Appendix — Fasse v. Hodgson
Supreme Court brief1991
Ask Donna
What actually matters in this document.
Text
— “=e wv |
s
;
4
.
is
, ow
|
90-1 25384 | foe 4 1991
| ore Cf. THE CLERK
No. |
we FIL The
ff
In the SUPREME COURT of the UNITED STATES
October Term 1990
SUSAN J. FASSE and ELIZABETH FASSE,
PETITIONERS.
V.
PATRICIA HODGSON, RESPONDENT.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE STATE OF GEORGIA SUPREME COURT
APPENDIX
THOMAS V. CASSIDY
Attorney For Petitioners
2648 Sharondale Circle, N.E.
Atlanta, Georgia 30305
(404) 237-0494
TABLE OF CONTENTS
PETITIONERS-APPELLANTS’ APPENDIX
PETITION FOR WRIT OF CERTIORARI
Nov. 7, 1990 final judgment appealed
from. Georgia Supreme Court’s order
denying appellants’ timely Petition
oo gee 1
Oct. 17, 1990 judgment of Georgia
Supreme Court affirming judgment
against appellants without
gl, ena ann er eee eae 2
Nov. 14, 1990 Order of Georgia
Supreme granting to appellants a
Stay of remittitur order (pursuant
to its Rule 61) to appeal to United
States Supreme Court..ccccscvcccces 3
Appellant Susan Fasse’s Enumeration
of Errors to Georgia Supreme
og FEA re ee er ee ere aa ee 6
Appellant Elizabeth Fasse’s
Enumeration of Errors to Georgia
Cg eee ST ee Ee ee ee ee 41
Oct. 26, 1990 Appellants timely
Motion For Reconsideration\Petition
For Rehearing to the Georgia Supreme
Og Ee Te re ee ee ee ee 52
Order of Georgia Supreme Court
granting to appellant Susan Fasse
her application for discretionary
appeal from the Superior Court
(Atlanta) of Fulton County,
ge ee a ee ee ee ee 100
Appendix Table of Contents Page 1.
10.
a
12.
Order of Georgia Supreme Court
granting to appellant Elizabeth
Fasse her application for
discretionary appeal from the
Superior Court (Atlanta) of Fulton
a 102
Petition For Discretionary Appeal of
appellant Susan Fasse to the Georgia
Supreme Court from final offensive
judgment of the Superior Court
(Atlanta) of Fulton County,
CO ee ee ee ee ee 104
Petition For Discretionary Appeal of
appellant Elizabeth Fasse to the
Georgia Supreme Court from final
offensive judgment of the Superior
Court (Atlanta) of Fulton County,
DCs + chee Obed eee esi cee eneees 109
Sept. 26, 1989 order of the Superior
Court (Atlanta) of Fulton County,
Georgia denying appellant Elizabeth
Fasse’s Motion To Set Aside
Tree eee ee ee Te Tee eee 114
Appellant Elizabeth Fasse’s Motion
To Set Aside offensive judgment as
to her entered by the Superior Court
(Atlanta) of Fulton County, Georgia
of June 6, 1988, which judgment was
prior to the amendatory act of 128
USC sec. 1257 [effective: Sept. 25,
1988. SEE: sec. 7 of the United
States Supreme Court Case Selection
ee a oe ek Oe 60.66 6 8 115
Appendix Table ef Contents Page 2.
13.
14.
15.
16.
17.
18.
19.
20.
Fulton County, Superior Court
(Atlanta Judicial Circuit, Georgia)
Local Compulsory, Non-Binding
Arbitration Rule 1000, paragraphs
feectione) 13, 14, 16 & t6..ecess 117
Oct. 2, 1986 Fulton County, Superior
Court [nisi prius]) (Atlanta Judicial
Circuit, Georgia) Order of
Consolidation of all of appellants
Elizabeth Fasse’s and Susan Fasse’s
pending cases in the trial
gg ee ee ee ee ee ee 121
Aug. 28, 1989 order of the Superior
Court (Atlanta) of Fulton County,
Georgia denying appellant Susan
Fasse’s Motion To Set Aside
PUGS 6 0 0 6000 0b 60 NWO bs hee 668668 123
Appellant Susan Fasse’s Motion To
Set Aside offensive judgment as to
her entered by the Superior Court
(Atlanta) of Fulton County,
GROP SIR. «b's 05.006 Bebe bed bbe teeekes 124
Oct. 13, 1988 appellant Susan
Fasse’s Motion For Continuance of
Arbitration and Civil Litigations
WIS OMNI USS sc hc cce nt eneeewes ee 140
Oct. 20, 1988 order of the Superior
Court (Atlanta) of Fulton County,
Georgia granting appellant Susan
Fasse’s Motion For Continuance...145
Jan. 31, 1989 appellant Susan
Fasse’s Motion For Continuance of
Arbitration and Civil Litigations
WTS GUT Oiks 6 0 060d ORO eee 147
Affidavit of appellant Susan Fasse
Gated August 1, WSR. ccccccervssecs 156
Appendix Table of Contents Page 3.
21.
22.
23.
24.
25.
26.
2/.
Affidavit of attorney Robert A.
Meier IV dated July 21, 1989..... 159
Affidavit of attorney Thomas Y.
Cassidy dated August 1, 1989..... 161
Affidavit of Kimberly A. Worden,
Arbitration Administrator of the
Office of Civil Arbitration, Fulton
County Superior Court, Atlanta
Judicial Circuit, Georgia, dated
SED Be, Fea web 6a ben ebescesaeas 164
March 7, 1989 offensive judgment
against appellant Susan Fasse and in
favor of appellee Patricia Hodgson
in the amount of $51,181.25 plus
$10,795.24 attorney fees upon
arbitration award of February 3,
TORE ee HSER ROR DERA ECE RAKERE COS 167
April 4, 1989 appellants’ Motion For
Continuance of Civil Litigation with
exhibits [Subsequent to entry of
final judgments against appellants]
on civil jury trial calendar..... 169
Appellant Susan Fasse’s nisi prius
brief in support of her Motion To
Set Aside Judgment.......-seeeees 184
March 6, 1988 offensive judgment
against appellant Elizabeth Fasse
and in favor of appellee Patricia
Hodgson plus $5000.00 attorney fees
upon arbitration award and which
judgment was prior to the amendatory
act of 48 USC sec. 1257 [effective:
Sept. 25, 1988. SEE: sec. 7 of the
United States Supreme Court Case
GETRGST Bebe dc csc iavknce bess 6e 204
Appendix Table of Contents Page 4.
28.
29.
30.
Arbitration award against appellant
Elizabeth Fasse and in favor of
appellee Patricia Hodgson pius
$5000.00 attorney fees and which
arbitration award was prior to the
amendatory act of 48 USC sec. 1257
feffective: Sept. 25, 1988. SEE:
sec. 7 of the United States Supreme
Court Case Selection Act.]....... 206
Arbitration award against
appellant Susan Fasse and in favor
of appellee Patricia Hodgson in the
amount of $51,181.25 plus $10,795.24
Ae a ee eee ee 209
Advertisement “How It Works”
sponsored by and under the auspices
of the Atlanta Judicial Circuit,
Georgia of the Civil Arbitration
program in Fulton, County, Georgia
disseminated to lawyers and the
general public, with quotations of
certain select paragraphs of The
Fulton County Superior Court
compulsory but non-binding
AFOICPECTON AUIS. sn scccenecssscas 212
Appendix Table of Contents Page §.
Atlanta, November 07, 1990
The Honorable Supreme Court met
pursuant to adjournment.
The following order was passed:
Case No. S90A0816 & Case No. 590A0817
SUSAN FASSE V. PATRICIA B. HODGSON
ELIZABETH FASSE V. PATRICIA B. HODGSON
Upon consideration of the Motion for
Reconsideration filed in this case, it
is ordered that it be hereby denied.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk's Office, Atlanta
I certify that the above is a true
extract from the minutes of the Supreme
Court of Georgia. Witness my signature
and the seal of said court affixed the
day and year last above written.
Joline B. Williams, Cierk.
United States Court of Appeals
Tenth Circuit
In the Supreme Court of Georgia
Decided; Oct. 17, 1990
S90A0816. FASSE V. HODGSON
S90A0817. FASSE V. HODGSON
PER CURIAM.
Judgment affirmed without opinion
pursuant to Rule 59.
All the Justice concur.
2
SUPREME COURT OF GEORGIA
Atlanta: Nov. 14, 1990
The Honorable Supreme Court met
pursuant to adjournment.
The following order was passed:
BY: Benham, J.
The following direction was given:
S90A0816. Susan Fasse v. Patricia B.
Hodgson
S90A0817. Elizabeth Jane Fasse v.
Patricia B. Hodgson
Upon consideration of the motion for
a stay of this court's remittitur in
order that an appeal or an application
for certiorari may be filed in the
Supreme Court of the United States to
obtain a review of this court's
judgment rendered in this case on
November 7, 1990 such motion is hereby
granted, subject to the following
conditions:
1) The clerk of this court is
directed to withhold the transmittal of
such remittitur to the trial court for
ninety days from the date of this
court's judgment.
2) The clerk of this court is
directed to transmit such remittitur to
the trial court not later than the
ninety-fifth day from the date of his
court's judgment, provided that the
clerk shall continue to withhold the
transmittal of such remittitur if the
clerk is notified in writing that an
appeal or application for certiorari
has been timely filed in the Supreme
Court of the United States. Upon the
timely filing of such appeal or
application in the Supreme Court of the
United States, the clerk is directed to
withhold the transmittal of such
renittitur until the final disposition
of the case by that court.
Justice Robert Benham
SUSAN FASSE,
Appellant,
vs.
ee ee ee ee ee ee ee ee”
PATRICIA B. HODGSON,
Appellee. )No.
)S90A0816
ENUMERATION OF ERRORS
BRIEF OF APPELLANT
SUBMITTED BY:
ATTORNEYS FOR APPELLANT:
David N. Levine, Esq.
GA Bar No. 448400
DAVID N. LEVINE P.C.
8565 Dunwoody Place
Building 15
Atlanta, Georgia 30350
(404) 594-9444
Thomas V. Cassidy, Esq.
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice
by order 1-14-88
2648 Sharondale Circle N.E.
Atlanta, Georgia 30305
(404) 237-0494
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
SUSAN FASSE, )
)
Appellant,
)
vs. )CASE
)No.
PATRICIA B. HODGSON, )S90A0816
)
Appellee. )
)
ENUMERATION OF ERRORS
I.
The trial court erred in not granting
Appellant's Motion to Set Aside since
Appellant did not have rotice of the
final judgment.
Il.
The trial court erred in not granting
Appellant's Motion To Set Aside because
the manner of publishing the award of
the arbitrators pursuant to Fulton
County Superior Court Local Rule 1000
is insufficient to satisfy due process
of law requirements.
III.
In promulgation and administration
under the Fourteenth Amendment to the
United States Constitution and the
Constitution of Georgia, Fulton
Superior Court Local Rule 1000 is
unconstitutional in failing to guaranty
substantive and procedural due process
of law and in denying the equal
protection of the laws as being
governmental regulation and enactment
that is "arbitrarily discriminatory"
and vague.
DAVID N. LEVINE, P.C.
David N. Levine
Attorney for Appellant
GA BAR NO. 448400
8565 Dunwoody Place, Building 15
Atlanta, Georgia 30350
(404) 594-9444
Thomas V. Cassidy
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice
by order dated 1-14-88
2648 Sharondale Circle N.E.
Atlanta, Georgia 30305
(404) 237-0494
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
SUSAN FASSE,
)
)
Appellant,
)
Vs. )CASE
)No.
PATRICIA B. HODGSON, ‘iene
Appellee. )
BRIEF OF APPELLANT
FACTS
The facts herein are simple, direct
and not in conflict.
On August 4, 1988 the Honorable
Clarence Cooper, then Judge of the
Fulton Superior Court, entered an Order
for Arbitration herein which was filed
on August 11, 1988. (R-254).
On August 29, 1988 a notice of the
scheduling of arbitration for October
21, 1988 was sent to appellant's
10
counsel of record.
Appellant was seriously ill and
suffering from various pathologies. On
October 17, 1988 she filed her Motion
for Continuance Arbitration and Civil
Litigations seeking a continuance from
the arbitration scheduled for October
21, 1988. (R-256).
On October 20, 1988 Judge Cooper
Signed an order granting such
continuance, such order being filed on
November 28, 1988. Such order re-set
the arbitration for February 3, 1989.
(R-260)
Appellant was still seriously ill and
unable to attend or participate in an
arbitration and on January 31, 1989 she
filed her Motion for Continuance from
the February 3, 1989 arbitration. The
required affidavit of her treating
11
physician was attached to such motion
as was the affidavit of her counsel
stating that he could not safely go to
trial without her being present. (R-
261). No objection was filed to such
motion by Appellee.
Her counsel contacted the Office of
Civil Arbitration on February 1, 1989
and was told that the said motion had
been received, the arbitration
continued and that same would be re-set
to another date (R-300-301).
No further action of record was taken
on her said Motion for Continuance;
however the arbitration was held on
February 3, 1989 without Appellant's
knowledge and without the presence of
Appellant or her counsel.
On February 3, 1989 the arbitrators
awarded Appellee the sum of $61,976.49
12
against Appellant. (R-266). The award
was allegedly "published to the
parties" pursuant to Local Rule 1000.
The method of publication of the
award used by the Office of Civil
Arbitration pursuant to Fulton Superior
Court Local Rule 1000 is limited to:
(i) Posting such award on a
bulletin board outside the
Court Administrator's
office on the seventh (7th)
floor of the Fulton County
Courthouse, and
(ii) Keeping a copy of such
award in the case file in
the Office of Civil
Arbitration. (R-302-303).
The award of the arbitrators is not
mailed to counsel of record or the
parties in a case. The award is not
13
served on the parties or counsel of
record by the Sheriff's Department. (R-
302-303).
Neither Appellant nor her counsel
received notice of such award (R-297-
301), did not know that the arbitration
had even taken place and therefore
filed no demand for trial within thirty
(30) days thereof.
On March 7, 1989 with no notice of
any kind to Appellant or her counsel,
Appellee secured Judge Cooper's
Signature on judgment awarding Appellee
$61,976.49 against Appellant. (R-267).
No notification of any kind was given
to counsel for Appellant (or to
Appellant herself) of the entry of such
judgment as required by 0.C.G.A.
Section 15-6-21(c). (R-297-301).
14
Appellant thus had no notice of such
judgment until she was confronted with
it in connection with a credit
application at her bank on or about
June 10, 1989, some ninety five (95)
days following entry of the judgment.
(R-297-298).
Appellant contends that the trial
court erred in denying her Motion to
Set Aside the March 7, 1989 judgment
for the following reasons:
(i) The trial court failed to
notify her counsel of the entry of the
March 7, 1989 judgment as required by
O.0.G.A. Section 15-6-21(c) and she
had no actual knowledge of same until
some ninety five (95) days thereafter.
(ii) The notice of award ;
provisions of Fulton Superior Court
Local Rule 1000 violate the Due Process
15
Clause of the United States and Georgia
Constitutions.
(iii) In promulgation and
administration under the Fourteenth
Amendment to the United States
Constitution and the Constitution of
Georgia, Fulton Superior Court, Local
Rule 1000 is unconstitutional in
failing to guaranty substantive and
procedural due process of law and in
denying the equal protection of the
laws as being governmental regulation
and enactment that is "arbitrarily
discriminatory" and vague.
ARGUMENT OF LAW
I.
APPELLANT'S MOTION TO SET ASIDE SHOULD
HAVE BEEN GRANTED BECAUSE THE TRIAL
COURT FAILED TO NOTIFY COUNSEL FOR
APPELLANT OF THE ENTRY OF JUDGMENT AS
te ee BY 0.C.G.A. Section 15-6-
21\(c).
16
0.C.G.A. Section 15-5-21(c) requires
the trial court to notify counsel for
the losing party of the entry of
judgment against such party. Such Code
section has been the law in Georgia for
almost 100 years.
The record is clear and
uncontroverted that no such
notification was given to counsel for
Appellant. (R-297-301, 334).
Recent Georgia law is replete with
cases requiring that a Motion To Set
Aside be granted where no notice of the
entry of judgment is sent by the trial
court or by the clerk to counsel for
the losing party.
The landmark case on such issue is
Cambron s. Canal Insurance Company, 246
Ga. 147, 269, S.E.2a 426 (1980).
