In the Supreme Court
State of Georgia
|Marquitta L. Portman||*|
|The Honorable George H. Kreeger||*|
|The Honorable Robert E. Flournoy, Jr.||*||Supreme Court Action|
|The Honorable Dorothy Robinson||*||S01A1424|
|The Honorable S. Lark Ingram||*|
|The Honorable James G. Bodiford||*|
|The Honorable Michael Stoddard||*||Lower Court|
|Jay Stephenson, Clerk of Cobb County Superior Court||*||Civil Action File Number|
|Larry W. Yarbrough, Attorney at Law||*||99-1-7941-99|
|Daryl L. Kidd, Attorney at Law||*||Cobb County Superior Court|
|Gregory Russell Portman, and||*|
|R. Wynette Kennedy Portman||*|
APPELLANT’S FIRST AMENDED BRIEF IN SUPPORT OF DIRECT APPEAL
Jurisdiction in this Honorable Court is found in the Georgia Constitution, Article VI, Section, VI, Paragraph III, and by Order of the Court of Appeals in case file number A01I0193. (R – p. 15-16)
Background and Jurisdiction:
This appeal arises out of Cobb County Superior Court Civil Action File Number 99-1-7941-99, Petition for Declaratory Judgment, (R – p. 17-46, 310-320, 327-329) filed pursuant to the Declaratory Judgment Act of 1945, created by the General Assembly, and pursuant to O.C.G.A. 9-4-3. The “purpose and legislative intent of declaratory judgment is to settle and afford a petitioner relief from uncertainty and insecurity with respect to rights, status and other legal relations. The Act is to be liberally construed. (Ga. L. 1945, p. 137, Sec. 13.) Declaratory Judgment is one which simply declares the rights of the parties or expresses the opinion of the Court on a question of law without ordering that anything be done.” (Davis and Shulman’s Georgia Practice & Procedure, 1997 edition, page 777.)
Civil Action File Number 99-1-7941-99 sought declaration that the Final Judgment in Civil Action File Number 94-1-5243-22 was void ab initio. The series of actions and Orders by judicial officers and judicial bodies subsequent to the Final Judgment of 94-1-5243-22 revealed that the Final Judgment did not carry the weight of res judicata. It became evident that judicial officers knew “something” about the Final Judgment, information that was being purposefully hidden from Appellant. Realizing that a concerted effort was being made to bar Appellant from this hidden information, Appellant set aside personal and professional goals and determined to acquire said information. At the time, she had no knowledge of void orders, nor did she have a background to fully comprehend the varied duties of court officers. She relied on the attorneys she engaged to protect her rights. It soon became evident, evidence to be shown at trial, that even her own attorneys were participating in keeping the information from her. Due to many hours of study and research, Appellant was finally able to piece together those parts of Georgia and Federal Law on which she now relies to protect her property rights. The record of each of the civil actions, identified in the Complaint for Declaratory Judgment, contains evidence showing with specificity both fraud by the court and fraud perpetrated on the court. Appellant intends to present this evidence to a jury at time of trial.
Appellant comes before this Court as a pro se litigant and seeks substantive justice from this Supreme Court. She has learned that this Court has, by it’s own authority, the opportunity to ignore any appeal by relying on Supreme Court Rule 59. Such an action will not resolve this issue, nor will it stop this pro se litigant from continuing her efforts to achieve justice. “Consistent with federal authority, we now hold that a judgment is void if the court which rendered it acted in a manner materially inconsistent with due process.” See Johnson v. Mayor & City Council of the City of Carrollton, et al., 249 Ga. 173, 175 (1982). Evidence to be shown to the jury at trial is indicative of multiple violations of this litigant’s right to due process.
This Appellant did not originally seek to attack any member of the judiciary, and in fact, it is still not her desire to attack actions by any court officer. However, just as judicial officers have duties that may be unpleasant, so this appellant has a duty to bring truth to light for the benefit of all citizens. Ga. Const. Art. I, Sec. I, Par. 12 In RE: Landers, 77 Ga.143, 148 (1886). “It is the right of any citizen or any individual of lawful age to come forward and prosecute for offenses against the state, or when he does not wish to become the prosecutor, he may give information of the fact to the grand jury, or any member of the body, and in either case, it will become their duty to investigate the matter thus communicated to them, or made known to one of then, whose obligation it would be to lay his information before that body.”
