Thursday, December 29, 2016

Meet Fritz Seyferth, the man who should have followed Gene Bartow as UAB athletics director and probably would have altered the course of Blazer football history

Fritz Seyferth
Like many Americans, I have watched parts of several college football bowl games in recent days. Each time I view the action, I'm reminded of a university that was deprived of its opportunity to join the bowl party. That's because the university, for now, no longer has a football program -- at least one that is allowed to compete on the field.

I'm talking about the University of Alabama in Birmingham (UAB). Because of a glaring lack of leadership, the Blazers football program has been in cold storage for two years. The Blazers are due to resume action in 2017, but how did UAB -- arguably the state's most important institution and its chief economic driver -- lose its program, in a city that bills itself as "The Football Capital of the South"?

Well, I've identified a man who probably could have kept that from happening. His name is Fritz Seyferth, and without ignorant decision-making from the University of Alabama Board of Trustees, he probably would have been a leading candidate to replace Gene Bartow as athletics director, when "The Father of UAB Sports" retired in 2000.

If Seyfurth had been hired to succeed a UAB legend, here is what I think would have happened:

* Blazer football never would have been discontinued;

* Poor decisions, like the hiring of Neil Callaway to replace Watson Brown as head football coach, would not have been made;

* UAB would be in the American Athletic Conference (AAC) -- along with peer metropolitan schools such as Memphis, Cincinnati, Houston, South Florida, Central Florida, Tulane, and SMU -- instead of a watered-down Conference USA.

* UAB would be playing in a 2016 bowl game and probably would have received multiple such bids since its only appearance, in the 2004 Hawaii Bowl.

* UAB would have an on-campus football stadium, or it would have worked with the City of Birmingham to build a replacement for aging Legion Field -- probably near the Civic Center. Either way, the facility would be finished by now, probably several years ago.

Who is Fritz Seyferth? He played football at the University of Michigan, where he rose from walk-on to standout fullback under Hall of Fame coach Bo Schembechler and earned a degree in industrial and operations engineering. After enjoying a brief career in the Canadian Football League, earning an MBA at the University of Connecticut, and serving a stint with Arthur Young and Company, Seyferth returned to Michigan to work in athletics administration. He was at UM for 20 years, retiring in 2000 as executive associate athletics director. Seyferth started a consulting firm called Fritz Seyferth and Associates, based in Ann Arbor, Michigan, and remains the firm's principal at age 66.

While running his consulting company in its first seven years, Seyferth also served as development director for the University of Michigan's Cardiovascular Center, helping to raise $105 million in private gifts.

What could have connected Seyferth to UAB? In 1997, UAB was looking for a new president after J. Claude Bennett stepped down following revelations that he was using state employees to work at his private residence. The search came down to two candidates -- W. Ann Reynolds, who was provost of City University of New York (CUNY) and Bernard Machen, who was provost at the University of Michigan.

I worked as an editor at UAB then -- I was a university employee from 1989 to 2008 -- and remember the search well. In fact, here is how I reported on the matter in a 2009 Legal Schnauzer post:

The choice seemed clearcut. Reynolds had an impressive resume, but she also had a history of causing uproars on several campuses. Word was that she had gone through something like 18 secretaries in a short time at CUNY. I later heard from a trusted source in human resources at UAB that those stories were true, give or take a secretary or two.

Meanwhile, Machen appeared to be a perfect fit. He is a dentist by training, and UAB has one of the top dental schools in the country. UAB has a tradition of strong dentist/leaders. Both McCallum and Joseph Volker, UAB's first president, rose to the top spot through the School of Dentistry.

Machen reportedly had family in the South, and that made the UAB job particularly attractive to him. In the Publications Office, where I worked, word was that it was a done deal--Machen would be UAB's new president. We were so sure of it that we did not even attend Reynolds' public interview session with the board. I was right there on the front row for the Machen session, sure I was hearing from our next president.

But in a classic case of snatching defeat from the jaws of victory, the UA board hired Reynolds.

How did that happen? A trusted source provided insight, which I included in the 2009 post:

Michigan was going through a tumultuous stretch at the time, and Machen had been pretty much holding the campus together, handling two or three jobs over several months. The UAB interviews were in the spring, and when board members asked Machen when he could start, he made the mistake of being honest. Machen reportedly said the heavy workload at Michigan had left him tired, and he would like to take some time to recharge his batteries before starting at UAB. Plus, he had a number of loose ends to tie up at Ann Arbor. Machen suggested that he start at UAB in the fall, around the time the school year started.

When asked the same question, Reynolds said she could start right away. In fact, she couldn't wait to get to UAB. Of course that was because, according to reports at the time, she was about to be ousted at CUNY.

According to my source, board members said something like, "This guy from Michigan sounds worn out. We need this energetic gal from New York."

And so Ann Reynolds was hired as president of UAB. Perhaps the only worse personnel decision of the past 25 years was the "election" of George W. Bush over Al Gore in 2000.

How badly did the UA board botch the hiring? A few months after being rejected at UAB, Machen was hired as president at the University of Utah. He stayed in that position for six years, before being hired as president at the University of Florida in 2006. Machen seems to have received generally high marks in both positions, and he retired from UF in January 2015. On the football front, Machen hired Urban Meyer as head coach at both schools, and Meyer now is in the College Football Playoff with Ohio State.

Reynolds wound up antagonizing people across the UAB campus, helped launch the Brittany Benefield scandal (perhaps the most embarrassing episode in the university's history), and finally was forced out of office, leading her to file a lawsuit against the UA System. She has not been heard from in higher education for years.

What if Machen had been hired at UAB? By 2000, Bartow was announcing his retirement as the only AD in university history. At the same time, Seyferth was retiring from the athletics department at Michigan, but he was only 50 years old. One of Bartow's close coaching friends, Steve Fisher (now at San Diego State), had worked under Machen at Michigan and given him high marks.

Bernard Machen
If Machen had been UAB's president, and was charged with finding Gene Bartow's successor, would he have looked to the University of Michigan, his old school? The answer probably is yes, and with Seyferth serving as UM's No. 2 guy in athletics, he might have been a chief target for Machen.

