11th Circuit Court Of Appeals "do Not Publish"

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 11'ILED

U.S. COURT OF APPEALS

No. 07-13540 Non-Argument Calendar

ELEVENTH ClRClTIT Aug- 26, 2008

THOMAS K. KAHN

CLERK

D. C. Docket No. 06-02954-CV-WSO-l JAMES B. STEGEMAN,

Plaintiff-Appellant, versus STATE OF GEORGIA, thm Governor Sonny Perdue, in his official capacity, STATE OF GEORGIA DEPARTMENT OF HUMAN RESOURCES, DEKALB COUNTY, THRU CEO VERNON JONES, in his official capacity, DEKALB COUNTY DEPT. OF FAMILY AND CHILDREN SERVICES, DEKALB COUNTY FIRE & RESCUE LT. HUGliE'lT - NO: 581, individually and in her official capacity, Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia

(August 26, 200S)

Before HULL, MARCUS and WILSON, Circuit Judges. PER CURIAM: James B. Stegeman appeals pro se the district court's dismissal of his action filed pursuant to 42 U.S.C. §§ 1983 and 1985(3). Stegeman's claims arise out of proceedings in the DeKalb County Probate Court that revoked Stegeman's power of attorney over his elderly aunt, Jean Caffrey; found that Stegeman had engaged in elder abuse and [mancial fraud; appointed a guardian ad litem for Caffrey; and later, after Caffrey died, appointed an administrator and probated her estate. Stegeman alleged that numerous state and county entities and officials violated and conspired to violate his due process and equal protection rights during the probate court proceedings.'

After review, we affmn the district court's dismissal. 2

First, all of Stegeman's claims stemming from actions taken prior to December 5,2004 are barred by Georgia's two-year personal injury statute of limitations. See Rozar v. Mullis. 85 F.3d 556,560-61 (11th Cir. 1996); O.C.G.A.

'Stegeman's complaint also asserted various state law claims, which the district court dismissed without prejudice after declining to exercise supplemental jurisdiction over them. On appeal, Stegeman does not challenge the dismissal of these claims. 2We review de novo a district court's order granting a motion to dismiss. Wagner v. First Horizon Pharm. COI:p.. 464 F.3d 1273, 1276 (11th Cir. 2006). We reject as meritless Stegeman's argument that the district court should have treated the defendants' motions to dismiss as summary judgment motions because the district court did not consider matters outside the pleadings. See Fed. R. Civ. P. 12(d) (requiring a court to treat a Rule 12(b)(6) motion as a summary judgment motion when matters outside the pleadings are considered).

2

§ 9-3-33. Furthermore) Stegeman's arguments that the statute of limitations was tolled are without merit. Thus, Stegeman's only timely claims are against the Georgia Superior Court, the DeKalb County Probate Court, Probate Judge Jeryl Debra Rosh and DeKalb County relating to the administration ofCaffrey's

estate

after December 5) 2004. Second. Stegeman's claims against the Superior Court and the DeKalb County Probate Court are barred by the Eleventh Amendment. See Kaimowitz v. Florida Bar, 996 F.2d II5t

1155 (lIth Cir. 1993) (explaining that actions against

state courts are barred by the Eleventh Amendment); Ga. Const. art. VI, § 1,

t1

(vesting judicial power of the state in, inter alia, superior courts, state courts and probate COurts).3 Third, Judge Rosh is entitled to judicial immunity. See Mireles v. Waco,

502 U.S. 9, 9-12,112 S. Ct. 286, 287-88 (1991) (concluding that judicial immunity can be overcome only if the actions are not taken in the judge's judicial capacity or if the actions, though judicial in nature. are taken in the complete absence of jurisdiction). Judge Rosh's only alleg~d action occurring after December 5,2004 I I I I I I I

'I

3Stegeman' s argument that Congress abrogated sovereign immunity from claims under the Americans with Disabilities Act ("ADA"~ is unavailing because Stegeman did not assert claims under the ADA. Congress bas not abrogated sovereign immunity from claims, such as Stegeman's, brought under §§ 1983 and 1985. See Will v. Mi.cp. Dep't of State eolice, 491 U.S.