It is Appellant’s right to disclose actions by a judge that are not in compliance with the Laws of Georgia or the Laws of the United States. And it is appellant’s right to question actions by the court that give the appearance of bias and prejudice. Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement [for disqualification], only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194 (1988) (What matters is not the reality of bias or prejudice but its appearance.)
Appearance of adjudication does not make an Order valid, and concealment of a void Order is tantamount to constructive fraud. This particular declaration was sought, not as a collateral attack of the Final Judgment, but rather, to recognize the Final Judgment in Civil Action File Number 94-1-5243-22 as the nullity that it was. Only through the presentation of evidence at jury trial, following adequate discovery, can the void status be ascertained.
Declaratory judgments require that an actual controversy exists. Civil Action File Number 99-1-7941-99 includes multiple legal controversies, among which are: entitlement to property, as claimed by Defendant/Appellee Daryl L. Kidd through an attorney’s lien and a current threat of action on account; rights and responsibilities of marriage or divorce (including entitlement to property), as claimed by Defendants/Appellees Gregory R. Portman and R. Wynette Kennedy Portman through the alleged Final Judgment; responsibilities and duties of the court as claimed by Judge Robert E. Flournoy, Jr. through the Final Judgment; and Plaintiff/Appellant’s legal responsibilities of income and property taxes, as claimed by the United States and Georgia State governments.
Statutory amendment allows declaratory relief, even when other remedies are available at law or in equity, “Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.” O.C.G.A. 9-4-2 (c).
Declaratory judgment cannot be used to render a statute void, thereby making a matter that has already been adjudicated invalid. In this case at bar, Appellant does not challenge the underlying statutes, codes, or rules, but rather, challenges the adjudication itself solely on the order’s status as either valid or void, not for the purpose of changing the status of adjudication, simply to verify the status of non-adjudication. Only through the presentation of evidence to a jury can the determination be made as to the void status of the Final Judgment in Civil Action File Number 94-1-5243-22. Appellant clearly seeks her right to a trial by jury. (R – p. 17-46)
Declaratory Judgment is rightly heard by either of the high courts, in that declaratory judgment is not exclusive to either appellate court. However, other factors put this appeal clearly within the responsibilities of the Supreme Court, State of Georgia; the foremost being that the case involves Constitutional issues, both of the U.S. Constitution and the Constitution of the State of Georgia. See Ga. Const., Art. VI, Sec. VI, Par. II (1)
Although the content of Civil Action File Number 99-1-7941-99 is declaratory judgment, this is not an appeal from a final judgment of declaratory judgment. It is an appeal of pre-trial dismissal orders, which together have the effect and appearance of summary judgment. Plaintiff/Appellant, acting with due diligence, did file a proper interlocutory appeal, (Application Number A01I0193) along with a properly issued Certificate of Immediate Review (R – p. 330-331) to the Court of Appeals. However, the appellate court elected to rule that the Civil Action was entitled to direct appeal. (R – p. 15-16) Plaintiff also submitted an Application for Discretionary Appeal, but was advised by the Clerk’s office that the Court of Appeals again deferred in favor of a direct appeal.
Argument and Citation of Authority:
Appellant files this Brief with two separate arguments: 1. That the orders being appealed are, on their face, void due to absence of proper jurisdiction; and assuming arguendo that Judge McCombs had jurisdiction, 2. That each of the seven orders filed by Judge Rufe E. McCombs are improper and must be reversed by this high court or remanded to a lower court of proper jurisdiction for correction.
THE ORDERS BEING APPEALED ARE VOID
DUE TO ABSENCE OF PROPER JURISDICTION:
1. The trial court lacked proper jurisdiction. Consequently, all Orders by Senior Judge Rufe E. McCombs in Civil Action File Number 99-1-7941-99 are void ab initio. The Trial Judge was without proper jurisdiction of the action, as her appointment was contrary to both Federal Court and Georgia Court Rules, as well as Georgia Statutory Law. A judge may not take by decree what is plainly forbidden by Law.
