Petition For Cert. Filed In Supreme Court Of Georgia Dec. 2009 Stegeman V Lillig

PETITION FOR WRIT OF CERTIORARI Petitioner prays that a Writ of Certiorari will be granted; the case is of extraordinary nature, and of great concern, gravity, and importance to the public; furthermore, he is not asking for a review of the sufficiency of evidence. OPINIONS BELOW The Order Granting Appeal in Forma Pauperis appears at Appendix A (AppA); The Opinion/Ruling of The Court of Appeals dated October 30, 2009 appears at Appendix B1(App-B); Appellant’s Brief w/transcript filed October 28, 2009 appears a Appendix C (App-C); The Superior Court Orders appear at Appendix D (App-D); The Probate Court’s Order appear at Appendix E (App-E); Respondent’s Probate Court Summary Judgment filings appear at Appendix F (App-F) of this petition. STATEMENT This Petition shows that the Probate Court, Superior Court, and The Court of Appeals of Georgia entered decisions in conflict with this Court and The United States Supreme Court on the same important matters. The actions in Probate and Superior Courts addressed very important State and Constitutional issues beyond Notice that the case referenced on the bottom of the page of the Court of Appeals Order is 05CV13901 which is a family violence case in Superior Court in which Petitioner was not a party, and not the case Petitioner Appealed from. Attached to the Court of Appeals Order is the Docket Report from the Court of Appeals which also reflects case 05CV13901. Petitioner Appealed from 05CV13909 see “AppB”. 1

1

the facts and parties involved. This Petition further shows that through numerous acts of fraud, fraud upon the Court and actions by Court(s) lacking jurisdiction, the Orders rendered by the Courts are not merely voidable, but in fact void and should have been set aside. Should the actions be allowed to stand, many more tax-paying, law-abiding, innocent citizens in this State will suffer the same manifest injustices. 1.

Statement of the Case

A Probate Court Clerk, violating all controlling statutes, lacking jurisdiction, and with actual knowledge that Petitioner held an Irrevocable Durable Power of Attorney with an Interest (IDPOA), declared Petitioner2 guilty of criminal acts3, and appointed a Temp. Guardian of Property (TGP)

for Petitioner’s elderly,

incompetent aunt (App-C-14). Probate Courts in Georgia also lack jurisdiction over criminal matters; see Bradley v. Fisher, 80 U.S. 335, 352 (1872) which for the past 130 plus years has held: Petitioner is a disabled adult male receiving Supplemental Security Income, has been denied Legal-Aid, Pro Bono assistance, unable to locate an attorney willing to work full contingency and without assets to obtain legal counsel, is forced to proceed as Pro Se. * Georgia’s Legal Services Programs are Federally Funded, Petitioner is eligible and qualifies, yet he has been denied aid. *Adult Protective Services (APS) Georgia Dep’t of Health and Human Services under O.C.G.A. §§30-5-1 – 30-5-10 which is run through DeKalb County Solicitor’s Office’ of “Disabled and Adult Protective Services” and also receives Federal Funding, has also denied Petitioner assistance. 2

3

Petitioner has never been arrested, charged, indicted, or convicted or any crime. 2

“if a probate court, invested only with authority over wills… estates…, should proceed to try parties for [criminal] offenses, jurisdiction over the subject of offenses being entirely wanting in the court,…his commission would offer no protection to him in the exercise of usurped authority.” “…whereas a probate court judge would not be immune from liability if he tried a criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352). Further, Probate Clerks are not permitted to act when judicial in nature, and are forbidden to preside over contested matters (App-C-18,19). O.C.G.A. §15-9-36. “(a) The judges of the probate courts are, …clerks of their own courts; but they may appoint one or more clerks,… shall also have the authority to appoint one of their clerks as chief clerk… (b) The appointed clerks, … chief clerk … may do all acts the judges of the probate courts could do which are not judicial in their nature and … in which they are authorized to act for the judge … (c)(1) In addition to other powers … the chief clerk …may exercise all the jurisdiction of the judge of the probate court concerning uncontested matters …” Probate Court lacked jurisdiction to decide whether or not Petitioner had breached fiduciary duties under IDPOA. “a probate court clearly does not have jurisdiction over a general breach of duty claim…” Heath v. Sims, 242 Ga. App. 691, 692 (1) (531 SE2d 115) (2000). Probate Court clearly lacked jurisdiction over the claims “that prior to death”, Petitioner “breached the fiduciary duties which he held by virtue of a power of attorney”; see Morrison, et., al., v. Morrison, et., al., 663 S.E.2d 714, 284 Ga. 112 (2008), which held: 3

“Furthermore, … the non-fraud claims could not have been decided by the probate court, because it did not have jurisdiction …The probate court has jurisdiction over the probate of wills and "[a]ll other matters and things as appertain or relate to estates of deceased persons ...." OCGA § 15-9-30 (a) (10). Thus, "the probate court does have jurisdiction over a claim that an estate's executors have breached their fiduciary duty. [Cit.]" (Emphasis omitted.) Heath v. Sims, 242 Ga. App. 691, 692 (1) (531 SE2d 115) (2000). However, "a probate court clearly does not have jurisdiction over a general breach of duty claim ...." Heath v. Sims, supra. Therefore, the probate court here did not have jurisdiction over the claims that, prior to the testator's death and the appointment of the executor, Appellee intentionally interfered with an expected gift or breached the fiduciary duties which he held by virtue of a power of attorney. TGP seized Petitioner’s assets,4 personal property, and real property. When TGP realized Petitioner had been alerted to the theft and conversion of the Wachovia accounts (consisting of stocks, Mutual Funds, no cash) which had been re-titled into TGP’s sole name and Social Security Number, stocks re-issued, and Mutual Funds sold to get cash, the TGP immediately filed a vexatious litigation in Superior Court against Petitioner to prevent Petitioner from regaining control over the accounts. Seven months after TGP filed the Superior Court action, Petitioner’s aunt became a victim of untimely demise from sequel to blunt head trauma.5 Superior Brokerage accounts in the name of Janet McDonald AND James Stegeman Joint Tenants With Rights of Survivorship (JTWRS), which could have never been considered as part of his aunt, Geneva Caffrey’s Estate. 4

