I know I didn't get a fair shake, so I am going straight to the source--you--to find out why.
In The Birmingham News, you stated: "We handle a lot of matters that affect people's lives very personally." I'll agree with you there. Let me tell you what has happened to my wife and me as a result of the lawsuit Mike McGarity filed against me: We've lost our lives' savings; our home has been vandalized repeatedly; I've been assaulted by Mr. McGarity (who has an extensive criminal record); we've had our house unlawfully auctioned by the Shelby County sheriff, and I've been unlawfully terminated from my job at UAB, where I had worked for 19 years.
Those last two actions occurred because I dared to start a blog and tell the public about what actually goes on in Alabama courts. We lost full ownership of our house, and my job, because somebody wanted to hide the truth about "justice" in our state.
A lot of the suffering my wife and I have experienced would have never happened if you and your colleagues had ruled correctly on my appeal. So yes, your rulings do affect people very personally.
By a conservative estimate, I would say that trial-court judges J. Michael Joiner and G. Dan Reeves made at least 25 to 30 unlawful rulings in the lawsuit filed against me. In fact, I'm not sure they made a single ruling that was in accordance with the law. I would have come closer to getting justice in Afghanistan.
So I would like to know: Why did you "affirm" their ugly handiwork? I've read some of your opinions in other cases, and they are quite impressive. I know you have a sharp mind, when you decide to use it. But why would you let a clearly unlawful ruling stand in my case?
This missive is getting long, so I want to focus briefly on two simple issues. If these had been decided correctly, all of the other unlawful rulings in my case never would have happened:
(1) Amending a Complaint--Mike McGarity initially sued me for malicious prosecution and false imprisonment, stemming from a criminal case where he was acquitted of criminal trespass, third degree. McGarity's lawyer, William E. Swatek, dropped the false imprisonment charge, but added a claim for conversion. Swatek, however, did not do this in a lawful manner. The case originally was set for trial on August 20, 2001, and the amendment to McGarity's complaint was filed on Sept. 12, 2001. Rule 15(a) of the Alabama Rules of Civil Procedure (ARCP) requires a party to obtain leave of court to amend a pleading after 42 days before the first trial setting, and Swatek failed to do this, making his amendment untimely by some 65 days. Numerous examples of case law--including Malone v. Malone, 854 So. 2d 109 (Ala., 2003)--state that an untimely amendment, without leave of court, must be disallowed. In my case, McGarity's amendment was so late that I had already filed a timely motion for summary judgment. And the court's ultimate judgment against me in the amount of $1,525 was based on this bogus claim of conversion.
Question: How do you affirm a trial court's decision to allow an amendment that was filed some 65 days late?
(2) Motions for Summary Judgment--I filed three motions for summary judgment (MSJ), each citing distinct issues of fact and law. The case against me had to be dismissed on so many grounds that multiple MSJs were possible. However, only one should have been necessary. Rule 56(c)(2) ARCP requires that any statement of affidavit in opposition to an MSJ must be served at least two days prior to the hearing on the motion. The hearing on my first motion was held on September 19, 2001, but McGarity did not file an affidavit in opposition until September 27, 2001. Let me be clear about this: My MSJs were properly executed and supported with affidavits regarding material facts. That shifted the burden to McGarity to present substantial evidence showing there was a reason to go to trial. His affidavit on the first MSJ was eight days late, so it had to be struck, meaning he presented no countering evidence.
Alabama law on this is clear: "When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing." Voyager Guar. Ins. Co., Inc. v. Brown 631 So. 2d 848 (Ala., 1993).
Despite this clear mandate under Alabama law, the trial court denied my first MSJ. On two subsequent MSJs, McGarity filed no reply at all--no response, no affidavit, no evidence, nothing. Both of those MSJs were denied, too.
Question: How do you affirm a trial court's ruling to deny three properly executed and supported MSJs when the non-moving party presents zero evidence in opposition?
A number of lawyers in Montgomery and Birmingham have told me it is quite common for your court to issue unlawful no-opinion affirmances, essentially sweeping bad trial-court rulings under the rug.
In my situation, the opposing lawyer (Bill Swatek) has a son (Dax Swatek) who has served as a "consultant" for a number of Republican politicians, including at least one member of your court. That raises a question in my mind: Was I cheated because I didn't have the right political connections?
You told The Birmingham News, "I am a person of strong moral convictions. I can make tough decisions." Really? What kind of moral convictions does it take to let a bad trial-court decision slide so that it favors one of your Republican Party comrades? Does it bother you at all that two Alabama citizens have been brought to the edge of financial ruin because of unlawful decisions by state judges--decisions that you allowed to stand?
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