Appellant maintains that Senior Judge Rufe E. McCombs was lacking jurisdiction and that all Orders by Judge McCombs in this case are therefore void ab initio, a nullity then and now.
Civil Action File Number 99-1-7941-99 was filed in October 1999 by Plaintiff/Appellant, and was assigned to Judge Michael Stoddard, who necessarily recused himself immediately because he was a defendant party in the litigation. (R – p. 47) However, his failure to adhere to O.C.G.A. 15-6-13, or to acknowledge Dupriest v. Reese, 104 Ga. App. 805, 123 S.E.2d 161 (1961), or to abide by the directive of Judicial Qualifications Commission Opinion 220 not only placed him in jeopardy of impeachment, but burdened the case from that time forward with improper jurisdiction.
Herein lies the beginning of multiple errors germane to the issues before this Honorable Court that turn on the question of jurisdiction. Judge Stoddard’s failure to immediately procure the services of a “non-Cobb County” Superior Court judge, pursuant to JQC Ruling 220, through the 7th district administrative judge, resulted in the erroneous assignment of the case to Cobb County Circuit Superior Court Judge Kenneth O. Nix (R – p. 50), who then compounded the jurisdictional fault by both his inaction and his action. Judge Nix’s subsequent extreme delay of the case (R – p. 264-265), from October 12, 1999 until May 4, 2000 barred Plaintiff/Appellant from meaningful discovery throughout the entire six month discovery period. Even though Plaintiff filed a Motion for Judge Nix’s Disqualification on October 18, 1999, (R – p. 51-54) with amendment (R – p. 243-250), Judge Nix failed to respond in any way until May 4, 2000. (R – p. 261-262). Judge Nix’s failure to respond to the Motion, pursuant to U.S.C.R. 25, was an abuse of discretion under color of law and violated Plaintiff’s right to due process.
Judge Nix further complicated the appearance of jurisdiction by filing two recusal orders, May 4 (R – p. 261-262) and May 10, (R – p. 266) 2000. The order of May 10, though seriously untimely, was a proper statement of the reason for Judge Nix’s recusal. However, this was then camouflaged by the subsequent request, executed by Judge Nix, Judge Stoddard, Judge Robinson, Judge Ingram, and Judge Staley. Said request by the five judges, dated June 5, 2000 but not filed with the Clerk until July 6, 2000, was for the services of Senior Judge Rufe E. McCombs, on grounds altogether different (R – p. 283-284) from the May recusal orders. It is of particular note that FOUR of the five judges are defendant parties in this action and that both Judge Nix and Judge Stoddard, having committed error in the case, were participants to this request (R – p. 283-284). The request was executed with Judge McComb’s signature agreement, prior to being submitted for the approval of 7th District Judge William Boyett. Consequently, said Order (R – 283-284) was a serious breach of Uniform Superior Court Rules and State Law and had the distinct appearance of “judge shopping” by the defendants. This order, regardless of authorship, was a blatant attempt to assure that the defendant judges got the judge of their choosing, and spoiled the due process entitlement of Appellant to have the benefit of an impartial and detached magistrate.
Judge Boyett has never responded to Plaintiff’s request, to identify whether he was aware of the May 4 and/or the May 10 Order at the time of signing the July 6, 2000 Order (R – p. 283-284). As explained in Plaintiff’s letter of September 18, 2000 to Judge Boyett and in Plaintiff/Appellant’s Memorandum of Law (R – p. 268-279), it is essential to the disposition of justice to clarify Judge Boyett’s knowledge of the conflicting Orders.