The elderly aunt was removed from her home (kidnapped), hidden from all family (falsely imprisoned), a new Will was immediately made (under duress by an incompetent person) put into the least expensive home they could find and that was not set up for the amount of care she needed, allowing injury sustaining accidents: 5

4

Court Ordered that Plaintiff be substituted by a Personal Representative within 30 days or the case would be dismissed6 (App-D). With two Wills7 and a caveat filed, a Personal Rep. could not be, and was not appointed. Superior Court should have sua sponte dismissed, instead the Court ignored it’s own Order.

The

Superior Court action was allowed to carry on without a Plaintiff thereby lacking jurisdiction and grossly violating Petitioner’s Right to Due Process of Law. Because no judgment “of a court is due process of law, if rendered without jurisdiction”, the “judgment is void”.

The Judgments of both Probate and

Superior Courts are thereby void. “A judgment is void if the rendering court acted in a manner inconsistent with due process of law.” Wright & Miller, Federal Practice and Procedure §2862. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a 4 in less than 9 months, the last one killed her (negligent homicide). She had been continually lied to, told that no family had looked for or cared about her,; she was cremated and buried before family knew she had passed away. The Death Certificate was provided by Respondent, everything on it was knowingly falsified It ended up being no less than thirteen (13) months before a Personal Representative could have been appointed, yet the Court ignored it’s own Order to substitute within thirty (30) days. 6

The Original Will naming Petitioner sole heir and benefactor and which had been on file at the Courthouse since 1992, and a new Will that had never been filed, naming a lay-Minister as Administrator that barely knew Ms. Caffrey, and the assets left after he played with the assets for two years, was to go to Charity. 7

5

nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821) “No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1970). “A court should be cautious in exerting its inherent power and ‘must comply with the mandates of due process” First Bank of Marietta v. Hartford Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117, -25; 2002 FED App. 0356P (6th Cir. 2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir. 2002) April 22, 2003, through fraud upon the Court, Respondent and his attorney knowingly, willingly, wantonly, maliciously and making slanderous, libelous claims, to gain appointment as Emergency Temp. Administrator of the aunt’s Estate. Respondent and his attorney Mr. Turner knowingly, willingly, wantonly, and maliciously made false misrepresentations, committed perjury, subornation perjury, and fraud upon the court when they caused to be filed Petition to Probate the new Will, claiming: “no other Wills”8, and “the nephew and his brother are estranged from the deceased” and “the DeKalb County DA’s office are currently investigating Felony theft by taking charges and Elder abuse charges against James Stegeman”. (App-C-2) There is not now, and has never been a record of an investigation being conducted. Attorney Pattie Williams said she had spoken to the DA and there were no plans to ever investigate Mr. Stegeman, she therefore filed Motion in Limine in Ms. Caffrey’s Original Will , she had drawn up on her own using attorneys, and it had been on file at DeKalb County Courthouse since 1992, which Respondent in a deposition, admitted he had actual knowledge of. 8

6

the Superior Court action to prevent the fraudulent, malicious claims from being stated in the Jury trial. Respondent and attorney Turner knowingly, willingly, wantonly and maliciously committed perjury and fraud upon the Court to obtain several Rulings, one was for appointment as Emergency Temp Administrator (App-C-2, 20,21). Bulloch v. United States, 763 F.2d held the following: “court may investigate a question as to whether there was fraud in the procurement of a judgment. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447. This is to be done in adversary proceedings as in the case before us. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; and United States v. Throckmorton, 98 U.S. (8 Otto) 61, 25 L.Ed. 93.” “Fraud on the court (other than fraud as to jurisdiction) is fraud which is directed to the judicial machinery itself … H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir.). It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function--thus where the impartial functions of the court have been directly corrupted.” “"Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court." Porter, 536 F.2d at 1119.”” Respondent had obtained the Bond before Petitioning the Court for the appointment, obviously there was a conspiracy, and it was a done deal(App-C2,14). There is no other logical explanation with two Wills, the legitimate one yet to be decided, Respondent had no right to the appointment which was granted

7

without a hearing. 9 (App-C-15) “A judgment of a probate court (formerly court of ordinary) granting permanent letters of administration to one who is not entitled to administration may be set aside in a direct proceeding in equity, instituted by an heir at law, on the ground that the application shows on its face that the court has no jurisdiction and yet proceeds to judgment, or on the ground that the applicant falsely and fraudulently represented in his application that the facts were such as to entitle him to appointment.” See Wallace v. Wallace, 142 Ga. 408 (2) (83 SE 113); Stanley v. Metts, 169 Ga. 101 (1) (149 SE 786); Brown v. Parks, 169 Ga. 712 (1) (151 SE 340); Jackson v. Jackson, 179 Ga. 696 (177 SE 591); Bowers v. Dolen, 187 Ga. 653 (2) (1 SE2d 784); Watson v. Watson, 208 Ga. 512, 515 (1) (67 SE2d 704); Toombs v. Hilliard, 209 Ga. 755 (1) (75 SE2d 801); Smith v. Smith, 230 Ga. 616 (3) (198 SE2d 307). “His petition showed on its face that he was not entitled to the appointment, and it was a fraud in law to obtain the appointment.” Philips v. Gladney, 234 Ga. 399 (216 SE2d 297)(1975). March 24, 2004, eleven months later, a few days before Jury trial, Petitioner was pressured into a settlement agreement by his attorney who, through fraud and for malicious, fraudulent intentions, had clearly conspired with the opposing attorney to trick Petitioner into a settlement.10