58,67.109 S. Ct 2304, 2310 (1989); Fmcherv. Fla.Dep't of Labor & Employment Sec., 798 F.2d 1371, 1372 (11th

eir.

1986).

3

was her ruling on the petition for discharge filed by the Temporary Administrator of Caffrey's estate, which was taken in her judicial capacity as a probate judge and within the jurisdiction of the probate court. See O.C.G.A. § 15-9-30(a) (conferring upon probate courts subject matter jurisdiction over, inter ~

the probating of

wills and aU controversies regarding the administration of an estate).4 Fourth, Stegeman failed to state a § 1983 claim against DeKalb County because his complaint did not allege any claimed constitutional violations that were the result of an official policy or custom. ~

Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36 (1978) (concluding that to state a § 1983 claim against a municipality, the plaintiff must allege that the constitutional deprivation was pursuant to a governmental policy or custom). Finally, the district court did not abuse its discretion in denying Stegeman's motion for defaultjudgment.5

Although the State Court of Georgia and the

DeKalb County Solicitor's Office did not file an answer or other responsive

4Stegeman's claim that Judge Rosh presided over a criminal hearing is without merit. Stegeman's complaint alleges that, on June 5,2002, Judge Rosh found that Stegeman had engaged in elder abuse and financial fraud and revoked his power of attorney over Caffrey. However, any claims regarding this finding are time-barred. The only timely action relating to Judge Rosh is her ruling on the petition for discharge. Nothing in Stegeman's complaint suggests the ruling on the petition for discharge was criminal in nature.

5Wereviewfor abuseof discretiona districtcourt's denialof a motionfor default judgment. Mitchellv. Brown & WilliamsonTobacco COlp., 294 F.3d 1309, 1316 (lIth eir. 2002).

4

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pleading. Stegeman's complaint did not present a sufficient basis for a default judgment against them. See Nishimatsu Constr. Co v. Houston Nafl Bank, 515 F.2d 1200. 1206 (5th eir. 1975) (explaining that "a defendant's default does not in itself warrant the court entering a default judgment," and that "[t]here must be a sufficient basis in the pleadings for the judgment entered,,).6 From the face of Stegeman's complaint, it is clear his claims against the State Court of Georgia are barred by the Eleventh Amendment and the claims against the DeKalb County Solicitor's Office are time-barred. The State of Georgia, the State of Georgia Department of Human Resources, DeKalb County Department of Family and Children Services and the Georgia Superior Court ("the state defendants") waived service of process pursuant to Federal Rule of Civil Procedure 4(d) and ll1ed a responsive pleading in the form of a pre-answer motion to dismiss. See Fed. R. Civ. P. 12(b), 55(a). Because the district court granted the state defendants' motion to dismiss, they were not required to file an answer and were not in default. 7

~s Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prieharg, 661 F.2d 1206, 1209 (lIth Cir. 1981) (en bane). 7Contrary to Stegeman's assertio~ the state defendants' failure to include the three-initial suffix to the case number on its pleadings, as required by local role, would not support a default judgment. See Fed. R. Civ. P. 83(a)(2) (prohibiting a local rule imposing form requirements from being enforced in a manner that causes a party to lose rights unless the violation is willful). Additionally, there is no evidence in the record that attorney Matthew LaVallee did not represent the state defendants or improperly :filed pleadings on their behalf.

5

For the foregoing reasons, we affirm the district court's order granting the defendants' motions to dismiss and denying Stegeman's motions for default judgment.

AFFIRMED.

6

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05CV13909 (Open) 12/2212005 Mark Anthony Scott Appeals Other

IN RE ESTATE OF GENEVA CAFFREY (PMC) Type: Superior General Civil Superior Court

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ESTATE OF GENEVA S. CAFFREY STEGEMAN. JAMES B. L1LLlG, FRANK J.

