No.

S10C0509

IN THE SUPREME COURT OF GEORGIA

JAMES B. STEGEMAN – PETITIONER

VS.

FRANK J. LILLIG, III – RESPONDENT

PETITIONER’S MOTION TO RECONSIDER DENIAL OF

PETITIONER’S PETITION FOR WRIT OF CERT.
_____________________________________________________________

JAMES B. STEGEMAN, Pro Se

821 Sheppard Road
Stone Mountain, Georgia 30083
(404) 300-9782
 TABLE OF CONTENTS

INDEX TO ATTACHMENTS

Exhibit A – This Court’s Disposition on Petition for Writ of Cert.

Exhibit 1 - Irrevocable Durable Power of Attorney with an Interest (IDPOA)

Exhibit 2 – Suit asking to revoke IDPOA

Exhibit 3 – Letter from Turner to Hunter (10 days to substitute)

Exhibit 4 – Written Order showing 30 days to substitute

Exhibit 5 – Communication from Turner to Pattie Personal Rep. never appointed

Exhibit 6 – Motion to Enforce original agreement

Exhibit 7 - New Agreement/Consent Order

Exhibit 8 – Claim to be POA by entity pretending to be Guardian of Property

Exhibit 9 – Petition to Probate Will fraudulent claims

Exhibit 10 – DA’s office that no investigation on-going or planned

TABLE OF AUTHORITIES CITED

CASES PAGE

Bulloch v. United States, 763 F.2d 1115 (10th Cir 1985) ………………….. 10

Caswell v Caswell, et., al., 285 Ga. 277 (2009) ……………………………. 7,8

Culpepper v. Thompson, 254 Ga. App. 569, 571 (562 SE2d 837) (2002)… 13

H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir.) 10

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Hazel-Atlas Glass Co. v. Hartford Empire Co., 1944, 322 U.S. 238,
64 S.Ct. 997, 88 L.Ed. 1250………………………………………….. 10

Kenner v. C.I.R., 387 F.3d 689 (1968) …………………………………….. 11

Lillard v. Owens 281 Ga. 619, 620 (1) (641 SE2ds 511) (2007)………….. 7

Marks v. State, 623 S.E.2d 504, 280 Ga. 70 (Ga. 12/01/2005)……………. 5,6

Miller v. Lomax, 266 Ga.App. 93, 596 S.E.2d 232 (Ga.App. 03/04/2004).. 13

Reeves v. Williams & Co., 160 Ga. 15, 20-21 (127 SE 293) (1925) ……… 12

Root Refining Co. v. Universal Oil Products Co., 3 Cir., 1948, 169 F.2d 514 10

Thompson v. Thompson, et., al., 9 S.E.2d 80, 190 Ga. 264 (1940)……….. 6

Tower Financial Svcs. v. Jarrett, 199 Ga. App. 248, 250 (2)
(404 SE2d 622) (1991)………………………………………………… 12

OTHER AUTHORITIES

Black’s Law Dictionary 7th Ed. page 1190, 1191………………………….. 6

Black’s Law Dictionary 7th Ed. page 1477 ………………………………... 9

Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23 ………………………… 11

Preface to Estates to Land and Future Interests 55 (2d ed. 1984)………….. 9

GEORGIA STATUTE

O.C.G.A. §13-4-1…………………………………………………………… 13

OCGA § 23-2-56……………………………………………………………. 12

O.C.G.A. §30-5-1…………………………………………………………... 5

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O.C.G.A. §30-5-3…………………………………………………………… 5,6

O.C.G.A. §30-5-8…………………………………………………………… 5,6

O.C.G.A. §53-5-62 …………………………………………………………. 9

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 STATEMENT OF FACTS

The matter before this Court, although brought by a pro se litigant, is a very

serious matter; one which led to the untimely death of an elderly lady (Ms.

Caffrey), hidden from all family members, coerced into making an illegal will, all

the while the assets of the elderly lady and the disabled man (Mr. Stegeman) were

wasted. The assets of the disabled man were used to attempt to sue him. A classic

case of exploitation of the disabled and of the elderly for illegally obtained,

monetary gain.

