Plaintiffs Response In Oppostion To Summary Judgment

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA JANET D. MCDONALD, JAMES B. STEGEMAN, PLAINTIFFS

CIVIL ACTION FILE NO: 07CV11398-6

V GEORGIA POWER COMPANY, et., al., DEFENDANTS

PLAINTIFFS’ RESPONSIVE BRIEF IN OPPOSITION TO DEFENDANTS/ COUNTERCLAIMANTS’ MOTION FOR SUMMARY JUDGMENT __________________________________________________________________________

COMES NOW Plaintiffs Janet D. McDonald and James B. Stegeman and files their Plaintiffs’ Responsive Brief In Opposition to Defendants/Counterclaimants’ Motion For Summary Judgment. Plaintiffs bring to this Court’s attention that Plaintiff Stegeman is invoking his Rights Under Title II of The Americans With Disabilities Act (ADA). Filed simultaneously

with

this

“Plaintiffs’

Responsive

Brief

In

Opposition

to

Defendants/Counterclaimants’ Motion For Summary Judgment” Plaintiffs are filing: “Judicial Notice of Plaintiff Mr. Stegeman’s Invocation of His Rights Under American’s With Disabilities Act, Title II”, “Motion To Void This Court’s June 11, 2008 Order Dismissing Plaintiffs’ Case with Prejudice”

and “Brief in Support of

Plaintiffs’ Motion To Void This Court’s June 11, 2008 Order Dismissing Plaintiffs’

Case with Prejudice”. Plaintiffs incorporate the three pleadings fully, as if it were filed as part

of

this

“Plaintiffs’ Responsive

Brief

In

Opposition

to

Defendants/

Counterclaimants’ Motion For Summary Judgment”. STANDARDS FOR SUMMARY JUDGMENT Summary Judgment is governed by Georgia’s Civil Practice Act, O.C.G.A. §9-1156 and may be granted only when no genuine issue of material facts remains. Defendants/counterclaimants in this matter, on March 28, 20081 filed “Georgia Power Company’s Consolidated Response to Plaintiffs’ Motion to Strike and Plaintiffs’ Motion to Stay Discovery AND Motion of Defendant Georgia Power Company for Continuance Pursuant to O.C.G.A. 9-11-56(f)” in which they objected to Summary Judgment claiming the need to depose not only Plaintiffs, but other persons as well;2 and they requested a continuance. At that time, defendants complained that the issue was not ripe and that Plaintiffs were attempting to have addressed the “ultimate issue” and went on and on complaining that Summary Judgment at that time would be violating Georgia Power’s Discovery Rights. Plaintiffs objected, stating that defendants were merely attempting a bad faith delay. The defendants reasons have turned out to be actually much worse than just a bad faith attempt to delay. Plaintiffs’ Motion to Strike for fraud, fraud upon the Court, and falsely sworn to Verified Answers should have been granted. 1

Continuance was NEVER GRANTED, defendants failed to timely respond and defaulted.

2

Plaintiffs have no knowledge of depositions having been obtained by opposition. 2

The Summary Judgment filed by defendants show that they have once again improperly changed their pleadings3. A.

Affidavits to be used for Summary Judgment: “Affidavits ‘shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ The trial court should strike or refrain from considering any portion of an affidavit containing hearsay, unsupported conclusions, and other inadmissible material. OCGA § 9-11-56 (e). Baxley's affidavit contained bare conclusions that were neither supported by facts nor based on personal knowledge. Gibson's second affidavit, though couched as a ‘professional opinion,’ was also a bare conclusion, not supported by facts, … (1) Because the affidavits in question failed to meet the requirements of OCGA § 911-56 (e), the trial court did not abuse its discretion by striking them.” Baxley v. Baldwin, 614,*;279 Ga. App. 480; 631 S.E.2d 506 (2006) O.C.G.A. §9-11-56(e): Form of affidavits… “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein… certified copies of all papers … shall be attached thereto or served therewith…All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties…” (f): When affidavits are unavailable. “Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition,…” (g): Affidavits made in bad faith. “Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Code section are

Plaintiffs pointed out previously that the Verification swore that there had been a thorough investigation into the allegations of the complaint and the Verified answers were true. Defendants have made many statements to the contrary. “Legal easement”; “legal easement rights”; they amended their answer and counterclaim to ask for a reformation; Verified answer stated that the threat on Matt Goof’s life was not one month before the cutting of the trees as Trooper Bobby Mathis said, it was one year – now they submit sworn affidavit by the Trooper saying one month; The list of these idiosyncrasies goes on, this Court has been shown that defendants continue their behavior of deceit and falsely sworn to statements and affidavits. 3

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presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party may be adjudged guilty of contempt.” Also see: “Malloy v. Cauley, et., al., GA.207 , 314 S.E.2d 464, 169 Ga. App. 623 “Nevertheless, the trial court's action was fully warranted based upon appellant's presentation of an affidavit containing a statement she knew to be false and other statements she knew to be based upon other than personal knowledge. The sanctions imposed did not exceed what is authorized by the statute.” ‘"An affidavit in support of a motion must set forth such facts as would be admissible in evidence [OCGA § 9-11-56 (e) (Code Ann. § 81A-156)], and to the extent that it contains material which would not be admissible in evidence it is subject to a motion to strike." Vaughn & Co. v. Saul, 143 Ga. App. 74, 78 (237 S.E.2d 622) (1977).”’ See also: Dearing v. State of Ga., 243 Ga. App. 195, 201 (1) (532 SE2d 751) LAWSKILLS (2000): holding that a false verification by oath constitutes perjury The Affidavits presented by the defendants must be stricken for perjury, lack of personal knowledge, bad faith, manipulation of Exhibits, and inadmissible evidence.

