Leaderboard 728 X 90

Friday, May 9, 2008

A Junkyard Judgment

Now that we've shown the process for attempting to seize my house has been unlawfully conducted, let's turn our attention to the judgment itself.

To show all the ways this judgment is unlawful would require numerous posts of considerable length, and we will go into those details down the road. But for now, we'll focus in a fairly general way on the major factors that make this a "junkyard judgment."

Some of the stuff you are about to read might sound comical to you. In fact, I would find a lot of it funny if I weren't the one being cheated. But this stuff really happened; I'm not clever enough to make it up. So feel free to let out a guffaw from time to time:

* Confess to a Crime, Be Found Not Guilty--This all started because my wife and I were victims of a crime--criminal trespass third degree, which is not even a misdemeanor under Alabama law; it's called a violation. In other words, it's about as low as you can go in the crime pecking order. But when Mike McGarity moved in next door to us in December 1998, he evidently wasn't happy with his own lot because he immediately started trying to take over ours. He built a fence on our yard that enclosed 300-400 squared feet of our property. Then he, his family members, and their guests made a regular habit of trespassing on our yard. We told him on multiple occasions to keep himself, his family members, and guests off our property. He responded first by sassing us and then by threatening to sue me for "harassment." (You heard that right--telling someone to respect your property rights is harassment, in this guy's mind.) When a lawyer friend wrote McGarity a letter, explaining the law and saying he would receive no more warnings, that still didn't solve the problem. The trespassing continued. So I filed a criminal complaint, thinking the Shelby County District Attorney's Office could handle such a matter professionally. Making the assumption that anyone in Shelby County could do something correctly was my first big mistake. I'll save details for later, but the DA's office messed up our case on numerous fronts. Still, though, when the case went to trial, they managed to get McGarity to inadvertently confess to the crime. But District Judge Ron Jackson, after giving McGarity a stern warning and finding that McGarity had indeed trespassed, found him not guilty anyway. Imagine O.J. Simpson telling Judge Ito: "Your honor, I've got to admit, I stabbed those people that night. I was having a rough day, man, and I thought they were disrespecting me." "No problem, Juice, I understand," Ito says. "People disrespect me all the time, too. The world's tough on short people. Just don't stab anyone else, OK? Not guilty! Next." That's pretty much what happened in our case. Like I said, I couldn't make this stuff up.

* Finding Favor for a Disfavored Tort--Once McGarity was acquitted, that gave him the right to turn around and sue me for a tort called malicious prosecution. This could happen to any victim of a crime. If someone ever mugs you or steals something from you, you had better think twice about swearing out a criminal complaint. If they are found not guilty, maybe because the judge is buds with the thug's lawyer, you are liable to be sued for malicious prosecution. So you see, crime really does pay in the US of A. It's not supposed to, under the law. But as I said in a previous post, we are a nation of "men," not laws; John Adams' vision has been turned on its head. Malicious prosecution essentially means that you prosecuted a case, either criminally or civilly, without having probable cause or grounds to do so. The fact that a judge or jury found in the defendant's favor does not even create a prima facie case for malicious prosecution. If you want to get heavily into malicious prosecution law in Alabama, check out this case. It will tell you just about everything you need to know. But for our purposes now, here's the main point: Malicious prosecution is a "disfavored tort." And here is why:

Malicious-prosecution actions are disfavored in the law. Cutts v. American United Life Ins. Co., 505 So. 2d 1211, 1214 (Ala. 1987). Our Supreme Court has stated:

"One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge. If this were not the case, a large proportion of unsuccessful civil actions would be followed by suits for malicious prosecution, and there would be a piling of litigation on litigation without end."

Remember that line: "All persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge."

That, folks, is the law in Alabama. Did it apply to me in Shelby County? Nope.

Most malicious prosecution cases arise in the shopping environment. A shopper is suspected of shoplifting, a security guard apprehends the person once he leaves the store, the shopper is found not guilty, shopper sues Wal-Mart or whoever for malicious prosecution. Such actions, though, should rarely succeed. And outside the shopping environment, they should almost never succeed. In my case, I had not only probable cause ("I have strong reason to believe my neighbor trespassed"), I had actual cause ("Judge, the ding-dong just confessed to trespassing"). By law, the case had to be kicked in a few months time, and the neighbor or his attorney should have had to pay my legal expenses under the Alabama Litigation Accountability Act. Instead, it dragged on for five-plus years, and I'm out thousands of dollars.

