Monday, December 5, 2016

Here is the only post I've ever let someone talk me into censoring, and it proved to be predictive of the outcome in $3.5 million default-judgment hearing

Don Blankenship
(Last in a two-part series)

Will I ever again let anyone talk me into censoring a post here at Legal Schnauzer? I hope not because the one instance where that happened did not turn out well.

As noted in a recent post, attorney Davy Hay talked me out of publishing a post about a hearing on my motion to vacate Jessica Medeiros Garrison's $3.5-million default judgment. Hay's primary point of concern? He felt the post, published the morning after Hay had argued the motion with Garrison lawyer Bill Baxley, made it look like he could not control his client.

In other words, Hay was concerned that it might hurt Judge Don Blankenship's feelings. As it turned out, Blankenship proved to be a corrupt con man, and we never should have been concerned about his feelings.

The censored post was written almost two months before Blankenship issued his ruling. But it proved to be prescient, accurately showing (if you read between the lines) how Blankenship was likely to rule on almost every key point. When you've been cheated as many times in court as I have, I guess you get pretty good at seeing another cheat job coming.

Here is the one censored post in the history of Legal Schnauzer. Its important because it provides significant insight into the facts and law that should have forced Blankenship to vacate Garrison's $3.5-million. That he didn't rule properly . . . well, it makes him the same as the white, conservative crooks who dominate the Alabama bench. On a positive note, it shows that -- even well in advance -- Blankenship was not fooling me.

Hopefully, there will never be another censored post as long as Legal Schnauzer lives:

June 19, 2015 
Headline: Evidence at yesterday's hearing suggests that Jessica Garrison's $3.5-million default judgment is void
No final order was issued yesterday at a hearing on a motion to vacate a $3.5-million default judgment against me in the Jessica Medeiros Garrison defamation case. But evidence strongly suggests the judgment already is void.

My presence was not required, so I was not at the Jefferson County Courthouse. But my attorney, Davy Hay, provided a general rundown of what took place. Hay and Garrison's lawyer, Bill Baxley, apparently engaged in spirited argument about a number of issues regarding the default judgment, but Hay drove home what might be the single most important argument -- from a simple procedural standpoint, Garrison's default judgment appears to be void.

On top of that, Hay argued, the court incorrectly applied a "private person" status to Garrison, even though she appears to be a public figure who has engaged in high-profile, public matters for roughly a decade. That means the court should have used an "actual malice" standard to address the alleged defamation.

Circuit Judge Don Blankenship has been off the bench recently because of eye surgery, so he conducted the hearing via telephone, with the two lawyers speaking from the courtroom. It's not known when Blankenship will make a ruling.

The hearing raised issues of good faith and fair dealing. Davy Hay filed our Motion to Vacate on April 23, meaning Baxley had eight weeks to file a written response. He filed nothing in writing before the hearing, but he did execute a "mini document dump" of "evidence" that appears to be utterly irrelevant to the Garrison case (more on that in a moment). In essence, our motion was unopposed in writing, and we had no opportunity to prepare for Baxley's "document dump."

What points to Garrison's default judgment being void? The record shows that she filed a Motion for an Order Rendering Judgment by Default on January 6, 2015 (entered on January 7). On January 13, 2015, the court entered an order granting the motion. In between those two dates, there is nothing in the record to show the plaintiff made any effort to notify me of her application for default. (The case docket is embedded at the end of this post.)

As we showed in a recent post, Alabama law requires that the opposing party receive at least three days written notice of a default application and hearing. The law suggests it must be actual notice, with completed service. Here is how we summarized the law:

Despite whatever arguments Baxley comes up with, the facts and law already point to the default judgment being void, based on a case styled Abernathy v. Green Tree Servicing, (Ala. Civ. App., 2010). Abernathy focuses on the notice required for parties seeking default judgments. From the ruling:

"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."

The Abernathy case goes on to state that failure to give proper notice "renders the default judgment void" and "requires vacation of the default judgment."

Not only did I not receive notice, the record apparently shows that the plaintiff or her representatives never sent it. Under the law, that should make yesterday's other arguments moot.

As for those other arguments, Attorney Hay said Baxley entered a dozen or more exhibits that purported to show I have an ongoing disregard for the justice system. That's the "'document dump" I referred to earlier. Apparently the exhibits were copies of court orders from other cases, or news reports from other cases; it was hard, Hay said, to tell exactly what they contained. It perhaps is even harder to determine how they are relevant to the Garrison case. Without seeing the exhibits, I can't say much about them. But I can say for certain that any insinuation I have a habit of disregarding the court system is false.

Heck, if anything, the justice system has shown disrespect for me. After all, an Alabama judge (Baxley friend Claud Neilson) essentially ordered me kidnapped, leading to a five-month incarceration that violates more than 200 years of First Amendment law -- and that played a major role in the Garrison-case default judgment, as did a foreclosure (which I believe was wrongful) on our home of 25 years.

The dubious exhibits apparently were the only "hard copy" material Baxley filed with the court. Should the exhibits, which appear to have no connection to the Garrison case, be kicked out as irrelevant? Sure looks that way from here.