I.

GEORGIA CONSTITUTION AND REAL PROPERTY STATUTES An individual's property right is of such paramount importance that both the U.S.

Constitution and the Georgia Constitution are dedicated to the protection of private property. No fewer than eleven (11) separate paragraphs of the Georgia Constitution4 expressly address individual property rights.

Particularly, the Georgia Constitution

See, e.g., Georgia Constitution, Art. I, § I, ¶¶ I, II, IV, XXVI, and XXVII; Art. III, § III, I; Art. VII, § I, II and III; Art. VII, § II, ¶¶ II and IV; and Art. IX, § VII, ¶ III. 4

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emphasizes that protection of property is "the paramount duty of government[,]"5 and Georgia appellate Courts have repeatedly held that the "right of the humblest individual in the enjoyment of his property must be protected."

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So important are property rights

that the Georgia Legislature has provided statutory causes of action for any interference with an individual's property rights.7 These property rights extend by statute to rights-ofway.8 Given that an individual's home is of such importance, Georgia provides statutory remedies for any interference with an individual's property rights. For example, OCGA § 51-9-1 recites that "[t]he right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie." 9 See Ammons v. Central Georgia Railway Company, Supreme Court of Georgia, 20758., 113 S.E.2d 438, 215 Ga. 758 (1960) which held the following: While "'the necessities of one man's business can not be the standard of another's rights,'" (Wheatley v. Chrisman, 24 Pa. St. 302; Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 118 Ga. 255, 45 S.E. 267), and in Williams v. City of LaGrange, 213 Ga. 241, 243 (98 S.E.2d 617), it is said: "However important may be the march of progress, including the building of roads, streets, and other public improvements, the Constitution of Georgia provides that 'Protection to person and property is the paramount duty of government, and shall be impartial and complete.' Code (Ann.) § 2-102. The right of the 5

Georgia Constitution, ¶ II

Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). 6

7

OCGA §§ 51-9-1, 51-9-2, 51-9-3, and 51-9-10

8

OCGA § 51-9-10.

9

OCGA § 51-9-1 (emphasis supplied). 5

humblest individual in the enjoyment of his property must be protected. The right to take private property from the owner for public use often works extreme hardship and savors of oppression. Nothing but a public necessity can justify it, and then only in strict conformity with the law" -- it is also well established by the decisions of this court that, in determining whether there has been an abuse of discretion in granting or refusing an injunction, the conveniences of the parties cannot be ignored. Everett v. Tabor, 119 Ga. 128 (4) (46 S.E. 72); Maddox v. Willis, 205 Ga. 596 (5) (54 S.E.2d 632), “A court of equity, having acquired jurisdiction of the subject matter and of all of the interested parties, may grant full and complete relief, either legal or equitable, as to all purposes relating to the subject matter, including the grant to the plaintiff in error of any damages to which she may be entitled.” Mendenhall v. Stovall, 195 Ga. 492, 494 (24 S.E.2d 795); Kidd v. Finch, 188 Ga. 492, 496 (4 S.E.2d 187). II.

TITLE II AND THE DUE PROCESS CLAUSE Plaintiffs incorporate fully, and in it’s entirety: Judicial Notice of Plaintiff Mr.

Stegeman’s Invocation of His Rights Under American’s With Disabilities Act, Title II , and Plaintiffs invoke their rights as pro se litigants,10 as if it were filed as part of this Responsive Objection to Summary Judgment.11 The Supreme Court in Lane upheld Title II as “valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services” 541 U.S. at 331. The Supreme Court further held that Title II enforces rights under the Equal Protection Clause, as well as “a variety of other basic constitutional guarantees, and infringements” as well as an array of rights subject to heightened constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment. Lane, 541 U.S. at 522-523; accord Constantine, 411 F.3d at 486-487. “Mere negative attitudes alone cannot justify disparate treatment of those with disabilities” Invocation of rights of pro se litigants is part of Judicial Notice of Plaintiff Mr. Stegeman’s Invocation of His Rights Under American’s With Disabilities Act, Title II, 11 Plaintiffs have incorporated the entire pleading rather than reproduce the pleading and attach it hereto. 10