Seyferth would have made a lot of sense for UAB. Given the length of his tenure at Michigan, Seyferth probably worked with every sport in one of the nation's most renowned athletics programs. But his history indicates Seyferth is a football guy, and UAB (with its basketball reputation set under Bartow) needed someone to help its young football program take flight.

For much of his time at Michigan, Seyferth worked under the late Don Canham, who generally is considered one of the most innovative ADs in U.S. history. Canham was considered a pioneer in marketing and promotion of athletics; in fact, one of his first achievements at Michigan was to turn around the Wolverines' sagging attendance in football. Canham also hired Schembechler, whom Seyferth lists as his No. 1 mentor.

Did some of that marketing and promotion savvy rub off on Seyferth? If so, that likely would have caught UAB's attention. Seyferth has a background in systems engineering, and that probably would have been attractive to UAB, too. From his bio at Fritz Seyferth and Associates:

The foundation of FS and A is built on Fritz’s rich background and being a part of “teams” that have succeeded at the highest level. Fritz uniquely combines a systems engineering mindset with a deep understanding of what enables organizations to thrive. . . .

After leaving Arthur Young and Company in NYC to join his former coach Bo Schembechler’s football staff, the study of what made a great leader like Bo successful began. Bo built a legacy that continues to grow. Fritz has identified the human science behind Bo’s enduring success and now shares this with leaders for their personal journey.

Does Seyferth sound like a fit in a science-rich environment like UAB? I think he does -- or maybe I should say, "He would have been." Would Seyferth have been the perfect AD? No. Would he have made mistakes? Yes. Would he have ticked off some people? Probably. But would UAB athletics in general -- and football in particular -- be much better off if he (and Bernard Machen) had been hired? The answer, in my mind, is yes.

After having been cheated out of my job at UAB, I sometimes wonder why I still care about the place. But I do. And while I'm living like a refugee in Missouri, I still care about Birmingham and hope to return there someday -- sooner, rather than later. After all, my misfortune was not caused by UAB as an institution; it was caused by a few ethically-challenged individuals and driven by a UA board that included corrupt governor Bob Riley.

Come to think of it, Fritz Seyferth and I have something in common. He was denied an opportunity, perhaps, because of the UA board's nutty decision to pass on Bernard Machen. I was denied my position at a university where I had invested 20 years (including accumulated leave time) because the UA board caved to the desires of a corrupt governor -- and his even worse son, Rob "Uday" Riley.

Heck, Seyferth is only 66 years old, and I tend these days to think that's not so old. Maybe he still has something to offer UAB; perhaps he would be the guy to help Coach Bill Clark breathe life back into a program that crooked trustees like Paul Bryant Jr. tried to suffocate.

What kind of potential does UAB football have? One clue comes from checking the NFL's rushing statistics. The No. 7 rusher, with 1,178 yards, is Jordan Howard, of the Chicago Bears. He is listed as a product of Indiana University, but he is from Gardendale, Alabama, and spent his first two seasons at UAB -- gaining a school-record 1,587 yards in 2014 -- and only transferred to Indiana when the Blazers' program was disbanded.

Going back a little farther, UAB has turned out NFL standouts like defensive lineman Josh Evans, linebacker Bryan Thomas, wide receiver Roddy White, quarterback Joe Webb, and defensive back Dainon Sidney. That list doesn't even include the player many consider the best in UAB history -- quarterback Darrell Hackney, who (perhaps because he was a tad short) never quite made it in the NFL. As a former sportswriter, I've seen a lot of college football games -- SEC, Big 12, etc. -- and I've still never seen anyone throw as pretty a ball as Darrell Hackney.

Would Fritz Seyferth like to help guide a program that turns out that kind of talent? Would he like to tackle one more big challenge in sports? I don't know, but I would like to see him get the opportunity. I really wish he had gotten the opportunity 16 years ago. If he had, I think UAB now would enjoy an enhanced reputation as a comprehensive university in the Deep South, a university that could help lead a backward state reach its enormous potential.

Here is a video of Seyferth conducting a seminar on interviewing and hiring in athletics:

Wednesday, December 28, 2016

Alabama physician Mark Hayden has regained his freedom, and documents suggest our reporting at Legal Schnauzer helped achieve justice in the case

Dr. Mark Hayden
An Alabama physician, who was arrested in late November on a dubious civil-contempt charge, has regained his freedom. Dr. Mark Hayden was released from the Jefferson County Jail last Friday after a habeas corpus hearing before U.S. Magistrate John England.

Details about Hayden's release are murky at this time. It appears that England released him, although an order dated December 21, 2016 (two days before Hayden's release) does not specifically mention release. Did Jefferson County Circuit Judge Mike Graffeo, who signed the writ of arrest, order the release? It's possible, but we do not have access to the full case files -- and they involve both state and federal jurisdiction -- so many questions remain unanswered. (England's order is embedded at the end of this post.)

We do know this: The arrest matter is styled Steven Mark Hayden v. Mike Hale (Jefferson County Sheriff), and court documents/proceedings suggest Legal Schnauzer played a role in gaining Hayden's release. Hayden himself told me, "Roger, you got me out of jail!"

We're not sure if that is true, but if it is true at least in part, we are happy to have helped justice prevail -- and it proves to be a pretty darned nice Christmas present here in the Schnauzer household. This much is certain: We are pleased Dr. Mark Hayden has regained his freedom, especially since he never should have been jailed in the first place.

If Mark Hayden's words to me are true, that means he's at least the second person we've helped get released from an Alabama jail. The other was Bonnie Cahalane, who was unlawfully incarcerated in the Chilton County Jail due to an alleged debt from her divorce case.

Dorothea Batiste, a black, female judge in Jefferson County, apparently was not at risk of going to jail. But Alabama's white judicial elites, including retired Jeffco judge Scott Vowell, were trying to run her off the bench. My reporting on the matter likely helped save her seat -- Batiste indicated to me she believed that to be the case. She will leave the bench in January after losing in the November 2016 election.

