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08-16174-CC
__________________________________________________________________
JAMES B. STEGEMAN,
Plaintiff/Appellant
v.
1:08-cv-01971-WSD
Court December 26, 20081. Appellant filed Motion for Appointment of Counsel
January 7, 2009, which was Denied by Judge Hull January 16, 2009; in the same
Order, Judge Hull denied Ms. McDonald, who was a party to the District Court
action, her Rights to Appeal. Motion for Reconsideration was filed January 30,
Appellant filed Motion to Recuse Judges Hull, Wilson and Marcus February
18, 2009; Georgia Power Appellees filed Objection February 23, 2009 to which
A. Clerk’s Communications
The Clerk failed to follow rules and procedures, and worked to have this
nevertheless, he timely complied, hoping to have his Appeal decided on the merits.
Appellant received, a copy of the Clerk to Clerk communication stating the Appeal
District Court Order Ruled that the Appeal is not frivolous, and that Appellant is disabled
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appealable Order that cannot become Moot because a Clerk chose to ignore it.
Appellant’s Brief and Record Excerpts3 were hand delivered to the Court
April 13, 20094 per April 6, 2009 conversation with clerk (do not show filed until
April 16, 2009). April 18, 2009 Appellant received letter from Clerk stating
May 8, 2009 letter from Clerk that the Court did not receive Order/judgment
positive the documents had been submitted, he re-submitted them, via USPS
Overnight signed for by S. O’Neal on May 15, 2009, see pg. 5 of Exhibit A.
Next, letter dated May 22, 2009 stating “if the corrections for the record
excerpts were not received within fourteen days, the motion to reinstate willbe
2
Appellant was not sent Notice, or an Order, he only received the Clerk to Clerk
communication which stated Appeal was dismissed and Motion to Recuse was Moot.
Copies of all letters from the Clerk are attached hereto as “Exhibit A”
Records Excerpts consisted of: District Court Docket Sheet, Complaint, Answers from
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Appellant quotes the date he receiveda communication from the Clerk; the date(s) he
references as filing or filed are the dates stamped “FILED” on Appellant’s copies;
Appellant calls to this Court’s attention that he cannot be sure what was actually Filed
and what was not as the Docket Report does not coincide with his “Filed” copies.
Appellant cannot say for sure the document was ever even Filed, although his copy does
reflect “Filed”, not “Received”, but “Filed”.
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The telephone conversation with the Clerk informed Appellant that the only thing needed
to be filed was the Brief and Record Excerpts, which was timely complied with;
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returned unfiled”. Appellant called the clerk, was told she was out of town for a
week. Appellant again sent the documents, this time via Courier who signed a
document stating that he had visually seen the documents being delivered so that
July 09, 2009 received Order Denying Motion to Reinstate which cites no
authority or caselaw. For all Appellant knows, the Clerk made the Ruling.
RELEVENT FACTS
the Appellees bothered to file a Brief. The opposing parties obviously knew they
could violate Fed. R. Civ. P, Local Rules, and IOP without consequence; leaving
one to logically conclude prior agreement had been reached in both District Court
and this Court to have the Appeal dismissed. Perhaps the reason Judge Duffey, Jr.
in both Superior and District Courtsuntil after District Court dismissed the case. In
Superior Court, they claimed the need to investigate into Plaintiffs’ allegations
about the easement documents being fraudulent, refusing to rebut the evidence.
disregarded reformation and wanted the Court to just grant them prescriptive
2007 Dale Reiner at Georgia Power contacted him and requested a title search on
Appellant’s property ¶3, which he performed August 15, 20076 ¶4; and another
search was conducted concerning the property November 20, 2007 ¶10.