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University of Ala. V. Garrett, 531 U.S. 356, 367 (2001).12 Plaintiffs have shown beyond all doubt that they cannot and will not be treated fairly/impartially, without bias/prejudice by this Court. As a disabled pro se litigant, Plaintiff Mr. Stegeman’s Rights guaranteed by ADA Title II, and both Plaintiffs’ Civil and Constitutional Rights guaranteed by The Georgia Constitution, Georgia statutes, The United States Constitution, The Bills of Rights and Human Rights will continue to be violated “under color of law” by this Court and the defendant/counterclaimants. U.S. v. Price, 383 U.S. 787 (1966) page 383 U.S. 799 states: “The Fourteenth Amendment protects the individual against state action,… Williams I, 341 U.S. at 341 U.S. 92 (opinion of Douglas J.)… Page 383 U.S. 800 and is therefore within the scope of the Fourteenth Amendment.” Page 383 U.S. 806: “…no State shall deprive any person of life or liberty without due process of law … direct traditional concern of the Federal Government, …in which the federal interest has existed for at least a century, and in which federal participation has intensified as part of the renewed emphasis upon civil rights.” See “Judicial Notice of Plaintiff Mr. Stegeman’s Invocation of His Rights Under American’s With Disabilities Act, Title II” and ” and “Brief in Support of Plaintiffs’ Motion To Void This Court’s June 11, 2008 Order Dismissing Plaintiffs’ Case…” O’Shea v. Littleton, 414 U.S. 488 (1974) shows the following: Page 414 U.S. 503; “Judges who would willfully discriminate… would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U.S.C. §242. See Greenwood v. Peacock, supra, at 384 U.S. 830; United States v. Price, 383 U.S. 787, 383 U.S. 793-794 (1966); United States v. Guest, 383 U.S. 745, 383 U.S. 753-754 (1966); Screws v. United A purported rational basis for treatment of the disabled will also fail if the State does not accord the same treatment to other groups similarly situated, id at 366 n.4.; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 447-450 (1985), based on “animosity”, Rmoer v. Evans, 517 U.S. 620, 634 (1996), or if it simply gives effect to private biases, Palmer v. Sidoti, 466 U.S. 429, 433 (1984). 12

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States, 325 U.S. 91, 325 U.S. 101-106 (1945) United States v. Classic, 313 U.S. 299 (1941).” “Cf. Monroe v. Pape, 365 u.s. 167, 365 u.s. 187 (1961). That section provides: ‘Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State… to the deprivation of any rights, privileges, or immunities secure or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or…imprisoned…’” “…we have never held…performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization…criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress…’ Gravel v. United States, at 408 U.S. 606, 408 U.S. 627 (1972).” Tunn v. Whitticker, 398 F.35 899, 902 (7th Cir. 2005) at 902: “the essence of substantive due process is protection of the individual from the exercise of governmental power without reasonable justification.” “[i]t is most often described as an abuse of government power which ‘shocks the conscience.’” Id. (quoting Rochin v. California, 342 U.S. 165, 172 (1952)). “…Where a defendant has ‘the luxury of proceeding in a deliberate fashion…deliberate indifference may be sufficient to shock the conscience.” Kaucher v. County of Bucks, 455 F.3d 418, 426 (3d Cir. 2005)); conduct “intended to injure in some way unjustifiable by any government interest.” “most likely to rise to the conscience-shocking level.” County of Sacramento v. Lewis, 523 U.S. 833 at 849; see also: Remer v. Burlington Area Sch. Dist., 286 F.3f 1007, 1013 (7th Cir. 2002); Neal v. Fulton County Bd. Of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000). III.DEFENDANTS’ CLAIMS AND THEORIES OF RECOVERY FAIL

Defendants claims are due to be dismissed as a matter of law: a.

Reformation laws are quite clear Statute of limitations bar requests for reformation. Reformation has a seven year statute of limitation

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Further, you cannot reformat a document signed by a man that did not exist b.

Equitable bar of laches prohibit defendant’s requests for the following reasons: (1) Defendants had in their possession copies of the easements documents since 1937 and 1941 (Defendants provided Plaintiffs with the documents that Plaintiffs based their complaint on.) (2) Defendants had actual knowledge of the easement dispute since 1995 (3) Defendants could have brought the matter before the Courts at any time. (4) Defendants appeared at a Magistrate Hearing in September 2007 and still failed to act (5) Reformation requests fail as a matter of law as a result of defendants’ admitted failure to exercise due diligence

(6) Defendants’ claims must be dismissed as a matter of law because for years, Georgia Power forewent any legal remedy they might have had, and cannot now request reformation long barred by statute of limitations (7) Defendants knowingly, willingly, wantonly illegally took property, using deceit, falsification of land records (deeds), a crime. (8) Defendants injunctive and declaratory relief fails as a matter of law due to the many defenses to equitable claims stated above, (i.e. laches, admitted failure to exercise due diligence, forgone potential remedies at law, etc.) (9) The Equitable Bar of Laches prohibits Defendants’ counterclaim and request for reformation. Plaintiffs have shown undisputedly that there was no legal easement documents pertaining to Plaintiffs’ property. Nevertheless, in violation of Title II and GA law, this Court is bound and determined to aid Georgia Power in their covert conspiracy to steal Plaintiffs’ land, by any and all means necessary. Plaintiffs show in a similar case, that if

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Georgia Power did have a legal easement document (which they don’t have), Georgia Power could not take more land without an additional easement or condemnation. It has long been held in Georgia that when there is an easement agreement, even one that does not specify the amount of the easement, the power company is barred from moving their pole farther onto private property as shown in Jackson Electric Membership Corporation v. Echols, et., al., 66 S.E.2d 770, 84 Ga. App. 610 (1951): “The Jackson Electric Membership Corporation sued Mrs. C. C. Echols and her husband … to enjoin their interference with … erection of … distribution line across the property of the defendants. The plaintiff based its claim of right upon a blanket form of easement executed by Mrs. Echols in August 1941, which conveyed …the right to enter upon the described lands … "to place, construct, operate, repair, maintain, relocate and replace thereon and in or upon all streets, roads or highways abutting said lands …, and to cut and trim trees and shrubbery to the extent necessary to keep them clear of said electric lines … cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in falling." By this instrument no particular location of the right-of-way or easement was specified. “… the instrument …was executed on August 2, 1941. While the record does not disclose just when the original line was constructed …, all parties agree that the construction of the original line, … had been completed for a considerable time … -- some three or four years, at least.” “While the easement relied upon by the plaintiff did not specifically designate the location or the extent of the line or system of lines to be erected on and over the defendants' lands, the subsequent erection of a line and the termination of the work thereon for a considerable period of time operated to fix and determine this feature of the contract. Gaston v. Gainesville &c. Ry. Co., 120 Ga. 516(1) (48 S.E. 188). Having thus established the location of the line or system which was intended to be permitted by the easement, the plaintiff was thereafter precluded, after the lapse of a substantial period of time from the erection of the original line or system to enter upon the defendants' lands and take additional portions thereof for the erection of an extension or extensions of the line or system without first 10