Hayden . . . Cahalane . . . Batiste. All were victims of unjust jailings or removal proceedings. All had relatively positive outcomes after we reported on their cases. Those, like GOP insider Jessica Medieros Garrison, who consider Legal Schnauzer to be a "ridiculous little blog" . . . well, the evidence suggests they are way off base.

In the third sentence of his order, Judge England references a blog post that he had received via e-mail, apparently from Dr. Hayden's wife, Angela. Document 3-1, attached to the order, is a link to our post on the Hayden case. Mark Hayden told us that during a state hearing last Wednesday, Judge Graffeo mentioned Legal Schnauzer and seemed quite disturbed that his order of arrest had made it into the Web press.

Here is the main point: Dr. Hayden was in the Jefferson County Jail, where I spent a week during my five-month incarceration in 2013-14. I can confirm, with firsthand knowledge, that the Jeffco Jail richly deserves its reputation as one of the nation's worst (and most dangerous) jails. People have died in that jail, and I have no doubt people will continue to die in that jail. It's dangerous, wretched, nasty conditions have been the subject of litigation.

It's possible that Dr. Hayden was on the same unit where I was housed. Dr. Hayden said he was on the sixth floor, and I was either on the sixth or fifth floor. Inmates told me that I had the pleasure of being on the "(relatively) good guy's unit," which was considered the best and safest spot in the jail. They said the higher up you went, the worse it got. As I recall, the 10th floor was at the top, and inmates said it was an "absolute zoo."

During the week I was in the Jeffco Jail, I got the distinct impression that my life meant zero to anyone on the jail staff -- and I was only there because of gross incompetence or corruption from Judge Don Blankenship, related to the Jessica Garrison case. I imagine Dr. Mark Hayden had the same thoughts. I am hardly a picky eater, but food at the Jeffco Jail reminded me of something you might see in a pig's trough on a farm. Having grown up in the Missouri Ozarks, I've seen a few pig troughs on farms.

What's next in the Hayden case? England's order indicates that Hayden might not be home free. Hale apparently will be given 30 days or so to show the court why Hayden is due to be held. That means Homewood attorney Rob "Uday" Riley could appear on stage left, because he is Sheriff Hale's attorney. Any brief Riley produces is likely to be filled with misstatements of fact and law. We know from personal experience that he and other members of the Riley Jackson Firm are dreadful attorneys, the kind who care not one iota about justice or the law.

From the England order:

Petitioner (Hayden) should be aware there will be no ruling on his petition until it is fully briefed; Respondent (Hale) is entitled to explain why he contends Petitioner is lawfully in custody and must be given adequate time to do so.

We will keep you updated on the Dr. Mark Hayden case as details become available.

Tuesday, December 27, 2016

Alabama lobbyist Liberty Duke admits our excess foreclosure funds went to her, but again provides no valid defense to allegations that she stole them

Liberty Duke
Alabama lobbyist Liberty Duke, for the second time, has failed to make a valid defense to allegations in a federal lawsuit that she essentially stole about $9,000 in excess foreclosure funds that lawfully belong to us. We do learn from Duke's most recent filing that the funds did, in fact, go to her. Are they still in her possession? We don't know, but our guess is that she's already spent the money.

If that's the case, and we have our way, she's going to have to find some funds (and then some) to compensate us for what amounts to civil theft. Our research indicates it could be criminal theft, and we are looking at filing a complaint -- against Duke and others responsible -- with the appropriate law-enforcement agency.

In a Motion to Dismiss (MTD) filed on December 1, Duke offered no defense at all -- in fact, she did not mention the excess foreclosure funds. After we responded to her MTD, Duke filed a reply that mentions the funds, but again, offers no valid defense. This time, Duke admits that the funds went to her, but she cites no law showing they were supposed to wind up in her hands,

For one thing, Duke's reply was due to be filed by December 19, per an order from U.S. District Judge R. David Proctor. It was filed on December 22, meaning it was three days late and is due to be denied in its entirety. (Court's order and Duke's reply are embedded at the end of this post.)

Even if you ignore the timeliness problem with Duke's reply, she still offers no defense that holds up. From her reply:

The Plaintiffs continue to allege that Defendant Duke "essentially stole 'converted' roughly $9,000 in excess foreclosure funds" from them. . . . There are no other allegations of anything Duke did that would give rise to a cause of action against her.

These allegations in the Plaintiffs' Complaint do not "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Twombly 550 U.S. 544, 556, 127 S.Ct. 1955 (sic). Again, it's not the inclusion of Duke in a list that warrants her dismissal but rather the Plaintiffs' failure to comply with basic pleading standards.

The claim that "there are no other allegations" against Duke is plainly false. But even if it were true, a rational person might conclude that claims Duke stole thousands of dollars are serious, on their own. That Duke seems incapable of understanding would make me chuckle -- if it wasn't my money we are talking about. (Note: Duke's citation to Twombly is incorrect. The opinion was issued in 2007, not 1955.)

The closest Duke comes to presenting an actual defense is to haul out the infamous Twombly case for the proposition that it requires heightened pleading standards. But we already have shown, in court documents and at this blog, that no such standards are required in the Eleventh Circuit (covering Alabama, Georgia, and Florida), per a case styled Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).

Duke does make one other reference to the excess foreclosure funds. From her reply:

With regard to Count Five, the only item allegedly converted by the Defendants, including Duke, is the proceeds from the foreclosure sale. Again, Duke received funds in satisfaction of a valid judgment against the Plaintiffs. There is no evidence that the judgment was invalidated prior to the receipt of funds. Therefore, the conversion count must fail.

We learn two important facts here:

(1) Duke admits she received the funds. Huntsville attorney Robert Wermuth, who represented Chase Mortgage in the foreclosure, told me via e-mail that the funds went to Duke, and we now know he actually told the truth about that.