17
In Cambron, supra at p. 428, his
Court stated as follows:
"But where no notice is sent by the
trial court or by the clerk to the
losing party, this court holds that
an action may be brought under Code
Ann. Sec. 81A-160(g) [now 0.C.G.A.
Section 9-11-60(d)] to set aside the
earlier judgment; and upon a finding
that notice was not provided as
required by Code Ann. 24-2620 [now
0.C.G.A. Section 15-6-21(c)], the
motion to set aside may be granted,
the judgment re-entered, and the
thirty day period within which the
losing party must appeal will begin
to run from the date of the re-
entry." (Emphasis added).
Even though the lack of notice of the
judgment issue was raised by Appellant
18
in the trial court, (R-282), no
specific ruling was made thereon. The
record is clear however that the
required notice was not given and in
fact Appellee contended that no such
notice was even required. (R-297-301,
334).
Cambron, supra, has been expressly
followed or cited with approval in
numerous cases in the Georgia Court of
Appeals since it was handed down.
Jefferson-Pilot Fire & Casualty Company
vs. Combs, 166 Ga. App. 274, 304 S.E.2d
448, 449 (1983); Atlantic-Canadian
Corporation vs. Hammer, Siler, George
Associates, Inc., 167 Ga. App. 257, 306
S.E.2d 22, 23 (1983); Barthell vs.
State, 174 Ga. App. 459, 330 S.E.2d
180, 181 (1985); Colonial Stores, Inc.
vs. Hambrick, 176 Ga. App. 544, 336
19
S.E.2d 617, 618 (1985); Robinson vs.
Kemp Motor Sales, Inc., 185 Ga. App.
492, 364 S.E.2d 623, 624 (1988); Willis
vs. State, 189 Ga. App. 404, 377 S.E.2d
552 (1988).
The only case not completely
following Cambron, supra, is Crawford
vs. Kroger Company, 183 Ga. App. 836,
360 S.E.2d 274 (1987), Beasley, Judge,
dissenting. In Crawford, supra, at p.
275, summary judgment was announced
against Crawford from the bench in open
court, at a hearing on such motion.
Crawford filed a motion to "reopen" the
case 59 days thereafter which was
denied. The Georgia Court of Appeals
apparently held that actual notice of
the judgment received by the judgment
being announced in Crawford's presence
in open court by the trial judge was
20
sufficient compliance with 0.C.G.A.
Section 15-6-21(c). There is of course
no evidence whatsoever that any actual
notice of any kind was received by
Appellant herein or her counsel. (R-
297-301).
The theory and logic of the
requirement of notice set forth in
0.C.G.A. Section 15-6-21(¢c) vis-a-vis a
timely appeal is set forth in one
sentence of Judge Beasley's dissenting
opinion in Willis v. State, 186 Ga.
App. 197, 366 S.E.2d 778, 781 (1988),
as follows:
A losing party cannot be expected to
file a notice of appeal within 30
days if he does not have notice of
the decision. (Emphasis added.)
Judge Beasley's dissent in Willis,
supra, was adopted by this Court's
21
Order on certiorari in Willis (case no.
45592) remanding the case to the trial
court with direction that an out-of-
time appeal motion be granted. Willis
vs. State, 189 Ga. App. 404, 377 S.E.2d
552 (1988), supra.
Lastly Appellant notes that Appellee
cited Jordan vs. Caldwell, 229 Ga. 343,
344, 191 S.E.2d 530 (1972) in her
Response To [Appellant's] Application
for Discretionary Appeal herein in
support of her contention that
Appellant was not entitled to have this
appeal heard because "appellant failed
to file an appeal within 30 days after
the entry of the judgment on the
arbitration". (See Appellee's Response
to [Appellant's! Application for
Discretionary Appeal pgs. 3-4).
Appellee has apparently failed to
22
notice that Cambron, supra at p. 428
expressly overruled Jordan, supra, to
the extent Jordan, supra, was
"inconsistent with this (Cambron)
holding." There is no question that
where notice of judgment has not been
given as required by 0.C.G.A. Section
15-6-21(c), Jordan, supra, has been
overruled by and supplanted by Cambron,
supra. on
The Motion to Set Aside should have
been granted.
Ii.
THE NOTICE OF AWARD PROVISIONS OF
FULTON SUPERIOR COURT RULE 1000 DO
NOT PROVIDE FOR ACTUAL NOTICE AND
THEREFORE VIOLATE THE DUE PROCESS
CLAUSE OF THE UNITED STATES AND
GEORGIA CONSTITUTIONS.
The procedure set forth in Cambron,
supra, results in the March 7, 1989
judgment being set aside and then re-
entered, with the 30 day appeal period
ae)
WW
commencing upon the re-entry date. In
other words the application of Cambron,
Supra, takes us back in time to March
7, 1989 with a judgment in place as of
that date with all appeal rights
intact.
In most cases such procedure would be
sufficient to resolve this appeal.
Appellant contends however that no such
judgment should have been granted at
all because the method used to publish
the award of the arbitrators pursuant
to Fulton Superior Court Local Rule
1000 is insufficient to give such
notice of the award as is required to
satisfy due process of law
requirements, as set forth below.
The Due Process Clause of the
Fourteenth Amendment to the United
States Constitution and Article 1 of
24
the Georgia Constitution require that a
person's interest in property not be
taken without due process of law.
The method of publishing the award of
the arbitrators set forth above fails
to satisfy the requirement of due
process and a reversal of the trial
court's decision appeaied herein is
necessary and proper.
The issue herein is controlled by
three significant United States Supreme
Court decisions which make it clear
that actual notice of the award rather
than posting it on a bulletin board is
required. Mullane vs. Central Hanover
Bank & Trust Co., 339 U.S. 306 (1950);
Mennonite Board of Missions vs. Adams,
462 U.S. 791 (1983) and Tulsa
Professional Collection Services, Inc.
vs. Pope, 485 U.S. 478 (1988). See
also Hollis v. Tanner, 177 Ga. App.
759, 341 S.E.2d 291, 292 (1986).
In Mulane, supra, the Supreme Court
held that notice by publication of a
notice to settle the accounts of a
common trust fund was not sufficient to
inform beneficiaries of the trust whose
names and addresses were known. The
Court noted at p. 314 as follows:
An elementary and fundamental
requirement of due process in any
proceeding which is to be accorded
finality is notice reasonably
calculated, under all the
circumstances, to apprise interested
parties of the pendency of the action
and afford them an opportunity to
present their objections. (Emphasis
added.)
26
The significance of the notice of
award provision of Fulton Superior
Court Local Rule 1000 is of course that
unless a demand for trial is made
within thirty (30) days of the award of
the arbitrators a waiver of trial
results and a judgment may be entered.
Without adequate notice of the award
Appellant cannot logically be expected
to file her demand for trial on a
timely basis. Her due process rights
were thus violated by the lack of
proper notice.
In Mennonite, supra at p. 800, the
United States Supreme Court in a case
involving notice by publication of a
tax sale of real property, resolved the
issue of sufficiency of notice
provisions when it held as follows:
27
Notice by mail or other means as
certain to ensure actual notice is a
minimum constitutional precondition
to a proceeding which will affect the
liberty or property interests of any
party, . . .if its name and address
are reasonably ascertainable.
(Emphasis added.)
The third decisive United States
Supreme Court case, Tulsa Professional,
supra, is the most recent case on the
issue and presents a virtual textbook
study on notice requirements.
Tulsa Professional, supra, involved
notice by publication (as opposed to
actual notice) of commencement of
probate proceedings and the barring of
creditors' claims not presented within
two (2) months after such publication.
28
The Syllabus in Tulsa Professional,
supra at p. 478, provides a sentence
which perfectly sets forth Appellant's
position on this appeal, as follows:
HELD: If appellant's identity as a
creditor was known or 'reasonably
ascertainable' by appellee .. .the
Due Process Clause of the Fourteenth
Amendment, as interpreted by Mullane
and Mennonite, requires that
appellant be given notice by mail or
such other means as is certain to
ensure actual notice. (Emphasis
added.)
The within case fits the requirements
for actual notice set forth in Mulane,
Mennonite and Tulsa Professional,
supra. The identities of Appellant and
her counsel were certainly known as
were their addresses. Service by mail
29
pursuant to 0.0.G.A. Section 9-11-5 had
been accomplished with all other
pleadings in the case. As stated in
Tulsa Professional, supra at p. 490,
"We have repeatedly recognized that
mail service is an inexpensive and
efficient mechanism that is reasonably
calculated to provide actual notice."
Mulane, Mennonite and Tulsa
Professional, supra, make it mandatory
that this Court reverse the trial court
and set aside the judgment. Publishing
the award of the arbitrators on a
bulletin board in the Courthouse
without sending a copy of same to a
party or his counsel by mail or
otherwise simply does not pass the test
of our Constitutional due process
actual notice requirements.
Iii.
30
IN PROMULGATION AND ADMINISTRATION
UNDER THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND THE
CONSTITUTION OF GEORGIA, FULTON
SUPERIOR COURT LOCAL RULE 1000 IS
UNCONSTITUTIONAL IN FAILING TO
GUARANTY SUBSTANTIVE AND PROCEDURAL
DUE PROCESS OF LAW AND IN DENYING THE
EQUAL PROTECTION OF THE LAWS AS BEING
GOVERNMENTAL REGULATION AND ENACTMENT
THAT IS "ARBITRARILY DISCRIMINATORY"
AND VAGUE.
A.
As set forth hereinabove Local Rule
1000 is constitutionally fatally
defective as to substantive and
procedural due process by reason of the
failure of its notice of award
provisions to provide actual notice of
+ } IO A o Dp . - 4 9
the award. luisa Froiessionai, supra.
~ . > rTr7, 7 2: .
Y amr oe | nr) -*KRK ; 4 sa alana
+ compa ison, Lne LLL ALNOLGS svVvii=
r Yr + r +, + ‘ahe ~ 2 Ann al nr
+ Asn nn +4
w =e aroitvratlo rules aaod Led WY
=
- a i(n ate 5 a
, 2 nr bee - + mw)? ane
a Vv wae a ene ~WVUus VY nules Jk a ~s IY,
4 $¢ n + ,
~~ ; ad no ia! r la ~ ~ a
equirTre OLLCEe w + \ woulda seen UY de
guidelines of Tulsa Professional,
Mennonite, and Mulane, supra. Such
Rules are as follows:
Illinois Supreme Court Rule 92. Award
and Judgment on Award
(b) Determining an Award. The panel
shall make an award promptly upon
termination of the hearing. The
award shall dispose of all claims for
relief. The award may not exceed the
sum of $15,000.00, exclusive of
interest and costs. The award shall
be signed by the arbitrators or the
majority of them. A dissenting vote
without further comment may be noted.
Thereafter, the award shall be filed
immediately with the clerk of the
court, who shall serve notice of the
award, and the entry of the same on
the record, to other parties,
32
including any in default. (Emphasis
added.)
Illinois Supreme Court Rule 94. Form
of Oath, Award and Notice of Award.
"NOTICE OF AWARD"
"On the day of
» 19 , the award of
the arbitrators dated ,
19 , a copy of which is attached
hereto, was filed and entered of record
in this Cause. A copy of this NOTICE
has on this date been sent by regular
mail, postage prepaid, addressed to
each of the parties appearing herein,
at their last known address, or to
their attorney of record.
Dated this day of ,
19 ;
Clerk of the Circuit Court"
(Emphasis added.)
33
The difference between Local Rule
1000's publication of notice of the
award of the arbitrators and the actual
notive requirement contained in the
Illinois Rules is clear and obvious.
Local Rule 1000's provisions simply do
not provide the actual notice required
by the United States Supreme Court
cases cited hereinabove and is sorely
lacking as to actual due process.
B.
"Equal Protection" is a limitation
imposed on the action of state
government by the Fourteenth Amendment
which means that government regulation
cannot be "arbitrarily discriminatory"
and only reasonable classifications and
discriminations between persons or
groups of persons are permitted.
Similarly, this is true as to
34
vagueness. Vick Wo vs. Hopkins, 118
U.S. 346 (1886); Kevishaian vs. Board
of Regents, 386 U.S. 589 (1967);
Trimble vs. Gordon, 430 U.S. 762 (1977)
[striking down a workers compensation
law in Illinois which made "vague" and
"arbitrarily discriminatory"
classifications between legitimate and
illegitimate surviving children of a
deceased for purposes of death
benefits. ]
In relevant part, for purposes of
this discussion, Fulton Superior Court
Local Rule 1000 provides:
1. All civil actions filed and
seeking primarily money damages of
twenty-five thousand dollars
($25,000.00) or less, or for damages
in an unstated amount, shall be
required to go through compulsory but
35
non-binding arbitration. . .The trial
judge to whom the case has been
assigned may order arbitration at any
time, at his or her discretion, on
any case whether or not it otherwise
qualifies for arbitration
.(Emphasis added.)
The foregoing leaves the
qualification for arbitration to the
whims and artfulness of the pleader as
to whether to ask for $25,000.00 and
thus qualify for arbitration or
$25,001.00 and not qualify for
arbitration. On the other hand if the
trial judge upon vague or unwritten
standards determines that a case with a
three million dollar request for
damages will be sent to arbitration,
the judge may do so on his own motion.
Such rule is "arbitrarily
36
discriminatory" and too "vague" to meet
the requirements of Fourteenth
Amendment equal protection. In the two
appeals now before this court, (Case
No. S90A016 and Case No. S90A017) such
cases had been consolidated by order of
the trial court; however the trial
court without notice and without any
hearing then severed the cases and
ordered them to arbitration separately,
even though the requests for damages of
each case far exceeded the $25,000.00
limitation.
As now promulgated and administered
the litigants and their attorneys are
confronted with vagueness and arbitrary
discrimination as to whether or not a
given case is subject to arbitration.
37
Further and in relevant part, for
purposes of this discussion,
Superior Court Local Rule 1000 provides
3. The Court Administrator shall
schedule and set dates for
arbitration hearings .. .not less
than 180 days subsequent to
filing. . .(Emphasis added.)
In contravention of such provision
the cases on appeal herein after being
severed for arbitration by the trial
court without notice, were first set
for arbitration a year and one-half to
two and one-half years "subsequent to
[their] filing", which constitutes an
administrative breach of equal
protection guaranteed to citizens of
Georgia.
38
CONCLUSION
It is respectfully requested that
this Court reverse the judgement of the
trial court and enter judgment in favor
of the Appellant and against the
Appellee and that Appellant have her
costs and expenses. Publishing the
award of arbitration on the seventh
floor of the courthouse without
delivery of or mailing of a copy of
same to a party or his attorney, when
known or reasonably ascertainable, does
not pass the test of our Constitutional
due process actual notice requirements.
DAVID N. LEVINE, P.C.
David N. Levine
Attorney for Appellant
GA BAR NO. 448400
David N. Levine, P.C.
8565 Dunwoody Place
Building 15
Atlanta, Georgia 30350
(404) 594-9444
39
Thomas V. Cassidy
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice
by order dated 1-14-88
2648 Sharondale Circle N.E.
Atlanta, Georgia 30305
(404) 237-0494
40
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
ELIZABETH JANE FASSE,
Appellant,
PATRICIA B. HODGSON,
CASE
No.
S90A0817
)
)
)
)
)
Vs. )
)
)
)
Appellee.
ENUMERATION OF ERRORS
BRIEF OF APPELLANT
SUBMITTED BY:
ATTORNEYS FOR APPELLANT:
David N. Levine, Esq.
GA Bar No. 448400
DAVID N. LEVINE P.C.
8565 Dunwoody Place, Building 15
Atlanta, Georgia 30350
(404) 594-9444
Thomas V. Cassidy, Esq.
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice
by order 1-14-88
2648 Sharondale Circle N.E.
Atlanta, Georgia 30305
(404) 237-0494
41
7
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
ELIZABETH JANE FASSE,
Appellant,
vs. CASE
No.
PATRICIA B. HODGSON, S90A0817
Appellee.
i
ENUMERATION OF ERRORS
I.
The trial court erred in not granting
Appellant's Motion to Set Aside since
Appellant did not have notice of the
final judgment.
i:
The trial court erred in not granting
Appellant's Motion To Set Aside because
the manner of publishing the award of
the arbitrators pursuant to Fulton
County Superior Court Local Rule 1000
Le
is insufficient to satisfy due process
of law requirements.
IIl.
In promulgation and administration
under the Fourteenth Amendment to the
United States Constitution and the
Constitution of Georgia, Fulton
Superior Court Local Rule 1000 is
unconstitutional in failing to guaranty
substantive and procedural due process
of law and in denying the equal
protection of the laws as being
governmental regulation and enactment
that is "arbitrarily discriminatory"
and vague.
