Reply To Response To Motion For Reoncsideration (ga Court Appeals)

COURT OF APPEALS OF GEORGIA JAMES B. STEGEMAN, JANET D. MCDONALD Appellants vs. WACHOVIA BANK, N.A., et., al Appellees

* * * * APPEAL CASE NO. A07A1846 * * * *

REPLY TO DEFENDANT/APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR RECONSIDERATION Appellants filed a timely Motion For Reconsideration December 17, 2007 pursuant to Georgia Court of Appeals Rule 37, Appellees filed their Response December 27, 2007. Appellants MOVE this Honorable Court to Grant their Motion For Reconsideration; Appellants MOVE this Honorable Court to Reverse Superior Court’s Order.

Among the reasons for granting Appellant’s Motion For

Reconsideration: “the Court overlooked material fact in the record”; “a statute or a decision which is controlling authority would

require a different judgment from

that rendered”; “erroneously construed or misapplied a provision of law or a controlling authority”.

Lack of action by this Honorable Court would lead one to conclude that The Georgia General Assembly and or Congress have amended the Constitutions and or statutes by removing liability of tortfeasors and removing the Right to relief for law-abiding, tax-paying citizens with no criminal record, who have not been charged, arrested or convicted of any crimes, yet who have become victims with their property seized and damaged without due process of law and having been subjected to various tortious and fraudulent actions.

Controlling Authorities – Provisions of Law Appellants have been denied the Georgia and United States’ Constitutional Right of due process of law; they have been denied the Constitutional guarantees of the right to “be heard”, and not to be “treated differently” by the Courts than others in the same situation. Appellees in this matter have continually been allowed to do as they please. Appellees are not above having to abide by the rules, regulations, procedures, statutes. Appellants will show in the following that even the State of Georgia has had to follow the same rules, regulations and procedures as the normal litigant, yet Appellees are treated with preference.

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Motions To Dismiss and Defaults The trial Court improperly granted Appellee’s Motion To Dismiss and the case should be remanded to Superior Court with instructions to the trial Court Judge.

Superior Court held Appellants to “stringent” rules, procedures, and

statutes to the point that bias, prejudice and discrimination is obvious. Shown below, even the State of Georgia has been held to “stringent” rules, regulations, procedures and statutes; Wachovia is not above the law and favoritism should not be shown to these Appellees. See: Azarat Marketing Group, Inc. v. Georgia Department Of Administrative Affairs, 245 Ga. App. 256, 245 Ga. App. 256, 537 S.E.2d 99, 537 S.E.2d 99 VERSUSLAW (Ga. App. 07/06/2000); Reversed; The opinion of the court was delivered by: Ellington, Judge.: at [15]:

“…the trial court failed to consider the evidence

presented in the light most favorable to Azarat as non-movant, *fn1 the trial court erred in allowing the State to claim res judicata …”; “Res judicata is an affirmative defense that must

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be raised in a timely filed responsive pleading. OCGA § 9-11-8 (c).” at [16]: “(b) The trial court also erred in finding that a "general conclusory statement" in the pleadings that there had been a breach of contract fails to state a cause of action …” at [17]: “[A] defendant in default is in the position of having admitted each and every material allegation of the plaintiff's petition except as to the amount of damages alleged. The default concludes the defendant's liability, and estops him from offering any defenses which would defeat the right of recovery. (Citations and punctuation omitted.) Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985). See also OCGA § 9-11-55 (a).” at [19]: “In this case, Azarat's complaint shows that (1) there was an agreement for it to sell the State 36 computers for a total price of $33,984.00; (2) the computers were delivered as promised; (3) all conditions precedent to Azarat's right of recovery have occurred; and (4) the State has refused to pay for the computers pursuant to its agreement. These allegations were

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sufficient to state a cause of action for breach of contract and were deemed admitted by the State's default. See OCGA §§ 9-118 (a) (2); 9-11-55 (a); see also Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990) (all doubts resolved in favor of plaintiff on a motion to dismiss for failure to state a claim).” See also: Jesson v. GCH & Associates, Inc., 248 Ga.App. 97, 545 S.E.2d 645 VERSUSLAW (Ga.App. 02/16/2001); The opinion of the court was delivered by: Johnson, Presiding Judge. At [15]: “The trial court also found correctly that Jesson's remedy was to move to open the default pursuant to OCGA § 9-11-55 (b).” “Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious

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defense. . . . Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default. *fn2”; “*fn2 (Citations and punctuation omitted.) Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997).” See also: "Under the Civil Practice Act a motion to dismiss a complaint for failure to state a claim upon which relief may be granted should not be granted unless averments in the complaint disclose with certainty that plaintiffs would not be entitled to relief under any state of facts that could be proven in support of the claim." Hardy v. Gordon, 146 Ga. App. 656, 657 (247 SE2d 166) (1978).”; "While conclusions may not generally be used in affidavits to support or oppose summary judgment motions [cit.], conclusions may generally be pleaded under the Civil Practice Act. 'Under this "notice" theory of pleading it is immaterial whether a

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pleading states "conclusions" or "facts" as long as fair notice is given, and the statement of claim is short and plain.' [Cit.] '(T)he true test is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly, and not whether as an abstract matter it states "conclusions" or "facts".' [Cit.] '(T)here are no prohibitions in the rules against pleading conclusions and, if pleaded, they may be considered in determining whether a complaint sufficiently states a claim for relief. It is immaterial whether an allegation is one of fact or conclusion if the complaint effectively states a claim for relief.' 1 Kooman, Federal Civil Practice, 250. Accord, Davis & Shulman's Georgia Practice & Procedure 2-5 (4th Ed. 1975)." Guthrie v. Monumental Properties, 141 Ga. App. 21, 23 (232 SE2d 369) (1977).”

It has clearly been shown that Appellees had defaulted not only in Superior Court, but upon Removal to Federal Court failed to timely file an answer in that Court as well. Superior Court failed to follow procedure concerning default giving

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Appellees more lee-way than this Honorable Court in the past, allowed the State of Georgia. Appellees failed to file a Motion To Open Default in either Court. The trial Court violated procedure and statutes when grating Appellee’s “Motion To Dismiss”. There were questions of disputed material fact, Appellants could prove many of the counts in their complaint and The Georgia General Assembly has deemed that “tort” is a recoverable cause of action. See White v. Johnson, No. 58117, 1979. GA. 1553 VL, at [18] (259 S.E.2d 731)(1979) (Ga. App. 345 Sept 14, 1979) “… and did not allege the circumstances constituting the fraud with particularity as required by § 9B of the Georgia Civil Practice Act (Code Ann. §81A109(b)). Appellant’s contention is without merit since “n Cochran v. McCollum, 233 Ga. 104 (210 S.E.2d 13) it was held where there is a failure to plead fraud with particularity that the correct remedy is not a motion to dismiss or strike but a motion for more definite statement under CPA §12(e) (Code Ann §81A-112(e)).” Scroggins v. Harper, 144 Ga. App. 548, 549 (241 S.E.2d

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648)(1978). The record contains no motion for a more definite statement and, therefore, the trial court did not err in denying appellant’s motion to strike.””

Material Fact in the Record Before filing this Civil action and continuing to date, Appellees have cast aspersions, demeaned, slandered, defamed the characters of Appellants for the sole purpose of bringing bias and prejudice in the Courts against the Appellants, thus ensuring unsuccessful legal action against them. The tortious acts of Appellees must not be ignored, the Appellants are not the first victims of the fraudulent scheme bestowed upon them; should this Honorable Court fail to act, they will not be the last victims. The Appellant’s complaint alleges causes of action for “tort” in nature and stated several times that they possess supporting, concrete evidence in support of their allegations. Appellees are aware of the supporting evidence due to discovery performed and Superior Court is well aware of the evidence due to Superior Court

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civil action #: 02-cv-9732-8,1 Joyner v. Stegeman in which there was a Motion to Compel hearing against Appellees as a non-party.