Plaintiff Plaintiff Defendant

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Filing Date

NOTICE MOTION CERTIFICATE OF SERVICE MOTION CERTIFICATE OF SERVICE ORDER FILED NOTICE NOTICE CERTIFICATE OF SERVICE MOTION TO DISMISS CERTIFICATE OF SERVICE MOTION

28-MA Y -2008 24-MAR-2006 24-MAR-2006 24-MAR-2006 24-MAR-2006 08-MAR-2006 22-FEB-2006 22-FEB-2006 22-FEB-2006 18-JAN-2006 18-JAN-2006 22-DEC-2005

Text Docket entry for the letter produced from CSAEOUT on 28-MAY-2008 by TYROBINS. FOR ORDER ON VOID JUDGMENT. (PMC) OF MOTION FOR ORDER ON VOID JUDGMENT. (PMC) FOR ORDER ON APPEAL. (PMC) OF MOTION FOR ORDER ON APPEAL (PMC) ORDER GRANTING MOTION TO DISM ISS APPEAL SIGNE BY JUDGE SCOTT ON MARCH 8TH 2006 ....more OF INTENT TO APPEAL, SUBMITTED BY JAMES B. STEGEMAN (MT) OF INTENT TO APPEAL. SUBMITTED BY JAMES B. STEGEMAN (MT) OF NOTICE OF INTENT TO APPEAL. APPEAL TO THE SUPREME COURT OF GEORGIA AND APPEAL ...more FOR FAILURE TO STATE A CLAIM. LACK OF SUBJECT MATTER JURISDICTION. LACK OF APPEL ...more OF MOTION TO DISMISS WITH EXHIBITS A AND S, (MTI+ CAVEATOR-APPELLANTS MOTION FOR RELIEF FROM JUDGMENT W/ATTACHMENTS (AMT:$ 82.50/ ...more

Assoc. Party? No No No No

No No No No No No No No

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA ",'~,' Inr{Jr' ,',, " ,-'~,

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APPEAL FROM PROBATE COURT OF DEKALB CQlJJ'Q)T, ,_ STATEOFGEORGIA~ ',~' ,i:,','; :~::'"

~~, " :" ,,:DsCv ESTATE OF GENEVA S. CAFFREY DECEASED

1"6

'10 q-o <1

IN RE: ESTATE No. 2002-1161 RE: ORDER ON SUMMARY JUDGMENT

JAMES B. STEGEMAN, CAVEATOR FRANK J. LILLIG, III, EXECUTOR\ADMINISTRA TORI PERSONAL REPRESENTATIVE

Dated: November 3, 2005 VOID JUDGMENT AT LAW

CAVEATOR-APPELLANTS MOTION FOR RELIEF FROM JUDGMENT COMES NOW, James B. Stegeman Objector to the Discharge of Frank Lillig, III Administrator\Executor\Personal Representative of the Estate of Geneva S. Caffrey. Mr. Stegeman is Appealing The Order on Summary Judgment Hearing on October 27,2005. October 05,2005 Ms. McDonald hand delivered to The Probate Court for Mr. Stegeman, who is 100% Federally disabled, the following documents: 1) "Mr. Stegeman's Response to Summary Judgment" wlExhibits, 2) "Brief in Support of Summary Judgment in Favor of Mr. Stegeman" wlExhibits, 3) "Summary Judgment Memo" wlExhibits, "Petition to Revoke Letters of Testamentary" wlExhibits showing concrete evidence that the Letters of Testamentary were obtained fraudulently, 4) "~on to Compel Discovery" on the 4'Objection to Discharge" filed by Mr. Stegeman April 14, 2005. 5) "Third Party Complaint" wlExhibits by Ms. McDonald 6) "Affidavit" w\Exhibits by Ms. McDonald as first-band knowledge of the events supporting both Mr. Stegeman's claims and supporting her complaint. Ms. King Clerk of the Probate Court informed Ms. McDonald that The Court w~ not going to allow the filing of any documents pertaining to the Summary Judgment. The lack of action of Mr. Stegeman would have automatically allowed the Court to find Summary Judgment in favor of Mr. Lillig) ill. Ms. McDonald questioned the reason for denying Mr. Stegeman and or herself the right of filing. Ms. King advised that she would have the "Staff Attorney') review the