(2) Like Wermuth, Duke can cite no law that shows she was entitled to receive the funds. The actual law on the issue can be found at a case styled Cheryl Williams v. Wells Fargo Home Mortgage (S.D., Alabama, 2015). Wermuth and Duke seem blissfully unaware of the findings in Williams, which are based on a 1968 Alabama state-court ruling, which provides binding precedent in our case -- and it's not exactly new law:

[A] mortgagee (Chase) is, in a sense, a trustee for the mortgagor (Carol and me), and is charged with the `duty of fairness and good faith in its execution to the end that the mortgagor's property may be disposed of to his pecuniary advantage in the satisfaction of his debt.'" Springer, 562 So. 2d at 139 (quoting J.H. Morris, Inc. v. Indian Hills, Inc., 212 So. 2d 831, 843 (Ala. 1968) (emphasis added)). Thus, "[t]he mortgagee, as trustee for the mortgagor, is obligated to apply that profit realized after foreclosure and during the redemption period to the reduction of the mortgagor's debt.

Translation: The money is ours, and we've been deprived of it for more than two years. Liberty Duke does not come close to showing otherwise.

Saturday, December 24, 2016

Dr. Mark Hayden, the Alabama physician who was arrested on a shaky civil-contempt charge, has regained his freedom after habeas corpus hearing

Dr. Mark Hayden
Dr. Mark Hayden, an Alabama physician, who was arrested in late November on a dubious civil-contempt charge, has regained his freedom. Hayden was released from the Jefferson County Jail on Friday after a habeas corpus hearing before U.S. Magistrate Judge John England. (Order related to habeas corpus is embedded at the end of this post.)

Details about Hayden's release are murky at this time. It appears that England released him, although an order dated December 21, 2016 (two days before Hayden's release) does not specifically mention release. Did Jefferson County Circuit Judge Mike Graffeo, who signed the writ of arrest, order the release? It's possible, but we do not have access to the full case files -- and they involve both state and federal jurisdiction -- so many questions remain unanswered.

The main point is this: Dr. Mark Hayden is a free man, and we will have more details in the coming days.

Friday, December 23, 2016

Trump pick Jeff Sessions led Alabama attorney general's office that engaged in "persistent" prosecutorial misconduct, according to CNN report

Jeff Sessions: CNN report raises questions about
prosecutorial misconduct
Jeff Sessions, Donald Trump's planned nominee as U.S. attorney general, led an Alabama law-enforcement office that engaged in "pronounced and persistent" prosecutorial misconduct, according to a report yesterday from CNN.

Sessions was Alabama attorney general from 1994-97, and you might expect the CNN report to make major news in his home state. But so far, we can find no coverage, at least among newspapers, in any of the state's four major media markets.

Ironically, the CNN report touches on unlawful rulings in our pending federal lawsuit over my five-month incarceration in the Shelby County Jail, which made me the first U.S. journalist since 2006 to be jailed -- apparently the first one in U.S. history to be jailed because of a preliminary injunction in a defamation case, which is an unlawful prior restraint.

How does the CNN report hit our little corner of the world? Well, it doesn't do it directly. But it shines light on the connections between Sessions and U.S. District Judge R. David Proctor, who has repeatedly violated black-letter law regarding our in forma pauperis (indigent) status in what we call "The Jail Case," currently on appeal before the U.S. Eleventh Circuit. Proctor also is handling "The House Case," which involves the wrongful foreclosure on our Birmingham home of 25 years (plus related issues, such as defamation and unjust enrichment).

We will provide details about the Sessions-Proctor relationship, and how it could explain Proctor's corrupt actions, in an upcoming post. We also will show how the case at the center of the CNN report adds to evidence that Sessions holds racially dubious views -- and so does Proctor.

For now, let's focus on the accusations against Sessions and his office, which grew from a tangled set of civil and criminal matters involving two Birmingham corporate entities -- USX Corp. and Tieco Inc. Allegations in the cases, which lasted for roughly five years, are convoluted, but here is the gist of it:

USX alleged that Tieco engaged in fraud and other wrongdoing, essentially stealing funds via accounting trickery and other deceitful methods. Tieco filed a counterclaim, alleging that USX unlawfully used a criminal prosecution to help collect an alleged debt. Tieco also alleged that USX's lawyers from the Birmingham firm Burr Forman conspired with the Attorney General's office (and Jeff Sessions) to improperly seize Tieco's business records.

During a criminal proceeding, former Jefferson County Circuit Judge James S. Garrett was unimpressed (to say the least) with the conduct of Sessions and his henchmen. From the CNN report:

As Sen. Jeff Sessions awaits a confirmation hearing in hopes of becoming the next US attorney general, a blistering legal opinion on a case he oversaw as Alabama's top prosecutor two decades ago could emerge as an issue for the nominee.

The 1997 "order and opinion" by an Alabama judge accused the state attorney general's office, which had been headed by Sessions, of the worst prosecutorial misconduct he'd ever seen.

"The court finds that even having been given every benefit of the doubt, the misconduct of the Attorney General in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented to or witnessed by this court," wrote James S. Garrett, a Jefferson County Circuit Court judge.

The misconduct was "so pronounced and persistent," Garrett wrote, that "it permeates the entire atmosphere of this prosecution."

Garrett went on to dismiss the criminal case against Tieco, but not before blasting Sessions and his team in a memorandum opinion. From CNN:

A year after the high-profile indictments, Garrett found that the case was rife with prosecutorial misconduct, including failures to turn over exculpatory evidence, deceptive testimony by assistants or agents of the Attorney General and "flagrant disregard of the constitutional rights of those accused."

"This court can only conclude it is dealing with either intentional and deliberate misconduct or conduct so reckless and improper as to constitute conscious disregard for the lawful duties of the Attorney General and the integrity and dignity of this court and this Judge."

An ethics complaint against Sessions was dismissed, and he stepped down as attorney general after being elected to the U.S. Senate in 1996.

Retired Jeffco Judge James S. Garrett (right), who now
lives in Lithia, Florida
On the civil side, a federal jury found for Tieco and awarded more than $7 million in damages, plus almost $1.5 million in attorney fees. In 2001, long after Sessions had left the AG's office, an Eleventh Circuit panel reversed the damages and attorney-fees finding for Tieco and remanded the case back to the district court for further proceedings.