Every possible protection had been taken to prevent the very thing that

happened. There was an Irrevocable Durable Power of Attorney with an Interest

(IDPOA) “Exhibit 1”, that by the way, was never set aside. Opposing counsel has

repeatedly insisted that Ms. Caffrey was competent and had no guardian ad litem;

there has never been, in writing or any other credible evidence, that Ms. Caffrey

requested to have the IDPOA revoked.

Petitioner agrees that the story is long and may be confusing, but the Courts

of DeKalb County have made sure that the story died just as dead as Ms. Caffrey,

and Mr. Stegeman’s own future through no fault of his own.

Citizens living in DeKalb County, and in the state of Georgia, are beginning

to wonder why DeKalb County and the state of Georgia has a Probate Court Judge;

for years now the Clerks have run the Court, held the hearings, and done as they

v
pleased without consequence. The elderly have been taken, hidden, allowed to be

put into homes that aren’t equipped to care for their needs, and many of them have

died horrible deaths after being lied to that family hasn’t looked for, are asked

about them. Ultimately the elderly die alone, without family at the whim of some

Probate Court Clerk playing God.

A new Will obtained through fraud was made by an attorney, who under

Oath stated that he knew there was a question of her competency. There is no

reason that the new Will had not been filed at the Courthouse, as was the original

Will. Furthermore, the new Will, gave away items and assets that did not belong

to the testator, and left nothing to family members on a claim that the “nephews

had starved her”. Testator had quite a few more family members if that were the

case, and nothing was left to any of them.

Facts clearly show that one nephew has always lived in Wisconsin, the other

was not the caregiver, there are no Medical reports supporting the claim that the

testator was ever starved by anyone. To the contrary, Medical reports before the

abduction, clearly shows the testator was well cared for, her care was under

constant Dr. supervision at the insistence of her family and her caregiver.

Opposing counsel has alleged that the testator was confined to her home and

escaped through the basement with the aid of the Sheriff’s office; none of these

statements have validity or have been substantiated by any evidence. The

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statements are fraud upon the Court.

First, Ms. Caffrey lived alone. It would be extremely hard for anyone to

confine someone who lives alone.

Second, the home where Ms. Caffrey lived did not have a basement, it was a

split-level home. Further, it would be impossible for her to escape because she

was not being held captive.

Third, the Sheriff’s Office has never been stated in documentation at all.

Opposing counsel has continually made fraudulent claims about Mr. Stegeman.

After being scrutinized for more than two and a half years, it was never shown that

Mr. Stegeman has ever done anything wrong.

In support of the above statements is the fact that a Superior Court action

brought by the person claiming to be guardian of the property, in which the request

to revoke the irrevocable durable power of attorney with an interest “Exhibit 2”.

The guardianship papers were never signed by a Judge.

After Ms. Caffrey’s death, Judge Hunter orally ordered that a personal

representative be appointed and substituted within 10 days “Exhibit 3”, the written

order showed 30 days “Exhibit 4” or the case would be dismissed. The law

allows for substitution with six months, which opposing counsel assured Judge

Hunter would be done, see “Exhibit 3”; the Ruling was never amended.

One year later, the Will still not probated, and no personal representative had

vii
been appointed. A lay person, as well as one educated in the law would question

why, and would question why a Judge would allow the sham of a lawsuit to

continue; just as one would question why this Court does nothing to undo a least

part of the manifest injustice that has been bestowed upon an innocent disabled

citizen of this state.

Eleven months after the death, with no personal representative ever

appointed in communication between opposing counsel and Petitioner’s own

counsel “Exhibit 5”, the suit that had been allowed to go on with no proper party

Plaintiff was ended by agreement fraudulently obtained, and never honored by the

opposing party; which in fact went out of their way to see it wasn’t honored. This

proves that Petitioner’s own attorney was part of the grand conspiracy concocted

by the opposition.