Even though the record shows that the five-judge request for assistance (R – p. 283-284), so ordered by Judge William Boyett, was filed with the Clerk, it was never filed in Civil Action File Number 99-1-7941-35 (except as an attachment by Plaintiff). Rather, it was filed in Civil Action File Number 00-1-00002, which is a separate file pertaining only to judge assignments. This was an obvious attempt to conceal the information from Plaintiff/Appellant and is a violation of O.C.G.A. 15-6-61(5). It was only through persistent questioning of the current administrative judge and his assistant that Plaintiff/Appellant received a copy of the July 6, 2000 order, thereby learning that it even existed.
Immediately, Appellant filed a Memorandum of Law, a Motion for Disqualification, and an accompanying affidavit (R – p. 268-293). Bias and prejudice, apparent in the Order by Judge William Boyett, was now extended into the Clerk’s filing procedures. Even further bias and prejudice would become evident as Judge Rufe E. McCombs took control.
The doctrine of res judicata, provides that when a court of competent jurisdiction renders a final judgment on the merits without fraud or collusion, that judgment is conclusive of the causes of action and of the facts or issues. Just as the Final Judgment in the underlying divorce failed to carry the weight of res judicata due to fraud and collusion, Superior Court of Cobb County lost jurisdiction of this Civil Action due to fraud and collusion.
Judge McCombs convened five hearings:
The January 15, 2001 hearing was for the purpose of addressing Plaintiff/Appellant’s Motion to Disqualify Senior Judge Rufe E. McCombs. Although Judge McCombs acknowledged that Plaintiff’s Motion was timely, the judge stated that the Affidavit was not legally sufficient. At the time of said January 15 hearing, Judge McCombs failed to make a determination as to whether or not the defendant judges of Cobb Superior Court acted appropriately in requesting her service, or whether fraud or collusion was present.
Plaintiff/Appellant, through Memorandum of Law (R – p. 268-279) and Affidavit (R – p. 280-290) showed the Court that the July 6, 2000 Order was a fraudulent attempt to improperly cloak an assisting senior judge with jurisdiction. Jurisdiction was no longer retrievable, for it had been lost due to the fraudulent actions of the Cobb County Superior Court judges. In grave error, Judge McCombs continued to claim jurisdiction, yet failed to sign or file her ruling until February 20, 2001, at 2:12 p.m. (R – p. 326) Consequently, the four dismissal hearings of February 15, 16, and 20, 2001 were all held prior to said Order taking effect. (R – p. 326)
“The filing with the clerk of a judgment, signed by the judge, constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same, as provided in this subsection.” – O.C.G.A. 9-11-58
Judge McComb’s Order to deny Disqualification contains no special directive from the court; it had no effect until it was filed with the Clerk, February 20, 2001, 2:12 p.m. Consequently, pursuant to O.C.G.A. 9-11-58 and U.S.C.R. 25.3 and 25.4, Judge Rufe E. McCombs was not cloaked with judicial authority at the time of the dismissal hearings, yet acted under color of law, and this may not be held as harmless error. Such action was tantamount to constructive fraud, making said hearings a nullity, and subjecting Judge McCombs to both civil liability and impeachment proceedings.
Judge McComb’s Order to deny Disqualification contains no reason for the denial, just that the Motion is “hereby DENIED.” U.S.C.R. 25.3 clarifies the duty of the trial judge to “determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. . . . . The trial judge shall not otherwise oppose the motion.” Judge McComb’s Order made no such determination, yet in it’s written form, simply stood in opposition to the motion.
The ensuing Certificate of Immediate Review (R – p. 330-331) itemized ALL Orders of Senior Judge Rufe E. McCombs, including the February 20, 2:12 p.m. Order denying Disqualification. As a result of the Court of Appeals Order (R – p. 15-16), this appeal is now directed to the Supreme Court, State of Georgia, showing Plaintiff/Appellant’s claim that the actions of Judicial officers of the State of Georgia have violated this citizen’s Constitutional rights to due process.
Still failing to recognize her grave error, Senior Judge Rufe E. McCombs issued a total of seven Orders, including the Order to deny disqualification, in the lower court pertaining to this Civil Action.