DAVID N. LEVINE, P.C.
David N. Levine
Attorney for Appellant
GA BAR NO. 448400
8565 Dunwoody Place
Building 15
Atlanta, Georgia 30350
(404) 594-9444
43
Thomas V. Cassidy
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice
by order dated 1-14-88
2648 Sharondale Circle N.E.
Atlanta, Georgia 30305
(404) 237-0494
44
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
ELIZABETH JANE FASSE,
Appellant,
)
vs. )CASE
)No.
PATRICIA B. HODGSON, ee?
Appellee. )
BRIEF OF APPELLANT
Comes now ELIZABETH JANE FASSE,
Appellant by and through her counsel of
record and files her brief herein,
respectfully showing the Court as
follows:
FACTS
On September 29, 1987 the Honorable
Clarence Cooper, then Judge of the
Fulton Superior Court, entered an Order
for Arbitration herein which was filed
on September 30, 1987. (R-75).
45
On November 23, 1987 Judge Cooper's
Order consolidating this case with
Susan Fasse vs. Patricia B. Hodgson,
Case No. D-14463 (Case No. S90A0816 in
this Court) was filed. (R-76).
Appellant's counsel was not notified of
such arbitration hearing.
The arbitration was ultimately
rescheduled to April 1, 1988 by Judge
Cooper's order of March 9, 1988,
entered on March 10, 1988. (R-114).
On April 1, 1988 the arbitration was
held without the presence of Appellant
or her counsel. The arbitrators
awarded Appellee $5,000.00 attorney's
fees against Appellant. (R-115).
The award of the arbitrators was
allegedly published to the parties
pursuant to Fulton Superior Court Local
Rule 1000 by publishing same on a
46
bulletin board outside the Court
Administrator's office on the seventh
(7th) floor of the Fulton County
Courthouse and by keeping a copy of
such award in the case file in the
Office of Civil Arbitration.
The award of the arbitrators was not
mailed to counsel of record in the case
nor was the award served on counsel or
the parties by the Sheriff's
Department.
Therefore neither Appellant nor her
counsel received notice of such award
and therefore filed no demand for trial
within thirty (30) days thereof.
On June 6, 1988, with no notice of
any kind to Appellant or her counsel,
Appellee secured Judge Cooper's
Signature on a judgment awarding
47
Appellee $5,000.00 attorney's fees
against Appellant. (R-116).
No notification of any kind was given
to counsel for Appellant of the entry
of such judgment as required by
0.C.G.A. Section 15-6-21(c).
Appellant contends that the trial
court erred in denying her Motion to
Set Aside the June 6, 1988 judgment for
the following reasons:
(i) The trial court failed to
notify her counsel of the entry of the
June 6, 1988 judgment as required by
0.C.G.A. Section 15-6-21(c).
(ii) The notice of award
provisions of Fulton Superior Court
Local Rule 1000 violates the Due
Process Clause of the United States and
Georgia Constitutions.
48
(iii) In promulgation and
administration under the Fourteenth
Amendment to the United States
Constitution and the Constitution of
Georgia, Fulton Superior Court Local
Rule 1000 is unconstitutional in
failing to guaranty substantive and
procedural due process of law and in
denying the equal protection of the
laws as being governmental regulation
and enactment that is "arbitrarily
discriminatory" and vague. £
ARGUMENT OF LAW
Appellant hereby adopts and
incorporates herein by reference the
Statement of Facts and Argument of Law
set forth in the Brief of Appellant
Susan Fasse in Georgia Supreme Court
Case No. S90A0816, styled Susan Fasse,
Appellant vs. Patricia B. Hodgson,
49
Appellee, filed contemporaneously
herewith, same being a companion case
hereto, the two cases having been
originally consolidated in the trial
court.
CONCLUSION
It is respectfully requested tnat
this Court reverse the judgment of the
trial court and enter judgment in favor
of the Appellant and against the
Appellee and that Appellant have her
costs and expenses. Publishing the
award of arbitration on the seventh
floor of the courthouse without
delivery of or mailing of a copy of
same to a party or his attorney, when
known or reasonably ascertainable, does
not pass the test of our Constitutional
due process actual notice requirements.
DAVID N. LEVINE, P.C.
50
David N. Levine
Attorney for Appellant
GA BAR NO. 448400
David N. Levine, P.C.
8565 Dunwoody Place
Building 15
Atlanta, Georgia
(404) 594-9444
30350
Thomas V. Cassidy
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice
by order dated 1-14-88
2648 Sharondale Circle N.E.
Atlanta, Georgia
(404) 237-0494
30305
51
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
SUSAN J. FASSE and )
ELIZABETH JANE FASSE,
Appellants, )NO.
ee
Vs. )No.
)S90A0817
PATRICIA B. HODGSON, )
)Consolidated
Appellee. )
RULE 47:
MOTION FOR RECONSIDERATION
and
PETITION FOR REJEARING
SUBMITTED BY:
ATTORNEYS FOR APPELLANTS:
David N. Levine, Esq.
GA Bar No. 448400
8565 Dunwoody Place
Building 15
Atlanta, Georgia 30350
(404) 594-9444
Thomas V. Cassidy, Esq.
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice by order 1-14-88
2648 Sharondale Circle N.E., Atlanta,
Georgia 30305
(404) 237-0494
52
RULE 47
MOTION FOR RECONSIDERATION
PETITION FoR REHEARING
Pursuant to Rule 47 Appellants timely
requests the Court to reconsider its
judgment order dated October 17, 1990
affirming without opinion the judgments
of the Superior Court of Fulton County
(attached hereto) and shows the Court:
1.
Pursuant to 28 U.S.C.A. sec. 1257 et.
seq. these appeals have "drawn into
question" the constitutionality and
validity of so called compulsory but
non-binding Civil Arbitration Local
Rule 1000 of the Fulton County,
Georgia, Superior Court on the ground
that it is repugnant to the Fourteenth
(14th) Amendment of the United States
Constitution and that this court's
53
decisions herein of October 17, 1990,
without opinion, is in favor of its
validity on the issue of adequate due
process "notice" and the equal
protection of the laws.
Throughout the years this court has
consistently and loyally invoked the
stare decisis of its past rulings and
holdings and steadfastly, loyally,
unwaveringly and purposefully followed
is own prior judgments and opinions and
those of the United States Supreme
Court on the requisite mandates and
guidelines of "bedrock" "notice" due
process and equal protection from
Jefferson Fire Insurance Company v.
Brackin, 140 Ga. 637 decided on
October 2, 1913, to Womble v.
Commercial Credit Corporation, 231 Ga.
569 decided on January 8, 1974, to
D4
Thompson v. Lagerquist, 232 Ga. 75
decided on April 4, 1974, to Benton v.
Modern Finance & Investment Company,
244 Ga. 533 decided on October 25,
1979, tc Funderburke v. Kellett, 257
Ga. 822 decided on February 12, 1988,
through Sun V. Jones, 188 Ga. 552
decided on September 23, 1988,
emanating from this court, and Mullane
v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (70 SC 652) (1949),
Mennonite Bd. of Missions v. Adams, 462
U.S. 791 (103 SC 2706) (1983), Tulsa
Professional Collection Services, Inc.
v. Pope, Executrix of the Estate of
Pope, 485 U.S. 478 (1988) emanating
from the U.S. Supreme Court.
That is until now and in these
appeals where this court has sustained
the Constitution of the United States
.
25
due process and equal protection
validity, without opinion, of
compulsory but non-binding Civil
Arbitration Local Rule 1000 of the
Fulton County, Georgia, Superior Court
which as to "notice" of an arbitration
award provides:
Local Arbitration Rule 1000
Rule 14.
The award is »ublished to the
parties, and the written award filed
| with the Court Administrator or his
designee on the day of the hearing.
(R-301-303).
And published by rule and custom as
follows:
(i) - Posting such award on a
bulletin board outside the Court
Administrator's Office on the seventh
56
(7th) floor of the Fulton County
Courthouse, and
(ii) Keeping a copy of such
award in the case(s] file[s] in the
Office of Civil Arbitration. (R-302-
303).
And as to equal protection provides:
Local Arbitration Rule 1000
Rule 1.
All civil actions filed and seeking
primarily money damages of twenty five
thousand dollars ($25,000) or less, or
for damages in an unstated amount,
shall be required to go through
compulsory but non-binding
arbitration. .. .The trial judge to
whom the case has been assigned may
order arbitration at any time, at his
or her discretion, on any case whether
or not it otherwise qualifies for
arbitration. .. .(N.B.: It is binding
at least under the facts and
circumstances as memorialized in these
actions appeal due to the failure of
due process "notice".) (Emphasis
added.)
Thus this Motion For Reccnsideration
and Petition For Rehearing, and,
respectfully the court is requested to
consider the following:
For purposes of 28 U.S.C.A., sec.
1257 et seq. Fulton County Superior
Court, Atlanta Judicial Circuit,
compulsory but non-binding arbitration
Local Rule No. 1000 is a "State
statute" or state action, Reinman v.
Little Rock, Ark., 237 U.S. 171 (1915);
Sultan Ry. & Timber Co. v. Dept. Labor
and Industries of State of Washington,
277 U.S. 135 (1928); Tulsa Professional
58
il
Collection Services, Inc. v. Pope,
Executrix of the Estate of Pope, 485
U.S. 478 (1988) and this court by its
judgment order of October 17, 1990
(attached) has sustained the validity
of Local Rule 1000 when it has been
drawn in question on the ground that it
is repugnant to the 14th Amendment of
the United States Constitution and this
court's decision is in favor of its
validity, Goodyear Atomic Corp. v.
Miller, 486 U.S. 176 (1987) at page
178:
[A] state statute is sustained within
the meaning of section 1257 [sic. 28
U.S.C.A., sec. 1257 et. seq.] when a
state court holds it applicable to a
particular set of facts as against
the contention that such application
is invalid on federal grounds. Japan
59
—
Line, Ltd. v. County of Los Angeles,
441 U.S. 434, 441 (1979).
The decision and judgment of this
court of October 17, 1990 in sustaining
and upholding Local Rule 1000 as valid
when it has been drawn in question on
the ground that it is repugnant to the
14th Amendment of the United States
Constitution is final. Cox
Broadcasting Corp. v. Cohn, 420 U.S.
469, 482-483 (1975).
In these cases this court granted
appellants' Rule 25 (a) [OCGA 5-6-35]
applications for discretionary appeal
on the grounds that (1) Reversible
error appears to exist, or (2) The
establishment of a precedent is
desirable and then attiresd the
judgments of the court below without
opinion pursuant to Rule 59 and the
60
a
record would suggest on the grounds of
Rule 59 (2), as the evidence that would
have supported the granting of the Rule
25 (a) applications was one and the
same as the evidence on review in the
record on appeal in these cases -- Rule
59 (1) -- and the final judgments
appealed from are totally devoid and
lacking of any explanation of the
decisions of the court below - Rule 59
(3).
Ze
This court in Funderburke v. Kellet,
257 Ga. 822 (February 12, 1988)
m Pursuant to the guidelines of the
United States Supreme Court in
Mennonite Bd. of Missions v. Adams, 462
U.S. 791 (103 SC 2706) (1983) held OCGA
48-4-46 (b) and (c) unconstitutional as
not being in accord with the
61
etiam
requirements of due process in only
requiring notice publication at the
court house and published notice in the
county legal organ as to the rights of
"a substantial interest in property" of
the mortgagee of the property.
In relevant part this court's opinion
in Funderburke, supra at pages 822,
823, 824:
"Gregory, Justice.
The appellees sold a parcel of
property located in DeKalb County to
Annette Johnson, taking back a
promissory note and deed to secure
debt with a power of sale. Appellees
are residents of Fulton County.
Thereafter the property was sold for
taxes and tax deeds ultimately to
appellant Funderburke. No notice was
given to the appellees of the tax
62
eeeaetnntneetnille
sales or of their right to redeem the
property. Notice of the foreclosure
of the right to redeem was published
in the Decatur-DeKalb News era in
August and September of 1983.
Appellees first learned of the tax
sales in 1986 and tendered the
redemption price. This was refused
on the ground that appellees' right
to redeem the property had been
foreclosed by their failure to take
timely action in response to the
published notice. Appellees filed
this action to quiet title, tendering
funds equivalent to the redemption
price into the registry of the court.
The issues were tried before a
special master who concluded that
OCGA 48-4-46, governing the
requirements of notice of foreclosure
63
fh
of the right to redeem property sold
at a tax sale, does not comport with
due process. The special master
concluded that the right of the
appellees to redeem the property had
not been foreclosed, and that tile
should be vested in them. The
superior court adopted the findings
and conclusions of the special master
and made them the order of the court.
1. Under OCGA 49-3-9 (a) the record
owner of property to be sold at a tax
sale is entitled to notice of the
sale by either personal service or by
registered or certified mail. Under
subsection (b), an owner of the
security deed or mortgage is entitled
to receive notice of the tax sale by
either personal service or by mail
only if he annually files an
64
application for notice with the clerk
of the superior court of the county
e which the land is located. The
code section does not provide for
notification of a tax sale to an
owner of a security deed or mortgage
who fails to apply for notification.
In Mennonite Bd. of Missions v._
Adams, 462 U.S. 791 (103 SC 2706)
(1983), the United States Supreme
Court had under consideration the
constitutionality of an Indiana
statute which provided that an owner
of property to be sold at a tax sale
would be notified of the sale by
mail, Ind. Code. sec 6-1.1-24-4, but
that a mortgagee of the property
would be notified by posted notice in
the county courthouse and published
notice in the county legal organ.
65
ee
sec. 6-1.1-24-3. Under Indiana law
the owner or other person with an
interest in the property was entitled
to redeem the property for a two-year
period following the tax sale. sec.
6-1,1-25-1. If the property was not
redeemed, the county auditor was
required to issue a tax deed to the
purchaser at the tax sale at the end
of the two-year period. The Court
(U.S. Supreme) held that because a
mortgagee has a substantial interest
in property that may be significantly
affected by a tax sale notice of the
tax sale by publication and posting
on the courthouse is not sufficient
to meet the requirements of due
process. That Court held that
"(nJotice by mail or other means as
certain to ensure actual notice is a
66
minimum constitutional precondition
to a proceeding which will adversely
affect the liberty or property
interests of any party .. .if its
name and address are reasonably
ascertainable. 462 U.S. at 800.
Based on Mennonite, supra, the
special master and trial court in
this case found that OCGA 48-4-46(b)
and (c) are not in accord with the
requirements of due process because
an owner of a security deed or
mortgage who lives outside the county
in which the land is located will
only receive published notice of the
foreclosure of the right to redeen.
We agree.
- - eNotice of the tax sale and
notice of foreclosure of the right to
redeem are distinct events. under
67
OCGA 48-4-45 the purchaser at the tax
sale must wait a minimum of 12 months
to foreclose and "forever bar" the
right to redeem, but the statute
places no time limitation on how long
the purchaser may wait to foreclose
the right to redeem. Thus there is a
floor, but not a ceiling. Once the
right to redeem has been foreclosed
under sec. 48-4-45, "the right to
redeem is gone, and there is no power
even in a court of equity to
authorize a redemption of the
property..." [Two Georgia Supreme
Court cases cited.] The owner of a
deed to secure debt or mortgage who
does not reside in the county where
the land is located has a substantial
property interest which will be
significantly affected by lack of
68
actual notification that his right to
redeem is to be foreclosed. Notice
by publication that this right may be
affected does not satisfy the
requirements of due process under
Mennonite, supra." (Emphasis added.)
In these cases the only method of
publication provided for by the State
Court of Fulton County enactment [Civil
Arbitration pursuant to Fulton Superior
Court Local Rule 1000] or carried out
by Office of Civil Arbitration pursuant
to Fulton Superior Court Local Rule
1000 is limited to:
(i) Posting such award on a
bulletin board outside the Court
Administrator's Office on the seventh
(7th) floor of the Fulton County
Courthouse, and
69
tae
(ii) Keeping a copy of such
award in the case[s] file[s] in the
Office of Civil Arbitration. (R-302-
303).
The award of the arbitrators is not
mailed to counsel of record or the
parties in a case. The award is not
served on the parties or counsel of
record by the Marshall's or Sheriff's
Department or anyone. There is no
other provision for notice of the
arbitrators' award which will adversely
affect property interests of the
parties irrespective of where the
parties or counsel may reside. (R-302-
303).