The only reasons opposition had entered into agreement was 1) the only

way to get a personal representative appointed, was to have the Caveat to the Will

withdrawn; and 2) to have the case removed from the civil jury calendar in

Superior Court, so that the lack of a proper party Plaintiff could be concealed from

the public. Mr. Stegeman, as the injured party to the agreement asked the Probate

Court to have the agreement set aside. Probate Court ignored the request and never

ruled on it.

When Mr. Stegeman tried to have the agreement enforced in Superior Court,

viii
Judge Hunter refused “Exhibit 6”, and a new agreement had to be drawn up

“Exhibit 7”, the original agreement had listed an entity that was not a proper party

Plaintiff. Clearly, all of these acts show one thing. Fraud, and fraud upon the

Court to obtain rulings. This Court has a duty to set aside rulings that are void on

their face, as well as rulings obtained through fraud upon the court.

Clearly, without having the Irrevocable Durable Power of Attorney with an

Interest set-aside or revoked by Superior Court, everything done by opposing

counsel and an entity claiming to be both a guardian of property and power of

attorney for Ms. Caffrey “Exhibit 8” committed several felonies. The courts have

protected these criminals, and justice has been denied to Mr. Stegeman.

ARGUMENT AND CITATIONS OF AUTHORITY

It has long been held in Georgia that exploitation of the disabled and/or

elderly is a crime (unlawful to abuse, neglect, or exploit elder persons) Marks v.

State, 623 S.E.2d 504, 280 Ga. 70 (Ga. 12/01/2005). In Marks, this Court

described in detail “exploitation” of the Disabled and Elder Persons Protection Act:

“[14] (a) Marks was charged by indictment with four counts of

violating OCGA § 30-5-8 (a) (1) (exploitation of an elder person)
of the "Disabled Adults and Elder Persons Protections Act,"
OCGA § 30-5-1 et seq. The Act defines "elder person" as an
individual "65 years of age or older who is not a resident of a
long-term care facility." OCGA § 30-5-3 (7.1). "Exploitation" is
defined as "the illegal or improper use of a disabled adult or
elder person or that person's resources for another's profit or
advantage." OCGA § 30-5-3 (9)…. Marks did unlawfully exploit
Leonard Stewart, an elder person, by: taking Mr. Stewart to an

ix
 attorney for the purpose of changing his will…Marks exploited
Mr. Stewart for his own profit or advantage, as defined by
OCGA § 30-5-3 (9), and to find Marks guilty beyond a
reasonable doubt of the crimes of exploitation of an elder person.
Jackson v. Virginia, supra”
“[31] OCGA § 30-5-8 (a) (1) provides, in relevant part, that "it
shall be unlawful for any person to ... exploit any disabled adult
or elder person." According to OCGA § 30-5-3 (9),
"exploitation" means "the illegal or improper use of a disabled
adult or elder person or that person's resources for another's
profit or advantage."
Power of Attorney

The IDPOA vested all property whether tangible or intangible to Mr.

Stegeman. The original Will, left all of Ms. Caffrey’s property to Mr. Stegeman,

both documents had been properly filed at DeKalb County Courthouse upon their

having being signed and properly witnessed. There was never any evidence

produced that Ms. Caffrey wished to have either document revoked.

An Irrevocable Durable Power of Attorney with an Interest, was not

“revocable at will”; see Thompson v. Thompson, et., al., 9 S.E.2d 80, 190 Ga. 264

(1940) which held: “So far as the cancellation of the power of attorney is

concerned, the same, not being coupled with an interest, was revocable at will”.

Black’s Law Dictionary, 7th Ed. defines irrevocable power of attorney as “A power

of attorney that the principle cannot revoke. – Also termed power of attorney with

an interest. Page 1191. Under power with an interest, on page 1190 it shows that

“the power is given to him to enable to do something for himself.” “Hence it

x
would be highly unfair to the agent to allow his principal to revoke.”