obtaining from the defendants a further or additional easement or by a proper condemnation proceeding. Martin v. Seaboard Air Line Ry. Co., 139 Ga. 807(1a) (77 S.E. 1060). To construe the original easement in any other manner would be to authorize the plaintiff to eventually take all the defendants' land if the necessities of their business dictated, without requiring the payment of any additional damages or compensation to the defendants no matter how great the defendants' losses might be as a result thereof. This was clearly not the intention of the parties to the instrument. Certainly the defendants did not intend to convey to the plaintiff blanket authority to take any and all their land whenever it might suit the convenience or necessity of the plaintiff, without requiring the plaintiff to pay such damages as might accrue as a result of such taking.” See also Bibb County v. Georgia Power Company, (241 Ga. App. 131)(525 SE2d 136)(1999): “The first dispute is whether Georgia Power had an established easement at the time Bibb County asked it to relocate its poles in 1996. The written easements obtained from the private landowners prior to the 1967 relocation were indefinite easements that became definite by the actual placement of the poles.(5) Once so established, the easements could not be changed without Georgia Power first obtaining from the landowners a further or additional easement, whether by condemnation or otherwise.(6) Jackson Elec. Membership Corp. v. Echols(7) explained the consequences of a contrary holding: To construe the original easement in any other manner would be to authorize the [utility] to eventually take all the [landowners'] land if the necessities of their business dictated, without requiring the payment of any additional damages or compensation to the [landowners] no matter how great the [landowners'] losses might be as a result thereof. This was clearly not the intention of the parties to the instrument. Certainly the [landowners] did not intend to convey to the [utility] blanket authority to take any and all their land whenever it might suit the convenience or necessity of the [utility], without requiring the [utility] to pay such damages as might accrue as a result of such taking. Once fixed by actual placement of the poles, indefinite easements do not "float" according to the business necessities of the utility. “Georgia Power contends that since it stayed within the thirty feet it had kept clear of trees and brush (which argument does not even apply to three 11

of the poles that indisputably were located outside the thirty-foot width), it was not changing or abandoning its easement but was simply relocating the poles within the allowed general area of the easement.(10) But it is a jury question whether the relocating of a power pole several feet to one side was within the "general area" of the easement, since moving a pole thirteen feet to the south would necessarily require, by Georgia Power's own evidence, that the south side of the pole continue to be kept clear by fifteen feet, which would move the entire easement thirteen feet to the south, and (ii) there is a dispute whether the distance of thirty feet was historically kept clear (based on the testimony of the aerial photograph expert, the plats, and the indefinite evidence of Georgia Power). The question is whether the particular movement of the poles was a change in the degree or kind of the easement, for the changed locations may be found to "occupy a general area beyond the outer limits of the space previously occupied. . . ."(11) Moreover, acquiescing to a relocation of the poles may have constituted an abandonment of the old easements.(12) With regard to the three poles indisputably located outside the thirty-foot width of the "original" easements, the evidence is even more convincingly in the county's favor.” “And the written easements do provide that Georgia Power may enter the land to make repairs, renewals, alterations, and extensions on the power lines. But altering, repairing, and extending the power lines do not encompass the right to move the fixed poles several feet in one direction; otherwise, by incremental adjustments, Georgia Power could eventually take over the entire property, a result not contemplated by such language. The question therefore is whether during 1967 the authority, which was the landowner, and the county, which was in charge of utility relocations, intended that these particular old easements should be moved from their original locations to the new locations.” See also Orr v. Georgia Transmission Corp., 633 S.E.2d 564, 280 Ga.App. 251 (Ga.App. 06/15/2006): “The Supreme Court held that a declaration of taking which does not conform to the dictates of the Code because it does not describe the nature or duration of an easement "cannot vest title to the land…” 248 Ga. at 37 “Thus, an amendment cannot relate back to the time of the original petition so as to cure the defect and affect a vesting of title…”

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A.

False Swearing/Perjury Defendants have shown this Court contempt, insulted, and manipulated this Court

with its continual false swearing/perjury, fraudulent claims and its refusals to address the fraudulent land documents. In the September 2007 Magistrate Hearing, while under oath, defendants stated that the pole has been in the “same location since 1941-42”, Plaintiffs complaint clearly stated that the statement was perjury; defendants denied perjury in their verified answers, which was perjury/false swearing. Now, defendants say that the pole has been in the same place “since 1970”, that the pole has been there for “20 years”, “40 years”, “since 1986”. All of the statements are lies. If the Sheppard Rd line has not been moved since 1970, what good is the altered/manipulated 13 1986 aerial photo defendants have submitted? Georgia Power continues: “metal tag on the pole… says…” The facts are clear, the pole has been mutilate where the date is stamped into the pole itself, and the pictures show no date tag on the pole. Any claim that the pole has a date tag, unless someone sneaked out and attached one, is falsely sworn to. B.