Both attorneys signed the

agreement, March 24, 2004 but neither would file it, showing the agreement within the conspiracy was to get the case removed from the jury trial docket. Petitioner’s only obligation was to withdraw the caveat, which was immediately done; which Petitioner attempted to file Motion to Revoke letters testamentary in Probate Court, they refused to file the Motion, as well as several other motions, and affidavits Petitioner submitted for filing before the Summary Judgment hearing. The documents that Petitioner was allowed to submit to the Court, were held without filing until the Ruling was made. 9

10

The attorney at that point had been paid over $40,000.00 8

allowed Respondent to immediately get Letters of Testamentary. Respondent then breached the agreement, he refused to perform his obligations under the agreement11, making the conspiracy quite clear. “A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means….To recover damage… must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort…” (Citations and punctuation omitted.) MustageemGraydon v. Suntrust Bank, 258 Ga. App. 200, 207 (573 S.E.2d 455) (2002); Miller v. Lomax, 266 Ga. App. 93, (596 S.E.2d 232) (2004) After Petitioner’s attorney deserted him, he found that the agreement had been modified several times by opposing counsel12. Petitioner wrote to Superior Court, asking that the agreement be filed with the Court so he could regain access to the Wachovia accounts which he had been refused all information about and access to for two and a half (2 ½ ) years. The Court did nothing. Superior Court, after allowing Petitioner’s counsel to Withdraw, and with actual knowledge that Petitioner was unrepresented, set the case for Jury trial to begin October 18, 2004. September 2004, Petitioner had to retain new counsel,13 Although Respondent’s Summary Judgment filings show that he obviously forgot what his full obligations were, one of which Respondent was supposed to help Petitioner regain the Wachovia accounts. In reality, Respondent and attorney Turner, continued meddling with the bank, advising them not to release the accounts. 11

Among the modifications was adding “with prejudice” to the agreements, which Petitioner would not have agreed to. 12

Ms. McDonald, using money inherited from her Mother, had paid all of Ms. Williams fees on the promise that Petitioner would prevail; Ms. McDonald paid 13

9

Stephen Apolinsky, to file Motion to Enforce and have the case removed from the docket, but the Court refused to sign the Order.14 Petitioner was extorted into accepting a less favorable agreement six months after he had entered into a settlement agreement which all parties had consented to.

The new “Consent

Order” is the first court document that gave the impression that Plaintiff had been substituted with a proper party, it showed Respondent as Plaintiff, it no longer showed TGP as Plaintiff. That was the only way Petitioner and Ms. McDonald could regain access to their account, which by that time was only a single account with nothing in it. Wachovia continued to refuse them access to the account. Mr. Apolinsky, paid by Ms. McDonald to do a formal investigation into the Wachovia accounts, actions of Probate and Superior Courts, and TGP. When the investigation was completed, Apolinsky said he couldn’t work on full contingency, and to try “an attorney in Macon, maybe” and that he has “to work in DeKalb County”. April 2005, Administrator of Ms. Caffrey’s Estate filed for discharge falsely swearing all debts of the estate had been satisfied (App-C-3). Petitioner, acting Pro

Mr. Apolinsky for representation as well. Because Superior Court had Ordered Plaintiff be substituted within 30 days or the action would be dismissed, the case was allowed to drag on an extra 11 months without a proper party Plaintiff, the Final Order could not show TGP of someone passed away for almost a year still listed as Plaintiff, the Order had to reflect a substitution had been performed and there was a proper party Plaintiff. 14

10

Se,15 filed as a creditor,16 Objection to the Discharge (App-C-Tr17-1,2). “Under O.C.G.A. §18-2-71(4), a creditor is defined as a person who has a claim.” “A ‘claim’ is defined as a right to payment, which may be ‘unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.’ O.C.G.A. §18-2-71(3)” Miller v. Lomax, 266 Ga. App. 93, 596 S.E.2d 232 (Ga. App. 03/04/2004). The only money that was paid to anyone was paid to TGP, attorney Turner, and Respondent. There were no debts paid, and no evidence was ever presented (except attorney’s bills and Extra compensation Orders) of what happened to the assets of the estate. Petitioner, as the only known family member of Ms. Caffrey in Georgia, has been taken to court several times and repeatedly contacted by Ms. Caffrey’s creditors due to Administrator’s failure to notify them of the death and satisfy the debts. At least one credit card company had been sending credit card bills to Although Petitioner attempted to obtain legal counsel, Legal-Aid and Pro Bono attorneys denied him and unable to locate an attorney who worked full contingency. 15

Petitioner had co-signed for a loan for Caffrey with her house as back-up to Petitioner; Caffrey’s guardian, with permission of the Probate Clerk, sold the house, but never paid any of the loan. Ms. McDonald had been paying the loan since 2002 attempting to protect Petitioner’s credit. Demand for payment had been made several times during the three years, a subpoena had been complied with September 2002 showing the loan to belong to the Aunt; neither the guardian, nor administrator paid anything on the loan although they had actual knowledge and sufficient assets to do so. 16

“Tr” denotes the Affidavit of Petitioner which is serving as a transcript in Appellant’s Brief filed with The Court of Appeals of Georgia, the Brief is attached as App-C. 17