Neither appellants or their counsel
received any notice of such awards (R-
297-301), did not know that the
arbitration had even taken place and
70
therefore were prevented from filing
and making a demand for trial [de novo]
within thirty (30) days thereof. SEE:
Appellants! briefs page 3.
This court in Sun v. Jones, 188 Ga.
552 (373 SE2d 656) (September 23, 1988)
pursuant to the guidelines of the
United States Supreme Court in Mullane
v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (70 SC 652) (1949) held
that the minimum requirement of the
State of Georgia action for notice and
personal service, if unrefuted, after
pendency is met by the service by mail,
to wit, at pages 552 and 553:
"McMurray, Presiding Judge.
‘An elementary and fundamental
requirement of due process in any
proceeding which is to be accorded
71
finality is notice reasonably
calculated .. .to apprise
interested parties of the pendency of
the action and afford them an
opportunity to present their
objections.' Mullane v. Central
Hanover Bank & Trust Co., 339 U.S.
306 (70 SC 652) (1949) . . .We
concluded that once apprised of the
pendency of a lawsuit a party's
constitutional right to notice and
the opportunity to be heard is met by
the service by mail provided by Code
Ann sec. 81-A-105(b) [now OCGA 9-11-
5(b)]. (Georgia Supreme Court case
cited.)' (Emphasis added.)
In these present actions and appeals,
pursuant to Fulton Superior Court Local
Rule 1000, the award of the arbitrators
is not mailed to counsel of record or
the parties in a case. The award is
not served on the parties or counsel of
record by the Marshall's or Sheriff's
Department or anyone. There is no
other provision for notice of the
arbitrators' award which will adversely
affect property interests of the
parties irrespective of where the
parties or counsel may reside. (R-302-
303).
Neither appeliants or their counsel
received any notice of such awards (R-
297-301), did not know that the
arbitration had even taken place and
therefore were prevented from filing
and making a demand for trial [de novo]
within thirty (30) days thereof. SEE:
Appellants' briefs page 3.
73
4.
This court in Benton v. Modern
Finance & Investment Company, 244 Ga.
533 (October 25, 1979) relying on
Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306 (70 SC 652) (1949)
and this court's own rulings in
Thompson v. Lagerquist, 232 Ga. 75, 76
(1974) and Womble v. Commercial Credit
Corp., 231 Ga. 569, 571 (1974) which
both adopted Mullane, supra, held
unconstitutional OCGA 81A-104(d)(6) as
violative of the due process clause of
the 14th Amendment to the United States
Constitution and as providing for
notice not reasonably calculated to
reach interested persons or that the
forum chosen is not substantially less
likely to bring home notice than other
of the feasible and customary
substitutes, such as mailing, and this
court tenaciously, firmly and securely
annouhced as though chiseled in
judicial granite that: "Notice is the
very bedrock of due process."
The Benton, supra, decision:
Jordan, Justice.
", . . appellee filed a complaint in
the State Court of Fulton County
against. . .appellant, on a promissory
note in the amount of seventy-three
dollars ($73) plus interest and
attorney fees. When the appellant
filed no answer within the lawful
period, a default judgment was entered
against her in the amount of eight-five
and 94/100 dollars ($85.94)
appellant filed a motion to set
aside the default judgment which was
denied.
75
- « -appellant did not receive actual
notice but . . .appellant was served in
accordance with OCGA 81A-104(d) (6)
which provides that "If the principal
sum involved is less than $200 [service
may be perfected] by leaving a copy [of
the summons and complaint] at the
[defendant's] most notorious place of
abode."
- « -appellant urges that the rial
court erred in holding that OCGA 81A-
104(d)(6) does not violate the due
process clause of the 14th Amendment to
the United States Constitution. For
the reasons noted below, we agree with
the appellant and reverse the trial
court's denial of her motion to set
aside the default judgment.
', . .{T]he constitutional validity of
any chosen method [of service] may be
76
defended on the ground that it is in
itself reasonably certain to inform
those affected . . .or, where
conditions do not reasonably permit
such notice, that the form chosen is
not substantially less likely to bring
home notice than other of the feasible
and customary substitutes.' Mullane v.
Central Hanover Bank & Trust Co., 339
U.S. 306 (70 SC 652) (1949). '[Nlotice
is the very bedrock of due process.'
Thompson v. Lagerquist, 232 Ga. 75, 76
(205 SE2d 267) (1974).
As the United States Supreme Court
expressly noted, ‘Exceptions in the
name of necessity do not sweep away the
rule that within the limits of
practicability notice must be such as
is reasonably calculated to reach
interested parties. ' Id. at 318.
Therefore OCGA 81A-104(d)(6) conforms
to the constitutional dictates of due
process only if its form of service is
‘reasonably certain to inform those
affected.'
'The mere leaving of copy of suit at
the residence of the defendant is not
reasonably calculated apprise him of he
pendency of an action against him. He
may be absent from such abode for an
extended length of time. He may be in
the process of moving from one
residence to another. The copy may be
destroyed by inclement weather, or be
removed by other persons.' Womble v.
Commercial Credit Corporation, 231 Ga.
569, 571 (203 SE2d 304) (1974).
Accordingly, we hold that OCGA 81A-
104(d)(6), which authorizes service by
leaving a copy at the defendant's most
78
notorious place of abode on the sole
condition that the principal sum
involved be less than $200 violates the
due process clause of the 14th
Amendment of the United States
Constitution.
Judgment reversed." (Emphasis added.)
Georgia Supreme Court Justice Hill
attempted in a concurring opinion to
assist the Georgia legislature in
redrafting OCGA 81A-104(d)(6) so that
it comported to the mandates of the
14th Amendment of the United States
Constitution and the guideline of the
United States Supreme Court in Mullane,
supra, as follows:
"Hill, Justice concurring.
Although I concur in the judgment for
the reasons stated in the opinion, I
79
believe the objections specified in
Womble, supra, can be cured by
tightly drawn legislation. For
example, taping the service copy of
the seaplaint in a marked, waterproof
packet high on the door, making it a
misdemeanor for a person other than a
resident of those premises to remove
such marked packet, and duplicating
service by return mail could overcome
or minimize most of the Womble
objections." (Emphasis added.)
Here appellant, Susan, had an
arbitration award by default entered
against her in the amount of $61,976.49
plus interest after she had a few days
before filed her conforming and legal
motion for continuance, supported by
the affidavit of her treating physician
80
of her surgeries in Chattanooga,
Tennessee, and the counsel was told by
the Office of Arbitration that the
arbitration had been continued, and
then her only notice or that of her
counsel of the entry of the default
arbitration award in the amount of
$61,976.49 plus interest was the
posting or "publishing" of it on a
bulletin board on the seventh (7th)
floor of the courthouse--a highly
secured area with limited access by and
to the public--and a copy of the award
kept in a desk drawer of the
Administrator of the Office of
Arbitration on the same limited access
seventh (7th) floor cf the same
courthouse. Neither appellant Susan or
her mother, avpellant Elizabeth,--who
under the same circumstances had an
81
arbitration award of $5,000.00 dollars
for attorney fees [attorney fees were
not plead for legally or asked for
factually in the underlying action
filed by appellee in the Superior Court
of Fulton County] entered against her--
received any other notice, nor did her
attorney, by service at their published
of record addresses, either personally
or by the usual and customary United
States mail methods or any other known
or "reasonably calculated" or accepted
modes of notice or service "to reach
interested parties." Thus the 30 day
period expired in which appellants
could have easily cured the notice and
service deficiency by peremptorily
filing their Rule 1000 "Demand For
Trial De-Novo".
Thereafter, judgments on the default
arbitration awards were entered without
notice against both appellants,
contrary to OCGA 15-6-21(c) and Cambron
v. Canal Insurance Company, 246 Ga. 147
(269 SE2d 426) (1980). It was only
after a credit problem arose with
appellant Susan and both appellants
having their bank accounts taken by
garnishment that either of them or
their counsel knew anything of what had
transpired. (R-297-301) (R-302-303).
The 14th Amendment of the United
States Constitution "unconstitutional"
lack of notice and lack of service was
expressly provided for in Superior
Court of Fulton County. Local
-, [Arbitration] Rule 1000, as follows:
Local Arbitration Rule 1000
Rule 14.
83
The award is published to the
parties, and the written award filed
with the Court Administrator or his
designee on the day of the hearing.
(R-302-303).
How published by rule and custom and
practice? As follows:
(i) Posting such award on a
bulletin board outside the Court
Administrator's Office on the seventh
(7th) floor of the Fulton County
Courthouse, and
(ii) Keeping a copy of such
award in the case[s] file[s] in the
Office of Civil Arbitration. (R-302-
303).
All contrary to the due process
mandates and guidelines setup by the
United States Supreme Court in Mullane
v. Central Hanover Bank & Trust Co.,
84
339 U.S. 306 (70 SC 652) (1949),
Mennonite Bd. of Missions v. Adams, 462
U.S. 791 (103 SC 2706) (1983), Tulsa
Professional Collection Services, Inc.
v. Pope, Executrix Of The Estate Of
Pope, 485 U.S. 478 (1988) and the many,
many decisions of this Court, herein
discussed, imposing these United States
Supreme Court guidelines to and against
the "State actions" of the legislative
or judicial enactments of the State of
Georgia.
D6
This court in Womble v. Commercial
Credit Corp., 231 Ga. 569 (January 8,
1974) relying on Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306
(70 SC 652) (1949) held
unconstitutional OCGA 81-202 [Code of
1933] as violative of the due process
85
clause of the 14th Amendment to the
United States Constitution and as
providing for notice not reasonably
calculated to reach interested persons
or that the forum chosen is not
substantially less likely to bring home
notice than other of the feasible and
customary substitutes.
The Womble, supra, decision:
"Mobley, Chief Justice.
"The service on the appellant by
leaving a copy at his most notorious
abode in the county was not
reasonably calculated to apprise him
of the pendency of the action, and
was a denial of due process of law as
guaranteed by Fourteenth Amendment of
the Constitution of the United
States.
86
Motion to set aside judgment;
constitutional question.
Gwinnett State Court.
[Appellant's] motion to set aside
alleged that service was made by
leaving a copy of the suit at his
most notorious place of abode, and
that he never received actuai notice
of the suit. The motion asserts that
[OCGA] 81-202, as amended of the Code
of 1933. . .which provided that
leaving a copy at the defendant's
residence was sufficient service, was
not reasonably calculated to inform a
defendant of the claims made against
him, and that the rendering of a
default judgment after such service
deprived the appellant of his
property without due process of law,
in violation of the Fourteenth
87
Amendment to the Constitution of the
United States.
The question for determination in the
present case is whether the provision
of [OCGA] 81-202 of the Code of 1933,
authorizing service by leaving copy
at the residence of the defendant,
afforded due process as required by
the Fourteenth Amendment of the
United States Constitution. Such
service has been held to be
sufficient [case cited] but not as
against a constitutional attack.
In Jefferson Fire Ins. Co. v.
Brackin, 140 Ga. 637 (2) (79 SE 467)
this court held: 'One of the
essential elements of due process of
law, to which every one is entitled
before he can be lawfully deprived of
this property, is notice of the
88
procedure against him. This notice
must not be dependent upon chance,
and must at least be such as with
reasonable probability will apprise
him of the pendency of the
proceeding. . .'
The United States Supreme Court in
Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306 (70 SC 652)
(1949) laid down the following
principle 'An elementary and
fundamental requirement of due
process in an proceeding which is to
be accorded finality is notice
reasonably calculated under all the
circumstance, to apprise interested
parties of the pendency of the action
and afforded them an opportunity to
present their objections..' We
therefore conclude that the provision
89
of [OCGA] 81-202 of the Code of 1933,
authorizing service by leaving a copy
at the residence of the defendant,
was in violation of the due process
clause of the Fourteenth Amendment of
the United States Constitution.
Judgment reversed. All the Justices
concur." (Emphasis added.)
6.
This court again in Thompson v.
Lagerquist, 232 Ga. 75 (April 4, 1974)
which it cites with approval and
controlling in Benton v. Modern Finance
& Investment Company, 244 Ga. 533
(1979), heretofore discussed, in
applying the notice guidelines and
standards of due process of the 14th
Amendment of the United States
Constitution in Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306
90
(70 SC 652) (1949). Mennonite Bd. of
Missions v. Adams, 462 U.S. 791 (103 SC
2706) (1983), Tulsa Professional
Collection Services, Inc. v. Pope,
Executrix of the Estate of Pope, 485
U.S. 478 (1988), reverses a default
judgment against appellant taken
pursuant OCGA 81A-104(d)(7) as being
violative of the notice due process
requirements since "notice is the very
bedrock cf due process."
The Thompson, supra, decision:
"Jordan, Justice.
"This appeal is from a judgment
dismissing the appellant's complaint
in Fulton County Superior Court to
set aside and vacate a judgment
rendered against him in the Civil
Court of Fulton County and to enjoin
the prosecution of said judgment.
91
- - .&@ default judgment was rendered
in the Civil Court. . .against the
appellant. . .Subsequent thereto, the
appellee proceeded to prosecute said
judgment through a garnishment
proceeding against the appellant.
[The same as here.]
Thereafter. . .appellant filed this
complaint in Fulton Superior Court to
set aside and vacate the default
judgment and to enjoin the appeliee
from the prosecution of said
judgment. The sworn pleadings and
uncontradicted evidence before the
trial court show. . .that neither the
appellant nor his wife was ever
advised concerning the suit and
Summons until after judgment, nor
have they ever received or seen the
92
suit and summons issued in the Civil
Court of Fulton County. .
[OCGA] 81A-104(d)(7) requires
delivery of the summons and complaint
"in all other cases to the defendant
personally, or by leaving copies
thereof at his dwelling house or
usual place of abode with some person
of suitable age and discretion then
residing therein.' This court has
strictly construed the provisions of
this Code section, and rightfully so,
Since notice is the very bedrock of
due process.
Judgment reversed. All the Justices
concur." (Emphasis added.)
rf
This court as far back as 1913 in
Jefferson Fire Insurance Company v.
Brackin, 140 Ga. 637 (October 2, 1913)
93
held the provision of the Georgia
Official Code, sec. 2564
unconstitutional, under the due process
requirements of the 14th Amendment to
the United States Constitution, which
permitted service and notice being
perfected by leaving a copy of the
Summons and petition or writ at the
place of doing business at the time the
cause of action accrued or the contract
was made out of which the action arose.
This holding and opinion although
scores of years before Mullane, supra,
Mennonite, supra, and Tulsa, supra, was
in complete conformity with these later
day holdings of the United States
Supreme Court as to the minimum
requirements for due process under the
14th Amendment of the United States
Constitution.
94
The Jefferson case, supra, in
applicable part at page 638:
"Fish, C.J.
"The Civil Code, sec. 2564, provides,
that, in an action of the character
referred to. . .service may be
perfected upon the insurance company
by leaving a copy of the petition or
writ where the agency or place of
doing business was located in the
county at the time the cause of
action accrued, or the contract was
made out of which the same arose.
This provision of the code section is
unconstitutional, because violative
of the due-process cause of both the
State and Federal constitutions. One
of the essential elements of ‘due
process of law,' to which every one
is entitled before he can be lawfully
95
deprived of his property, is notice
of the procedure against him. This
notion must not be dependent upon
chance, and must at least be such as
with reasonable probability will
apprise him of the pendency of the
proceeding.' [Georgia authorities
cited.] (Emphasis added.)
As in these cases, is the posting,
only, of the arbitration awards on a
bulletin board on the seventh (7th)
floor of a courthouse, which is secured
with limited access to and by the
general public, and the keeping of a
copy of the arbitration awards in the
desk drawer of the private office of
the Administrator of Arbitration to
which the public, the appellants and
their attorneys have no access a
practice of and notion of due process
96
that leaves notice to chance and
affords no reasonable probability that
the defendants will ever know of the
action taken against them that will
deprive each of their property?
Under this state of the art of due
process a citizen would be better off
casting his lot with the town crier and
his brass bell at 8:00 a.m., once a
week, on the courthouse steps, or per
Rudyard Kipling: ". . .take one heap of
all your winnings and risk them on one
turn of 'pitch-and-toss'."
CONCLUSION
Respectfully, this Court is requested
to grant appellants' Motion For
Reconsideration and to vacate its
judgment order herein entered October
17, 1990 and to further enter its order
reversing the judgments of the Superior
97
| —
Court of Fulton County, Georgia and to
enter judgment in favor of appellants
and against appellee, with or without
opinion as the Court deems appropriate.
Susan Feasse and Elizabeth Jane Fasse,
appellants.