1

documents and give a call the following day to notify whether or not The Court would allow the tiling of the documents. October 06, 2005 Ms. McDonald left a voice mail for Ms. King inquiring into the decision of The Court. There was no return call. At or around 4:00 p.m., Ms. McDonal~ sent a Fax to Ms. King to inform the Court that refusing to allow Mr. Stegeman the righ~ to file the above listed papers, it was a violation of Constitutional Rights guaranteed by The United States Constitution, State of Georgia Constitution and Mr. Stegeman's Civil Rights. Ms. King then returned the call. Ms. King stated that the staff attorney had reviewed the documents and The Court was not going to allow the documents to be :file~. Ms. McDonald asked Ms. King that she explain it to Mr. Stegeman. When Ms. King insisted to Mr. Stegeman that he could not filed the documents, Mr. Stegeman asked Ms. McDonald to get the recording device and informed Ms. King that it would be recorded "for the record." Ms. King connected Mr. Fowler, Staff Attorney of The Probate Court who again insisted that no documents would be filed. Mr. Fowler was questioned on the format and language of the documents. Mr. Fowler advised that everything was done properly even the format and advised: "We just are not going to let you file them." Again, Mr. Stegeman advised this was a violation ofms Rights. Mr. Fowler eventually, begrudgingly agreed that all of the documents could be filed except Ms. McDonald's "Third Party" and "Affidavif'. Ms. McDonald's Affidavit was the only "Affidavit" in support of Mr. Stegeman and was from firsthand knowledge. Mr. Fowler again seemed irritated and begrudgingly agreed when pressed by Mr. Stegeman that there was a fee owed for the filing of the documents. Mr. Fowler as staff attorney for the Probate Court should have known that refusing Mr. Stegeman the right of filing Response to Sllmmary Judgment along with the other Petitions and Motions was a direct violation of due process along with equal access to the Courts. October 07,2005, Ms. McDonald returned to the Court and paid the filing fee of $391.00 on behalf of Mr. Stegeman. October 31, 2005, Ms. McDonald reviewing the progress of~The Estate Proceedings" for the Estate of Geneva S. Caffrey, fOWldthat Mr. Stegeman's documents were not showing as ":filed". November 01, 2005 Ms. McDonald sends email to Mr. Brandenburg, Staff Attorney for the Probate Court who had attended the Summary Judgment Hearing inquiring about the filing of the documents and "My understanding also was that the Petitions and Motions are "heard" in the order in which they are filed 15-9-37. Am I incorrect in this'r Mr. Brandenburg replied: "contact the Probate Court Record Room and ask for Magda Rojas (404) 371-2605. She may be able to explain the system better." And "1 do not understand why you are asking your second question, and therefore, I will not answer it. The Official Code of Georgia speaks for itself." Ms. McDonald called the record room and was advised that Magda Rojas was not in. Ms. McDonald asked about the filing of records and was advised that he, the man answering the phone, could not answer her questions.

2

November 03, 2005 when it became apparent that the papers had not been filed, no one was going to address the issue. Ms. McDonald contacted Ms. Gretchen Landau, Operations Manager at The Probate Court. Ms. Landau advised: "Good question! It was a mistake on our part. We do have the documents and they will be entered today. Thank you for bringing this to myanention." At that time, it was noticeably too late as the Hearing had already been held. Oddly enough, Judge Rosh of the Probate Court that same day of November 03, 2005 made her "Order on Smnmary Judgment". The Probate Court is trying to commit "Fraud Upon the Court" in refusing Mr. Stegeman "access to the court" by returning your Notice of Appeal recorded and filed November 28, 2005, which is attached hereto. The claims pursuant to Void Judgment are enumerated below: ENUMERATION OF ISSUES SUBSTANTIATING