Neither Mr. Calloway, nor Georgia Power have ever addressed the fact that
R. F. Wells or Robert F. Wells never existed; that the document in no way pertains
to Appellant’s property; shows the wrong road, wrong Land Lot, and the
description is incorrect “Exhibit D”. They attempt to claim “37” should have been
“73”, but in District 18, Land Lots 37 and 74 are together and touching, both are on
the other side of Ridge Avenue. Clearly, Georgia Power and Mr. Calloway
conspired and agreed to deceive, and work a fraud upon the court.
under color of law, allowed and committed fraud upon the Court. Becker Ruled
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Calloway’s findings show that the property description did not match Appellant’s
property; Georgia Power knew the documents did not pertain to Appellant’s property, yet
in Magistrate Court they swore under oath the document covered the property, was valid
and legal. During both Superior and District Court cases, they insisted they had a legal
valid easement knowing the entire time that was a lie. Georgia Power trespassed onto
and damaged Appellant’s property August 30, 2007, after Calloway’s research.
5
Georgia Power’s fraudulent easement document valid and granted prescriptive
Becker Ruled lacking personal and subject matter jurisdiction, she violated
due process of law; the ruling was obtained throughfraud and fraud upon the Court.
Her Rulings go directly against Rulings of The Supreme Court of Georgia which
there has been substantial fraud upon the Courts by Appellees to obtain judgments
in their favor in Superior and District Courts. Further, as a disabled pro se litigant,
Appellant has been subjected to disparate treatment; denied his Fourth, Fifth and
Fourteenth Amendment Rights, ADA Title II, and the equal protection clause.
I. RIGHT TO APPEAL
Ms. McDonald was neither Noticed of defective Notice of Appeal, nor allowed
to cure the defect. In Casanova v. Dubois, 289 F.3d 142, 145 (1st Cir. 2002) at 146
“eighteen months had passed after Notice of Appeal had been filed”; “based on
The Supreme Court has stated that Right to Appeal is not lost due to a defect
the defect”. Becker532 U.S. at 764, 766. Judge Hull’s Order Denying Appellant’s
Motion for Appointment of Counsel clearly stated that Ms. McDonald is not part of
the Appeal.
Appellant was not provided Notice as shown in this Court’s Local Rules,
Rule 42-1(b), whichgoes against Supreme Court Rulings. One doesn’t have to be
The United States Supreme Court, and sister circuits have long held that
that the late filing of a brief is “insufficient to warrant dismissal”, see Marcaida v.
From inception, the Clerk has tampered with and hindered Plaintiffs/
Appellants attempt to Appeal. Judge Hull saw to it that a Plaintiff was not afforded
This Court’s refusal to reinstate the Appeal hindered by acts of this Court’s
Clerk and who failed to adhere to 11th Cir. R. 42-1(b), thereby denyingAppellant
his Right to Appeal, and results in disparate treatment. Appellant has been treated
7
The case was before Judges Edmondson, Hull and Forrester
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disabled individual…” The Supreme Court in Lane upheld Title II as “valid § 5
the Court to obtain judgments in their favor. See Bulloch v. United States, 763
“Fraud upon the court" has been defined by the 7th Circuit:
Georgia Power has made a mockery of the court(s). This Court’s Clerk’s
apparent willingness to violate rules and procedures shows fraud upon the Court
Judge Becker’s blatant disregard for her Oath of Office, Georgia’s statute
and granting what The Supreme Court of Georgia has Ruled cannot be granted
shows partiality, conspiracy to violate Rights under color of law, and that she was
participant in the fraud upon the Court. See Appellant’s Brief in general.
Plaintiffs’ Filed Motion for Judgment as a Matter of Law June 03, 2008, and
Motion to Set Aside a Void Judgment February 24, 2009. Neither Motion has ever
been ruled on. Georgia Power’s Motion for Continuance and Amendment of their
months after Plaintiffs filed Motion to Strike the answers and Motion for a
that would have had to be claimed in the original filing of their answers or in a
different suit.
grant easement. Six months after filing verified answers,two months after their
easement document was legally challenged, they Moved to Amend8 claiming the
Six months or more after Georgia Power’s request for reformation, in their
Summary Judgment Brief they made clear they only wantedthe Court to Rule that
they have a prescriptive easement.: “prescription makes a bad title good”. The
statement is totally ludicrous, and nowhere is that stated in the caselaw used.
property and Georgia Land Registration Laws10. The property was not brought
8
The Amendment was not Ruled on, neither Granted nor Denied.