February 16, 2001, 11:10 a.m. dismissing defendant Jay C. Stephenson for failure to state a claim and entitlement to immunity (R – p. 321-322)
February 20, 2001, 2:10 p.m. dismissing defendant R. Wynette Kennedy Portman for failure to state a claim (R – p. 323)
February 20, 2001, 2:11 p.m. dismissing defendant Gregory R. Portman for failure to state a claim (R – p. 324)
February 20, 2001, 2:11 p.m. dismissing defendant Larry W. Yarbrough for failure to state a claim (R – p. 325)
February 20, 2001, 2:12 p.m. denying Plaintiff’s [Appellant’s] Motion to Disqualify the Honorable Rufe E. McCombs (R – p. 326)
March 1, 2001, 10:28 a.m. dismissing defendant Judges Kreeger, Bodiford, Ingram, Flournoy, Stoddard and Robinson because judicial decisions cannot be collaterally attacked by way of mandamus or declaratory judgment (R – p. 332-333)
March 7, 2001, 11:25 a.m. dismissing defendant Daryl L. Kidd for failure to state a claim (R – p. 334-337)
All of the orders were a nullity for obvious lack of jurisdiction. As evidenced by the Record, and pursuant to U.S.C.R. 25.3, O.C.G.A. 15-1-9.1 (b)(1)(A), Judicial Qualifications Commission Opinion 220, and O.C.G.A. 9-11-58(b), Judge McCombs was in grave error to proceed with this case prior to filing the Order concerning her own disqualification.
Although the filing of the six dismissal Orders, each dismissing one or more of the defendant parties, together had the effect and appearance of summary judgment, the orders were all pre-trial and interlocutory in nature and must be reviewed on appeal as such. Appellant respectfully shows this Court that summary judgment was the effect only, of rapid-fire, pre-trial dismissal hearings, and was contrary to summary judgment law in both the Georgia and Federal Courts.
Appellant stated on the Record (T – 2/15/01, p. 14):
“Your Honor, I want to be very careful that I don’t present evidence and turn this into summary judgment, and I want to state that at the outset. Because to do so would deprive me of a jury trial.”
Judge Rufe McCombs responded on the record (T – 2/15/01, p. 14):
“Yes. This is a Motion to Dismiss that we’re doing here this morning. It’s not a summary judgment.”
EACH OF THE SEVEN ORDERS FILED BY JUDGE RUFE E. MCCOMBS
IS IMPROPER AND MUST BE REVERSED BY THIS HIGH COURT:
Notwithstanding the fact that all of the Orders by Judge McCombs are nullities due to lack of jurisdiction, Appellant hereby proceeds with argument that the Orders are in error and violation of Georgia Law and Rules of Court.
Even if these orders were to be viewed as summary judgment, Appellant argues that this would be contrary to Georgia Law. The Appellate Courts have repeatedly ruled that an Appellant should not have summary judgment granted against [him/her] without having had the opportunity to convince the trial court to the contrary. Dixon v. McClain, 204 Ga. App. 531, 420 S.E.2d 66 (1992). See also Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 351 S.E.2d 443 (1987);Link v. Doe, 203 Ga. App. 388, 416 S.E.2d 874 (1992); Lau’s Corporation vs. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Senior Judge Rufe E. McCombs was not the trier of this Civil Action, for a jury trial had properly been demanded by Appellant. Judge McCombs did usurp the rights of the jury by denying Appellant the “opportunity to convince the trial court to the contrary.” Alternatively, Judge McCombs, faced with a litigant not skilled in the tactical aspects of the art of advocacy, failed to inform Appellant that Summary Judgment was at hand. To conceal procedural tactics from a citizen prosecuting her own cause is a violation of the paramount duty imposed on the judiciary, under Ga. Const.Article I, Sec. I, Par. II (Protection to persons and property)
2. The trial court was not cognizant of the legal differences between the terms void and voidable.
Judge Rufe E. McCombs appeared to have no knowledge of the term “void ab initio,” (T – 2/16/01, p. 27-28) nor did she understand that appeal is not a correct procedure for a void order for the simple reason that there is no adjudication. That which is a nullity cannot be attacked by motion or appeal, nor can a nullity be returned to the lower court reinstating jurisdiction. Recognition of a nullity requires simple declaration, not reversal. And herein lies a dichotomy with this instant appeal. Appellant is forced, by direction, to submit this appeal; yet appeal is an attack on an adjudicated matter. Because the Orders by Judge Rufe McCombs are void, not adjudicated, the only proper procedure for the Supreme Court is to Declare the Orders VOID. To affirm, dismiss, or deny this direct appeal is tantamount to constructive fraud.