By:
One of their attorneys
SUBMITTED BY:
ATTORNEYS FOR APPELLANTS:
David N. Levine, Esq.
GA Bar No. 448400
DAVID N. LEVINE P.C.
8565 Dunwoody Place
Building 15
Atlanta, Georgia 30350
(404) 594-9444
Thomas V. Cassidy, Esq.
Attorney for Appellant
Ill. Bar No. 412406
Admitted pro hac vice by order 1-14-88
2648 Sharondale Circle N.E.,
Atlanta, Georgia 30305
(404) 237-0494
98
ueorgia
ny
f
upreme Court o
©
W
the
d: Oct 17, 1990
Decided
=
oe—
YO
cS Ww
<2
ca ta
Co <2
1 oe ©
a So
fx] fx]
2 W
WY
=<
Pry fry
. .
\O C-
~~
cO oO
> <3
<< <x
Lo oo
Ov On
wt Ud
LJ
Ww
Judgment affirmed
vu
4
LO
+
u
pursuan
SUPREME COURT
STATE OF GEORGIA
Oct. 24, 1989
TO ALL COUNSEL;
RE: Application No. S89D0617,
Susan Fasse v. Patricia B. Hodgson
The Court today granted this
application for discretionary appeal.
All the Justices concur, except Clarke,
P.J. and Smith, J., not participating.
Your notice of appeal must be filed
in the trial court within 10 days from
this date. When the record is received
from the trial court and docketed in
this court you will be sent a docketing
notice showing the date of docketing
and the Case Number assig ed. The
appellant's enumeration of errors and
briefs will be due in this Court within
20 days from the date of docketing; the
100
appellee's briefs will be due within 40
days from the date of docketing or
within 20 days after the appellant's
briefs are filed, whichever is later.
The Court is~particularly concerned
with, and requests that you address in
your briefs, the following:
1) whether the motion to set aside
should have been granted because
the defendant did not have
notice of the final judgment?
2) whether the notice of award
provisions of Fulton County
Local Rule 1000 are sufficient?
Joline B. Williams, Clerk
By:
101
SUPREME COURT
STATE OF GEORGIA
Nov. 20, 1989
TO ALL COUNSEL;
RE: Application No. S90D0150,
Elizabeth Jane Fasse v. Patricia
B. Hodgson
The Court today granted this
application for discretionary appeal.
All the Justices concur.
Your notice of appeal must be filed
in the trial court within 10 days from
this date. When the record is received
from the trial court and docketed in
this court you will be sent a docketing
notice showing the date of docketing
and the Case Number assigned. The
appellant's enumeration of errors and
briefs will be due in this Court within
20 days from the date of docketing; the
appellee's briefs will be due within 40
days from the date of docketing or
within 20 days after the appellant's
briefs are filed, whichever is later.
The Court is particularly concerned
with, and requests that you address in
your briefs, the following:
1) The validity of the notice of
award provisions of Fulton
County Local Rule 1000 and
2) Whether the motion to set aside
should have been granted because
the defendant did not have
notice of the final judgment.
Joline B. Williams, Clerk
103
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
SUSAN FASSE
Petitioner/Appellant,
Vs.
PATRICIA B. HODGSON,
~~ SS SS
CASE
Respondent/Appellee. No.
S89D0617
PETITION
Comes now Susan Fasse, Petitioner
herein by and through her counsel and
respectfully files her Petition
pursuant to 0.C.G.A. Section 5-6-35,
respectfully showing as follows:
1.
The errors to be enumerated on Appeal
are as follows:
(i) The trial court erred in
not ruling on Petitioner's Motion for
104
Continuance filed pursuant to 0.C.G.A.
Section 9-10-154. on January 31, 1989.
(ii) The trial court erred in
not ruling that Fulton Superior Court
Local Rule 1000 violates the due
process clause of the United States and
Georgia Constitutions in that the
methods of publishing the award of the
arbitrators (by posting a copy of same
on a bulletin board outside the Court
Administrator's Office and keeping a
copy of same in the Office of Civil
Arbitration Case file) are insufficient
to give such notice of the award as is
required by the said due process
clause.
(iii) The judgment entered on
March 7, 1989 was absent from the
Court's file thus preventing Petitioner
105
from having knowledge of same in order
to protect her rights.
Ze
The Supreme Court of Georgia has
jurisdiction of this case on Appeal
pursuant to Article 6, Section 6,
Paragraph II of the Georgia
Constitution for the reason that the
Supreme Court of Georgia has exclusive
appellate jurisdiction in a case where
the constitutionality of a law is in
question. At issue here is whether
Fulton Superior Court Local Rule 1000
is violative of the due process clause
of the Georgia and United States
Constitutions.
36
The Order being appealed is the Order
of the Honorable Clarence Cooper,
Judge, Fulton Superior Court, entered
106
il ieee
August 28, 1989, denying Petitioner's
Motion to Set Aside Judgment.
4.
Attached hereto and made a part
hereof as Exhibits are the following:
(i) Exhibit "A" - Copy of Order
appealed.
(ii) Exhibit "B" - Copy of
Motion To Set Aside Judgment (with
exhibits).
(iii) Exhibit "C" - Copy of Brief
in Support of Motion to Set Aside
Judgement.
(iv) Exhibit "D" - Copy of Brief
in Opposition to Defendant's Motion To
set Aside Judgment.
(v) Exhibit "E" - Fulton
Superior Court Local Rule 1000 (14).
107
Wherefore Petitioner prays that her
Petition herein be granted and that the
Order appealed be reversed.
DAVID N. LEVINE P.C.
David N. Levine, Esq.
Attorney for Petitioner/Appellant
GA Bar No. 448400
5775 C Peachtree Dunwoody Rd.
Suite 209
Atlanta, GA 30342
(404) 256-9444
108
IN THE SUPREME COURT OF GEORGIA
STATE OF GEORGIA
ELIZABETH JANE FASSE
Petitioner/Appellant,
Petitioner herein by and through her
17 7 4 + £4,717 1 a o
counsel and respectfully files her
a. oe : + + 6 ee ee va, + 2
Petition pursuant to QO.U0.G.A. section
4
4
1%
The errors to be enumerated on Appeal
are as follows:
(i) The trial court erred in
not ruling that Fulton Superior Court
Local Rule 1000 violates the due
process clause of the United States and
Georgia Constitutions in that the
methods of publishing the award of the
arbitrators (by posting a copy of same
on a bulletin board outside the Court
Administrator's Office and keeping a
copy of same in the Office of Civil
Arbitration Case file) are insufficient
to give such notice of the award as is
required by the said due process
clause.
ra
The Supreme Court has jurisdiction of
this case on Appeal pursuant to Article
6, Section 6, Paragraph II of the
Georgia Constitution.
3.
The Order being appeaLed is the Order
of the Honorable Clarence Cooper,
Judge, Fulton Superior Court, entered
September 28, 1989, denying
Petitioner's Motion to Set Aside
Judgment.
4.
This case is a companion case to
Susan Fasse vs. Patricia B. Hodgscn,
Supreme Court of Georgia Case No.
S89D0617, in which Application for
Discretionary Appeal was filed on
September 27, 1989.
De
Petitioner attaches hereto as Exhibit
"E" and incorporates herein by
reference the said Application for
Discretionary Appeal filed in said Case
No. S89D0617.
6.
Attached hereto and made a part
hereof as Exhibits are the following:
(i) Exhibit "A" - Copy of Order
appealed.
(ii) Exhibit "B" - Copy of
Motion to Set Aside Judgement and Brief
(iii) Exhibit "C" ~ Fulton
Superior Court Local Rule 1000 (14).
(iv) Exhibit "D" - Copy of Order
consolidating Susan Fasse vs. Patricia
Th
Hodgson, Fulton Superior Court Case No.
D-14463 with Elizabeth Jane Fasse v.
Patricia Hodgson, Fulton Superior Court
Wherefore Petitioner prays that her
Petition herein be granted and that the
Order appealed be reversed.
DAVID N. LEVINE, P.C.
David N. Levine
Attorney for Petitioner/Appellant
GA Bar No. 448400
5775 C Peachtree Dunwoody Rd.
Suite 200
Atlanta, GA 30342
(404) 256-9444
113
EXHIBIT "A"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ELIZABETH JANE FASSE )
)
Plaintiff, )
)
)CIVIL
Vs. )ACTION
PATRICIA B. HODGSON,
Defendant
ORDER
Plaintiff's Motion to Set Aside
Judgment came before the Court for
consideration pursuant to ¥.U.G.A.
Section 9-11-60.
After thorough review of all matters
of record, the Court hereby denies said
motion.
SO ORDERED this 26th day of Sept.,
, “1989.
JUDGE CLARENCE COOPER, Fulton Superior
Court, A.J.C.
114
EXHIBIT "B"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ELIZABETH JANE FASSE
)
)
)CIVIL
)ACTION
)FILE NO.
vs. )D-26523
Plaintiff
PATRICIA B. HODGSON,
SS SS
Defendant.
MOTION TO SET ASIDE JUDGEMENT
AND BRIEF IN SUPPORT THEREOF
Comes now Elizabeth Jane Fasse,
Plaintiff herein, by and through her
counsel and respectfully moves this
Court pursuant to 0.C.G.A. Section 9-
11-60 to set aside the judgment entered
against her herein on or about the 6th
of June, 1988.
In support of her Motion to Set Aside
Judgment, Plaintiff shows that such
judgment followed an award by
ie >
arbitrators pursuant to Local Rule 1000
of this Court. Plaintiff contends that
said Local Rule 1000 violates the due
process clause of the Constitutions of
the United States of America and the
State of Georgia and that such judgment
should therefore be set aside.
Plaintiff adopts ard incorporates
herein by reference the Motion to Set
Aside Judgment and Brief in Support of
Motion to Set Aside Judgement filed by
Defendant Susan Fasse in Case No. D-
14463, which case has been consolidated
with the instant case pursuant to
previous order of this Court.
Wherefore, Plaintiff prays that the
Judgment previously entered herein
against her be set aside.
David N. Levine
Ga Bar No. 448400
Attorney for Plaintiff
116
iii
EXHIBIT "Cc"
13.
Arbitration hearings are intended to
be brief evidentiary outlines of the
case and not formal trials. Each side
will be limited to a five (5) minute
opening statement, unless there is a
conflict of interest between the
parties of such side, in which event
each party with a conflict of interest’
may make a separate opening of five (5)
minutes. At the discretion of the
panel, testimony may be admitted into
evidence by way of summarization by the
attorney, if the witness is made
available for examination. Affidavits,
depositions, or portions of depositions
may also be admitted into evidence as
appropriate. Witnesses may be
117
subpoenaed as they would be to a trial.
Closing argument shall be fifteen (15)
minutes per side, unless there is a
conflict of interest between the
parties of such side, in which event
such party with a conflict of interest
may make a separate argument of ten
(10) minutes. In the event that a
party fails to appear, argument will be
heard and evidence will be received
from those parties appearing. Parties
are encouraged to be present.
14.
At the close of the arbitration
hearing, the arbitrators shall confer
and return a written award for one side
or the other which shows the damages,
if any awarded, and which shows any
dissent. A simple majority of the
arbitrators is required to return an
award. The award is published to the
parties, and the written award filed
with the Court Administrator or his
designee on the day of the hearing. No
written findings of fact and
conclusions of law are required.
15.
Arbitration hearings are not
officially reported; counsel, at his or
her own expense, may engage a private
court reporter to record the
proceedings.
16.
Any party may file a demand for trial
within thirty (30) days of the filing
of the arbitration award with the Court
Administrator or his designee who shall
make a notation and entry of the date
of filing the award ani of the trial
demand; the demand for trial shall
—
contain the style of the case, the case
number and a demand for jury or non-
jury trial. Filing such demand for
trial will entitle all parties to a de
novo trial of all issues of fact or of
law which were raised or could be
raised in the arbitration hearing; such
case will be tried before the judge to
whom the case has been assigned in the
ordinary procedure and course of time
as if no arbitration hearing had been
held provided, however, that testimony
at the arbitration hearing may be used
for any lawful purpose. Arbitration
proceedings shall not delay or impede
the normal trial of such case.
120
EXHIBIT "D"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
)
)
)
)
)
SUSAN FASSE
Plaintiff Civil
Action
D-14463
Vs.
PATRICIA B. HODGSON,
Defendant
Consolidated with captioned Cases.
Formerly MO-1380, now as counter-claim
D-14463
ELIZABETH JANE FASSE )Civil
Plaintiff )Action
vs. )D-26523
PATRICIA B. HODGSON, )
Defendant )
Consolidated with captioned Cases.
PATRICIA B. HODGSON, )
Plaintiff, )
Counter-Defendant )Civil
vs. )Action
SUSAN FASSE )D-14463
Defendant, )
Counter-Plaintiff )
Consolidated with captioned Cases.
MO-1360, now as
counter-claim in D-14463.
121
ORDER OF CONSOLIDATION
Coming on upon MOTION FOR
CONSOLIDATION of Defendant and counter-
plaintiff, SUSAN FASSE and Plaintiff,
ELIZABETH JANE FASSE, jointly and
severally for this court's order of
consolidation nunc pro tunc to October
02, 1986, of the above captioned cases
for trial and further proceedings
before this court.
IT IS SO ORDERED.
ENTERED
Judge of the Superior Court
DATED: 20 Nov. 1987
Nune pro tunc to October 02, 1986.
122
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA B. HODGSON,
Plaintiff,
)CIVIL
Vs. )ACTION
)FILE
SUSAN FASSE, )NO.
)D-14463
Defendant. )
ORDER
Defendant's Motion to Set Aside came
before the Court for consideration
pursuant to 0.C.G.A. Section 9-11-60.
Having heard argument o- counsel and
after thorough review of the respective
briefs, the motion is hereby denied.
SO ORDERED, this 26th day of August,
1989.
Judge Clarence Cooper
Fulton Superior Court, A.J.C.
123
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA B. HODGSON,
Plaintiff,
YCIVIL .
vs. )ACTION
)FILE
SUSAN FASSE, )NO.
)D-14463
Defendant. )
MOTION TO SET ASIDE JUDGMENT
Comes now SUSAN FASSE, Defendant
herein, by and through her attorney and
pursuant to 0.C.G.A. Section 9-11-60
files her Motion to Set Aside the
Judgment entered against her herein on
March 7, 1989, respectfully showing the
Court as follows:
1.
The within Motion to Set Aside is
based upon nonamendable defects which
appear upon the facts of the record and
124
the fraud, accident or mistake of the 7
adverse party unmixed with the
negligence or fault cf the movant, as
is set forth below.
2.
The within Motion to Set Aside is
bought within three (3) years from the
entry of said judgment.
3.
That on or about August 4, 1988 an
Order for Arbitration was entered
herein and a copy of such order sent to.
Defendant's attorney of record.
4.
That on or about August 29, 1988 a
notice of the scheduling of such case
for arbitration on October 21, 1988 was
sent by the Office of Civil Arbitration
to Thomas V. Cassidy, attorney of
record for Defendant.
125
De
That on or about October 17, 1988
Defendant, by her said counsel of
record, filed her Motion for
Continuance from such arbitration,
wherein such counsel stated that
Defendant was providentially prevented
from attending such hearing and that
counsel could not safely go to trial
without Defendant's presence, all as
required by 0.C.G.A. Section 9-10-154,
a copy of such Motion for Continuance
being attached hereto as Exhibit "A"
and made a part hereof.
6.
That on October 20, 1988 the
Honorable Clarence Cooper, Judge,
entered an Order granting such Motion
for Continuance and re-setting the case
for arbitration on February 3, 1989, a
126
copy of such Order being attached
hereto as Exhibit "B" and made a part
hereof.
7.
—~ That a copy of such Order was sent to
Defendant's counsel of record by the.
Office of Civil Arbitration of this
Court on or about October 26, 1989, a
copy of the envelope containing such
Order being attached hereto as Exhibit
"Cc" and made a part hereof.
8.
That on January 31, 1989 Defendant by
her said counsel of record, filed her
Motion for Continuance from such
arbitration scheduled for February 3,
1989, wherein such counsel stated that
Defendant was providentially prevented
from attending such hearing and that
counsel could not safely go to trial
127
without her presence, all as required
by 0.C.G.A. Section 9-10-154. An
appropriate affidavit dated January 30,
1989 from Defendant's doctor was also
attached to such Motion for Continuance
wherein such doctor stated that
defendant was examined and evaluated on
January 23, 1989 and is "physically and
medically unable to participate in any
court proceedings. . .until further
notice from this office or nyself as
her treating physician." A copy of
said Motion and Affidavit is attached
hereto as Exhibit "D" and made a part
hereof.