Robert Wells, Robert F. Wells, R. F. Wells, Dr. R. F. Wells

The lack of showing of Plaintiffs’ extensive fencing and massive rough granite wall which is 100’ long x between 4’ to 8’ high marked with “No Trespassing” signs; the showing of where the power lines are, the placement of “granddaddy oak”, area supposed to be Plaintiffs’ driveway, the house, the locations of poles at 831 and 841 Sheppard Rd and the pole placement of the Sheppard Rd/Sheppard Cove pole, as well as other things are incorrect on the altered/manipulated map which is not Certified. (We have a Certified Map showing the proper placement for the poles). Further, should a survey actually have been done, where is the Certified Copy of it? 13

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The facts are clear, there is not, was not, and never has been an entity known as “R. F. Wells”, “Robert F. Wells”, “Dr. R. F. Wells” who owned property on Sheppard Rd. or otherwise. See documents pertaining to the Wells family and Wells Family Tree, Exhibit ___. Plaintiffs have produced undisputed evidence that there is/was no R. F. Wells. The Wells family in Stone Mountain had six (6) sons, all were soldiers in the Civil War, only two (2) survived: George Riley Wells and James Alvin Wells. Dr. James A. Wells, is in the Confederate Cemetery in downtown Stone Mountain, he passed away in 1933 before 1937 and/or 1941, he could not “grant” the fraudulent easement. Further, the Wells did not own property down Ridge Ave. as far as Sheppard Rd. The Wells family owned quite a bit of land, including land where the Wells family cemetery was located, all of that property is now Stone Mountain Industrial Park owned by Patillo, which the Wells family sold for somewhere around $2 million dollars, the Wells family cemetery had been on that land and was moved. Without the easement agreement, there are no “easement rights” or “lawful enjoyment of its easement rights” Again Defendants have lied. Defendants’ claims are due to be dismissed as a matter of law because for one thing, these defendants and the sworn affidavits defendants have presented to this Court consists of false swearing/perjury.

C.

The Easement Documents Plaintiffs have shown that there is more wrong with the easement documents than

just changing a 37 to a 73. In fact, there is quite a bit more. 14

Facts: 1.

The spelling of the road on which I live is SHEPPARD ROAD

2.

The spelling on one fraudulent document is SHIPHUD ROAD, the other is spelled SHEPHERD ROAD.

3.

The Land Lot and District No. of my home is different than that on the fraudulent documents.

4.

Dr. R. F. Wells, Mr. R. F. Wells, or R. F. Wells never existed.

5.

Going all the way back to the 1500’s the only Dr. in the Wells Family was James A. Wells who died in 1933.

6.

The first land document is dated 1937, the other 1941. After repeatedly attempting to get the legal counsel that under the law is Mr.

Stegeman’s “property”, we were forced to proceed pro se; What we have asked and been denied: 1.

That I receive what is considered by law my property (legal assistance).

2.

The Georgia laws and Constitution be honored and upheld.

3.

The United States laws and Constitution are abided by and upheld.

4.

Those who have sworn an Oath of Office, honor their Oath.

5.

In a Court of law that we are treated without bias and prejudice.

6.

That Title II ADA and the Rights of disabled are not violated, and we receive the guaranteed “meaningful access to the Courts.” A Party to a lawsuit does not wait a year (as defendants have done) after being

shown that documents are fraudulent, to suddenly, Motion for Summary Judgment to a Judge that is disqualified from hearing the case & Ruling unless they know it will be granted in their favor. Statute of limitations for reformation is seven years, not 68 years; statute of limitations bar reformation of the fraudulent easement agreement signed by a non-

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existent man. Further this Court lacks jurisdiction over Plaintiffs and their property. The Court failed to follow the procedure, and statute to bring private property under the jurisdiction of the Court.14 Georgia Power has claimed that they have a right to any and all of Plaintiffs’ property which Georgia law forbids. Defendant’s claim of “undisputed evidence” is a false claim, there has been no evidence introduced by Defendants that Plaintiffs have not disputed. Plaintiffs dispute that the pole has been in the same place for twenty years. The sworn statement by Matt Goff is perjury at best. Georgia statue and past cases have held that what Georgia Power Company has done results in an illegal taking Plaintiffs property through fraud, false representation, deceit and cannot lead to any Court giving an easement, or allowing condemnation of Plaintiff’s property. Georgia Power had actual knowledge of the dispute and had the opportunity before Plaintiffs filed this civil action, to take remedial measures. Georgia Power failed to act on their own behalf, they lost that chance. Roylston, et., al., v. Conway .A01A1157.(251 Ga. App. 648)(555 SE2d 28) LAWSKILLS (2001)15 in holding: “Prescriptive title requires proof that the possession did not originate in fraud and was public, continuous, exclusive, uninterrupted, peaceable, and accompanied by a claim of right. OCGA 44-5-161; Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000).” 14

O.C.G.A. §§ 44-2-44, 44-2-60, (44-2-43, (44-2-77, 44-2-64, 44-2-70, 44-2-72,

Although Roylston, et., al., v. Conway is somewhat different than the case before this Honorable Court, and the case was reversed: “Because we find that the trial court's order relied upon "evidence" not of record and that insufficient findings were made as to the issue of prescriptive title, we reverse”, the case shows 15