The appellate panel found that Garrett's opinion in the criminal case had improperly been entered as evidence in the civil case. The appellate court found that Garrett's opinion was "inadmissible hearsay."

That more or less put Garrett's harsh words behind Sessions for about 15 years. But CNN's report has dug them back up. Soon, the nation will learn if its attorney general will be a man who was involved in what Judge James S. Garrett found to be the worst prosecutorial misconduct he had ever witnessed.

(To be continued)

Thursday, December 22, 2016

Lawyers for Hearst Corp., publisher of Marie Claire, omit key part of quote about stalking that points to defamation by GOP operative Jessica Garrison

Stalking is a peculiar issue in our "House Case"
What do students learn in law school? Based on personal experience, I would say many of them learn how to cheat people, including their own clients. Members of the bar have almost endless techniques for cheating people -- maybe more than any other profession in the world -- and documents in our pending "House Case" reveal a particularly sneaky form of underhandedness. We are filing it under the heading "When in doubt, leave it out."

It comes from Hearst Corporation, publishers of the Marie Claire women's fashion magazine that published an article in October 2015 that included several false and defamatory statements about me. Hearst is represented in the proceeding by a couple of in-house lawyers from New York City, plus two or three from Birmingham's Lightfoot Franklin and White firm. Get a load of a scheme they presented in their Motion to Dismiss for the "House Case."

The article in question was an "as told to" piece that Alabama GOP operative Jessica Medeiros Garrison dreamed up, apparently with no questioning from writer Liz Welch, about experiences surrounding the $3.5-million default judgment she received against me. The article contains at least three statements that are false and defamatory: (1) That I reported Alabama Attorney General Luther Strange was the biological father of Garrison's child; (2) That Garrison claimed I was stalking her, and stalking is a crime; (3) That the court proceedings involved a trial.

For now, let's focus on item No. 2. Hearst lawyers claimed that the statement they published regarding stalking could not be defamatory because it was in the form of a question. (Kind of like on Jeopardy!, I guess.) Here's how the Hearst lawyers explained the law: (Their brief, and our response to it, are embedded at the end of this post.)

A prerequisite to establishing a prima facie defamation claim is the publication of a false statement of fact. See, e.g., Corporate Am. Car Wash Sys. v. City of Birmingham, 165 F. Supp. 3d 1117, 1127 (N.D. Ala. 2016). “A statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” Marshall v. Planz, 13 F. Supp. 2d 1246, 1257 (M.D. Ala. 1998) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).

Is that an accurate statement of the law? Knowing the Hearst grew, I'd say that's debatable. But this much is certain: The citation relies on two cases from Alabama district courts, which generally do not produce binding law. Law that sets precedent comes from circuit courts, such as the U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida), or the U.S. Supreme Court.

For now, we are going to overlook such technicalities and assume the statement is at least somewhat close to the actual law. Let's look at how Hearst spins things:

Here, in the Article Ms. Garrison does not state as a matter of fact that Mr. Shuler was stalking her. To the contrary, she informs the readers about her concern when Mr. Shuler posted a photograph of her home on his blog, and wondered: “Had he been at my house? Was he stalking me?” She is clearly expressing “conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts, [and thus] the statement is not actionable.” Id.

That's swell and peachy, but here's the catch: Hearst did not provide the full Garrison quote from the Marie Claire article. The full quote apparently caused them doubt, so they left it out -- probably figuring the court would be no wiser. Here is the full Garrison quote on the subject of stalking from the article:

“Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . .

Does Garrison live in a world of hysteria? Apparently so, because the photos in question came from a real-estate Web site and almost certainly were taken well before Garrison ever lived there. I didn't take them, and any reasonably grounded person could have determined that in a matter of seconds on the Web. The sentence "Was he stalking me?" is, in fact, in the form of a question. But look at the highlighted part above, the part Hearst's lawyers conveniently left out of their motion.

Taken in context with the full quote, it's clear Garrison is not concerned about a general stalker or prowler. She's concerned about me, the guy who never had any significant interaction with law enforcement (other than maybe one or two traffic tickets) until I started reporting accurately on this blog about legal and political corruption in Alabama. Garrison says she installed a home security system because of me, and she put the police on notice because of me. It's not just a question. Here's how we responded to the Hearst argument:

Re: Hearst’s claim that Garrison’s statement about Roger Shuler stalking her was a question posed in the article and not a statement of fact: On pp. 12-13, Hearst claims Garrison’s statement is a question, a matter of conjecture. But Hearst fails to cite the full statement. Here it is: “Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . . “ The highlighted section clearly is not a question or a matter of conjecture. Garrison and Liz Welch tell Marie Claire’s readers that Garrison installed a home security system and put police on notice out of concerns about stalking. And it was not just a general concern; it specifically was about Roger Shuler. Stalking, of course, is a crime, which makes this a case of defamation per se, where false statements are considered harmful on their face.

That last sentence is important. If defamation per se is proven, damages are assumed. And to publicly accuse a man of stalking, in today's environment of heightened sensitivities on gender issues, is serious business.

I have no way of knowing what a court might do on this, or any other, issue. Defamation presents a particularly complex and tricky form of law. For example, someone once said that trying to determine a public figure in a defamation case is like "trying to nail a jellyfish to a wall."

So, I will refrain from reaching too far on conclusions. But this much seems clear: The Hearst Motion to Dismiss almost certainly is due to be denied (on a number of grounds), and I am entitled to discovery that should reveal more information about what Jessica Garrison said to others (friends and neighbors, plus law enforcement) about the notion of me stalking her.

The whole point of Hearst's deceitful motion is to avoid discovery. Well, by law, that effort should fail.

Wednesday, December 21, 2016

Docket in Jessica Garrison case shows she filed for a default judgment three times, twice while I was in jail -- suggesting she had no intention of going to trial

Jessica Garrison and Luther Strange
Alabama GOP operative Jessica Medeiros Garrison filed at least three default-judgment applications in her defamation lawsuit against the Legal Schnauzer blog and me. Two were filed while I was wrongfully incarcerated in Shelby County because of the Rob Riley/Liberty Duke case. At least one more was filed within roughly six months after my wife, Carol, and I had been forced to leave our home of 25 years in Birmingham because of a likely wrongful foreclosure that left us in Missouri, where we currently reside.