9.
That pursuant to 0.C.G.A. Section 9-
10-154 counsel also stated that
Defendant's continuances had not been
exhausted.
128
10.
Plaintiff did not oppose such Motion
for Continuance.
11.
That despite the requirement of
0.C.G.A. Section 9-10-154 that a
continuance shall be granted and
despite the lack of an objection by
Plaintiff to the Motion, no Order was
entered herein granting or denying such
Motion for Continuance.
12.
That on or about February 1, 1989,
Defendant's counsel called the Office
of Civil Arbitration and was advised
that the arbitration scheduled for
February 3, 1989 had been continued and
that same would be re-set.
129
13.
That despite the existence of said
unobjected to Motion for Continuance
and without a ruling thereon, the
arbitration was held on February 3,
1989.
14.
Defendant was providentially
prevented from attending such
arbitration and was unaware that such
hearing was in fact being held.
15.
Unbeknownst to Defendant, the
arbitrators awarded Plaintiff the
amount of $51,181.25 and $10,795.24
attorney's fees.
16.
That neither Defendant nor her
counsel of record were ever sent notice
of such award as is‘set forth in the
130
Affidavits attached hereto as Exhibits
"Ss, “F* ena °G".
17.
That Local Rule 1000(14) of this
Court requires that such award be
published to the parties.
18.
In accordance with the Affidavit of
Kimberly Warden, Arbitration
Administrator, attached hereto as
Exhibit "H" and made a part hereof, the
method of publication of such award to
the parties consists solely of the
following:
(i) Posting same on a bulletin
board outside the Court Administrator's
Office on the seventh (7th) floor of
the Fulton County Court House.
137
£ER Keeping a copy of same in
the case file in the Office of Civil
Arbitration.
19.
That such Local Rule 1000(14) and the
manner in which such award was
published as above set forth fail to
meet the requirements of the Due
Process Clause of the Fourteenth
Amendment to the Constitution of the
United States of America and Article 1
of the Constitution of the State of
Georgia.
20.
That such method of publication of
the award to the parties as set forth
in said Local Rule 1000(14) does not
provide notice reasonably calculated to
apprise Defendant of such award and to
afford her the opportunity to timely
132
present her objections thereto by
demanding a trial, as required by the
said Constitutions of the United States
of America and the State of Georgia.
ai.
That no notice of such award was sent
by mail or otherwise to the parties or
to counsel of record.
22.
That as a result thereof Defendant
was not given proper notice of such
award and as unaware of the existence
of same.
23.
That on or about March 7, 1989,
without Motion or notice to Defendant
or her counsel of record, a proposed
judgment was presented to the Honorable
Clarence Cooper, Judge by counsel for
Plaintiff, which judgment in the total
133
ea
amount of $61,976.49 against Defendant
was signed by Judge Cooper on that day,
a copy of same being attached hereto as
Exhibit "I" and made a part hereof.
24.
That a copy of such Judgment was not
sent to defendant or her counsel as
required by 0.C.G.A. Section 9-11-5,
thus further depriving defendant of an
opportunity to protect her interests.
25.
That all of the foregoing constitute
nonamendable defects appearing on the
face of the record herein and fraud,
accident or mistake or the acts of the
adverse party unmixed with the
negligence or fault of Defendant.
26.
That despite such arbitration award
in derogation of the said due process
134
_———--
clause as above set forth, and the
procuring of said judgment by Piaintiff
without notice to Defendant or her
counsel of record, the within case
appeared scheduled for trial on April
11, 1989 as published in the Fulton
Daily Report.
al.
Defendant, not knowing of the
existence of said judgement and still
being providentially prevented from
appearing for trial, on April 4, 1989
filed her Motion for Continuance from
said April 11, 1989, trial calendar, a
copy of such Motion being attached
hereto as Exhibit "J" and made a part
hereof.
28.
That no order has ever been entered
on such Motion for Continuance.
135
29.
That the original judgment herein
signed by Judge Clarence Cooper has not
been in the Court's file at all
relevant times herein thus additionally
preventing Defendant from having
knowledge of same.
30.
That as a result of the set forth
facts Defendant is entitled to have
said judgment set aside.
31.
That as a result of the entry of said
judgment without notice and in
violation of said due process cause,
Defendant has had her credit rating
severely and irreparably damaged and
has had credit applications denied.
32.
136
That a fi. fa. was issued herein on
March 13, 1989.
33.
Plaintiff has filed at least seven
(7) garnishment actions seeking to
enforce such wrongfully obtained
judgment all to the irreparable harn,
damage and injury of Defendant.
34.
That as a result of the foregoing
Defendant has suffered and continues to
suffer irreparable harm, damage and
injury pending a ruling on the within
Motion to Set Aside Judgment, for which
she has no adequate remedy at law.
35
That Plaintiff should be restrained
and enjoined from prosecuting such
pending garnishment actions and from
taking any other action of any kind,
137
nature or description seeking to
enforce such wrongfully obtained
judgment pending a hearing hereon and
further order of this Court.
WHEREFORE Defendant prays as follows:
a) That a Rule Nisi issue requiring
Plaintiff to show cause why
Defendant should not have the
relief sought herein.
b) That Plaintiff be restrained and
enjoined from taking any action
to enforce said Judgment pending
a ruling on the within Motion.
c) That all pending garnishment
actions already filed by
Plaintiff be stayed pending a
ruling on the within Motion.
d) That the Judgment against
Defendant herein be set aside.
138
e) That Defendant have such other
and further relief as the Court
shall deem just, equitable and
proper.
DAVID N. LEVINE, P.C.
David N. Levine, Attorney for
Defendant Susan Fasse
Ga. Bar No. 448400
139
EXHIBIT "A"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ARBITRATION
&
CIVIL LITIGATIONS
SUSAN FASSE )
Plaintiff Civil
)Action
)D-14463
V8.
PATRICIA B. HODGSON,
Defendant
— SS
Consolidated with captioned Cases.
Formerly MO-1360, now as counter-clain
D-14463
ELIZABETH JANE FASSE )Civil
Plaintiff )Action
vs. )D-26523
PATRICIA B. HODGSON, )
Defendant )
Consolidated with captioned Cases.
PATRICIA B. HODGSON,
)
Plaintiff, )
Counter-Defendant )Civil
vs. )Action
SUSAN FASSE )D-14463
Defendant,
Counter-Plaintiff
MO-1360, now as counter-claim in D-
14463.
140
~
=
MOTION FOR CONTINUANCE
ARBITRATION AND CIVIL LITIGATIONS
Defendant and counter-plaintiff SUSAN
FASSE by ROBERT A. MEIER IV and THOMAS
V. CASSIDY her attorneys respectfully
petitions the court and the arbitration
panel for its order of continuance of
one or all of the above captioned
consolidated matters at least until
next term court and arbitration term
upon the grounds of and as grounds for
1. That SUSAN FASSE a party is
providentially prevented from attending
the trial and/or arbitration hearing of
the case[s] and the undersigned counsel
for the party states he cannot safely
go to trial without the presence of the
absent party by reason of her illness
and medical doctor's orders and
directions, and further it is stated
141
and represented that the continuances
of the party SUSAN FASSE have not been
exhausted.
Ze In support of same there is here
attached the medical certificate of Dr.
John A. Shull, M.D., 929 Spring Creek
Road, Suite #203, Chattanooga,
Tennessee 37412 dated September 21,
1988 [EXHIBIT "A"] supported by
affidavit. [EXHIBIT "B"].,
SUSAN FASSE, defendant
and counter-plaintiff
—
By:
one of her attorneys so certifies.
ATTORNEYS FOR SUSAN FASSE
ROBERT A. MEIER, IV and:
THOMAS V. CASSIDY
2648 Sharondale Circle, N.E.
Atlanta, GA 30305
(404) 237-0494 «+
142
EXHIBIT "A"
JOHN A. SHULL, M.D.
OBSTETRICS AND GYNECOLOGY
929 Spring Creek Road
Suite 203
Chattanooga, TN 37412
(615) 855-0357
Sept. 21, 1988
TO WHOM IT MAY CONCERN
Ms. Susan Jane Fasse of Atlanta,
Georgia is under my treatment and care
for diagnosed pathology and will be for
an unforeseeable period into the
future.
Due to this she is unable to
physically or medically participate in
any court proceedings or depositions
until further notice from this office
and myself.
Yours very truly,
John A. Shull, M.D.
143
er te
STATE OF GEORGIA
COUNTY OF FULTON
AFFIDAVIT
SUSAN JANE FASSE, affiant being of
lawful age deposes and states upon her
oath that the matters contained in the
one (1) page medical report of Dr. John
A. Shull, M.D., 929 Spring Creek Road,
Suite 203, Chattanooga, Tennessee
372412 (615) 855-0357 dated September
21, 1988 and written on the letter head
stationary of Dr. Shull are of her own
personal knowledge, and what was
related to her by Dr. Shull, M.D. as
his patient true in substance and in
fact.
SUSAN JANE FASSE, affiant
Sworn to and subscribed
before me this
day of » 1989.
Notary Public
144
EXHIBIT "B"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PAT HODGSON )
)CIVIL
Plaintiff, )ACTION
)FILE
vs. ——
SUSAN FASSE )
)
Defendant. )
ORDER
This case having been assigned to the
Civil Arbitration Program, and having
been scheduled for the arbitration
hearing, and, pursuant to Local Rule
1000 of this Court, a legal reason
having been given or good cause having
been shown, this arbitration hearing is
reset from October 21, 1988 and is
hereby continued until February 3, 1989
at 11:30 a.n.
SO ORDERED, this 20th day of October,
1988.
145
C
F
larence Cooper,
ulton County Sup
146
EXHIBIT "D"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ARBITRATION
&
CIVIL LITIGATIONS
SUSAN FASSE )
Plaintiff )CivilL
)Action
)D-14463
vs.
PATRICIA B. HODGSON,
Defendant
~~ SH SS
Consolidated with captioned Cases.
Formerly MO-1360, now as counter-clainm
D-14463
ELIZABETH JANE FASSE )Civil
Plaintiff )Action
VS. )D-26523
PATRICIA B. HODGSON, )
Defendant )
Consolidated with captioned Cases.
PATRICIA B. HODGSON,
Counter-Plaintiff
MO-1360, now as counter-claim in D-
14463.
)
Plaintiff,
Counter-Defendant )Civil
vs. )Action
OUSAN FASSE )D-14463
Defendant,
147
MOTION FOR CONTINUANCE
ARBITRATION AND CIVIL LITIGATIONS
Defendant and counter-plaintiff SUSAN
FASSE by ROBERT A. MEIER IV and THOMAS
V. CASSIDY her attorneys respectfully
petitions the court and the arbitration
panel for its order of continuance of
all of the above captioned consolidated
matters a least until next term court
and arbitration term upon the grounds
of and as grounds for:
1. That SUSAN FASSE a party is
providentially prevented from attending
the trial and/or arbitration hearing of
the consolidated by court order cases
and the undersigned counsel for the
party states he cannot safely go to
trial without the presence of the
absent party by reason of her illness
and medical doctor's orders and
148
directions, and further it is stated
and represented that the continuances
of the party SUSAN FASSE have not been
exhausted.
2. In support of same there is here
attached the affidavit of Dr. John A.
Shull, M.D., 929 Spring Creek Road,
Suite #203, Chattanooga, Tennessee
37412 dated January 30, 1989, who is
defendant and counter-plaintiff's Susan
J. Fasse, treating physician (Exhibit
"A") and further supported by the
affidavit of Susan J. Fasse, defendant
and counter-plaintiff (Exhibit "B").
3. That this motion is made in good
faith and not for purpose of
unwarranted delay.
4. That these matters are set before
the ARBITRATION PANEL as the ninth
(9th) cases scheduled to commence at
149
11:30 a.m. on Friday, February 03,
1989.
SUSAN FASSE, defendant
and counter-plaintiff.
BY:
one of her attorneys so certifies.
ATTORNEYS FOR SUSAN FASSE
ROBERT A. MEIER, IV and
THOMAS V. CASSIDY
2648 Sharondale Circle, N.E.
Atlanta, GA 30305
(404) 237-0494
150
JOHN A. SHULL, M.D.
OBSTETRICS AND GYNECOLOGY
929 Spring Creek Road
Suite 203
Chattanooga,-TIN 37412
(615) 855-0357
January 30, 1989
Affidavit
To Whom It May Concern:
This is in supplement to my September
21, 1988, "To Whom It May Concern"
letter concerning my patient, Ms. Susan
J. Fasse of Atlanta, Georgia.
Ms. Fasse of Atlanta, Georgia,
continues under my treatment and care
for diagnosed pathology and will be for
an unforeseeable period into the
future. Her diagnosed pathology
although acute is continuing in nature.
Ms. Fasse did, indeed, enter as an
inpatient, Humana East Ridge Hospital,
Chattanooga, Tennessee, on December 2,
151
1988, where I performed
specialized/general surgery upon her in
connection with her diagnosed
pathologies. Her conditions of ill-
being continue. Upon my physician
order, she is presently on medication
and will be for an unforeseeable
period.
I saw Ms. Fasse in my office for
examination and evaluation on January
23, 1989, and pursuant to this it is my
recommendation that Ms. Fasse is in
further need of inpatient surgery.
Upon my direction she will see in
consultation with myself Dr. C.Y. Liu,
M.D., 4308 Brainerd Rd., Chattanooga,
Tennessee (37411) a 10:30 a.m., Feb. 8,
1989. My patient's, Ms. Fasse, surgery
will be carried out within the next
thirty to sixty days.
152
With a view to the foregoing, Mrs.
Susan Fasse is presently permanently
partially disabled and physically and
medically unable to participate in any
court proceedings or depositions until
further notice from this office or
myself as her treating physician.
Yours very truly,
John A. Shull, M.D.
Subscribed and sworn to before me this
30th day of January, 1989.
Exhibit "A"
153
STATE OF GEORGIA }
COUNTY OF FULTON )
AFFIDAVIT
SUSAN JANE FASSE, affiant, being of
lawful age deposes and states upon her
oath that the matters contained in the
attached and verified affidavit medical
report of Dr. John A. Shuli, M.D. 929
Spring Creek Road, Suite 203,
Chattanooga, Tennessee 37412, (615)
855-0357 dated January 30, 1989 and
written on the letter head stationary
of Dr. Shull are of her own personal
knowledge and what was related to her
by Dr. Shull, M.D. as his patient, true
in substance and in fact, further,
affiant states that the matters
contained in her attached Motion For
Continuance are true in substance and
in fact; FURTHER AFFIANT STATES: that
154
the grounds for this continuance are
providential in nature due to the
physical medical condition of pathology
of the affiant and not within the
control of the affiant herein.
SUSAN JANE FASSE, affiant.
Subscribed and sworn to before me this
30 day of Jan., 1989
SEAL
EXHIBIT "B"
155
EXHIBIT "Ek"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA B. HODGSON,
Plaintiff,
YCIVIL
vs. )ACTION
)FILE
SUSAN FASSE, )NO.
)D-14463
Defendant.
AFFIDAVIT
Personally appeared before me the
undersigned authority duly authorized
to administer oaths SUSAN FASSE who
after being sworn, on oath deposes and
states as follows:
That she is the Defendant in the
within action.
That inpatient surgery was performed
on her by John A. Shull, M.D. on
December 2, 1988 in Chattanooga,
Tennessee.
156
That she was examined by Dr. Shull in
his office on January 23, 1989.
That the facts contained in her
Motion for Continuance and her
Affidavit filed herein on January 31,
1989 were true and correct.
That she was physically and medically
unable to attend or participate in any
legal proceedings to be held on
February 3, 1989 herein.
That at no time prior to June 10,
1989 did she receive any notice of the
award of the arbitrators or the
judgment granted herein.
That she first learned of such
judgment on or about June 10, 1989 when
she was denied credit by Georgia
Federal Bank.
157
That the allegations contained in her
Motion to Set Aside Judgement are true
and correct.
That this Affidavit is freely given
and may be used for any lawful purpose.
This 1st day of August, 1989.
Susan Fasse
Sworn to and subscribed
before me this ist day of August, 1989.
158
EXHIBIT "F"
GEORGIA FULTON COUNTY
Personally appeared before the
undersigned authority duly authorized
to administer oaths
ROBERT A. MEIER, IV. ESQ.
who after being sworn on oath deposes
and states as follows:
That he is a counsel of record for
Defendant Susan Fasse in Case No. D-
14463, Fulton Superior Court.