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“A claim of right will be presumed from the assertion of dominion, especially when the assertion of dominion is made by the erection of valuable improvements to the property. Id.; Chancey v. Ga. Power Co., 238 Ga. 397, 398 (1) (233 SE2d 365) (1977).” “Prescriptive title requires proof that the possession did not originate in fraud and was public, continuous, exclusive, uninterrupted, peaceable, and accompanied by a claim of right. OCGA 44-5-161; Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000)” “prescriptive right. A right obtained by prescription .” Black’s Law Dictionary, Seventh Edition, pg. 1201. “easement appurtenant”. An easement created to benefit another tract of land, the use of the easement being incident to the ownership of that other tract. - …” Black’s Law Dictionary, Seventh Edition, p. 527. “The owner of real property has the right “to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from the use.” (Citation and punctuation omitted.)” Woodside v. City of Atlanta, 214 Ga. 75, 83 (2) (103 SE2d 108) (1958). Friendship Baptist Church, Inc., v. West. 265 Ga. 745)(462 SE2d 618)(1995) BENHAM, Chief Justice, dissenting, joined by Justice Sears and Justice Thompson, held the following: “The possession that serves as the foundation of prescriptive title must be accompanied by a claim of right and "be public, continuous, exclusive, uninterrupted, and peaceable. . . ." OCGA 44-5-161 (a) (3). Ownership of real property established by an unbroken chain of recorded deeds may thus be lost by the subsequent ripening of a prescriptive title to the property in another.” Hearn v. Leverette, 213 Ga. 286, 288 (99 SE2d 147) (1957). “A claimant asserts possessory rights by acts that comport with ownership, i.e., acts that would ordinarily be performed by the true owner in appropriating the land or its avails to his own use. Strickland v. Markos, 566 S2d 229, 235 (Ala. 1990); Smith v.

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Hayden, 772 P2d 47, 53 (Colo. 1989); Smith v. Tippett, 569 A2d 1186, 1190 (D.C. App. 1990)”. “and there was no evidence that anyone had challenged the church's exclusive possession of the tract by occupying the land and using it in a manner indicating a claim adverse to that of the church, or with a claim of common or public right. See Annotation, Effect of Public Use on Adverse Possession, 56 ALR3d 1182, 1185.” Further, Defendants’ fraudulent statements and false representations to Police Officers in 2004 and 2007 in order to have Officers present when the cuttings took place and Plaintiffs would not be allowed protect their property definitely shows “fraud”, that both Georgia Power’s easement claim and the situation was “disputed”; since Police were there supposedly for Georgia Power employee’s protection, there can be no claim of “peaceable” Roylston, et., al., v. Conway .A01A1157.(251 Ga. App. 648)(555 SE2d 28) LAWSKILLS (2001) in holding: “Prescriptive title requires proof that the possession did not originate in fraud and was public, continuous, exclusive, uninterrupted, peaceable, and accompanied by a claim of right. OCGA 44-5-161; Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000).” “A claim of right will be presumed from the assertion of dominion, especially when the assertion of dominion is made by the erection of valuable improvements to the property. Id.; Chancey v. Ga. Power Co., 238 Ga. 397, 398 (1) (233 SE2d 365) (1977).” The Doctrine of Staire Decisis S & A Industries, Inc. v. Bank Atlanta, et., al., and vice versa, 247 Ga. App. 377 (1996). The Supreme Court of Georgia recently reiterated the need to adhere to precedent so as to promote the rule of law and its predictability. The application of the doctrine of stare decisis is essential to the performance 18

of a well-ordered system of jurisprudence. In most instances, it is of more practical utility to have the law settled and to let it remain so, than to open it up to new constructions, as the personnel of the court may change, even though grave doubt may arise as to the correctness of the interpretation originally given to it. (Citations omitted.) Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999). Fourth, the doctrine of stare decisis applies even more strongly in matters of statutory construction. "Even those who regard 'stare decisis' with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute." A reinterpretation of a statute after the General Assembly's implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function. (Citations omitted.) Etkind, supra, 271 Ga. at 358 (5). Regarding land documents, see The State v. Johnson, S97G1681. (269 Ga. 370) (499 SE2d 56) (1998) which held: “OCGA §16-10-20. That statute sets forth three ways to commit the crime of false statement: (1) when a person knowingly and willfully falsifies a material fact; (2) when a person makes a false, fictitious, or fraudulent statement or representation; or (3) when a person "makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry." Id. This appeal involves the third way of violating OCGA 16-10-20.” “1. We agree with the State that the Court of Appeals erred when it held that a charge of "using" a false document under OCGA 16-10-20 applies only to a person who uses a false document that was prepared by another. State v. Johnson, supra at 837” “State v. Luster, 204 Ga. App. 156, 158 (1) (a) (ii) (419 SE2d 32) (1992). Even construing OCGA 16-10-20 strictly against the State, see generally Jowers v. State, 225 Ga. App. 809 (2) (484 SE2d 803) (1997), the language therein unambiguously prohibits an individual from making or using any false writing or document, without regard to the identity of the individual who initially made or subsequently used the false document. Because there is no limitation placed on the prohibited conduct of "making or using" false documents in OCGA 16-10-20”

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“individuals who use a false writing or document, knowing it to contain any false, fictitious or fraudulent statement or entry, in any matter within the jurisdiction of the State or its political subdivisions, may be charged with violating the statute.” "Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto." Id “Theft by deception is committed when a person "obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property." OCGA 16-8-3 (a). "A person deceives if he intentionally: (1) Creates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false; [or] (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed. . . ." OCGA 16-8-3 (b). Although OCGA 16-8-3 (b) (2) does not specifically state that a deceiving person must "know[ ] or believe[ ]" an impression is false, that state of mind is implicit in the requirement of OCGA 16-8-3 (b) (2) that a deceiving person "intentionally" fail to correct a false impression; without knowledge or belief that an impression is false, there can be no intentional failure to correct it.” “A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false." OCGA 51-6-2 (b); see also OCGA 23-2-52; 23-2-53. "A fraud may be committed by acts as well as words." OCGA 51-6-4 (a). It has often been stated that " '[t]he tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.' " Baldwin v. Roberts, 212 Ga. App. 546, 547 (2) (442 SE2d 272) (1994).”