A VOID JUDGEMENT

1. The Court fraudulently admitted the amount listed in "Finding of Facts" 3. Guardian of Property of Ms. Caffrey's records reflect $27,261.59 before his Final Accounting was submitted on June 10,2004. The Court knew that $33,000 listed as going to "beneficiary" was in the accounting of Joyner plus the Extra Compensation to Mr. Joyner through Mr. Lillig, ill and approved by The Probate Court in an amount of over $15,000 is over $48,000.00. 2. The Court fraudulently accepted the monetary claims oftbe Guardian's Final accounting and knew or should have known it was signed by Judge Marion Guess who was no longer a Judge and had no jurisdiction; retired Judges may only perform marriages. 3. The Court fraudulently referred to Mr. Stegeman as "beneficiary" of the deceased in #5 and knew or should have known that Mr. Stegeman "Objected to Discharg~" saying he was co-signer of the Heritage Bank loan, never a beneficiary. 4. The Court violated the Petitioner's substantive rights at Common Law by failing to recognize concrete proof that the deceased took out the Heritage Bank. loan and that Mr. Stegeman was only co-signer. 5. The Court knew or should have known that there is a First Union\Wachovia Visa debt that belonged solely to the deceased that remains unpaid. 6. The Court knew or should have known that the First Union\Wachovia Visa bill had gone to Mr. Lillig's home address and was ignored. 7. October 07,2005 the Court was presented with Mr. Stegeman's (1) Response to Summary Judgement (2) Brief to Summary Judgment to Find in Favor of Mr. Stegeman (3) Memo on Summary Judgement (4) Motion to Compel Discovery on the Objection to Discharge (5) Petition to Revoke Letters of Testamentary citing fraud as the reason (6) Affidavit of Janet McDonald (7) Third Party Complaint of Janet McDonald. The Comt knew or should have known that the Clerk advised that staff attorney would have to review the documents before allowing Mr. Stegeman to file them. The Cowt fraudulently advised Mr. Stegeman that he would not be allowed to filed any docwnents. and knew or

3

3) Jurisdiction of subject: TheProbate ProbateCourt Courtknew claimed that Mr. Stegeman was itguilt>, of felony offenses, and the or should have known that had no jurisdiction to fmd someone guilty of felonies. Void Judgment exists therein, where jurisdiction was not proper. Many times since the Probate Court deemed Mr. Stegeman was "guilty", the Guardian of Property of Caffrey as well as Attorney Robert Turner who worked in the same office as the Guardian of Property, The Law Firm of Joyner and Burnett, Wachovia Banl4 Wachovia Securities have all used the alleged "guilty of a felony"" decision as protection when confronted about illegal actions they themselves have taken: "Mr. Stegeman stole his Aunt's money" or "'M£. Stegeman should not have abused his Aunt". It is a fact that Mr. Stegeman never committed these crimes, and any claim to the contrary is aVoid Judgment. 4) The Probate Court decision was based on falsities, perjury, sworn to by Sandra AI-Khaja a caseworker for DFeS, and Mavis Turner in order to exploit and defraud not only Mr. Stegeman and Ms. Caffrey but Ms. McDonald as welL Void Judgment exists where ajudgment is "induced by fraud". 5) The Probate Court does not have the power to find Mr. Stegeman guilty of felonies but did so in order to revoke a Durable Power of Attorney with both a '"Death" clause and "Incompetent" clause so that it could fraudulently appoint John Joyner Guardian of Property of Ms. Caffrey. Mr. Stegeman has never beeJ;l charged, arrested or convicted of the crimes The Probate Court alleged. The Durable Power of Attorney was made at a time that Ms. Caffrey was fully competent and also contains a clause: "This document can never be questioned" it was irrevocable, till death. It was on filed at the DeKalb County Courthouse, the banks; and the doctors had a Health Care Directive on file that was also a Health Care Power of Attorney naming Mr. Stegeman. Void Judgment exists where a judgment is "'induced by fraud." 6) The claim that Mr. Stegeman was caregiver of Ms. Caffiey was totally untrue. Ms. McDonald had been caregiver at the request of Ms. Caffrey and approval of Primary Physician of Caffrey, Dr. Michael Baron. Any investigation would have show this, and there was no investigation done by DFCS as required by law to b~ done before Guardianship hearings. Void Judgment exists as the claim was known or should have been know by the Court to be fraudulent. 7) Mavis Turner maliciously and knowingly filed a fraudulent complaint to DFCS claiming that Ms. Caffrey bad fallen and was being kept against her will April 2001. Ms. Caffrey was suspected of having a stroke, taken to hospital by Mr. Stegeman and found to have no signs of stroke. Ms. Turner should be prosecuted for peIjury, exploitation of the elderly, exploitation of the disabled, and filing a false complaint. Void Judgment exists as the claim was known or should have been know by the Court to be fraudulent. &) Dr. Baron paid an unannounced visit around two weeks prior and there was no complaint from Caffi'ey about any form of abuse, quite the contrary. Dr. Baron's report states that she was fine. Mr. Stegeman had asked Dr. Baron prior to the unannoWlced visit to make a house call as Ms. Caffrey had been behaving strangely and had left the gas on the stove on two different occasions and Ms.