That he has been a counsel of record
in such case for Defendant at all times
from October 1, 1988 through the
present date.
That at no time did he receive notice
from the Court, the Office of Civil
Arbitration or from opposing counsel of
any arbitration award herein, the
159
presenting of a proposed judgment
signed by Judge Cooper herein.
This Affidavit is made from personal
knowledge and may be used for any
lawful purpose.
This 18 day of July, 1989.
Sworn to and subscribed before
me this 21 day of July, 1989
ROBERT A MEIER, IV
<
160
EXHIBIT "G"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA B. HODGSON, )
)
Plaintiff,
)CIVIL
vs. )ACTION
)FILE
SUSAN FASSE, )NO.
)D-14463
Defendant. )
GEORGIA FULTON COUNTY
Personally appeared before me the
undersigned authority duly authorized
to administer oaths THOMAS V. CASSIDY
who after being sworn, on oath deposes
and states as follows:
That he is a counsel of record for
Defendant Susan Fasse in the within
case.
That he has been a counsel of record
for said Defendant since January 14,
161
pie=-
,
:
-”
"
=
a)
>
i.
aes
ey
ty
ie
Sex
&
beats eh A.
= pe a
oahu coreehes nts a
1988.
That on or about February 1, 1989 he
called the Office of Civil Arbitration
and was advised that the Motion for
Continuance filed January 31, 1989 had
been received and that the arbitration
scheduled for February 3, 1989 had been
continued and would be re-set to
another date.
That at no time did he receive Notice
from the Court, the Office of Civil
Arbitration or from opposing counsel
for any arbitration award herein, a
Motion for Judgment, the presenting of
a proposed judgment to Judge Clarence
Cooper or a copy of any such judgment
signed by Judge Cooper herein.
That between March 7, 1989 and June
20, 1989 the said judgment dated March
7, 1989 against defendant Susan Fasse
162
was not in the case file in the office
of the Clerk of the Fulton Superior
Court.
That this Affidavit is made from
personal knowledge and may be used for
any lawful purpose.
THOMAS V. CASSIDY
Sworn to and subscribed before
me this 1st day of August 1989.
163
EXHIBIT "Kk"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA B. HODGSON,
VS
Plaintiff,
)CIVIL
vs. )ACTION
)FILE
SUSAN FASSE, )NO.
)D-14463
Defendant. )
GEORGIA, FULTON COUNTY
Personally appeared before me the
undersigned authority duly authorized
to administer oaths KIMBERLY A. WARDEN
who after being sworn on oath deposes
and states as follows:
That she is the Arbitration
Administrator of the Office of Civil
Arbitration, Fulton Superior Court.
That Local Rule 1000 (14) of the
Fulton Superior Court provides in part
164
that the award (of the arbitrators) be
published to the parties.
That the method by which the award of
the arbitrators is published to the
parties consists solely of:
i)
ii)
iii)
Posting such award on a bulletin
board outside the Court
Administrator's office on the
seventh (7th) floor of the
Fulton County Courthouse; and
Keeping a copy of same in the
case file in the Office of Civil
Arbitration and copies available
for all parties.
That this has been the policy of
the office for three years.
That the award of the arbitrators is
not mailed to counsel of record or the
parties in a case. That such award is
165
not served on the parties or counsel of
record by the Sheriff's Department.
That this Affidavit is given from
personal knowledge and may be used for
any lawful purpose.
This 31 day of July, 1989.
Sworn to and subscribed
before me this 31
day of July, 1989.
Notary Public
KIMBERLY A. WARDEN
166
EXHIBIT "I"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA B. HODGSON,
VSS SS”
Plaintiff,
)CIVIL
vs. )ACTION
) FILE
SUSAN FASSE, )NO.
)D-14463
Defendant. )
JUDGMENT
The above-styled case having come on
for civil arbitration pursuant to Local
Rule 1000 of this Court on February 3,
1989, and an award of the arbitrators
having been entered that day for the
Plaintiff in the amount of Fifty-One
Thousand One Hundred Eighty-One and
25/100 ($51,181.25) Dollars,, and Ten
Thousand Seven Hundred Ninety-Five and
24/100 ($10,795.24) Dollars attorneys'
167
fees, as evidenced by the Award
attached hereto as Exhibit "A" and
incorporated herein by reference and it
appearing that thirty (30) days have
elapsed and neither party has filed a
demand for trial as required by the
Local Rules of this Court.
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that Plaintiff have judgment by
consent against the Defendant in the
sum of Fifty-One Thousand One Hundred
Eighty-One and 25/100 ($51,181.25)
Dollars, and Ten Thousand Seven Hundred
Ninety-Five and 24/100 ($10,795.24)
Dollars, attorneys' fees, together with
costs.
SO ORDERED, this 7 day of March 1989.
CLARENCE COOPER
JUDGE, SUPERIOR COURT OF FULTON COUNTY
ATLANTA JUDICIAL CIRCUIT
168
EXHIBIT "J"
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ARBITRATION
&
CIVIL LITIGATIONS
SUSAN FASSE )
Plaintiff )CiviL
)Action
)D-14463
VS. )
— B. HODGSON, )
fendant )
Consolidated with captioned Cases.
Formerly MO-1360, now as counter-clain
-14463
ELIZ I TANT Pacer
ZABETH JANE rADLUL
)Civil
Plaintiff )Action
vs. )D-26523
PATRICIA B. HODGSON, )
Defendant )
Consolidated with captioned Cases.
PATRICIA B. HODGSON,
laintiff, )
Counter-Defendant sivil
VS. Action
SUSAN FASS# D-14403
Defendant,
Counter-Plaintiff
MO-1360, now as counter-claim in D-
14463.
MOTION FOR CONTINUANCE
CIVIL LITIGATIONS
JURY TRIAL CALENDAR
Defendant and counter-plaintiff SUSAN
FASSE by ROBERT A. MEIER IV and THOMAS
V. CASSIDY her attorneys respectfully
petitions the court for its order of
continuance of the above captioned
consolidated matters which are set upon
this court's jury trial calendar
scheduled to commence April 11, 1989
upon the grounds of and as grounds for:
Vs That SUSAN FASSE a party is
providentially prevented from attending
the jury trial of the consolidated by
court order cases and the undersigned
counsel for the party states he cannot
safely go to trial without the presence
of the absent party by reason of her
illness and medical doctor's orders and
directions, and further it is stated
ak
~]
O
and represented that the continuances
of the party SUSAN FASSE have not been
exhausted.
Ze In support of same there is here
attached the affidavit of Dr. John A.
Shull, M.D., 929 Spring Creek Road,
Suite #203, Chattanooga, Tennessee
37412 dated April 03, 1989, who is
defenaant and counter-plaintiff's Susan
J. Fasse, treating physician (EXHIBIT
na" &@ A, B&C).
3 That this motion is made in good
faith, upon good grounds shown and not
for purpose of unwarranted delay.
4. That these matters are set
before the court as cases scheduled to
commence by trial by jury on April 11,
1989.
SUSAN FASSE, defendant
and counter-plaintiff.
171
BY
one of her attorneys so certifies.
ATTORNEYS FOR SUSAN FASSE:
ROBERT A. MEIER IV, and
THOMAS V. CASSIDY
2648 Sharondale Circle, N.E.
Atlanta, Georgia 30305
(404) 237-0494
172
EXHIBIT #1
JOHN A. SHULL, M.D.
OBSTETRICS AND GYNECOLOGY
929 Spring Creek Road
Suite 203
Chattanooga, TN 37412
(615) 855-0357
April 3, 1989
Affidavit
To Whom It May Concern:
This affidavit, narrative-letter
medical report concerning my patient,
Ms. Susan J. Fasse of Atlanta, Georgia
is in supplement to my affidavit
narrative medical reports of September
21, 1988, January 30, 1989 and March 1,
1989, concerning this patient which are
here attached as Exhibits "A", "B" and
"C" and which I incorporate by
reference herein at this time and the
contents of which I here and now
Pa)
reaffirm, reverify and subscribe to
once again. —
On this date of April 3rd, 1989 and
in medical consultation with Dr. C.Y.
Liu, M.D., Il conducted a physical and
medical examination of Ms. Susan Fasse
post surgically at my office in
Chattanooga, Tennessee. The patient is
progressing uneventfully from her most
recent surgery of February 22, 1989 and
in her recuperation is strictly
following my medical recommendations to
her. Ms. Fasse's prognosis is guarded.
In my March 1, 1989 verified
narrative medical report I stated in
behalf of myself and Ms. Fasse's
treating chief surgeon, Dr. C.Y. Liu,
M.D., that
She (Susan J. Fasse) is presently
under acute post surgical treatment
in which she is only permitted
sedentary activities, and will be
permanently and totally disabled as a
result of same for at least the next
eight (8) weeks, and Susan J. Fasse
is physically and medically unable to
participate in any court proceedings,
depositions or brief writings for
that period of time or thereafter
until further notice from this office
or myself and/or Dr. C.Y. Liu, M.D.
This is still my and Dr. Liu's
Opinion, however, we do extend this
period of permanent partial disability
until at least June 1, 1989. I wiil
see the patient in the meantime and
provide any necessary verified
narrative medical reports requested of
myself as will Dr. C.. Liu, M.D.
Yours very truly,
175
John A. Shull, M.D.
Subscribed and sworn to before me this
30th day of January, 1989.
oO»
EXHIBIT "A"
JOHN A. SHULL, M.D.
OBSTETRICS AND GYNECOLOGY
929 Spring Creek Road
Suite 203
Chattanooga, TN 37412
(615) 355-0357
September 21, 1988
TO WHOM IT MAY CONCERN:
Ms. Susan Jane Fasse of Atlanta,
Georgia is under my treatment and care
for diagnosed pathology and will be for
an unforeseeable period into the
future.
Due to this she is unable to
physically or medically participate in
any court proceedings or depositions
until further notice from this office
and myself.
Yours very truly,
John A. Shull, M.D.
177
EXHIBIT "B"
JOHN A. SHULL, M.D.
OBSTETRICS AND GYNECOLOGY
929 Spring Creek Road
Suite 203
Chattanooga, TN 37412
(615) 855-0357
March 1, 1989
Affidavit
To Whom It May Concern:
This affidavit, narrative-letter
medical report concerning my patient,
Ms. Susan J. Fasse of Atlanta, Georgia,
is in supplement to my affidavit
narrative medical report of January 30,
1989, concerning this patient which is
here attached as Exhibit "A", and which
I incorporate by reference herein at
this time and the contents.of which I
here and now reaffirm, reverify and now
subscribe to once again.
178
Pursuant to my medical recommendation
as contained in paragraph four (4) of
my attached affidavit-letter of January
30, 1989, and that of Ms. Fasse's co-
treating physician and surgeon, Dr. —
C.Y. Liu, M.D., 4308 Brainerd Road,
Chattanooga, Tennessee 37411, Susan J.
Fasse did undergo major and general
surgery under general anesthetic for in
excess of four (4) hours by Dr. Liu and
myself while an inpatient at Humana
Hospital East Ridge, Chattanooga,
Tennessee on February 22, 1989. This
surgery was in the nature of a
pelvoscopy within her abdominal and
pelvic cavities during which procedures
tumors were surgically removed from
those portions of her anatomy. It is
medically likely that she will within
the near future require additional
179
medical surgery at these or contiguous
sites.
She is presently under acute post
surgical treatment in which she is only
permitted sedentary activities, and
will be permarently and totally
disabled as a result of same for at
least the next eight (8) weeks, and
Susan J. Fasse is physically and
medically unable to participate in any
court proceedings depositions or brief
writings for that period of time or
thereafter until further notice from
this office or myself and/or Dr. C.Y.
Liu, M.D.
Yours very truly,
John A. Shull, M.D.
Subscribed and sworn to before me this
30th day of January, 1989.
180
EXHIBIT "C"
JOHN A. SHULL, M.D.
OBSTETRICS AND GYNECOLOGY
929 Spring Creek Road
Suite 203
Chattanooga, TN 37412
(615) 855-0357
January 30, 1989
Affidavit
To Whom It May Concern:
This is in supplement to my September
21, 1988, "To Whom It May Concern"
letter concerning my patient, Ms. Susan
J. Fasse of Atlanta, Georgia.
Ms. Fasse of Atlanta, Georgia
continues under my treatment and care
for diagnosed pathoiogy and will be for
an unforeseeable period into the
future. Her diagnosed pathology
although acute is continuing in natur
Ms. Fasse did, indeed, enter as an
inpatient, Humana East Ridge Hospital,
181
Chattanooga, Tennessee, wn December 2,
1988, where I performed :
apecialined/qenerel surgery upon her in
connection with her diagnosed
pathologies. Her conditions of ill-
being continue. Upon my physician
order, she is presently on medication
and will be for an unforeseeable
period.
I saw Ms. Fasse in my office for
examination and evaluation on January
23, 1989, and pursuant to this it is my
recommendation that Ms. Fasse is in
further need of inpatient surgery.
Upon my direction she will see in
consultation with myself Dr. C.Y. Liu,
M.D., 4308 Brainerd Road, Chattanooga,
Tennessee 37411, at 10:30 a.m., Feb. 8,
"989. My patient's, Ms. Fasse, surgery
182
will be carried out within the next
thirty to sixty days.
With a view to the foregoing, Mrs.
Susan Fasse is presently permanently
partially disabled and physically and
medically unable to participate in any
court proceedings or depositions until
further notice from this office or
myself as her treating physician.
Yours very truly,
John A. Shull, M.D.
Subscribed and sworn to before me this
30th day of January, 1989.
183
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
PATRICIA B. HODGSON, )
)
Plaintiff,
)CIVIL
vs. | )ACTION
)FILE
SUSAN FASSE, NO.
)D-14463
Defendant.
BRIEF IN SUPPORT OF
MOTION TO SET ASIDE JUDGMENT
Comes now SUSAN FASSE, defendant
herein, by and through her counsel and
files her Brief In Support of Motion To
Set Aside Judgment, respectfully
showing the Court as follows:
FACTS
The facts herein are quiet simple and
direct.
On August 4, 1988 the Honorable
Clarence Cooper, Judge, Fulton County
Superior Court entered an order for
184
arbitration herein. A copy of such
order was sent to Defendant's counsel
of record. The within case had already
been consolidated with Case No. D-
26523, styled Elizabeth Jane Fasse vs.
Patricia Hodgson under a prior order of
Judge Cooper; however the consolidated
cases were ordered to arbitration
separately from each other. Jury
demands had been previously filed in
both cases.
On August 29, 1988 a notice of the
scheduling of such arbitration for
October 21, 1988 was sent to
Defendant's counsel of record.
Defendant was seriously ill and
suffering from various pathologies. On
October 17, 1988 she filed her Motion
for Continuance from the October 21,
185
1988 arbitration, which Motion was not
objected to by Plaintiff.
On October 20, 1988 Judge Cooper
signed an order granting the
continuance and on October 26, 1988 a
copy of such order was sent to
Defendant's counsel of record by the
Office of Civil Arbitration. Such
order re-set the arbitration for
February 3, 1989.
Defendant was still suffering from
her pathologies with further surgery
being required (which was performed on
February 22, 1989) and was unable by
virtue hereof to attend or participate
in the arbitration scheduled for
February 3, 1989.
On January 31, 1989 she filed her
Motion for Continuance from the
February 3, 1989 arbitration, attaching
186
thereto her Affidavit and the Affidavit
of her treating physici.n, which Motion
was aiso not objected to by Plaintiff.
Her counsel stated in such motion that
he could not safely go to trial without
her being present.
Her counsel contacted the Office of
Civil Arbitration on February 1, 1989
and was told that the motion had been
received, the hearing continued and
that same would be re-set to another
date.
No further action of record was taken
on her said Motion for Continuance;
however, the arbitration hearing was
held on February 3, 1989 without her
knowledge.
On February 3, 1989 the arbitrators
awarded plaintiff the sum of $61,976.49
against defendant. NO COPY OF SUCH
187
AWARD WAS SENT TO DEFENDANT'S COUNSEL
OR TO DEFENDANT.
Defendant therefore had no knowledge
of such award and on March 7, 1989
plaintiff secured Judge Cooper's
signature on a judgment awarding
plaintiff $61,976.49 against defendant.
The said judgment was procured by
plaintiff without the filing ofa
Motion for Judgment and without notice
of any kind to defendant or her counsel
of record in derogation of the Rules of
this Court.