The Wills

Petition to Probate the will offered by opposing counsel, made fraudulent

claims that 1) there were no other wills; 2) that Petitioner and his brother were

estranged from decedent; and 3) that Petitioner was being investigated by the

DA’s office for felony theft by taking “Exhibit 9”. DeKalb County DA’s Office,

in conversation with Petitioner’s attorney, stated that was not true that they had no

intention of investigating Petitioner “Exhibit 10”.

A will had been on file at DeKalb County since 1992 file by attorneys hired

by Ms. Caffrey. The new Will offered to the Probate Court, made after Ms.

Caffrey’s primary physician had deemed her incompetent, had been secreted and

had never been filed in any county.

A hearing to determine the validity and proper jurisdiction for the Will had

never been concluded. The attorney who prepared the new Will, under Oath stated

that he knew there was a question of competency. At the one, unconcluded

hearing on the matter, did not have in attendance, the witnesses to the Will so that

they could be questioned or cross examined as would have been required for

determination; see Caswell v Caswell, et., al., 285 Ga. 277 (2009) citing Lillard v.

Owens 281 Ga. 619, 620 (1) (641 SE2ds 511) (2007).

In Caswell, “The uncontroverted testimony of those who… and who were

xi
present when the will was signed…” led to the Will being probated; whereas here,

the Will was never accepted to be Probated, yet the one to benefit from the new

Will was appointed as Temp. Emergency Administrator and allowed to access

assets that were not even part of the Estate.

Further, in Caswell there had been a general power of attorney, while

altogether, and totally different than the Irrevocable Durable Power of Attorney

with an Interest held by Petitioner (because the IDPOA made all the property of

the decedent, property of the Petitioner), that Power of Attorney had been revoked

when “testator signed written revocations of the power of attorney”. Ms. Caffrey

never indicated that she wished the IDPOA be revoked, and it could not be revoked

on a mere whim of her or any other person, it was binding until death. The only

way to get rid of the IDPOA was to show that Petitioner had committed criminal

acts. Although the holder of the new Will made allegations of criminal acts, and

the entity pretending to be guardian of property made allegations of criminal acts,

evidence plainly showed that there no such acts.

The entity pretending to be guardian of property made allegations of

criminal acts, yet he was the one that committed the criminal acts by illegally

having names changed on brokerage accounts and accessing, selling, and wasting

the assets. The assets were held in “Joint Tenants With Rights of Survivorship”

form are not part of an Estate. It was illegal for both the entity pretending to be

xii
guardian of property as well as the entity named Temp. Administrator of the Estate

to access and waste those assets. The entity pretending to be guardian of property

purported to the bank to be Power of Attorney (see “Exhibit 8”)

joint tenancy (2) RIGHT OF SURVIVORSHIP. Cf. tenancy in

common.
“The rules for creation of a joint tenancy are these: The joint
tenants must get their interests at the same time. They must
become entitled to possession at the same time. They must
become entitled to possession at the same time. The interests
must be physically undivided interests, and each undivided
interest must be an equal fraction of the whole…The joint
tenants must get their interests by the same instrument – same
deed or will. The joint tenants must get the same kind of
estates…” Thomas F Bergin & Paul G. Haskell Preface to
Estates to Land and Future Interests 55 (2d ed. 1984).1

O.C.G.A. §53-5-62:
“Only individuals whose registration of a security shows sole
ownership by one individual or multiple ownership by two or
more with right of survivorship, rather than as tenants in
common, may obtain registration in beneficiary form. Multiple
owners of a security registered in beneficiary form hold as joint
tenants with right of survivorship, as tenants by the entireties, or
as owners of community property held in survivorship form and
not as tenants in common.”

With no Court Orders, all protections ignored, the Courts stood idly by, even

participated and aided criminals and criminal acts.

Fraud Upon the Court

Clearly, there was a great deal of fraud upon the Court. Not only were the

opposing attorneys dishonest, Petitioner’s own attorney participated; "Since

1
Black’s Law Dictionary 7th Ed. page 1477
xiii
attorneys are officers of the court, their conduct, if dishonest, would constitute

fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536

F.2d 1115 (6th Cir.) Fraud upon the Court is further described as

“It is thus fraud where the court or a member is corrupted or

influenced or influence is attempted or where the judge has not
performed his judicial function--thus where the impartial
functions of the court have been directly corrupted.” Bulloch v.
United States, 763 F.2d 1115 (10th Cir 1985).