11

Respondent’s home before Ms. Caffrey’s untimely demise, that debt was not even satisfied. Several companies have written off as much as twenty-five thousand dollars ($25,000.00) due to lack of notice of the death, and lack of payment.18 Respondent waited almost six months, filed for Summary Judgment. Petitioner attempted to respond to Summary Judgment, Probate law Clerk Mr. Fowler (the conversation was taped) told Petitioner he could file nothing. After a lengthy debate about “Rights”, Mr. Fowler agreed to allow filing of Response, but said that it still wouldn’t matter, Fowler was right because all of Petitioner’s filings were held unfiled til after Final Ruling November 2005.19 (App-C-3thru5, C-Tr-2) Respondent’s Summary Judgment Motion, Theories of Recovery and Material Facts, Summary Judgment Memo (App-B-4,5,6), as well as each and every other document filed in connection with Summary Judgment is knowingly, TGP had Ms. Caffrey in a home that cost $1300.00 monthly, her Social Security and pension were over $1100.00 monthly, yet in less than nine (9) months, TGP claimed to have spent $88,000 for her care; then when she passed away, there were enough assets left to satisfy the debts of the estate, but TGP got over $15,000.00 extra compensation, Lillig got $33,000.00, and attorney Robert Turner got over $24,000.00. Instead of properly caring for Ms. Caffrey, these greedy individuals stole not only what she had in life, but what she left in death that was to go to a family member that is also a protected class of persons, as well. 18

After conclusion of the hearing, the Probate Judge and the administrator’s attorney Mr. Turner participated in ex-parte communication discussing whether or not demand for payment of the loan and debts had been made. Turner claimed there had been no demand, which was falsum. Several times, since June 2002, several different persons demanded payment for the loan. Turner had served a subpoena duces Tecum upon Petitioner through two different attorneys and obtained the information about the loan. TGP and Turner just decided to ignore the loan and not pay it. 19

12

willingly, wantonly, and maliciously riddled with libel and slander, defamation, falsum, perjury, subornation perjury, and misrepresentations. As an officer of the Court, Robert Turner participated and advised in the acts for the purpose of obtaining a ruling in their favor which constitutes fraud upon the Court. Law Clerk Mr. Fowler kept his word, and nothing filed by Petitioner was allowed into the file or Court before the hearing, thereby Petitioner had presented no evidence to support his Objection; no evidence was in the record showing the fact that none of the debts of the estate had been paid; none of the documentation showing that Respondent had breached the Settlement Agreement (Memorandum of Understanding) and that although it was signed by both attorneys, neither attorney would file it in Superior Court; that the Wachovia account they claimed had been returned to Petitioner in fact had no assets backing it up, only a loan in the amount of $145,000.00 against anything that would have been left in the account; and that the claim that TGP had spent $88,000 for care of the aunt and the accounting by same was fraudulent. All of the assets of the estate had been squandered away on attorney’s fees for a case which had no legal party Plaintiff. TGP was not released from Guardianship until November 2004, one and a half years after the aunt’s death, of which Probate Court had actual knowledge. In order to discredit Petitioner, in their Summary Judgment filings, Respondent and attorney Turner made claims which have not only never been

13

stated anywhere else, but for which no evidence was provided.

Among the

fantasies and enhancements stated by Respondent and attorney Turner20 in their Summary Judgment filings: App-F-121 (shows death on April 18, 2003, death occurred April 17, 2003) 1st ¶: “The deceased had escaped from the her house where she was kept in the basement22 to a hospital with the assistance of DeKalb EMT and the DeKalb Sheriff’s office23 …with the standing order that she did not want her location revealed…”. There is no evidence that any of the whole paragraph is true! App-F-1 “Statements of Facts”: wrong date of death; “guardian was guardian until death” (TGP was not discharged until November 2004) “$27,261.59 from the guardianship estate” (TGP records showed that $33,000.00 was given to beneficiary although there was no beneficiary listed in the new Will; and that $15,542.69 Extra Compensation went to TGP on top of the $27,261.59)

It must be noted that attorney Robert Turner, during the time period of 20022005 was a member of the TGP’s law firm, was also representing: TGP, the aunt, Respondent, the estate, and his own best interests. There was a definite conflict of interest, and the aunt’s best interest could not have been served by an attorney that was representing so many closely related subjects that were conflicting with one another. 20

21

App-F-1 denotes: Appendix F, page 1.

22

Ms. Caffrey did not escape from the basement of her home, she lived alone

the caregiver called EMT for assistance lifting Ms. Caffrey off the floor where she had laid herself (and neither DeKalb Sheriff’s Office, nor DeKalb PD came to the scene) 23

14

App-F-2 “No claims, including specifically those creditor’s claims mentioned by the Caveator, have been made by any creditor…” (Petitioner filed as a creditor, and there is no evidence that any of the other creditors were notified by Respondent or by publication in the paper)

“The Caveator received …

$120,000.00 held of the Deceased cash and other investments…” (The Wachovia accounts belonged to Petitioner and Ms. McDonald not the deceased, and there was $145,000 loan against the account when Petitioner regained it) Throughout the whole document attorney and Respondent carry on about having paid all the debts until there were no assets of the Estate left. They have never shown that one debt was paid; only that the attorneys, guardian, and Respondent got paid. In fact Petitioner has been named as Defendant in no less than five lawsuits by creditors that were not noticed of the death, and that did not get paid. One debt was an RV bank loan for which TGP, and Respondent had actual knowledge. Other creditors wrote off enormous debts of the Estate that TGP and Respondent had actual knowledge of and the evidence suggests that one or both of them created or enlarged the unpaid debts. Furthermore, a Temp. Administrator of an Estate has no power or authority to pay $15,542.69 in extra compensation to TGP; and $15,542.69 + $33,000.00 + $27,702.26 = $76,245.38. So, TGP got $15,542.69 (App-F-1,2,3), Respondent got $33,000.00 (App-F-7) and attorney Turner got $27,702.26 out of Ms. Caffrey’s