This information comes from the docket in the Garrison case (Number CV-2013-903427.00), which was produced among responsive pleadings in our pending federal lawsuit against Garrison, Alabama Attorney General Luther Strange, and others in a wrongful foreclosure/defamation action. We call it "The House Case," as opposed to "The Jail Case," which is on appeal in the Eleventh Circuit because of trial judge R. David Proctor and his refusal to follow black-letter law that requires court clerks to execute service for in forma pauperis (indigent) litigants such as us. (Docket from the Garrison v. Shuler state case is embedded at the end of this post.)

The docket, which I don't think I've ever seen because I either was in jail, in the midst of a fighting a foreclosure, or forced to live like a refugee in Missouri, is filled with interesting information -- even though some of it is not perfectly clear. I'm still trying to digest the information, so I'm not certain about all it reveals. But here is some of what we learn:

* There is no sign that I ever received three days' notice from Garrison of her default application and hearing, as required by Alabama law -- spelled out in a case styled Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010). As we've been reporting for months, the docket shows Garrison's $3.5-million default judgment is void, as a matter of law, and can be attacked as such at any time.

* While the docket hardly is a model of clarity, it appears to show that Garrison and her lawyer, Bill Baxley, never even sent notification of the default application/hearing, and it certainly was not received. What does this suggest? It suggests, to me, that Garrison and Baxley intentionally avoided notification because they did not want me at the default hearing. Obviously, it's easier to prevail on such a matter when you have no opposition.

* The court record suggests Garrison's lawsuit was about obtaining a default judgment all along -- and nothing else. Why? The docket shows she first applied for a default judgment on October 21, 2013, less than one month from my arrest (on September 23, 2013) related to the Riley/Duke case. I had not been lawfully served -- and Judge Don Blankenship eventually would agree, granting my motion to quash service -- and I had not even had the 30 days provided by law to answer the complaint, but Garrison filed for a default judgment anyway. Does that mean she was trying to use my incarceration to her advantage? It sure looks that way to me.

Garrison next filed for a default judgment on February 20, 2014, again while I was in jail. I never received notice of a default application or hearing while in jail, and the docket reflects that.

* All this time, there is no sign in the docket that Garrison was trying to prove her defamation claim in the usual way -- via a scheduling meeting, a discovery schedule, or any actual discovery. There was no sign of any effort to prove my reporting about her extramarital affair with Luther Strange was false or defamatory. Does that mean they knew my reporting was not false or defamatory, and Garrison had no grounds for her lawsuit? That's what the docket strongly suggests -- and the filing of such an abusive lawsuit is the kind of thing that can cost a lawyer her bar card.

* Garrison filed for default No. 3 on September 17, 2014, roughly two months after we had been forced to vacate our home because of a foreclosure that almost certainly was contrary to law? Does this indicate the foreclosure and the default (and possibly my incarceration) were all a coordinated effort among Garrison, Baxley, Riley, Duke, and likely others -- designed to get Carol and me out of town so Garrison could get her $3.5-million judgment with no opposition? The answer appears to be yes, suggesting Garrison (like any good Republican) likes to cheat. The docket suggests her lawsuit was the legal equivalent of catching fish in a barrel.

* A hearing on default application No. 3 -- again, with no sign of notice to me -- was set for October 15, 2014, but the docket shows that was continued. It does not show a new date, and in fact, the docket does not show that a hearing ever was scheduled or conducted. An entry on December 16, 2014 reads "disposed by separate order." That suggests default was granted, but news apparently did not get to Garrison because, on January 7, 2015, she filed a motion for an order rendering judgment by default. The record shows such an order was rendered and entered six days later, on January 13, 2015.

How big a mess is all of this? The docket shows that three default applications were filed, and the opposing party never received notice on any of them. While Baxley and Garrison have whined in court documents that they couldn't find me to provide notice, they sought default twice while I was in jail -- so they certainly knew where I was then. (Gee, Baxley and Garrison wouldn't lie, would they?) The docket suggests default was granted, even though there is no sign that a hearing was conducted.

So how did Blankenship come up with the $3.5-million figure for damages? Well, the docket and other documents produced in "The House Case" shine interesting light on that, as we will explain in an upcoming post.

(To be continued)

Tuesday, December 20, 2016

Ashley Madison customers revealed: David Guttery, account manager at Nowlin & Associates wealth-management firm, appears at cheating Web site

David Guttery
A senior account manager with a Birmingham-based wealth-management company is among paying customers at the Ashley Madison extramarital-affairs Web site, records show.

David R. Guttery, a registered financial consultant (RFC) at Nowlin and Associates, has met the "high standards of education, experience, and integrity" in his field. Records from Ashley Madison, however, show that Guttery has actively tried to cheat on his wife, perhaps raising questions about the "integrity" part of his certification.

It's hard to imagine a field where trust is more central than with wealth management and financial consulting. Clients essentially put their financial futures in Guttery's hands. If he screws up or acts in a reckless manner, his clients can be ruined. Perhaps clients have grounds for putting trust in Guttery, but public records indicate his wife, Maria, does not.

At Nowlin and Associates, Guttery answers to founder and managing director Charles E. Nowlin and senior vice president Justin R. Craft.

Here is information about Guttery's professional status, from the Nowlin and Associates Web site. It notes that he is president of the Keystone Financial Group in Trussville, which is affiliated with the Nowlin firm. That means Guttery provides financial services for at least two firms:

David is an Investment Advisory Representative (IAR) and holds the designations of Registered Financial Consultant (RFC®), and Chartered Asset Manager. He is also a member of the American Academy of Financial Management. He is a 1991 graduate of the University of Alabama and is the President of The Keystone Financial Group in Trussville, Alabama, which is affiliated with Nowlin and Associates in Birmingham.