CONCERNING “REFORMATION” “Motion for Reformation” of the 1941 Easement agreement that Georgia Power previously swore was properly executed and recorded. Defendants ask this Court to

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falsify16 or to allow falsification of Real Estate Records. Georgia Power claims “scrivener’s error”, “mutual mistakes”, which fails as a matter of law. Evidence suggests that Georgia Power caused the easement to be drafted, thereby causing a “unilateral mistake” which dopes not warrant reformation, that than by “mutual mistake” as they suggest. See: Cox v Smith, 244 Ga. 280, (260 S.E.2d 310) (1979) concerning “unilateral mistake” held: “[30] … the evidence shows, … was drafted at the direction of only one of the contracting parties, … therefore …was a … a unilateral mistake, which will not warrant reformation. Delong v. Cobb, supra, (1a) and cit.” See also: Fox et., al., v. Washburn, et., al., 264 Ga. 617, 277 (449 SE2d 513)(1994) Carley Dissenting: “Construing this … the sole result of Washburn's unilateral mistake in failing to advise the ..., since Fox relied entirely upon Washburn to advise the attorney as to the terms of the deed … Thus, the undisputed evidence shows that there was no reformable mutual mistake… See A. J. Concrete Pumping v. Richard O'Brien Equip. Sales, 256 Ga. 795, 796 (1) (353 SE2d 496) (1987); Layfield v. Sanford, 239 Ga. 816, 817 (1) (238 SE2d 899) (1977); Gauker v. Eubanks, 230 Ga. 893, 896 (1) (199 SE2d 771) (1973). The evidence shows, at most, a unilateral mistake on the part of Washburn…” See also: "Mutual mistake, in relation to reformation, means a mistake shared by, or participated in by, both parties, or a mistake common to both parties, or reciprocal to both parties; … the same misconception in respect of the terms and conditions …, the instrument as written does not express the contract or intent of either of the parties." [Cit.] Lawton v. Byck, 217 Ga. 676, 681, 682 (124 SE2d 369) (1962). Further, the defendants have not met the burden of clear, unequivocal and decisive evidence. See the following: 16

falsifying a record. The crime of making false entries or otherwise tampering with a public record with the intent to deceive or injure, or to conceal wrongdoing. 18 USCA §§ 1506, 2071, 2073; Model Penal Code §224.4 Black’s Law Dictionary, Seventh Ed. Pg. 619

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Curry v. Curry, 267 Ga. 66, 1721(473 SE2d 760)(1996), Justice Carley’s dissent joined by Justice Thomson: “The burden was on Grandson to prove that the legal description in the 1988 deed was a mutual mistake… He could not meet this burden by a mere preponderance of the evidence, but only with "clear, unequivocal, and decisive" evidence. OCGA 23-2-21 (c); Carroll v. Craig, 214 Ga. 257, 261 (5) (104 SE2d 215) (1958).” Reformation is barred by “Equitable Estoppel” as well. See the following: Thompson v. McVey, 12th District Court of Appeals, Ohio Supreme Court, http://vlex.com/vid/25605145 (2006) “Equitable estoppel prevent[s] one party from taking unfair advantage of another when, through false language or conduct,… has induced another person to act in a certain way, with the result that the other person has been injured in some way." Black's Law Dictionary (7th Ed.Rev. 1999) 571. The essential elements of equitable estoppel are: (1) the nonrelying party made a factual misrepresentation, (2) that was misleading, (3) that induced actual reliance that was reasonable and in good faith, and (4) that caused detriment to the relying party. Chase Manhattan Bank v. Parker, Butler App. No. CA2003-11299, 2005-Ohio-1801, ¶20. See also: Minor, et., al., v. Finch, et., al., 228 Ga. (58 S.E.2d 389), 206 Ga. 721(1950): “[26] … parties may reform …, so long as accrued rights of third persons are not disturbed; ….” “[27] … equitable power to relieve from mistake "shall be exercised with caution, and to justify it the evidence shall be clear, unequivocal, and decisive as to the mistake." …"where the parties have reduced their contract, agreement, or stipulation to writing, and assented thereto, it is the best evidence of the same." This is a general rule of law. 45 Am. Jur., 649, § 112.” “[34] This court has uniformly laid down the rule that, where reformation is sought upon the ground of mutual mistake, the mistake must be shown by evidence which is clear, unequivocal, and decisive.” “[35] … the present case, the verified petition could not have any effect as evidence. Mrs. Crandall was dead, and to permit the verified petition to be given the effect of evidence would violate the rule that, where one party is dead, the other is incompetent to testify in his own behalf. Code, § 38-1603 (1); Kilpatrick v.