Before filing this action,

Appellants had obtained critical evidence against Appellees in which to prove allegations in their complaint. Among Appellant’s evidence: The Original agreements and contracts from the opening of the accounts, Certified Bank Records showing fraud and mismanagement of accounts; Certified depositions by Senior VP Wachovia Securities and Senior Compliance Officer stating exactly how the accounts came about, how the accounts were opened, and to whom the accounts belonged; the

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Judge Hunter was presiding Judge, therefore the claim in her Order Dismissing

the case dated April 12, 2007 states on page 1, second ¶: “Plaintiffs allege…”; Plaintiffs had some undefined relationship…”; “… some disagreement with certain actions taken by the court appointed guardian…” These statements are false, Judge Hunter presided over the case for two years and had full knowledge of the events alleged in the complaint. Further, after two and a half years when the Guardian could produce no evidence against Stegeman, he backed out of the case, and Appellants regained what was left of their assets. 10

lack of Court Orders setting aside Stegeman’s Durable Power of Attorney2 and the notarized Directive from Caffrey to McDonald. To address what Appellees and Superior Court contend is confusion of “account and account(s)” in the complaint, a CAP Account is comprised of more than one account number, and along with the fact that Certified Bank Records indicate that the Appellees had moved the assets numerous times and different account numbers one might surmise as an effort to hide the assets, then in the end there was only one account. Appellees would have the Courts believe that: “the funds and property in Plaintiff’s accounts emanated from Ms. Jean Caffrey”3; and they go on to state: “Despite the Temporary Guardianship Letter…”4; Appellees continue: “To this end Plaintiffs appear to complain that Wachovia and Mr. Joyner acted without proper 2

Special Durable Power of Attorney on file at DeKalb County Courthouse dated

January 21, 1998 Book 9791 pgs. 22-24 as well as Wachovia Bank and Wachovia Securities 3

pg. 2, I.

Summary of Alleged facts, 2nd¶ of “Wachovia Bank, National

Association’s Memorandum of Law In Support Of It’s Renewed Motion To Dismiss Complaint” dated April 13, 2006 11

documentation to change both names and addresses on accounts, deny Plaintiffs access to the accounts, de-link the accounts, close the accounts and sell mutual funds from the accounts.”5 The reality is that legal documentation shows that: “the funds and property in Plaintiff’s accounts” belonged to Appellants; a Temporary Guardianship Letter amounts to nothing without a Judge’s signature and Seal, the document has no legal significance; and such a document presented by someone that Appellees claim to have no relationship with does not replace a Court Order and clearly shows that not only did Appellees have some kind of relationship with, but at the direction of John Joyner breached the fiduciary duty that banks owe their customers;

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pg. 2, I. Summary of Alleged facts, 3rd¶ of “Wachovia Bank, National

Association’s Memorandum of Law In Support Of It’s Renewed Motion To Dismiss Complaint” dated April 13, 2006 5

pgs. 2-3, I. Summary of Alleged facts, 3rd¶ of “Wachovia Bank, National

Association’s Memorandum of Law In Support Of It’s Renewed Motion To Dismiss Complaint” dated April 13, 2006 12

Appellees admit they had no Court Order signed and sealed by a Judge appointing a County Guardian, no Court Order dismissing a legal notarized directive from Caffrey to McDonald, no Court Order allowing access to Appellant’s accounts, and no Court Order dismissing Stegeman’s special Durable Power of Attorney.

Further, they can provide no evidence that McDonald,

Stegeman or Caffrey agreed to allow the “Guardian” access to any of the accounts held by Appellees. Without Court Orders or permission, Appellees can prove no legal authorization that would enable them to take any action regarding Appellant’s accounts. Doctrine of Separation of Powers and Rule of Stare Decisis Neither the Superior Court nor this Honorable Court has the power to change, inflate or diminish the meaning of either Georgia law or The State of Georgia Constitution or decisions of the Supreme Court. See the following: 2003 Ga. App. LEXIS 1463,*264 Ga. App. 252, 590 S.E.2d 386, 2003 Fulton County D. Rep. 3600 at [*27]: “The three justice plurality opinion in Thompson v. Crownover is not authority to the contrary. Because the Court of Appeals is bound by the Georgia Constitution and the doctrine of stare decisis to

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follow the decisions of the Supreme Court, we are not at liberty to decline” See also [*32]: “to follow the "patent defect" rule as decided by that Court. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI. Accordingly, Bastien, 209 Ga. App. 881 (434 S.E.2d 736) and Watts v. Jaffs, 216 Ga. App. 565 (455 S.E.2d 328) (1995) (which relied on Bastien and the three justice plurality in Thompson v. Crownover to reach a similar result), should be overruled to the extent they contravene the decisions of the Supreme Court establishing and applying the "patent defect" rule in tort claims by tenants against landlords. n25” See also Etkind et al v. Suarez et al S98G1978 (271 Ga. 352) (519 SE2d 210) (1999) V/LEX which shows:

“More

importantly, the doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. McCutcheon v. Smith, 199 Ga. 685, 691 (2) (35 SE2d 144) (1945). Under that doctrine, statutory construction belongs to the courts, legislation to the legislature. We can not add a line to

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the law, nor can the legislature enlarge or diminish a law by construction.” ‘[Cits.]” Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 715 (135 SE2d 383) (1964).” And: “Courts like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered and rectify their own mistakes…” Georgia and Federal Constitutions Appellants have been victims of an unconstitutional and illegal taking of property. Superior Court failed to protect the property when the protection from waste was requested, and the Appellees admittedly aided a County Guardian6 in the illegal seizure and taking of the assets.

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Certified Bank records clearly show, and Appellees freely admit a lack of legal

documentation appointing Guardian (Appellants will hereinafter refer to John Joyner as “John Joyner”, “Joyner”, “Guardian” or “the Guardian”).

Clearly,

Appellees had no legal documentation enabling the seizure or access to Appellant’s assets, thereby Appellees breached their contract with and their fiduciary duty to Appellants, both recoverable causes of action for which Appellees are liable. 15

Appellants were denied their Right to produce evidence in support of the complaint, the only hearing that had a date set was cancelled by the trial Court, what the hearing set was to address was changed and a decision made while Appellant’s supporting briefs and documents were held un-filed in the Court. The Appellants claimed to have a contract, Appellees claimed Appellants had no contract. There should have been a hearing, a hearing had been set, no objection to a hearing was filed. The hearing was requested in order for Appellants to present their evidence and since there appears to have been rebutted evidence, a hearing should have been had to make the determination. Our Georgia Constitution provides: “No person shall be deprived of life, liberty, or property, except by due process of law.”

Code Ann. 2-103.

The Federal

Constitution’s equivalent of this is contained within the Fifth and Fourteenth Amendments.

The Georgia Constitution also

provides: “Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the Judiciary will so declare them.” Code Ann. 2-402 See also:

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IN RE LAW SUITS, 235 Ga. App. 551, 510 S.E.2d 91 (Ga. App. 12/02/1998) VERSUSLAW, at [235 Ga. App. Page 556] [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[47] “*fn14 OCGA § 9-15-2 (d).”

CONCLUSION Appellants have clearly shown that the trial Court as well as Appellees violated rules and statutes; Appellees defaulted in both US District Court as well as

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Superior Court 7; The Appellants in this matter have been held to a more “stringent” standard than have the Appellees showing prejudice, bias, discrimination toward the Pro Se Appellants which in turn has shown them inequality in the Courts. It is up to this Honorable Court to ensure fairness and to see that Rules, Regulations, Procedures and Statutes are abided by and all parties treated equally. This Honorable Court so far has failed to do this. Appellants MOVE this Honorable Court to Reconsider it’s Order, Reverse Superior Court’s Order and find in favor of the Appellants. Respectfully Submitted this 3rd day of January, 2008

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When making statements about US District Court, Appellees clearly perjured

themselves by claiming Fed. R. Civ. P. 81(c) controlled when their responsive pleading was due and claiming that the Court allowed them longer to file an answer than 30 days see Appellee’s Brief, pg3, 2nd ¶; Appellees further perjured themselves by claiming that they didn’t know when US District Court Remanded the case when it was sent to them the same day electronically see Appellee’s Brief pg.4, fn2. 18

BY: ___________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737 BY: __________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737

CERTIFICATE OF SERVICE I hereby certify that I have this 3rd day of January 2008, served a copy of the within and foregoing REPLY TO DEFENDANT/APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR RECONSIDERATION upon

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Appellees/Defendants in this matter through their attorney by causing to be deposited in the U.S. Mail, proper postage prepaid, a true and correct copy of same addressed to each of their attorneys as follows: William J. Holley, II Jodi Emmert Zysek PARKER, HUSON, RAINER & DOBBS, LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue, NE Atlanta, GA 30303 ___________________________ JAMES B. STEGEMAN, Pro Se ___________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737

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