This is from Guttery's biography at the Keystone Financial Group Web site:

Maria and Brandon Guttery
Biography --
*1991 Graduate of the Manderson School of Commerce and Business Administration, The University of Alabama, BS Finance.

*Native of Florence, Alabama.

*David, and his family currently reside in Trussville, Alabama.

*Past four term President and two term Treasurer of former Home Owners' Association.

*Member of Clearbranch United Methodist Church, past chairman of the finance committee, and current praise team member.

*Trussville Sports and Recreation Youth League Basketball Coach

*Trussville Parks and Recreation Department Board

*Founder and Director of the Trussville Recreational Youth Sports Foundation (TRYS Foundation)

Here is more about Guttery's background, showing that he and Maria Walters Guttery have one son, Brandon:

David's community involvement includes serving the Clearbranch United Methodist Church of Trussville as the vice chairman of its finance committee and as a member of its Praise Team. He also serves upon the Advisory Board of the Trussville City Schools Foundation. In the winter time, David is a youth league basketball coach with Trussville Parks and Recreation. David and his wife Maria have one son, Brandon.

Here is a link to Maria Walters Guttery's Facebook page. It appears that David Guttery has a lot going for him, much to be thankful for. So why has he fooled around on Ashley Madison. We sought comment from him for this article, but he has not responded.


(1) Edgar C. Gentle III -- attorney at Gentle Turner Sexton and Harbison, Birmingham, AL (3/8/16)

(2) Stewart Springer -- attorney, solo practice in Birmingham, AL. (3/9/16)

(3) Richard W. "Dick" Bell -- attorney, solo practice in Birmingham, AL (3/14/16)

(4) Robert M.N. Palmer -- attorney and bar association president in Springfield, MO (3/15/16)

(5) Thomas Plouff -- attorney, who is licensed in Alabama and has a practice in Chicago (3/17/16)

(9) Randy Bates -- executive VP and member of board of directors, Golden Flake (10/5/16)

(10) Reid Carpenter -- attorney, Lightfoot Franklin White, Birmingham (10/6/16)

(11) Scott Sink -- exec. VP, McGriff Seibels Williams, Birmingham (10/11/16)

(12) Russell Byrne -- VP for information systems, Bromberg's, Birmingham (10/17/16)

(13) Rob Waudby -- district manager, Skyline Steel, Birmingham (10/24/16)

(14) Paul Wells -- VP, Protective Life, Birmingham (10/25/16)

(15) Brian Shulman -- CEO, LTS Education Systems, Birmingham (10/26/16)

(16) Peyton Lacy -- attorney, Ogletree Deakins, Birmingham (11/1/16)

(17) James Dixon -- managing director, Sterne Agee, Birmingham (11/7/16)

(18) Craig O'Dear -- partner, Bryan Cave law firm, Kansas City, MO (11/16/16)

(19) Bill Smith III -- CEO, Royal Cup Coffee, Birmingham (12/12/16)

(20) Willl Pringle -- attorney, WRP Law Firm, Birmingham (12/19/16)

Defense lawyers claim a blogger (me) has more notoriety than a U of Alabama football coach in an effort to make me a "public figure" in defamation case

Ronnie Cottrell
If you ever are a plaintiff in a federal lawsuit, how might a defense attorney concoct a bogus Motion to Dismiss that could deny you even a chance for justice? It is much easier for the defense to pull off such a scam, in the post "Iqbal" and "Twombly" world that has turned pleading standards on their heads in the past 10 years or so. The two U.S. Supreme Court findings are so confusing and poorly reasoned that many plaintiffs' lawyers have no idea what they mean, and you can bet their clients are stumbling in the dark, too.

Defense lawyers in our ongoing "House Case" are so prone to chicanery they argue, in essence, that I have more notoriety, because of my blog, than a University of Alabama football coach -- and an equal amount of notoriety to another UA coach. No kidding. And that is supposed to help bolster their case. I will explain how in a moment. First, let's consider this:

In the courtroom world, confusion usually benefits the defense -- certainly in a criminal case, and even in a civil case. Here is an instance where defense lawyers try to create confusion in an effort to get their clients (likely corporate, institutional, or moneyed types) off the hook without having to face discovery that could reveal their misconduct. This example comes straight from our own recent experience in a case styled Shuler, et al v. Garrison, et al, which we call "The House Case" because it deals with the wrongful foreclosure on our home of 25 years in Birmingham (plus associated issues, such as defamation) and to distinguish it from a second pending case, Shuler, et al v. Duke, et al ("The Jail Case"), which largely involves my wrongful incarceration for five months in Shelby County.

"The House Case" provides a classic example of how desperate defendants are to avoid discovery and the possibility it might unmask their unlawful acts and expose their liability. The case shows that defense lawyers are trying, without any discovery or facts to support their claim, to have me declared a public figure -- or at the very least, a limited-purpose public figure -- which raises the plaintiff's bar in a defamation case to proving "actual malice." That standard, in essence, means the publisher knew the article was false -- or had reckless disregard for the truth -- and it's much more difficult to prove than the standard for a private person.

So, it's important for defendants to make a flimsy effort at showing I am at least a limited-purpose public figure. In the process, they prove that they are con artists -- and lazy con artists at that.

In a reply brief to her Motion to Dismiss (Document 107 for those with access to PACER), reporter Leada Gore uses 2 1/2 pages of an eight-page document in an attempt to show that I'm a public figure. (Our response to Doc. 107 and related matters is embedded at the end of this post.)

Gore cites 13 cases, and every one of them involves a case that went to summary judgment (involving discovery) or a trial on the merits (which involves both discovery and evidence presented at trial). Bottom line: Gore, and her lawyers from the Birmingham firm Lightfoot Franklin and White try to show I'm a public figure at the Motion Dismiss stage by citing more than a dozen cases that had nothing to do with Motions to Dismiss. In every case that Gore cites, discovery was required to determine the plaintiff's public-figure status. But she wants that status affixed to me, without any discovery at all.

Leada Gore
In essence, she wants a judge to guess at it -- in hopes she will get lucky, while citing no law that shows it's supposed to be done that way. As a side benefit for Gore, if the scam works, she would not have to answer pesky questions under oath or turn over documents related to her reporting on the Garrison case.