See also:
“In order to set aside a judgment or order because of fraud upon
the court under Rule 60(b), Federal Rules of Civil Procedure, 28
U.S.C.A., it is necessary to show an unconscionable plan or
scheme which is designed to improperly influence the court in its
decision. Hazel-Atlas Glass Co. v. Hartford Empire Co., 1944,
322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250; Root Refining Co. v.
Universal Oil Products Co., 3 Cir., 1948, 169 F.2d 514.”

Whenever any officer of the court commits fraud during a proceeding in the

court, he/she is engaged in "fraud upon the court". In Bulloch v. United

States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated:
"Fraud upon the court is fraud which is directed to the judicial
machinery itself and is not fraud between the parties or
fraudulent documents, false statements or perjury. ... It is where
the court or a member is corrupted or influenced or influence is
attempted or where the judge has not performed his judicial
function --- thus where the impartial functions of the court have
been directly corrupted."

"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals

xiv
 "to embrace that species of fraud which does, or attempts to,
defile the court itself, or is a fraud perpetrated by officers of the
court so that the judicial machinery can not perform in the usual
manner its impartial task of adjudging cases that are presented
for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968);”2

The 7th Circuit further stated "a decision produced by fraud upon the court

is not in essence a decision at all, and never becomes final."

Further, this Court, as well as the U.S. District Courts have held that fraud

upon the Court can be attacked at any time, in any Court. Petitioner has been

attacking the Rulings founded or obtained through fraud upon the Court, and every

Court has continually refused to address the issue. The issue is not without merit!

Only after a hearing could a new Will be offered into Probate. Without first

having held a hearing, the holder of the new Will was granted Emergency Temp.

Administration. Without a permanent administrator, there could be no named

Personal Representative. That takes us to why there was a Settlement Agreement

and why it was never honored by either the opposing party, nor Superior Court.

Settlement Agreement

The only way to get the case removed from the Civil Jury calendar was for

Petitioner’s attorney to insist that he make agreement to settle, his attorney insisted

that even if he won, Judge Hunter would never allow an award be granted him; that

the only way to recoup what he had paid out to her was to sue after the fact.

2
Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23.
xv
Agreement was reached that bound together the Probate and Superior Court

matters. Petitioner was to withdraw the caveat to the will and the opposing party

was to help Petitioner regain his brokerage accounts held by Wachovia.

After the agreement was Ok’d and signed by both counsel, opposing counsel

immediately used the Withdrawal of Caveat, and got the holder of the new Will

listed as Administrator of Estate, thereby he could be named Personal

Representative in Superior Court, hiding the fact one had never been appointed.

Petitioner later found that the agreement had been changed by opposing

counsel without his permission; one of those changes was to add the words “with

prejudice” after the words dismiss. Then opposing counsel wrote to Wachovia and

said that Petitioner’s attorney would not file the agreement with the court and not

to release the accounts, and did everything possible to keep from abiding by the

agreement. Furthermore, the acts of the two attorneys was clearly fraud; "[f]raud

may exist as much in intentional concealment of material facts, as in false

statements in regard to facts. One is as fraudulent as the other, if it is used as a

means of deceiving the opposite party." (Citation omitted.) Tower Financial Svcs.

v. Jarrett, 199 Ga. App. 248, 250 (2) (404 SE2d 622) (1991). See also OCGA § 23-

2-56.