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Strozier, 67 Ga. 247; Sivell v. Hogan, 115 Ga. 667 (42 S.E. 151); Arnold v. Freeman, 181 Ga. 654 (183 S.E. 811). See also the following cases: Trout v. Goodman, 7 Ga. 383, 385 (4),… held: "It is conceded that those who undertake to rectify an agreement, by showing a mistake, undertake a task of great difficulty … strongest proof possible;… it must be irrefragable proof. … will exercise very sparingly, and only upon the clearest and most satisfactory proof of the intention of the parties." Wyche v. Greene, 11 Ga. 159, 160 (4), … held: "As to the degree of proof that will be required, before relief will be granted … The mistake itself should be plain and made out by evidence clear of all reasonable doubt."’ Ligon v. Rogers, 12 Ga. 281, 287, 288,… held: "The general rule is, that the written instrument furnishes better evidence of the deliberate intention of the parties to it than any parol evidence can supply; and the general rule must prevail, unless … by showing by clear and satisfactory evidence, that either by accident, fraud, or mistake, the written instrument does not contain and express what the parties intended it should contain and express, at the time of its execution."’ Wall v. Arrington, 13 Ga. 89 (7),…held: "A Court …, is very slow in exerting it to reform …requires the clearest and strongest evidence... It is not sufficient, … to presume a mistake; the evidence must be clear, unequivocal, and decisive."’ Helton v. Shellnut, 186 Ga. 185 (4), (197 S.E. 287), … held: "To authorize a verdict reforming a deed upon the ground of mutual mistake, the evidence, like the petition, should at least by inference show the particular mistake and illustrate how it occurred; and it is also the rule that 'the evidence shall be clear, unequivocal, and decisive as to the mistake.'" The same rule is stated in Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 704 (2), (38 S.E.2d 534).” Reformation must be denied due to the seven year statute of limitation. Reformation is estopped by the doctrine of laches. See: Evans v. Lipscomb, 266 Ga. 767 (470 SE2d 641): “We granted … 23

Further,

to determine whether the superior court erred in holding … reformation was not barred, as a matter of law, by the applicable statute of limitation. We reverse.” “[21] 1. "An action to reform a written instrument can be brought at any time within seven years …, if not barred by laches." Whittle v. Nottingham, 164 Ga. 155, 161 (3) (138 S.E. 62) (1927).” “[24] …asserts … should not begin to run … discovered the mistake …, or,… should have discovered the mistake …the statute of limitation should be tolled... fail.” “[27] … is not a good response to the statute of limitation. Slade v. Barber, 200 Ga. 405, 410 (2) (37 S.E.2d 143) (1946). *fn4” ”[28] The present action is time-barred and the superior court erred in finding otherwise.” “[29] Judgment reversed. All the Justices concur.” See also: Bradshaw v. City of Atlanta, 275 Ga.App. 609, (621 SE2d 563) http://www.versuslaw.com> (2005): “[8] The trial court dismissed … pursuant to … statutes of limitation for actions based on a mutual mistake or fraud...We discern no error and affirm.” “[14] … from filing suit in a timely manner. See Leathers v. Timex Corp., 174 Ga. App. 430, 431-432 (2) (330 SE2d 102) (1985) … within the applicable statutes of limitation, the trial court properly dismissed his suit. See id. at 432 (2). For a “Reformation”, the action must consist of original parties to the original agreement, or privies to the original estate. Neither Plaintiff Ms. McDonald, nor Plaintiff Mr. Stegeman were part of the original agreement, and the agreement no longer involves the original estate of the original owner. Plaintiffs further believe that Dr. R. F. Well is no longer alive and legally Georgia Power cannot speak for Dr. Wells in his absence.17 See: Moore v McBrayer, et., al., Ga.App. 0000464, No. A07A2288 < http://www.versuslaw.com> (2008): “[20] "When two parties have made a mutual mistake in the creation …, permit reformation ... However, … is limited to those who are either parties to the original deed … such original parties." 17

Hearsay 24

(Footnotes omitted.) Gregorakos v. Wells Fargo Nat. Ass'n, 285 Ga. App. 744, 746 (1) (647 SE2d 289) (2007). ..”” See also: Rawson v. Brosnan, 187 Ga. at 626 (on motion for reconsideration). See OCGA § 23-2-34.” “Moore was neither a party nor a … a privy in estate, because a privy in estate is a successor to the same estate in the same property,"…, even if the agreement … was based upon mutual mistake, …is not entitled to a reformation… Rawson v. Brosnan, 187 Ga. at 626-628 (on motion for reconsideration). See also Gregorakos v. Wells Fargo Nat. Ass'n, 285 Ga. App. at 746 (1); Empire Land Co. v. Stokes, 212 Ga. 707, 709 (2) (95 SE2d 283) (1956).” CONCLUSION Summary Judgment cannot be granted for the above shown reasons.

Respectfully submitted, this 24th day of February, 2009 By: ___________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782 By: ___________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782

THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA

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JANET D. MCDONALD, JAMES B. STEGEMAN, PLAINTIFFS

CIVIL ACTION FILE NO: 07CV11398-6

v GEORGIA POWER CO., et., al., DEFENDANTS CERTIFICATE OF SERVICE I hereby Certify that I have this 24th day of February, 2009 served upon Defendants a true and correct copy of Plaintiffs’ Responsive Brief In Opposition to Defendants/Counterclaimants’ Motion For Summary Judgment by depositing with U.S.P.S. First class mail, proper postage affixed and mailed to Defendant’s counsel on record as follows: Troutman Sanders, LLP Brian P. Watt 5200 Bank of America Plaza 600 Peachtree Street Atlanta, GA 30308-2216 By: ______________________________ JANET D. MCDONALD, Pro Se By: _______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737

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