15

estate and none of her debts got paid; while Petitioner was returned his and Ms. McDonald’s account at Wachovia supposedly worth $120,000.00, then deduct $145,000.00 loan against the account; and Petitioner got stuck trying to pay a fifteen year loan of Ms. Caffrey’s attempting to protect his own credit. Hhhuummm makes you wonder, doesn’t it? The final Ruling on Summary Judgment was in favor of Respondent, in which Respondent committed perjury claiming he had satisfied all the debts of the Estate.24 The same ruling Probate Court stated that Petitioner was “a beneficiary” (App-C-Tr-3), to cover up fraudulent accounting documents showing that beneficiary was given $33,000.00 (App-F-7). Petitioner was not named in the new Will, he Objected to Discharge as a creditor, which is stated nowhere in the Ruling. Petitioner filed a timely Notice of Appeal, Ms. McDonald paid the Appeal fee. Probate Court held the Notice and check until time to file Notice of Appeal had expired, mailed it back saying that Petitioner would not be allowed to appeal. (App-C-5, 21,22.23,C-Tr-3) That is when the Appeal from Probate Court/Motion

Respondent refused to conduct discovery and Probate Court refused to allow Petitioner to file Motion to Compel Discovery; no evidence was produced by Respondent showing that any of the creditors had been notified, or that an ad had run in the newspaper, or that any debts had been satisfied. To the contrary, Petitioner provided evidence of debts TGP an Respondent both had actual knowledge of and refused to pay, one of the debts had been being mailed to Respondent’s home address. 24

16

for Void Judgment of Probate Court Orders was filed in Superior Court and given Civil Action File No.:

05-cv-13909-09 (App-C-6,11;), which is the matter

currently before this Honorable Court. 2. Statement of Proceedings Following Probate Court’s refusal to allow Petitioner his statutory and Constitutional Right to Appeal a Final Ruling, Cochran v. Kansas, et., al., 62 S. Ct. 1068, 316 U.S. 255, 86 L. Ed. 1453, 1942 SCT. 40529 (U.S. 05/11/1942) at [17]: “The state properly concedes that if …suppression of Cochran’s appeal “were disclosed as being true…there would be no questions but there was a violation of the equal protection clause of the Fourteenth Amendment.” “…refused him privileges of appeal which it afforded to others…” Slavin v. Curry, 574 F.2d 1256 (5th Cir. 06/13/1978): “When he filed his appeal, the trial judge ordered… to change the transcript …delete testimony… tampering…” at [50]: “The final defendants who were associated with the court …altered the transcript.” “In Rheuark v. Shaw, 547 F.2d 1257, 1259 (5th Cir. 1977), this court held that an action could be maintained under section 1983 against a state court clerk and stenographer for failing to forward a transcript to the state appellate court. See also Qualls v. Shaw, 535 F.2d 318 (5th Cir. 1976); McLallen v. Henderson, 492 F.2d 1298, 1299 (8th Cir. 1974).” On December 22, 2005 Petitioner filed Appeal and Void Judgment in Superior Court to set aside Probate Court Rulings, due to being fraud and fraud upon the Court and Rulings for which Probate Court lacked “either personal or subject matter jurisdiction” (App-C-6,11) Petitioner was “obligated first to move to set aside that probate court order, either in the probate court or in an original action in 17

superior court under OCGA 9-11-60 (d) (1), or to obtain its reversal by way of appeal” Mobley, et., al., v. Sewell, et., al., 226 Ga. App. 866 (487 SE2d 398) (1997) Further, Probate Court’s Rulings were made without jurisdiction, and/or due process of law and are thereby “void on it’s face”, “[a] judgment void on its face may be attacked in any court by any person.” The phrase “judgment void on its face” means a judgment which “lacks either personal or subject matter jurisdiction.” Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993) In Wasden v. Rusco Indus., 233 Ga. 439, 445 (211 SE2d 733) (1975), the Supreme Court held that " [s]tatutes of limitation have no application to [void] judgments, and there can be no bar, estoppel or limitation as to the time when a void judgment may be attacked.” The language used in Wasden to specify when a judgment is void on its face is virtually identical to OCGA 9-11-60 (d) to specify when a judgment is subject to being set aside due to a nonamendable defect apparent on the face of the record. The court held that "a judgment is void on its face when there is a non-amendable defect appearing on the face of the record or pleadings " Id. at 444. See also Ricks v. Liberty Loan Corp., 146 Ga. App. 594 (1 & 2) (247 SE2d 133) (1978) (cert. den.). See, e.g., Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980) (holding that an order denying a motion for new trial was properly set aside based on the court's failure to notify the appellant of the decision); Beach's Constr. Co. v. Moss, 168 Ga. App. 462 (309 SE2d 382) (1983) (holding that the failure of counsel or a party acting pro se to 18

receive notice of trial was such a defect would authorize setting aside of judgment against that party); Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525 (258 SE2d 139) (1979) (failure to endorse the defendant creditor's answer on a personal property foreclosure petition was a nonamendable defect rendering the judgment subject to set aside); Redding v. Commonwealth of America, 143 Ga. App. 215, 216 (1) (237 SE2d 689) (1977), disapproved on other grounds in Wise, Simpson &c. Assoc. v. Rosser White &c., Inc., 146 Ga. App. 789, 795-796 (247 SE2d 479) (1978) (failure to conduct a jury trial was a nonamendable defect where no waiver of jury trial appeared of record). See also Coker v. Coker, 251 Ga. 542 (307 SE2d 921) (1983); Scott v. W. S. Badcock Corp., 161 Ga. App. 826 (289 SE2d 769) (1982). In light of this history of construction of the language of the statute, we interpret Wasden v. Rusco Indus., supra, to mean that a judgment is always to be considered void if there is a nonamendable defect apparent on the face of the record,…is always subject to attack by motion to set aside…." It has long been held that the Court must provide the losing party with the Ruling so that they can Appeal. This Court has repeatedly sent the message that “the notice requirement applies to final judgments as well as decisions on motions.”

See Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812 (1)

(403 SE2d 94) (1991); Atlantic-Canadian Corp. v. Hammer &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983); Jefferson-Pilot Fire &c. Co. v. Combs, 166

19

Ga. App. 274 (304 SE2d 448) (1983).” This applies to final judgments as well, see: Morgan v. Starks, 214 Ga. App. 265 (447 SE2d 651) (1994): “…the logic of mandating notice to allow the losing party to take appropriate action applies with even stronger force to final judgments, including dismissals…” In Re Estate of Ernest Lamar Adamson, Jr., 215 Ga. App. 613, 451 S.E.2d 501 (1994): “The Probate Court cannot make determination of property real or personal. In Georgia, it is wellsettled that probate courts do not have jurisdiction to adjudicate conflicting claims of title to real or personal property. Ga. Const. 1983, Art. VI, Sec. III, Par. I; OCGA 15-9-30 et seq.; Dix v. Dix, 199 Ga. App. 549 (1) (405 SE2d 544) (1991).”; “As the probate court is without jurisdiction to determine matters respecting title to personal property, this issue must be decided in the proper forum”; “Where the pleadings show on their face that the court is without jurisdiction of the subject-matter . . . any preliminary order or final judgment rendered therein is void;..." John Hancock & c. Ins. Co. v. Baskin, 227 Ga. 593 (4) (182 SE2d 114) (1971).” See Murphy v. Murphy, S93A0512. (263 Ga. 280) (430 SE2d 749) (1993): fn2: “This court has held that failure to receive notice of a final hearing constitutes a nonamendable defect on the face of the record, subject to attack. Coker v. Coker, 251 Ga. 542 (307 SE2d 921) (1983); Brown v. C & S Nat. Bank, 245 Ga. 515, 518 (265 SE2d 791) (1980). However, we have not held that such a judgment may be attacked outside the three-year time limitation of subsection (f) where there is no allegation that the trial court lacked personal jurisdiction or subject matter jurisdiction.” fn3: “OCGA 9-12-16 (former Code Ann. 110-709) provides that[t]he judgment of a court having no jurisdiction of the person or the subject matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to 20

the interest of the parties to consider it.(Emphasis supplied.) OCGA 9-12-16, which embodies a principle that has been the law of this State since 1863, Ga. L. 1863, p. 659, 3513, was not repealed by the enactment of the Civil Practice Act. See Ga. L. 1966, pp. 609, 687; see also Canal Ins. Co., supra at 711” February 22, 2006 Petitioner filed Notice of Intent to Appeal to Georgia Court of Appeals and Notice of Intent to Appeal to Georgia Supreme Court. March 24, 2006 Petitioner filed Motion For Order on the pending Appeal and Motion For Order on the pending Void Judgment (App-C-Tr-4).25 “While the language of O.C.G.A. §15-6-21(c) appears to apply only to motions, “the logic of mandating notice to allow the losing party to take appropriate actions applies with even stronger force to final judgments” See Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App.812 (1) (403 SE2d 97)(1991); Atlantic-Canadian Corp. v. Hammer &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22)(1983); Jefferson-Pilot Fire & c. Co. v. Combs, 166 Ga. App. 274 (304 SE2d 448)(1983); Morgan v. Starks, 214 Ga. App. 265 (447 SE2d 651) (1994). Further, Morgan shows the exact reason why the peremptory hearings were held more than three years after the Dismissal, see 165 Ga. App. at 162 “Motions to set aside for the reasons set forth in O.C.G.A. §9-11-60 may be granted as long as the motion is brought ‘within three years from entry of the judgment complained of.’” Superior Court obviously decided to ignore the Void Judgment, it has never been addressed. 25

21

It has long been held that when the trial Court “fails to notify of dismissal”, and/or “where the losing party is not informed of the entry of an appealable order until after the time for appeal has run”, the order should he reissued to allow a timely appeal”.26 Superior Court, just as Probate Court did, tampered with, hindered and outright Denied Petitioner his statutory and Constitutional Right to Appeal Final Rulings. It has been long standing in Georgia that a Court’s failure to notify the losing party of it’s Ruling is grounds to set aside the judgment under O.C.G.A. §15-6-21(c): Andrus v. Andrus, 659 S.E.2d 793, 290 Ga.App. 394 (Ga.App. 03/20/2008) held: At [13]: “We are guided by our opinion in Carnes Brothers v. Cox, 243 Ga. App. 863 (534 SE2d 547) (2000) … In Carnes Brothers, we found that a trial court's failure to comply with the requirement of OCGA § 15-6-21 (c), that it provide counsel with notice of its orders, provides justification for the trial court to later set aside such an order under OCGA § 9-1160 (g)*fn3 . Id. at 864… it failed to comply with OCGA § 15-6-21 (c). As a result, we affirm …vacating its…dismissal order.” Superior Court refused to Rule and/or Denied Petitioner a Ruling.