Judge Rufe E. McCombs refused to acknowledge the very existence of void orders, but insisted that Appellant attack the judgment in a method other than declaratory judgment. (T – 2/16/01, p. 31) She states that she does not believe you can use a declaratory judgment to set aside a divorce decree, yet she fails to recognize that a void divorce decree does not need to be set aside…..it is already a nullity. All that is left is the need for a declaration, for the purpose of guiding and protecting the petitioner “from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to [his] alleged rights, and which future action without such direction might reasonably jeopardize [his] interests.” Cohen v. Reisman, 203 Ga. 684, 48 S.E.2d 113 (1984).
Pursuant to Attorney Jerry McNally’s argument (T – 2/16/01, p. 32) that “a petition for declaratory judgment will lie only when there be some fact or circumstance which necessitates a determination of disputes, not merely for the purpose of enforcing accrued rights,…..the object of the Declaratory Judgment Act is to permit determination of a controversy before obligations are repudiated or rights are violated.” Appellant seeks this declaratory judgment on just those grounds. She needs to know her rights before selling property, or such action could be misconstrued as consent of a void order.
Judge McCombs, after encouragement from Attorney McNally, (T – 2/16/01, p. 43) stated that the determination of whether something is void or voidable is a matter of law, not for a jury to decide. This is error; the conditions and parameters of void and voidable may be a matter of law, yet the application of whether a specific filed order is void or voidable is a fact and can only be determined through the presentation of evidence to a jury.
Judge McCombs appeared to believe that void and voidable orders were the same. In truth, voidable indicates that it can bear the action of being voided, the action of an attack for the purpose of reversal or nullification. Void indicates that no action is needed, it is already at the state of nullity, and always has been.
3. The Trial Court failed to consider the fact that the trial was previously delayed by erroneous procedures by the Court itself. Res ipsa loquitur.
Judge Kenneth O. Nix had control of the Civil Action from October 12, 1999 (R – p. 47) through May 4, 2000 (R – p. 261-262). The six month period of discovery was on or about October 1999 through April 2000. Plaintiff filed a Motion for Judge Nix’s Disqualification on October 18, 1999 (R – p. 51-54) with amendment (R – p. 243-250), yet Judge Nix failed to respond in any way until May 4, 2000 (R – p. 261-262). Consequently, Plaintiff/Appellant was left without any enforceable method of meaningful discovery. The Record shows that Plaintiff/Appellant, with due diligence, propounded proper Interrogatories, answered defendant’s motions, and even made Motion to the Court for extension of the discovery period. Answers to the interrogatories were an obvious attempt to thwart the Appellant’s discovery. (T – 2/20/01, 9:30 a.m., p. 42-46)
Appellant has shown the court that Judge Nix’s delay, and the accompanying absence of discovery, has crippled Appellant’s ability to state her claims any more specifically. A close review of the interrogatories will show that discovery obtained from one of the defendants has significant bearing on the claims against another defendant. (R – p. 128-132, 133-138, 139-143, 144-149, 150-154, 155-160, 163-171, 207-214, 224-227, 30-236). Conflicting testimony, when obtained from propounded discovery often leads to hidden truths. In this case, lack of discovery served to further hide the truth.
The Civil Practice Act has at its very premise the right to adequate discovery. Through the delay by Judge Nix, which consequently led to the denial of adequate discovery, Appellant has been deprived of the basic tenets of the Civil Practice Act.
4. The Trial Court first encouraged, and then forced Appellant to proceed to methods of appeal.
(T – 2/16/01, p. 50) Appellate courts are not to be used as an original source of adjudication simply because a Superior Court judge does not understand or does not want to rule. Appellate Courts are courts of review, and should be accorded such respect by the lower courts. See Ga. Const. Art. VI, Sec. V, Par. III and Art. VI, Sec. VI, Par. II.
