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Tuesday, August 16, 2016

Failure to provide lawful notice makes Jessica Medeiros Garrison's $3.5-million default judgment void, meaning it is a nullity worth absolutely zero


Jessica Medeiros Garrison and Alabama AG Luther Strange
GOP operative Jessica Medeiros Garrison took to the Web last fall to crow about a $3.5-million default judgment an Alabama circuit judge awarded in a defamation case against me. Legal Schnauzer has been ranked among the top 50 law blogs in North America, but Garrison dubbed it a "ridiculous little blog."

Garrison's arrogance, which was on full display in her as-told-to article at women's fashion magazine Marie Claire, might start dwindling now that we can show her $3.5-million "bonanza" is void. In other words it is a "nullity," worth zero. And those aren't my words; they come from Alabama law on the subject.

The crowing Ms. Garrison will never get enough from that judgment to buy a hot dog at Sneaky Pete's. In fact, the judgment might wind up costing her a lot more than she ever will receive.

How do we know? The answer probably can be found in a variety of Alabama cases, but the best one we've found is styled Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010). In Abernathy, a Franklin County woman faced a default judgment from Green Tree, allegedly because a sheriff's deputy left court papers with the woman's mother. Abernathy wound up having no idea she was being sued. In a complicated series of events, Abernathy had to file two motions seeking relief from the default judgment; in the second instance, notice had been sent to her, but not to her attorney.

Abernathy lost in the trial court, but she took the matter to the Alabama Court of Civil Appeals. Here was the gist of her argument:

Abernathy contends, among other things, that Green Tree did not provide her with appropriate notice of its November 12, 2009, application for a default judgment and that, as a result, the trial court erred when it entered the November 13, 2009, default judgment. Specifically, she argues that Rule 55(b)(2), Ala. R. Civ. P., required that her attorney be given three days' written notice before the entry of the November 13, 2009, default judgment and that the failure to provide such notice constitutes reversible error. We agree.

How did failure to give proper notice affect Green Tree's claim.? You might say it was gutted. From the appellate court:

The failure to provide the notice of the application for a default judgment as required by Rule 55(b)(2) renders the default judgment "void, and not merely voidable," Bracknell v. S.E. Belcher, Inc., 517 So. 2d 588, 591 (Ala. 1987), and "requires a vacation of the default judgment," Southworth v. University of South Alabama Med. Ctr., 637 So. 2d 896, 898 (Ala. Civ. App. 1994).

Like Abernathy, I had appeared in my case; in fact, I appeared once in regular clothes (before I had been arrested because of the Rob Riley/Liberty Duke case) and at least twice in jail clothes during my five-month stay at the "Shelby County Hilton." That is what triggers the three-day notice requirement. In essence, the appellate court was saying there is no excuse for not giving notice of a default application when the defendant has appeared in the case.

The bottom line? I never received any notice of Garrison's default judgment application, or its hearing. The whole process took place without me knowing about it. Davy Hay, a Chilton County attorney who was "representing" me at the time, said the record showed it was not just a matter of me not receiving notice -- there was no indication notice was even sent.

(I put "representing" in quote marks because I was not pleased with the work Davy Hay supposedly did on my behalf. In fact, I'm not sure he did anything on my behalf. We parted ways, and I was left with the notion that I certainly would not recommend Mr. Hay's services to anyone. More on that in an upcoming post.)

Don Blankenship
Judge Don Blankenship, in denying our motion to vacate the default judgment, blamed the lack of notice on me -- because I did not notice the court of our new address in Missouri after we had been forced from our home of 25 years in Alabama due to a foreclosure that almost certainly was wrongful. (See Blankenship's ruling at the end of this post.) Normally, I would notice a court and opposing parties of any address change during a court case -- even though we hadn't changed addresses for 25 years. But in the turmoil from dealing with a foreclosure and having to move to another state, I forgot all about the Garrison case. Her "ridiculous little complaint" didn't mean much when you are staring possible homelessness in the face.

Court documents show that my e-mail address was on every document I filed with the court. Garrison or her attorney, Bill Baxley, easily could have sent me an e-mail to determine my whereabouts. They never did that. I think they didn't do it because they didn't want me there; they wanted Garrison and Attorney General Luther Strange to blabber in court without pesky questions from the opposing side -- questions that might center on their professional, and personal, relationship.

Aside from that, Blankenship simply put the burden for notice on the wrong party. The law in Abernathy clearly shows the burden is on the plaintiff -- Garrison in this case. She did not fulfill her obligation, and that  makes her $3.5-million default judgment void. In fact, her little piece of paper is worthless, as the Abernathy court makes clear:

Our supreme court has stated that, when the three-day notice provision of Rule 55(b)(2) is violated, a trial court is "without discretion in the matter" and errs to reversal if it refuses to set aside the default judgment. Bracknell, 517 So. 2d at 591. Moreover, our supreme court has written that the failure to provide the notice required by Rule 55(b)(2) "requires vacation of the default judgment regardless as to whether defendant has shown a meritorious defense or not." Cockrell v. World's Finest Chocolate Co., 349 So. 2d 1117, 1120 (Ala. 1977) (emphasis added).

Hay should have included the lack-of-notice argument in his written motion, but he did not. He did, however, argue it during the hearing -- as Blankenship makes clear in his order. That means the issue properly was before the court, And as Abernathy shows, Blankenship had no discretion in his ruling; vacation of the default judgment was required.

What about the time I have to get the default judgment voided? What about Blankenship's outrageous screwups in the case? We will address those issues, and more, in upcoming posts.

For now, we know that Jessica Garrison's $3.5-million default judgment was a "ridiculous little" piece of garbage all along.


(To be continued)



9 comments:

Anonymous said...

For a lawyer, Jessica Garrison sure seems ignorant of the law. In fact, she seems ignorant all the way around.

Anonymous said...

Garrison was the plaintiff, right? Well, common sense tells you that it's her responsibility to notify the defendant (you). The burden of proof, and other burdens, generally rest with the person who brought the case -- and that was Garrison.

If they had your e-mail, they certainly had a way to find you and give you notice. Sounds like they didn't do that.

legalschnauzer said...

Very good legal points, @11:34. You are correct that the burden of proving a case is on the plaintiff, and the burden to notify regarding a default application is on the plaintiff -- regardless of whether I've given notice of an address change. They had my email address all along, and they knew some mail had some back undelivered, so they had every reason to check with me via email--and they never did it.

Anonymous said...

Until you get this over turned the court of popular opinion will not accept your explanation. You going to try and clear your name in court?

legalschnauzer said...

What makes you an expert on the court of public opinion, and why should I care what you think, especially when I don't know who you are? If you care to discuss further, contact me via email or phone (205-381-5673).

Anonymous said...

Hey, @11:39, are you a little arrogant to think you know popular opinion? And are you ignorant? Try reading the post, and you will see that Garrison's judgment is void, a nullity. That means Mr. Schnauzer has no reason to clear his name. It's been cleared all along.

Anonymous said...

My bet is that Garrison helped arrange the foreclosure on your house. She stood to gain, probably more than anyone, from you having to bail out of Birmingham. It made it impossible for you to defend yourself from Missouri and gift wrapped a $3.5-million judgment against you, even if it is void.

Anonymous said...

Governor FeelYou WeGonna Lockthatdoor in the produce section handling the melons...

Anonymous said...

http://usdailymail.com/2016/08/13/alabama-legislator-angry-that-state-of-georgia-allowed-in-olympics/

:-)