27

Without

receiving Notice, and through periodically watching the Docket Report for the next three and a half (3 ½) years, Petitioner discovered that Superior Court had begun Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980), 246 Ga. At 147-149(1). 26

Superior Court claims to have Dismissed the Appeal on the grounds of lack of jurisdiction March 8, 2006 (App-D-2,3), but Petitioner repeatedly attempted to get a Ruling, and was told by the Clerk that there wasn’t one. Petitioner filed Motion for Order on Appeal, and a Motion for Order on Void Judgment, and still could not obtain a Ruling; he then filed Notice of Intent to Appeal Ruling on Appeal, and Notice of Intent to Appeal Ruling on Void Judgment. 27

22

scheduling the Appeal/Void Judgment on peremptory calendars in an attempt to quietly “dispose of by Rule 14”28 the matter (App-C-7,27; C-Tr-5).

In all, there

were three scheduled peremptory hearings. U.S.C.R. Rule 20. Peremptory calendar Periodically …published a list of pending civil actions in which the discovery period has expired …upon reasonable notice requiring the parties … to announce whether ….cases … are ready for trial …Failure to appear at the calendar sounding … may result in the following disposition: (A) In civil actions, the dismissal…of…defendant's answer, … U.S.C.R. Rule 14. Dismissal. …the court may dismiss … any pleading filed on behalf of any party upon the failure to properly respond to the call … In civil actions … the court may adjudge any attorney in contempt for failure to appear… Uniform Superior Court Rule 6.2 allows thirty (30) days for responding to Motions. Judges are to “decide promptly on motions of any nature”, the “Judge then has a duty to file with the clerk”, and “to notify” the parties of the Ruling. Refusals and failures to abide by U.S.C.R. 6.2 is “grounds for impeachment” and “removal from office.” See O.C.G.A. §15-6-21: (b) “In all counties … it shall be the duty of the judge of the superior, …within 90 days…motions of any nature.” (c) “When …so decided, …the duty of the judge… to notify…” (d) “If any judge fails or refuses, …or if any judge repeatedly or See Andrus v Andrus, 659 S.E.2d 793, 290 Ga. App. 394 (2008) “…the trial court held a peremptory hearing calendar call ‘to dispose by Rule 14 of the Georgia Uniform Superior Court Rules those cases in which no action had been taken for some period of time’”; “…the parties did not receive notice of the peremptory calendar call.” 28

23

persistently fails or refuses to decide the various motions, demurrers, and injunctions coming before him …such conduct shall be grounds for impeachment and the penalty therefor shall be his removal from office.” November 20, 2008 Petitioner learned about the second peremptory hearing in time to attend. At the hearing, when only one party appeared, the Court addressed them, and they were allowed to “be heard”. If the appearing party was Plaintiff the Court granted them whatever relief they requested in their pleading; if the party attending was defendant the case against them was dismissed. Petitioner’s name was called twice, both times he was told they would “get back” to him. After all parties present had been addressed, Petitioner was called again, told there is no file, advised to wait and they would “get back” to him, then the Judge, Clerks and Court Reporter left the Courtroom. After waiting in the Courtroom 30 minutes or so, the bailiff told Petitioner that he and Ms. McDonald needed to leave the Courtroom, they waited outside the Courtroom 20-30 minutes until the Clerk appeared, and said that she would mail everything in the file to Petitioner, which she never did (App-C-8; C-Tr-6).

Petitioner

was

disparately

treated, he was not afforded what all others in the same situation were afforded. Hammonds v. Sherman, 627 S.E.2d 110, 277 Ga.App. 498 (Ga.App. 02/06/2006): at [11]: “A trial court may dismiss … for failure to appear at a peremptory calendar call, *fn2” at [16]: “*fn2 See Unif. Super. Ct. R. 20 (A); Unif. Super. Ct. R. 14; OCGA § 9-11-41 (b).”

24

As the only party to appear for the hearing, Petitioner had a right to have his case addressed by the Court, the Right “to be heard”, the Right to be treated the same as everyone else at the hearing (to be treated equally), and the Right for his Appeal and his Void Judgment be Ruled on in his favor. In RE: Law Suits of Anthony J. Carter (two cases) 235 Ga. App. 551, 510 S.E.2d 91, (1998). at [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 [54]: “Howard v. Sharpe, supra at 772 (1), citing three decisions of the United States Supreme Court. Although Howard applied federal constitutional law, so fundamental a concept would likewise be inherent in the state constitution's guarantee of due process.” Probate Court’s November 2005 Summary Judgment Ruling (App-E) as well as any and every Ruling/Order not specifically listed herein violated due process of law and are all Void. “A judgment is void if the rendering court acted in a manner inconsistent with due process of law.” Wright & Miller, Federal Practice and Procedure §2862. “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821) “A court should be cautious in exerting its inherent power and 25

‘must comply with the mandates of due process” First Bank of Marietta v. Hartford Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117, -25; 2002 FED App. 0356P (6th Cir. 2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir. 2002). Petitioner, a disabled adult/member of a protected class, depends heavily upon the Courts and it’s Judges to honor their Oath of Office; abide by, uphold, and honor The State of Georgia Constitution and The Constitution of the United States; to protect his Civil and Constitutional Rights; to ensure that he is treated fairly; and to guarantee that his case will go before a fair and impartial tribunal. “Every person in Georgia has a constitutional right of unfettered access to the courts” Ga. Constitution 1983, Art. I, Sec. I, Par. I, (“No person shall be deprived of life, liberty, or property except by due process of law.); Par. XII (“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”)” Rice v. Lightmas, 259 Ga. App. 380, 577 S.E.2d (Ga.App. 2003) Petitioner then found that a Jury Trial showed on the Docket Report for January 26, 2009 Civil Jury Trial Calendar for an Appeal and a Void Judgment, neither of which are Jury issues. Obviously, the Court decided since it didn’t get to Dismiss for failure to attend the peremptory hearing, that the Court would get to Dismiss for failure to attend a Civil Jury Trial Calendar call (App-C-28). At the January 2009 hearing, the Judge became very abusive toward Petitioner, who was in a wheelchair.

