# Appendix — Fasse v. Hodgson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1632%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 499 U.S. 948 ## 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 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 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 Com [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1632%3A2. Public record. Not legal advice.