* Oh Yeah, You Were Right All Along--By law, the lawsuit against me couldn't go to trial for procedural reasons. (More on that in a bit.) But it also had to be kicked early for reasons of fact and law. For example, an absolute defense to a malicious prosecution claim comes if the defendant consulted an attorney, and shared all the relevant facts with the attorney, prior to proceeding with the prosecution. I consulted both a private attorney (the guy who wrote the warning letter to McGarity) and a public attorney (a member of the DA's staff). In other words, I could have just sworn out a complaint with the magistrate (usually a non-attorney; it's the circuit clerk in Shelby County), but went the extra mile of consulting two attorneys before moving forward. I made this very argument in all three of my motions for summary judgment and presented uncontroverted evidence that I had consulted attorneys and shared all relevant facts with them. All three motions for summary judgment were denied. But when the case went to trial, Judge G. Dan Reeves dismissed the malicious prosecution claim and did not allow it to go to the jury. Why? Because, he said, I had consulted an attorney. I wanted to say, "You fool, I made that very argument and supported it with facts five years ago!" By the way, McGarity's attorney, William E. Swatek, represented him in the criminal trial and therefore knew I had consulted two attorneys all along. In other words, Swatek knew from the outset that McGarity had no malicious-prosecution claim, but Swatek filed the case anyway. That's the kind of thing that should get a lawyer severely disciplined, maybe even disbarred, considering Swatek's sleazy history. But the Alabama State Bar has done zip.

* Deadline, What Deadline?--If you ever get involved in a court case, you will learn early on that deadlines matter. Consider statutes of limitation. If you think you have a medical malpractice case, which has a two-year statute of limitation, and you bring the case two years and one day after the alleged malpractice occurred, you are toast. Your case will get booted. Same thing with the many deadlines that are imposed during a case. The judgment against me was based on a tort called conversion. (More on that in a bit.) McGarity amended his complaint to add the conversion claim approximately 65 days late. And he did it without seeking leave of court, as required by law. In fact, I had already filed a motion for summary judgment at the time McGarity filed his conversion claim. There is no way on earth that such a claim can proceed. It must be struck, and my attorney made such a motion. But the judge never ruled on it, the conversion claim went to trial, and that's what a jury based a $1,525 judgment on--and that's why my house is being threatened now. Again, I'm not making this absurd stuff up. The guy's conversion amendment was 65 days late and still moved forward.

* Conversion? What the heck?--What is conversion? The short answer is that it's a civil form of theft. Here's an example: You and I are eating at the same restaurant. As I'm leaving, I grab a coat that I think is mine. As I head to my car in the parking lot, I think, "Gosh this coat feels unusually good. Wonder why." You run up to me in the parking lot and say, "Hey, you've got my coat; this one is yours." By now, I've figured out that your coat is much better than mine and costs a whole lot more. I want to keep it, so I refuse to give you your coat back. You now have a case against me for conversion. It's not theft because the taking wasn't unlawful. (I made a mistake.) But by keeping the coat, after you identified it and asked for it back, I have committed a civil wrong against you. How did I get a finding of conversion against me? Well, that's a real howler, and we'll address it in a separate post coming right up.

* You've Got No Case? No Problem--Of all the problems in the judgment against me, the biggest involves summary judgment. What is summary judgment? It's a stage reached in most lawsuits, where one party files a motion saying that the other party either has no case or no defense, and there is no reason for the case to go to trial. The motion for summary judgment must be supported with evidence, usually in the form of affidavits. Once a properly supported motion for summary judgment is filed, the burden shifts to the nonmoving party to present substantial evidence of such weight that it requires the case to go to trial. If the nonmoving party fails to respond as required, Alabama law is abundantly clear: Summary judgment must be granted, and the case is dismissed. In my case, the nonmoving party (my neighbor) failed to respond as required three times. In fact, in two instances, he filed no response at all--he filed no answer to my motion for summary judgment and filed no evidence. Why? He had no case, and his attorney knew he had no case. And yet all three of my motions for summary judgment were denied.

Judges who deny summary judgment under such circumstances clearly are biased. As we noted in a recent post, such rulings violate the 14th Amendment of the U.S. Constitution: "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. . . . The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. Marshall v. Jerrico 446 U.S. 238 (1980).

These are just a few of the reasons the judgment against me is unlawful. But these are the highlights, and as I noted up front, some of them border on the laughable.

This, however, is serious business. And it shows that America in the Age of Rove is not the America most of us learned about in our grade-school history texts. Our constitution is clear: A citizen cannot be deprived of life, liberty, or property because a corrupt judge has an erroneous or distorted conception of the facts or the law.

But former Alabama Governor Don Siegelman just spent nine months in federal prison, and the evidence is overwhelming that it's because of the actions of corrupt federal prosecutors and a corrupt U.S. judge (Mark Fuller). Three defendants in a Mississippi case--Paul Minor, Wes Teel, and John Whitfield--are currently in federal prison (a fourth, sitting Mississippi Supreme Court Justice Oliver Diaz, was tormented for years before being acquitted on bogus charges, twice) because of a clearly corrupt prosecutor and a U.S. judge (Henry Wingate) who should be impeached and probably convicted of federal crimes.

So we know of at least four men who have been wrongfully deprived of their liberty. And now Republican public officials are trying to deprive me of my property. Actually, they've already deprived me of my property--thousands of dollars in cash. But that's not enough; they also want my house.

I can't predict how the GOP gambit will turn out. But I can promise that Legal Schnauzer readers are going to know the truth about what's going on.

1 comment:

invisible said...

The SCHNAUZER god looks down and smiles upon the Legal Schnauzer.

All power to the SCHNAUZER!

The legal schnauzer will scale all obstacles in pursuit of truth and justice