The two-pronged "Kirtland" test, which is central to having a default judgment overturned, partly involves a showing of a meritorious defense. The test comes from a case styled Kirtland v. Fort Morgan Authority Sewer Service Inc., 524 So. 2d 600 (Ala. Sup. Ct., 1988)Baxley apparently argued that the defaulting party must submit affidavits or exhibits to show a meritorious defense, but Alabama case law does not appear to say that. From the Kirtland case:

The rationale behind the meritorious-defense requirement is that evidence of a defense indicates that the outcome of the case could be different if it were disposed of by a trial on the merits rather than by a default judgment and, therefore, justifies reopening the case so that justice can be done. . . .

The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity— namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations would constitute a "plausible defense."

A case styled Ex parte Illinois Central Gulf Railroad, 514 So. 2d 1283 (Ala. Sup. Ct., 1988) puts it in even simpler terms:

To meet the meritorious-defense element, the movant need not satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant is prepared to present a plausible defense.

Our Motion to Vacate asserts the ultimate defense in a defamation case -- the truth of my reporting, stating that I stand by my sources and my work. The motion also states that I have evidence, and can obtain additional evidence via discovery, that more than amounts to a "plausible defense."

The first prong of the Kirtland test is perhaps the most important, It states that a trial court must act with an understanding that default judgments are disfavored under the law, and any close call should come down on the side of ordering a trial on the merits:

The Alabama Constitution and our past opinions construing the default judgment rule support the conclusion that the interest in preserving a litigant's right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy. We have repeatedly held that the trial court's use of its discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala. 1987). . .

We, therefore, emphatically hold that a trial court, in determining whether to grant or to deny a motion to set aside a default judgment, should exercise its broad discretionary powers with liberality and should balance the equities of the case with a strong bias toward allowing the defendant to have his day in court."

In this case, there isn't much doubt about the default judgment. The evidence indicates it is void, on procedural grounds. In terms of case law, my right to a trial on the merits is paramount and should demand that the default judgment be set aside.

As the defendant, I am due my day in court. Blankenship's order, whenever it comes, should uphold Alabama law on that point.

The above post, which Davy Hay talked me into censoring, showed exactly what Blankesnhip's obligations were under the law and hinted that he probably would ignore them. Unfortunately, my post proved to be quite predictive of Blankenship's actions.

No wonder Davy Hay, as surrogate for the legal tribe, did not want this post to see the light of day. But it's seen the light of day now. Hay's concern should not be about controlling his clients. It should be about unmasking corrupt judges, like Don Blankesnhip, who sit on benches all over Alabama and deny justice -- especially for regular folks going up against the powerful, the moneyed, and the connected.

We see no sign that Davy Hay cares one iota about that. You can bet that Bill Baxley, once known for standing up to the Ku Klux Klan, does not.


Anonymous said...

Davy Hay didn't want to look like he couldn't control his client? What a load of crap. Lawyers seem to specialize in this stuff.

Anonymous said...

Looks like you had the law nailed on this one, long before Blankenship even ruled. I'm sure that will infuriate some commenters from the "lunatic fringe."

Anonymous said...

The key point of this story, I think, is that there is a difference between service of a regular court document and service of a default judgment application. Yes, you had an obligation to notify the court of an address change, for service of regular documents -- although service by email is acceptable in all jurisdictions of which I'm aware.

But a default application hardly is a normal legal document. In this instance, Garrison was asking the court to declare her the winner, without there even being a fight. That shifts the burden to her, and rightly so. In Alabama, the law says she must not only determine your address, she must make sure you actually receive the notice. And if that requires her to track you down . . . so be it. It should not have been all that hard in this instance because she had your email address.

She was asking to be declared the winner with no opposition. The law says, "You are asking for the legal version of a 'gimme putt,' so it's not too much to ask you to make sure the other guy receives notice of your default application and any hearing on the matter."

Anonymous said...

I don't think I'll be seeking Davy Hay's legal services any time soon.

legalschnauzer said...

I would not advise it, @11:56. The only good thing, from my standpoint, is that he took my case on contingency basis, so it didn't cost me anything. He did get a lot of free advertising out of it, which pisses me off.

Anonymous said...

If Hay took your case on a contingency basis, but then pushed for Garrison's "$1 proposal," that tells me he was paid from somewhere other than your pocket -- and it suggests he was representing someone else's interests, not yours. If you had accepted the $1 deal, that would have meant no recovery for you, and no contingency fee for Hay. That's not how lawyers act when they are on the up and up; they want to be paid, they have to be paid in order to run a business.

The whole point of a contingency agreement is to provide motivation for the lawyer to seek a substantial recovery -- one he can share in. This does not pass the smell test with me. That Hay was pushing for you to accept the $1 deal tells me he had an arrangement to be paid by someone else. Very ugly, indeed.

legalschnauzer said...

Thanks for a profound and insightful post, @12:41. I had not thought of it in those terms, but every word you write makes absolute sense.

Anonymous said...

The question now: Who laid the pay on Davy Hay?

Anonymous said...

Who made the pay to Hay--was it Garrion, Baxley, or Strange?

legalschnauzer said...

I like your poetic touch, @12:57. I'd say all three are slimy enough to do it, not to mention some of the other slime bags they are tied to.