5

Caffrey was refusing to go to doctor visits. Dr. Baron said he would not make a. house call.

9) AI-Khaja's Petition for Guardian states: "Ms. Caffrey is afraid of her nephew", "no longer wants him to manage her finances"", '"afraid to return home". The Probate Court had previously found Ms. Caffrey to be mentally incompetent to the point that she could not carry on a one to one conversation. Any claim thereafter fails to meet proper case management, and faIls under Void Judgment where it is herein submitted as a fraud upon the court. LAW The Official Code of Georgia as published by the State of Georgia. GA Code 29-5-2(c): Persons who are not disqualified have preference in the following order: (1): An individual nominated by the incapacitated adult prior to the filing of thi; petition for a finding of capacity. if at the time of nomination the incaPQcitated adul( was 18 or more years of age and had stdficient mental capacity to make an intelligent choice (Durable Power of Attorney); and (2): Other persons. such as relatives; or other persons providing income or other care to the incapacitated adult (Ms. McDonald or Mr. Stegeman, both were providing money, spent $145,000 of their own estates) (3): If no other person is available to be the guardian of property of the ward, may the county guardian to guardian of the property. In revoking Mr. Stegeman's Durable Power of Attorney and appointing a County Guardian 29-5-6. (2) The petition for the appointment of a guardian shall set forth: (D) A statement of the reasons the proposed guardianship is sought, including the facts which support the claim of incapacity; (No facts were provided.) (H) All known income and assets of the Proposed ward and. in any case involving the creation or termination of a guardianship over property where the proposed ward has an interest in real property, the name of the county in which such property is located; and (ifDFCS had done an investigation as required by law, the information would have been proper, it was not.) (4) In addition to stating the specific incapacity of the proposed ward and the facts, which support the determination. the qfJidavit shall state any foreseeable limits on the duration of such incapacity. (The facts were falsified, "occasional visits by her nephew and niece in law and claims emotional abuse and withholding of financial situation by them". Ms. McDonald provided three meals a day and walked to the Caffryy home more than five times a day. There was no emotional abuse and the money paying Caffrey's bills, buying her medication, clothing etc did not come from Caffrey's accounts but in fact C&lle from the McDonald\Stegeman accounts.) (E) Appoint a guardianship evaluation physician or psychologist as provided insubsectton (c) of this Code section. (2) The physician or psychologist shall evaluate the proposed ward

6

Any ruling made by a court in which there was a lack of subject matter jurisdiction is called a "voidjudgment". Subject matter can never be presume
PRAYER FOR RELIEF

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Mr. Stegeman prays that this Honorable Court will grant ReliefFro~t._." in the fonn of Void Judgment on both the Summary Judgment of ~

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and the Guardianship Hearing of June 13,.2002.

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TEGEMAN, Pro Se 821 Sheppard Rd

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AFFIDAVIT FOR PROOF OF MAILING

I. Janet

D. McDonald ofDeKalb County of Georgia, being duly sworn before a Notary Public, deposes and says that on the 2200 day of December, 2005 did send by US Postal Mail, Certified Mail- Return Receipt Requested, full paid thereon and with sufficient return address: L) 2.) 3.) 4.)

APPEAL FROM PROBATE COURT TO SUPERIOR COURT -13 PAGES APPEAL AS FILED WITH PROBATE COURT W/CHECK - 2 PAGES LETTER FROM PROBATE COURT -I PAGE AFFIDAVIT FOR PROOF OF MAILING

To the following parties as individuals and in their respective offices:

Probate Court ofDeKalb County (Certified Mail Return Receipt) DeKalb County Courthouse 556 N. McDonough Street Room 1100 Decatur. GA 30030

Robert E. Turner, Attorney for Frank LilIig, lIT (Us Postal Mail) 111North McDonough Street Decatur. GA 30030

VI

J This, the 22nd day of December. 2005

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