9
Statute of limitations for reformation is seven years, all original parties must still control
the original estate involved, and other relevant reasons preventing reformation
O.C.G.A. §44-2-40 This article shall be known and may be cited as "The Land
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Registration Law."
O.C.G.A. §44-2-61: all proceedings in the court in relation to registered land shall be
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O.C.G.A. §44-2-100 shall appoint at least one auditor, who shall be known as the
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examiner, who shall discharge the duties provided for the examiner in this article…”
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which is a felony13. Becker then Dismissed with prejudice on grounds for which
examiner/ master15 See Woodruff et., al., v. Morgan County, 670 S.E.2d 415, 284
Ga. 651 (2008) reversed, which The Supreme Court of Georgia held:
B. Summary Judgment
merits, it concludes the action. Even so, Georgia Power Defendants filed for
Summary Judgment. Becker refused to set aside her judgment dismissing the case
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O.C.G.A. § 44-2-43 Any person who: (1) fraudulently obtains or attempts to obtain …to
any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent
document in the course of any proceedings …; (3) makes or utters any forged instrument
..or any other paper, writing, or document used in connection with any of the proceedings
…or the notation of entries upon the register of titles; (4) steals or fraudulently conceals
…; (5) fraudulently alters, changes, or mutilates any writing, instrument, document,
record, registration, or register …; (6) makes any false oath or affidavit …; or (7) makes
or knowingly uses …provided for by this article shall be guilty of a felony and shall be
punished by imprisonment for not less than one nor more than ten years.
O.C.G.A. §44-2-81 No decree shall be rendered by default and without the necessary
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O.C.G.A. §44-2-102 the examiner shall proceed to hear evidence, The examiner shall
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C. Prescriptive Easement
Appellant bought the property August 1994, right away they erected a eight
(8) to (10) ten foot tall combination of chain link, privacy, and granite along with
a gated entry around the entire property. Certainly a large fence encompassing an
Georgia Power Co. v. Irving, et., al. 267 Ga. 760, 482 S.E.2d 362 (Ga. 03/19/1997)
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Judge Becker, denied Appellant right to a jury, which Plaintiffs/Appellant
See also Thompson et., al., v. Mcdougal, 248 Ga. App. 270, 546
Georgia Power, has continually insisted they have easement over the entire
“This Court has recognized that …so long as the boundaries are
clearly defined, i.e., where the evidence identifies the part
which is in possession and distinguishes it from the part
which is not.” Ragan v. Carter, 145 Ga. 320 (1) (89 S.E. 206)
(1916); Whitehead v. Pitts, 127 Ga. 774 (1) (56 S.E. 1004)
(1907); Tripp v. Fausett, 94 Ga. 330 (21 S.E. 572) (1894).
The fraudulent easement document that Becker Ruled was valid, shows that
Georgia Power had been granted easement for all properties in the District 18,
Land Lots 37, 74 (Land Lots consist of around 44 acres) on Shiphud Rd and Ridge
Avenue. Appellant’s property is the only property in District 18, Land Lot 73 that
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Becker Ruled Georgia Power has easement over; and the only property affected
that is not in Stone Mountain City Limits. Lack of ruling that every property
between Appellant’s property and Ridge Avenue has an easement, shows Becker
The case in District Court listed causes of action for conspiracy to violate
rights under color of law, fraud upon the court, violation of Civil and
Constitutional Rights. Judge Duffey allowed violations of Federal Rules and Local
Page 6:
I. Initial Disclosures
“Each party’s “Initial Disclosures” shall be…within thirty (30)
days after the appearance of a defendant…”
II. Certificate of Interested Persons
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“LR 3.3…all private (non-governmental) parties shall be
required…within thirty (30) days…”
V. Preliminary Report and Discovery Plan
“LR 16.2; LR 84.1.C…to promote early analysis…and to alert
the Court…must be…within thirty (30) days…This Local Rule
applies to all cases…”
LR 16.5 Sanctions
“Failure to comply with the court’s pretrial instructions… default
judgment.”