The Judge ranted and raved, threatened to have

Petitioner “taken out back” (whatever that means); threatened to have him arrested 26

for contempt; then had him physically removed from the Courtroom (App-C-Tr-7) for inquiring into what “the technical difficulty” in the file was. Appellant, a disabled individual, proceeding pro se has been subjected to disparate treatment, threatened with harm and incarceration (App-C-Tr-7,8). Clearly, his Civil and Constitutional Rights have been grossly violated by the trial courts (App-C-24,25,26,27). In Tennessee v. Lane, 541 U.S. 513 (2004), JUSTICE STEVENS delivered the opinion of the Court: “Title II of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 337, 42 U. S. C. §§12131–12165, provides that “no qualified individual with a disability shall, ……denied the benefits …, or be subjected to discrimination by any such entity.”’ “The Due Process Clause also requires the States to afford … “meaningful opportunity to be heard” ’ Boddie v. Connecticut, 401 U. S. 371, 379 (1971); M. L. B. v. S. L. J., 519 U. S. 102 (1996). Pg.20: “The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts…” Pg.21 *fn 20 “Because this case implicates the right of access to the courts, we need not consider whether Title II’s duty to accommodate exceeds what the Constitution requires …See Garrett, 531 U. S., at 372.” See also: U.S. v. Georgia 04-1203 (2006), Goodman v. Georgia 04-1236 (2006) Justice Stevens with Justice Ginsberg concurring: “… interference with access to the judicial process, and procedural due process violations… The U.S. Supreme Court in Lane, 541 U.S. at 523-528 teaches: “Title II enforces rights under the Equal Protection Clause as well as an array of rights subject to heightened constitutional scrutiny 27

under the Due Process Clause of the Fourteenth Amendment; accord Constantine, 411 F.3d at 486-487.” “Title II enforces the Equal Protection Clause’s prohibition of … based on hostility, or ‘mere negative attitudes’”, University of Ala. v. Garrett, 531 U.S. 356, 367 (2001); “to private biases”, Palmore v. Sidoti, 466 U.S. 429, 433 (1984). It would be ludicrous to believe that the Stone Mountain Judicial Circuit’s Superior Court threatens all disabled, and/or pro se litigants. Appellant has been subjected to disparate treatment, “differently than others who are similarly situated”; differently than pro se litigants at the hearings; and although there were no disabled litigants in wheelchairs at the hearings, Appellant cannot believe that the Court threatens other disabled pro se litigants with harm or incarceration. “The Supreme Court’s decision in Georgia indicates that it is important for lower Courts to determine on a claim-by-claim basis (1) which aspects of the State’s alleged conduct violates Title II; (2)

to what extent such alleged

misconduct also violates the Constitution; and (3)

whether such alleged

misconduct violates Title II but does not violate the Constitution Georgia 546 U.S. 126 S.Ct. at 882.” Miller v. King, 449 F.2d 1149, 17 A.D. cases 1758 (11th Cir. 05/17/2006) vacated and remanded. The United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57 (1950) held: “There can be no doubt that, at a minimum, the Due Process Clause requires notice and the

28

opportunity to be heard incident to the deprivation of life, liberty or property at the hands of the government…the government must provide the requisite notice and opportunity for a hearing ‘at a meaningful time and in a meaningful manner’”. On June 26, 2009 Judge Shoenthal, at the last scheduled peremptory hearing, in a Final Order, Denied Petitioner’s pending motions. (App-C-Tr-9,10) July 16, 2009 Petitioner filed a timely Notice of Appeal, Motion to Proceed on Appeal in Forma Pauperis with Exhibit and the required Affidavit of Poverty, which Superior Court Granted August 17, 2009. This Court Docketed the Appeal, then transferred it to The Court of Appeals of Georgia, where it was scheduled to be reviewed January 2010. Two days after receiving Petitioner’s timely filed Brief, and without Respondents filing anything at all, The Court of Appeals Dismissed the Appeal (App-B-1,2). Petitioner timely filed Notice of Intent in The Court of Appeals. So, The Court of Appeals of Georgia, going against their own past Rulings, Rulings of this Court and Rulings of the US Supreme Court has too, ignored the many wrongs and manifest injustices Petitioner has been subjected to, and denied Petitioner his Right to Appeal. CONCLUSION Petitioner has shown that all of the necessary elements required for this Honorable Court to Grant a Writ of Certiorari. The case is of extraordinary nature, and of great concern, gravity, and importance to the public. Petitioner is not asking

29

for a review of the sufficiency of evidence. Petitioner has shown that there was an elaborate scheme and conspiracy involved, that Courts made Rulings without jurisdiction, Clerks made Rulings without authority, and the life of an elderly, incompetent lady was lost due to greed and negligence. Petitioner Prays that a Writ of Certiorari be granted. Respectfully submitted this 4th day of December, 2009 By: _____________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782

IN THE SUPREME COURT OF GEORGIA No. _____________________ __________________________________________ JAMES B. STEGEMAN

Appellant/Petitioner, Versus

FRANK J. LILLIG, III

Appellee/Respondent

________________________________________________________________ CERTIFICATE OF SERVICE _______________________________________________________________

30

I hereby Certify that I have this 4TH day of December, 2009 served a true and correct copy of the foregoing Petition for a Writ of Certiorari upon Appellee/Respondent in this matter through his attorney on file by causing same to be deposited with the United States Postal Service, Certified 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 (770) 879-8737

31