5. The Trial Court failed to comprehend the interlocking relationship of all the defendants which had the effect of not allowing a complete explanation on any of the motions to dismiss.
By the conclusion of the February 15, 2001 hearing, it was evident that the Court was making a concerted and calculated attempt to dismiss each and every defendant party (T – 2/15/01, p. 28-31), thereby “effecting” summary judgment. As of said February 15, 2001 hearing, dismissal of two of the defendant parties was not yet scheduled. However, the hearing for the dismissal of Gregory Russell Portman and R. Wynette Kennedy Portman was added to the hearing for the dismissal of Larry W. Yarbrough for the very purpose of creating an appearance of summary judgment. The extremely short notice was contrary to Judge McComb’s statement at the January hearing that she had to allow 30 days notice when scheduling a hearing. Although Appellant objected to the four day notice (T – 2/15/01, p. 30-32), Judge Rufe E. McCombs simply added them to the already scheduled hearing of February 20, 2001.
Any case with multiple litigants has the potential to become confusing. The actions of one defendant party greatly impact the claim against another defendant party. For example, the failure of Daryl L, Kidd to mail the Final Judgment (T – 2/15/01, p. 28) to the appellant within a timely manner after filing actually barred Appellant from any proper appeal of the Final Judgment. Further, Daryl Kidd’s failure to request Findings of Fact and Conclusions of Law in written form additionally barred Appellant from proper appeal. It was only through help from the State Bar of Georgia that this litigant was able to obtain documentation that Judge Flournoy was aware that Appellant had requested Findings of Fact and Conclusions of Law. Only through testimony and discovery does Appellant gain statements and fact on the Record to show the interlocking relationship of the defendant parties. Even in the dismissal hearings, the claims against one defendant impacted the claims against other defendants, yet the hearings separated the issues and allowed the argument of “sticking to the merits of the motion” to suppress vital information and confuse both the court and the Appellant. (T – 2/15/01, p. 26-29)
6. The Court erred in the standard of review and the evaluation of the paradigms of Declaratory Judgment. Further, counsel for defendant parties misrepresented said paradigms of Declaratory Judgment.
The standard of review required for Orders to Dismiss is that there is not even one ground on which Petitioner could prevail.
Mr. McNally, representing Attorney Daryl Kidd in the February 16, 2001 hearing, states that Appellent’s Petition for Declaratory Judgment is actually an attempt to “set aside” the 1995 divorce decree. (T – 2/16/01, p. 4) Mr. McNally’s litany of denial, that Appellant has not stated any cognizable claim against Mr. Kidd, and has not itemized any wrongful act by his client, is simply subterfuge, for the Complaint (R – p. 17-46) states multiple claims and does itemize numerous wrongful acts by Mr. Kidd. Appellant sought to itemize these during the hearing. (T – 2/16/01, p. 12-29)
Mr. McNally cited cases in support of his argument that Declaratory Judgment could not be used to set aside a decree. (T – 2/16/01, p. 7) The cases cited are not similar to this Appellant’s claim, and should not have been considered analogous. The cases cited concerned decrees that had been adjudicated. The difference here is that Appellant is seeking to reveal the very nullity of what only appears to be adjudication.