V. EVIDENCE / CREDIBILITY
District Court went along with the charade; none of the Defendants/
Appellees filed a Verified Answer, without consequence. The failure to “file their
claim under oath” was a “failure to present necessary evidence” see Lamb v. T-
Shirt City, Inc., et., al, 618 S.E.2d 108, 272 Ga. App. 298 (2003); Piedmont Cotton
Mills v. Woelper, 209 Ga. 109, 110 (498 S.E.2d 255) (1998).
credibility; Both conflicting evidence and credibility are matters reserved only for
a jury as fact trier. In Therrell v. Marble Holdings, Crop., 96 F.2d 1555 (11th Cir.
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Judge Duffey, ignoring that it was the duty of a jury to make decisions on
evidence and credibility, acted as trier of fact and deemed Georgia Power
Younger.
Judge Duffey’s Dismissal goes into detail about Federal Courts not
offending State courts, and that Federal Courts cannot baby-sitstate Courts. He
also ruled that there had been no due process violations in state court; going
completely against The Supreme Court of Georgia and The Georgia Court of
Judge Becker refused to adhere to the laws concerning real property and
easements. Supreme Court of Georgia has ruled “to ensure due process to the
property owner” the governing laws must be “strictly conformed to”,in order to not
“deprive the owner of the property of due process of law as guaranteed by the
Constitutions of Georgia and of the United States” City of Atlanta v. Yusen Air &
Sea Service Holdings, 263 Ga. App. 82, 83 (1) (587 SE2d 230) (2003).
Supreme Court of Georgia has also held that an easement document “must
describe the easement with the same degree of definiteness required in a deed to
land”. See City of Atlanta v. Airways Parking Co., 225 Ga. 173, 178-181(4) (167
SE2d 145) (1969); B. & W. Hen Farm v. Georgia Power Co., 222 Ga. 830, 831(2)
(152 SE2d 841) (1966); Gunn v. Georgia Power Co., 205 Ga. 85, 86 (52 SE2d 449)
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(1949).
See also Ga. 400 Industrial Park, Inc. v. Dept. of Transportation, 274 Ga.
that nowhere does anything state how much property Ga. Power has been granted;
Ga. Power has continually claimed rights to the entire property. Judge Becker and
Judge Duffey both disregarded Supreme Court of Georgia and Georgia Court of
Judge Duffey, Jr. ruled that he had investigated the proceedings in Superior
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Court16 and found no constitutional or due process violations. One can only
conclude that Judge Duffey has deemed Georgia statute concerning land (which is
and Georgia Court of Appeals have ruled wrongly; and deemed that The United
property without due process of law” is either fictional, or only for a select few.
Appellant MOVES this Honorable Court for an Order Granting His Motion
to Reinstate his Appeal. The District Court, clearly brings into question whether or
not Georgia’s Land Registration Laws, United States’ and Georgia’s Constitutions
and Bill of Rights are unconstitutional, or if they are only there for a select few
individuals. Manifest Injustice and uncertainty will be the end result unless
CERTIFICATION
By: ____________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782
CERTIFICATE OF SERVICE
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James B. Stegeman vs. Superior Court, et., al., Appeal No. 08-16174-CC
I Certify that I have this 28th day of July, 2009 served a true and correct copy
Remedy Default and Reinstate Appeal; and/or Motion for Leave to File
Documents Out of Time and Remedy Default; and/or Motion to Stay Mandate or
causing to be deposited with the U.S.P.S., First Class Mail, proper postage affixed
_______________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782
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