Her lawyers more or less admit they are engaging in con artistry. On page one of their document, they cite Cottrell v. NCAA, 975 So. 2d 306 (Ala., 2007) for its holding that "two University of Alabama assistant football coaches were, in fact, limited-purpose public figures." That, not surprisingly, isn't true. One of the Alabama coaches, Ronnie Cottrell, was found to be a limited-purpose public figure; the other coach, Ivy Williams, was not.

The flimflammery from Gore's lawyers does not stop with that "mistake." They write: "Although the legal determination in that case (Cottrell) was rendered on a full record, here, Plaintiff's own allegations are enough to determine that Mr. Shuler is at least a limited-purpose public figure."

Yeah, right. Do lawyers the Lightfoot lawyers provide a single citation from Alabama state law or Eleventh Circuit federal law to support that claim? Nope. The law plainly shows that a determination regarding public-figure status must be made with the assistance of fact-finding, via discovery. But Leada Gore's lawyers don't want to go there.

The Lightfoot gang actually thinks that, because of what Jessica Garrison has called my "ridiculous little blog," I have more notoriety than one former member of the University of Alabama football coaching staff (Ivy Williams) and equal notoriety of a second former member (Ronnie Cottrell)? Maybe this should be called the Lighthead law firm.

This would be an interesting test: Send out notice that two UA football coaches will appear at a prominent spot in downtown Birmingham to take questions from the public -- and at the same time, in another prominent downtown location, the publisher of the Legal Schnauzer blog will be taking questions. See which one draws the bigger crowd.

Finally, the Lightfoot lawyers prove they are a lazy bunch. Most of the 13 cases they cite are drawn directly from a case styled San Antonio Exp. News v. Dracos, 922 SW 2d 242 - Tex: Court of Appeals, 4th Dist. 1996. The firm probably will bill Leada Gore or her employer (Alabama Media Group) several thousand dollars -- maybe $10,000 or more -- for preparing an eight-page document that largely was a cut-and-paste job. And it did not even involve accurate citations to law.

I probably am not a public figure, limited-purpose or otherwise, but I certainly do not become one just because of vague, conclusory statements from Leada Gore's lazy lawyers. That determination cannot be made without fact-finding -- and Gore's lawyers are desperate to avoid that.

(To be continued)

Monday, December 19, 2016

Alabama lobbyist Liberty Duke, with "close ties" to Rob Riley, makes no defense to allegations she essentially stole about $9,000 of our excess foreclosure funds

Liberty Duke
Alabama lobbyist Liberty Duke has failed to make any defense to allegations in a federal lawsuit that she essentially stole roughly $9,000 of excess foreclosure funds that, by law, belong to us.

Duke, representing herself, made three procedural arguments in a Motion to Dismiss (MTD). But she had no response to allegations that she essentially stole our money. That means our claim cannot, under the law, be dismissed. Her procedural arguments also fall well short of the mark. (Duke's MTD, and our response to it, are embedded at the end of this post.)

Until now, Duke is best known for her relationship with GOP operative Rob "Uday" Riley, and their joint effort to have me unlawfully incarcerated for five months in Shelby County. She might wind up being even better known as a thief.

I use the term "essentially stole" above because, for now, this is a civil matter, and the general civil term for theft is "conversion." We, however, have found a case in Florida that involved almost identical facts to our case, and it was treated as a criminal matter. In fact, a Florida lawyer who engineered the scam was convicted of embezzlement and wound up with a 10-year prison sentence.

Could a similar fate await Liberty Duke, plus the lawyers and mortgage bankers who helped her secure our money? We will address that question in an upcoming post.

For now, our focus is on Duke's Motion to Dismiss, and like almost all the other MTDs filed in our "House Case," it makes improper reliance on "Iqbal" and "Twombly," the two U.S. Supreme Court cases that have made it easier for defendants to get often valid lawsuits dismissed before they even start.

Duke claims that my wife, Carol, and I failed to meet the "heightened pleading standards" of Iqbal and Twombly. But, as we've already shown, the U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida) has rejected heightened pleading standards, holding that the matter is governed (as it has been for almost 70 years) by Rule 8 of the Federal Rules of Civil Procedure.

In fact, we recently discovered a second Eleventh Circuit case on the subject; it is styled Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014). From Saunders:

Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). After Ashcroft v. Iqbal, 556 U.S. 662, 678-69, 685-86, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which applied the Twombly pleading standard in a civil rights/qualified immunity context, there is no longer a "heightened pleading" standard in "cases governed by Rule 8(a)(2), including civil rights [cases]" under § 1983. Randall v. Scott, 610 F.3d 701, 710 (11th Cir.2010).

Based partly on Randall v. Scott, the Eleventh Circuit overturned the trial court's dismissal in Saunders, which involved civil rights and police brutality issues.

What about allegations in our lawsuit that Liberty Duke stole about $9,000 of excess foreclosure funds that belong to us, apparently with help from Huntsville lawyer Robert Wermuth, officials from Chase Mortgage, and perhaps others. This is from our complaint:

A friend helped the Shulers obtain a copy of the foreclosure deed, which showed the house drew a price about $9,000 above the amount owed on the mortgage. That amount, therefore, was the Shuler’s equity, and it was due to be paid to them. But Wermuth and Stephens Millirons never fulfilled their duties to disburse the funds to the Shulers. Instead, Roger Shuler had to contact the firm, only to be told that the money had been sent to Liberty Duke, as an alleged creditor in the Riley/Duke lawsuit. There never was a trial or final judgment in the Riley/Duke case, so Liberty Duke could not possibly have any lawful claim to the Shulers’ equity funds. She basically stole almost $9,000 from the Shulers . . .

You might think it would be important for Liberty Duke to respond to such a serious allegation, one that might turn out to be criminal, as well as civil. But she does not mention it in her MTD. My understanding is that a court must take our allegations on that issue as uncontroverted. I take it as an admission that Liberty Duke stole our money -- and she has taken no steps to make sure it is returned to its rightful owners.