“In Reeves v. Williams & Co., 160 Ga. 15, 20-21 (127 SE 293) (1925), our

Supreme Court considered when silence by one party could amount to a fraud on

xvi
the other party to a contract:

“but it would seem to be a sound rule to place within "the

particular circumstances" referred to any case where a person
intentionally concealed a fact from a certain other person, hoping
thereby to derive a benefit, and knowing that only by silence and
by concealing the truth would the anticipated benefit accrue.”
Miller v. Lomax, 266 Ga.App. 93, 596 S.E.2d 232 (Ga.App.
03/04/2004)

Further it has been held the elements of intentional interference with contract
are:
“(1) improper action or wrongful conduct by the defendant
without privilege; (2) the defendant acted purposely and with
malice with the intent to injure; (3) the defendant induced a
breach of a contractual obligation or caused a party or third party
to discontinue or fail to enter into an anticipated business
relationship with the plaintiff; and (4) the defendant's tortious
conduct proximately caused damage to the plaintiff. (Citation
omitted.) Culpepper v. Thompson, 254 Ga. App. 569, 571 (562
SE2d 837) (2002).

At the same time Petitioner filed Objection to Dismissal of Administrator of

the Estate, he filed to have the agreement deemed void under O.C.G.A. 13-4-1:

O.C.G.A. §13-4-1:
“If a written contract is altered intentionally and in a material
part thereof by a person claiming a benefit under it with intent to
defraud the other party, the alteration voids the whole contract, at
the option of the other party.”
The Probate Court never Ruled on the Motion, just as the Probate Court

refused to rule on other Motions filed by Petitioner; yet the Probate Court Granted

Summary Judgment to the opposition, leaving motions not ruled on.

After the use of the Withdrawal of Caveat by Respondent, Petitioner’s

xvii
attorney within six months filed for withdrawal, which was granted by the Court.

The Court then set the case on the Jury trial calendar again knowing Petitioner was

unrepresented. Petitioner had to hire another attorney to file Motion to Enforce the

agreement, the Court refused to sign the agreement, forcing Petitioner into a new

agreement, and additional attorney’s fees.

Although there was no Order appointing a Personal Representative, the new

agreement was titled with a new name, clearly an attempt to hide the fact that there

had not been a proper party Plaintiff listed the whole time and hide the fact that a

case that was to be dismissed within 30 days if a proper party was not named

Personal Representative never happened.

For this Court, the highest Court in the State to refuse to rule on the legality

of the Will, or to ignore that fraud upon the court to obtain rulings in one’s favor

must be overturned, is to condone such behavior, and is unconscionable.

CONCLUSION

Petitioner has shown just cause for this Court to reconsider it’s denial of

Petition for Writ of Cert. In reality, rather than sending Petitioner’s Appeal to the

Court of Appeals for determination, this Court should have kept and Ruled on the

Appeal because it questioned the legitimacy of and legality of a Will. This Court

hold sole jurisdiction on the legitimacy/legality of Wills.

The Court of Appeals ruled in favor of Respondent, and one would believe

xviii
that the Court had not even read the Appeal. It is a sad day in this State when a

disabled, pro se litigant is not taken seriously, and they are outright Denied their

statutory Right to Appeal.

First the Probate Court denied a disabled pro se litigant his statutory Right to

an Appeal; then the Superior Court held the Appeal for three and a half years, also

denying the disabled pro se litigant his Right to Appeal. This Court sent the

Appeal to the Court of Appeals, who went right along with the other Courts by

dismissing the appeal. Then this Court denied Petition for Cert.

There can be no Justice in a society where the disabled, pro se litigant is

denied his Rights.

Respectfully submitted this 25th day of March, 2010

By: ____________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782

IN THE SUPREME COURT OF GEORGIA

xix
 No. S10C0509
__________________________________________

JAMES B. STEGEMAN Appellant/Petitioner,

Versus

FRANK J. LILLIG, III Appellee/Respondent

________________________________________________________________

CERTIFICATE OF SERVICE
_______________________________________________________________

I hereby Certify that I have this 25th day of March, 2010 served a true and

correct copy of the foregoing Petitioner’s Motion for Reconsideration upon

Appellee/Respondent in this matter through his attorney on file by causing same to

be deposited with the United States Postal Service, First Class Mail with proper

postage affixed thereto as follows:

Robert E. Turner
111 North McDonough St.
Decatur, GA 30030
_____________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd.
Stone Mountain, GA 30083
404-300-9782

xx