillig, who committed bank fraud. (OCGA §16-10-20) None of the estate debts

were paid, Lillig perjured himself, and Appellant has had numerous suits against him filed for debts of the estate. Because of the corruption within the DeKalb County Stone Mountain Judicial system, and the continuous falsification of records and fact, the criminals are protected, and the innocent suffer. Appellant’s only funds come from Supplemental Security Income. “But there is another consideration - the imperative of judicial integrity.” It

was of this that Mr. Justice Holmes and Mr. Justice Brandeis so eloquently spoke in Olmstead v. United States, 277 U.S. 438 , at 469, 471, more than 30 years ago.: "For those who [364 U.S. 206, 223] agree with me," said Mr. Justice Holmes, "no
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distinction can be taken between the Government as prosecutor and the Government as judge." 277 U.S., at 470 .277 U.S., at 470 . (Dissenting opinion.) "In a government of laws," said Mr. Justice Brandeis, "existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Falsification of the record is an illegal act. By ignoring the record and the facts, the record has been falsified. Respectfully submitted this, 17th day of May, 2007

By: ______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782 IN THE COURT OF APPEALS STATE OF GEORGIA

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JAMES B. STEGEMAN, APPELLANT vs. HERITAGE BANK, APPELLEE APPEAL NO.: A10A0420

CERTIFICATE OF SERVICE I hereby Certify that I have this 17th day of May, 2010 served upon Heritage Bank, the foregoing Motion for Reconsideration through their attorney on file, by causing to be deposited with U.S.P.S., First Class Mail with proper postage affixed, and addressed as follows: Thomas E. Austin, Jr. 3490 Piedmont Road, N.E. Suite 1005 Atlanta, GA 30305 ___________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782

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