Senior Assistant Attorney General Kathryn L. Allen stated in her opening comments, (T – 2/20/01, 9:30 a.m., p. 2) “in what I’m going to call a collateral attack on her divorce judgment.” Ms. Allen was clearly, and intentionally, misrepresenting Appellant’s action as a collateral attack. Before one can attack a judgment, that judgment must be shown to be valid, bearing the full weight of res judicata. Further, she goes on to make additional misleading comments, apparently in the hopes that the trial court would give credence to the comments based solely on Ms. Allen’s position within the Attorney General’s office. (T – 2/20/01, 9:30 a.m., p. 3-5)
It should be noted that Ms. Allen’s reference to the “affirmation” of the previous mandamus dismissal (T – 2/20/01, 9:30 a.m., p. 3) leads the casual observer to conclude that the Appeal of the Mandamus (previous case) resulted in an affirmation by the appellate court, based on the merits. Rather, Supreme Court Rule 59 does not require any review of the merits, but simply allows the high court to affirm actions of a lower court, regardless of whether those actions are legal or illegal, correct or incorrect. Supreme Court Rule 59 is procedural in nature, was written and passed by the Georgia Supreme Court, and does not bear the same legal weight as statutory or Constitutional Law. When in conflict, Constitutional Law shall prevail and must always be accorded first preference. See 73 Am. Jur. 2d, Sec. 254, Harmony of Statutes.
7. The Trial Court’s findings are contrary to the facts presented in both the pleadings and the Record.
The Record contains factual information that Judge McCombs chose to ignore. The standard of review is that there cannot be even one justiciable controversy. If one exists, then summary cannot lie as to that particular issue.
8. The Trial Court failed to take the necessary and prudent measures to avoid the appearance of impropriety.
Bias and prejudice have followed this litigant since the Divorce trial in October of 1995, as is documented in the complaint of Civil Action File Number 99-1-7941-99. It is evident that there is a concerted effort by court officials to suppress and disarm this litigant. When the court itself is party to the bias and prejudice, party to fraud and illegal actions, a litigant’s civil rights are forever compromised.
Our U.S. Supreme Court has ruled and has reaffirmed the principle that “justice must satisfy the appearance of justice”, Levihe v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that “It is important that the litigant not only actually receive justice, but that he believe that he has received justice.”
9. The AttorneyÕs Lien Statute has been misinterpreted by the Court.
An attorney may only claim a lien on property that was obtained through the fruits of the attorney’s labor. The Court erroneously determined that the lien is not predicated on the validity or the adjudication of the underlying action. (T –2/16/01, p. 54)
10. The Court erroneously concluded that Appellant was seeking relief through Mandamus. Further, the Court did not appear to have comprehended the original Complaint prior to the hearings.
The Court found that “Judicial Decisions may not be collaterally attacked by way of mandamus or declaratory judgment actions against the judge or judges who made those decisions.” (R – p. 332-333) Appellant shows this high court that mandamus was never claimed as part of this Civil Action. The court determined that Appellant had not shown that “declaratory judgment was applicable in this case of mandamus.” (T – 2/20/02, 9:30 a.m., p. 64) There was no issue or claim of mandamus.
It appeared that the Court did not fully comprehend the content of the original complaint. Appellant recognizes that Judge Rufe E. McCombs is disabled in her vision and recognizes that someone may have read the Complaint to her in preparation for the hearings. It appeared that Judge McCombs was hearing some of the Complaint for the first time, as read by Appellant in the hearings. (T – 2/16/01, p. 28) (T – 2/20/01, 9:30 a.m., p. 65) Appellant sincerely hopes that Judge McComb’s disability, which leaves her vulnerable to be deceived by trusted colleagues, was not the cause of her erroneous entry into this Civil Action.
WHEREFORE, This Appellant prays that this high court will:
· declare all Orders by Judge Rufe E. McCombs in Civil Action File Number 99-1-7941-99 to be Null and Void due to lack of adequate jurisdication,
· identify the jurisdictional history of Civil Action File Number 99-1-7941-99,
· identify the current jurisdiction of Civil Action File Number 99-1-7941-99,
· remand all Orders and nullities to the lower court of proper jurisdiction, with direction to extend discovery for a minimum period of 6 months,
· retain supervisory control of Civil Action File 99-1-7941-99,
· direct this Civil Action to an investigative judicial body for review of judicial misconduct,
· direct this Civil Action to an investigative entity of the State Bar for review of attorney misconduct, and/or
· direct this Civil Action to a Grand Jury for criminal acts of court officers.
Respectfully submitted, this 23rd day of July, 2001.
Marquitta L, Portman
Appellant, pro se
Please serve at:
P.O. Box 1262
Kennesaw, GA 30156
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