Local Rule 1000(14) of this Court
requires that the award of the
arbitrators be "published to the
parties". The method of publication
used by the Office of Civil Arbitration
is limited to:
188 |
i) Fosting such award on a bulletin
board outside the Court
Administrator's office on the
seventh (7th) floor of the
Fulton County Courthouse, and
ii) Keeping a copy of such award in
the case file in the Office of
Civil Arbitration.
Defendant contends that her Motion to
Set Aside such judgment of March 7,
1989 should be granted pursuant tc
O.C.G.A. Section 9-11-60 on the
following grounds:
i) Her Motion for Continuance filed
on January 31, 1989, which was not
objected to by Plaintiff, was required
to be granted but was never ruled upon
by the Court.
ii) The method of publishing the
arbitration award violates the due
189
nr
reeves clause of the Fourteenth
Amendment to the United States
Constitution and also violates the
Constitution of the State of Georgia.
iii) A copy of the judgment was not
sent by plaintiff's counsel to counsel
for Defendant as required.
iv) The foregoing constitute
nonamendable defects which appear on _
the face of the record herein and
fraud, accident or mistake or the! acts
of the adverse party unmixed with the
negligence of fault of Defendant.
ARGUMENT OF LAW
Le
THE COURT WAS REQUIRED TO GRANT
DEFENDANT'S MOTION FOR CONTINUANCE
O.C.G.A. Section 9-10-154 provides as
follows:
190
i. v = a . P D 4
eS f € % ‘¥ re : —_ oe el : mn
=p ae 7 - : 2 Dh
4 =e a 7 i
a. ™
~
‘
~-
—— oo -
—
~
or
qi = r= =
>
6 vo ee sy '
" ‘ - Z S a y as
a , | iy :
If either party is providentially
prevented from attending the trial of
a case, and the counsel of the absent
party will state in his place that he
cannot go safely to trial without the
presence of the absent party, the
case shall be continued, provided
that the continuances of the party
have not been exhausted. (Emphasis
added. )
Such statute has been the law in
Georgia since at least 1863.
Defendant! Motion for Continuance
complied in all respects with the
requirements of the statute and the
Court was bound to grant her Motion.
Yet, for some unexplained reason, the
Court entered no ruling whatsoever on
her Motion, apparently ignoring same.
191
Defendant contends that the existence
of her said unobjected to Motion for
Continuance which fully and completely
complied with 0.C.G.A. Section 9-10-154
and which was left unruled upon by the
Court constitutes a nonamendable defect
appearing on the face of the record
requiring that the judgment entered
herein be set aside.
II.
THE METHOD OF PUBLISHING THE AWARD OF
THE ARBITRATORS VIOLATES THE DUE
PROCESS CLAUSE OF THE UNITED STATES AND
GEORGIA CONSTITUTIONS
The Due Process Clause of the
Fourteenth Amendment to the
Constitution of the United States, as
weil as Article 1 of the Constitution
of the State of Georgia requires that a
person's interest in life, liberty or
192
7 aire
at a TAL
ae ae
a ; .
iy :
a ety a ae
we = a) 7)
property not be taken without due
process of law.
The leading case on the issue of
procedural due process is Mullane vs.
Central Hanover Bank & Trust Co., 339
U.S. 306 (1950).
At page 314 in Mullane, supra, the
United States Supreme Court noted that
due process requires a State to provide
notice reasonably calculated, under
all the circumstances, to apprise
interested parties of the pendency of
the action and afford them an
opportunity to presert their
objections.
See also McKee v. Hegy, 703 F.2d 479
(10th Cir.1983).
In In Re Middle Plantation of
Williamsburg, Inc., Debtor, 48 B.R.
789, 798 (U.S. District Court - E.D.
193
Va. 1985). the United States District
Court stated as follows:
The goal of the notice requirement of
procedural due process is to provide
notice reasonably calculated, under
circumstances, to provide an
interested party with actual notice.
(Emphasis added.)
The United States District Court for
the Northern District of Georgia
(Sidney 0. Smith, Judge) in Law vs.
United States Department of
Agriculture, 366 F.Supp. 1233, 1238
(1973) noted as follows, citing
Mullane, supra, at p. 318:
notice must be such as is reasonably
calculated to reach interested
parties.
194
In Mullane, supra, at p. 315, the
United States Supreme Court also stated
as follows:
The means employed [for giving
notice] must be such as one desirous
of actually informing the absentee
might reasonably adopt to accomplish
it.
In Mullane, supra, the United States
Supreme Court held that notice by
publication of a notice to settle the
accounts of a common trust fund was not
sufficient to inform beneficiaries of
the rust whose names and addresses were
known. See also Mennonite Board of
Missions vs. Adams, 462 U.S. 791
(1983).
In the within case the names and
addresses of counsel for the parties
were well known and of record. Yet
195
pursuant to the Affidavit of Kimberly
A. Warden, Arbitration Administrator,
attached to the defendant's Motion to
Set Aside Judgment as Exhibit "H", the
means of publishing the award to the
parties does not include mailing or
otherwise sending a copy of the award
of the arbitrators to counsel. Such
means of publication is fatally flawed
as not being reasonably calculated to
apprise defendant of the award and
afford her an opportunity to present
her objections, Mullane, supra.
Since a demand for trial must be made
within thirty (30) days of the award of
the arbitrators, it is mandatory hat
notice of such award be given to the
parties. Local Rule 1000 simply does
not provide a constitutionally
acceptable means to give such notice.
196
nena
The methods actually employed by the
Office of Civil Arbitration (posting
the award on a bulletin board on the
seventh (7th) floor of the Fulton
County Courthouse and keeping a copy of
the award in the case file) do not
satisfy the requirements of due process
and are not calculated to actually give
such notice as is required by law.
Lastly, the Georgia Court of Appeals
in Hollis vs. Tanner, 177 Ga. App. 759,
341 S.E.2d 291, at page 292, cited the
requirements of Mullane, supra, with
approval and went on to say as follows:
Wherever notice is required to be
given in a judicial or administrative
proceeding, due process requires that
it be such notice as is reasonably
calculated, under all the
circumstances to enable the
197
interested parties to protect their
rights. (Emphasis added.)
It is patently clear that Local Rule
1000 fails to comply with Mullane,
supra, and Hollis, supra. Defendant
simply did not receive notice
reasonably calculated to enable her to
protect her rights by filing a demand
for trial within thirty (30) days.
What is so unfortunate in the matter
is that the names and addresses of
counsel were of record and all other
orders (save the judgment itself) were
mailed to counsel. It would be an easy
matter to mail counsel a copy of the
award and comply with due process
requirements. Yet such ~rocedures do
not exist and defendant was denied due
process. Accordingly the judgment must
be set aside.
198
It is worth noting that the Georgia
Legislature in enacting the Georgia
Arbitration Code, 0.C.G.A. Section 9-9-
1 et seq., dealing with arbitration
required by written agreement, clearly
provided for adequate notice of the
award of the arbitrators in the very
area where Local Rule 1000 is so
lacking. 0.C.G.A. Section 9-9-10(a)
states as follows:
The award shall be in writing and
signed by the arbitrators joining in
the award. The arbitrators shall
deliver a copy of the award to each
party personally or by registered or
certified mail, return receipt
requested, or as provided in the
Agreement. (Emphasis added.)
A comparison of such Code Section
with Local Rule 1000 clearly shows the
199
fatal deficiency of the Local Rule.
The safeguards of due process contained
in the notice requirements of the Code
Section are completely lacking in the
Local Rule. Local Rule 1000 and its
application in making defendant aware
of the award of the arbitrators fail to
meet the requirements of due process
and this Court should set aside the
Judgment thus obtained against
Defendant.
iit.
THE JUDGMENT WAS OBTAINED WITHOUT
NOTICE TO DEFENDANT
Apparently plaintiff (without giving
notice of any kind to defendant or her
counsel) presented the proposed
judgment to the Court for its
Signature. Plaintiff wrongfully
appeared before the Court ex parte and
200
communicated same to the Court without
advising defendant's counsel and giving
him an opportunity to be heard and
present his objections thereto.
The foregoing constitutes fraud,
accident or mistake or the acts of the
adverse party unmixed with the
negligence or fault of Defendant as
contemplated by 0.C.G.A. Section 9-11-
60. The judgment should be set aside.
IV.
NO COPY OF THE JUDGMENT WAS
SERVED ON DEFENDANT ON HER COUNSEL
The wrongfully obtained judgment was
never served on defendant or her
attorney as required by 0.C.G.A.
Section 9-11-5 thereby further
depriving defendant of any opportunity
to object or otherwise protect her
interests.
201
Furthermore, as set forth in the
affidavit of Thomas V. Cassidy, Esq.
attached to Defendant's Motion herein
as Exhibit "G", the said judgment wes
not even in the Court's file from at
least March 7, 1989 through and
including June 20, 1989, thus
additionally preventing defendant from
gaining knowledge of such judgment.
The foregoing constitutes fraud,
accident or mistake or the acts of the
adverse party unmixed with the
negligence of fault of defendant.
CONCLUSION
Based on the facts and the law it is
clear that defendant's Motion to Set
Aside Judgment should be granted and
defendant respectfully urges the Court
to do so.
~ Respectfully submitted,
202
DAVID N. LEVINE, P.C
GA. BAR NO. 448400
ATTORNEY FOR DEFENDANT
203
eciieaaiia p
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ELIZABETH JANE FASSE
Plaintiff YCIVIL
)ACTION
)FILE NO.
vs. )D-26523
PATRICIA B. HODGSON,
Se ee
Defendant.
JUDGMENT
The above-styled case having come on
for civil arbitration pursuant to Local
Rule 1000 of this Court on April 1,
1988, and an award of the arbitrators
having been entered for the Defendant
as to the Plaintiff's claim and for the
Defendant in the amount of Five
Thousand and 00/100 ($5,000.00)
Dollars, attorney fees as to
Defendant's Counterclaim; and it
appearing that thirty (30) days have
elapsed and neither party has filed a
204
demand for trial as required by the
Local Rules of this Court.
It is hereby ordered, adjudged and
decreed that Defendant have judgment
against the Plaintiff as to the
Plaintiff's Complaint and that the
Defendant have judgment as to the
Defendant's Counterclaim against the
Plaintiff in the sum of Five Thousand
and 00/100 ($5,000.00) Dollars,
attorneys' fees, with costs against the
Plaintiff.
SO ORDERED, this 6th day of June,
1988.
CLARENCE COOPER,
JUDGE, SUPERIOR COURT OF FULTON COUNTY,
ATLANTA JUDICIAL CIRCUIT_
205
IN THE SUPERIOR COURT OF FULTON COUNTY
ELIZABETH JANE FASSE
Plaintiff )CLERK'S
)CASE
) NO.
vs. )D-26523
PATRICIA B. HODGSON,
I
Defendant.
Arbitration Case No. 87*449
OATH OF ARBITRATORS
We do solemnly swear (or affirm) that
we will support, obey and defend the
Constitution of the United Sates and
the Constitution and laws of this State
and that we will discharge the duties
of our office with fidelity.
Joyce H. Pelphrey, Chairman
Jack N. Lincoln
Sonja L. Salo
AWARD
We, the undersigned arbitrators,
having been duly appointed and sworn
206
|
(or affirmed), make the following
award:
We find for the Defendant. All costs
taxed to the Plaintiff. We award
$5,000 attorneys' fees to the
Defendant. We further recommend that
the Plaintiff and Plaintiff's attorney
be held in contempt for not appearing
at Court ordered arbitration.
Date of Hearing: April 1, 1988
Date of Award: April 1, 988
Time consumed for Arbitration Hearing.
45 minutes.
notice; This Award will become the
judgment of the court unless, within 30
days of the filing of this Award, a
demand for trial is filed with the
Court Administrator. If no such demand
is timely filed, THE PREVAILING PARTY
MUST PREPARE A JUDGMENT for the court
207
(attaching a copy of this award), and
the Arbitrator's Award will become the
judgment of the court.
208
CIVIL ARBITRATION PROGRAM
IN THE SUPERIOR COURT OF FULTON COUNTY
PATRICIA B. HODGSON,
~~ SS”
Plaintiff,
)CIVIL
vs. )ACTION
)FILE
SUSAN FASSE, )NO.
)D-14463
Defendant. )
OATH OF ARBITRATORS
We do solemnly swear (or affirm) that
we will support, obey and defend the
Constitution of the United States and
the Constitution and laws of this State
and that we will discharge the duties
of our office with fidelity.
Carol A. Levine, Chairman
Chandelle Summer
R. Michael Robinson
209
AWARD
We, the undersigned arbitrators,
having been duly appointed and sworn
(or affirmed), make the following
award:
We find for plaintiff in the amount
of $51,181.25 for damages and
$10,795.24 in attorney's fees.
Date of hearing 2-3-89
Date of Award 2-3-89
Time consumed for Arbitration hearing.
50 minutes.
NOTICE: This Award will become the
Judgment of the court unless, within 30
days of the filing of this Award, a
demand for trial is filed with the
Court Administrator. If no such dead
is timely filed, THE PREVAILING PARTY
MUST PREPARE A JUDGMENT for the court
210
(attaching a copy of this award), and
the Arbitrator's Award will become the
judgment of the court.
211
HOW IT WORKS
The Fulton County Superior Court
Civil Arbitration Rule provides
"All civil actions filed and seeking
primarily money damages of twenty-
five thousand dollars ($25,000) or
less, or for damages in an unstated
amount, shall be required to go
through compulsory but non-binding
arbitration. Any part to an action
not otherwise qualifying may petition
the Court that the case be scheduled
for arbitration when it is not for
the purpose of delay, the trial judge
to whom the case has been assigned
may order arbitration at any time at
his or her discretion on any case
whether or not it otherwise qualifies
for arbitration or the Court may at
212
its discretion, remove a case from
arbitration or limit the issues to be
arbitrated: all cases alleging
malpractice against health care
providers shall be excluded form
arbitration unless requested by a
party or ordered by the Court."
When your case is filed it will be
scheduled for arbitration on a day and
time certain, normally on the first
Friday 180 days after filing.
On the hearing day attorneys, parties
and witnesses will appear at the
aamekiienl time and place (the
courthouse or other nearby facility
provided by the Court).
At the hearing, each case will be
assigned by court personnel to a panel
of three lawyer arbitrators who will
have been impaneled that day. One of
213
the three will have been designated the
Chief Arbitrator and will preside.
The rules provide for a less formal
hearing where the rules of evidence are
relaxed, as in TRO hearings. Cumulative
witnesses and evidence will be
discouraged. After the hearing, the
arbitrators will confer and promptly
make their written award which will
become the final judgment of the Court
unless a trial is demanded.
A party not satisfied with the award
may, within 30 days of the arbitrator's
hearing, seek to further negotiate a
settlement with the other parties, or
file a demand for trial de novo
substantially as follows:
214
IN THE SUPERIOR COURT
OF FULTON COUNTY
STATE OF GEORGIA
Mary Contrary
Civil Action
Plaintiffs No. D-0O0000
vs.
John Doe
~~ SS SS S
Defendants.
DEMAND FOR TRIAL DE NOVO
This action having come on for a
hearing on April 24, 1987 before an
arbitration panel, and an award having
been returned, the plaintiff Mary
Contrary demands a trial de novo on all
issues of fact or of law which have
been and will be raised in this action.
s/Name of Attorney
P.O. Box 20892
Atlanta, Georgia 30320
Any demand for trial de novo shouid be
directed to:
215
The Office of the Court Administrator
Attention: Civil Arbitration Program
Fulton County Courthouse
136 Pryor Street, SW. Room 704
Atlanta, Georgia 30303
These cases will thereafter appear on
the trial calendar, at their regular
time and in their normal order.
For cases in which both parties are
satisfied with the arbitration panel's
awerd, the final step in the process is
to submit a consent judgment
substantially as follows:
IN THE SUPERIOR COURT
OF FULTON COUNTY
STATE OF GEORGIA
Mary Contrary
Civil Action
Plaintiffs No. D-00000
Vs.
John Doe
~~ SS SS Se
Defendants.
CONSENT JUDGMENT
216
This case was arbitrated pursuant to
Local Rule 1000 on June 26, 1987. The
arbitrators returned an award on June
26, 1987 and no demand for trial de
novo has been filed in the Office of
the Court Administrator within thirty
days of that award.
Now, hereafter, it is the judgment of
the Court that the Defendant, John Doe,
pay the Plaintiff, Mary Contrary the
amount of $12,345.
s/Judge
Judge, Fulton County
Superior Court
Atlanta Judicial Circuit
It is the responsibility of the
prevailing party to prepare and submit
the consent judgment to the Court with
a copy of arbitration panel's award.
217
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.