IN THE MAGISTRATE COURT OF ________ COUNTY
STATE OF GEORGIA
ABC,
Petitioner
CIVIL ACTION
FILE NO.: _______________
vs.
DEF,
Respondent
STATEMENT OF CLAIM/
MOTION TO SET ASIDE
COMES NOW, Petitioner ABC and pursuant to O.C.G.A. §15-10-43(g) files
Motion to Set Aside as a new action, in which he Moves to have default judgment
against him set aside. The Petitioner shows with specificity the grounds for which
the Court may Grant his Motion.
STATEMENT OF FACTS
ABC is registered agent for, and owner of HIJ Services, Inc., a Georgia
Corporation. “Exhibit A”
ABC is not the proper party defendant to case No.: 09-M-31900:
“4F. Corporations. A corporation is a legal entity separate and distinct
from its owners. The proper party is the legal name of the corporation.
For example "John's Garage, Inc. You can get information on
corporations from the Georgia Secretary of State …You should
determine the correct legal name of the corporation, the county …, and
the
name
and
address
of
the
Registered
Agent.”
*http://www.gwinnettcourts.com/#courtsjudges_magistrate_faqs/
Also see “Exhibit B”
MR. DEF v MR. ABC
Respondent entered “The Neat Game” competition, featured in “Makin It
Right”, where he entered into a legal agreement with “HIJ Services Inc”1
The complaint against ABC, filed by DEF failed to inform the Court
(misrepresented) that the matter involved a Corporation (see “Exhibit A”). One
can easily see why he did not attach a copy of the agreement, or any other evidence
to support the monetary claim.
The Terms of Use/Contract/Agreement is attached hereto as “Exhibit C” and
clearly states the following:
“ACCEPTANCE OF CONTRACT TERMS
The following terms… a legal agreement (“Agreement”) between you
and HIJ…By participating…you agree that you have read, understood,
and agree to be bound by these terms and comply…IF YOU DO NOT
AGREE TO THESE TERMS, DO NOT USE THIS SITE…” 2
“Prizes, Winner Selection and Notification
…The Neat Game reserves the right to provide a substitute Prize…”
1
Mr. ABC is registered agent for, and owner of HIJ Services, Inc. a Georgia
Corporation. Mr. ABC is not the proper party defendant to case No.: 09-M31900: “4F. Corporations
A corporation is a legal entity separate and distinct
from its owners. The proper party is the legal name of the corporation. For
example "John's Garage, Inc. You can get information on corporations from the
Georgia Secretary of State …You should determine the correct legal name of the
corporation, the county …, and the name and address of the Registered Agent.”
*http://www.gwinnettcourts.com/#courtsjudges_magistrate_faqs/
2
First page, first paragraph
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“General Conditions
By entering the competition, entrants accept and agree… which shall be
final…”
“Obligations of the Grand Prize Winner
…(C) …Winners assume sole liability for injuries, including personal
injuries…caused or claimed to be caused by participating in this
Competition,…loss…The Heat Game has the right to cancel, terminate,
or modify this Competition…or other conditions…”
“By entering into this Competition, each entrant…agrees to release and
hold The Neat Game and its respective parents, subsidiaries, and
affiliates and their employees, officers, directors, shareholders, agents,
representatives and advertising, promotion, and fulfillment agencies, and
legal advisors, harmless from any and all losses, damages, rights, claims
and actions of any kind in connection with the Competition, or resulting
from acceptance, possession, or use of…”
“The Meat Game may at any time revise these Terms of Use by making
amendments to the terms…By participating… you agree to be bound by
any such revisions…periodically visit our website to determine the then
current Terms of Use to which you are bound.”
“This Agreement shall be construed…the parties irrevocably consent to
bring any action to enforce this Agreement in the United States Federal
and Georgia State Court located in DeKalb County…waive any defenses
to jurisdiction or venue to lawsuits…All rights not expressly granted
herein are expressly reserved…The heading in this Agreement are for
purposes of reference only. Last updated: May 2007.”
The Respondent agreed to all terms, conditions, and responsibilities set forth in
the Competition Terms of Use and Rules, see “Exhibit C” showing the
Respondent’s name and on the forms, and the “I agree” box which has a check
mark in it.
The Terms clearly stated that a legal agreement (“Agreement”) between you
and HIJ…By participating…you agree that you have read, understood, and agree
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to be bound by these terms and comply…IF YOU DO NOT AGREE TO THESE
TERMS, DO NOT USE THIS SITE…” There is no excuse for failing to name the
corporation as the defendant in Respondent’s case.
The agreement clearly stated that the prize could be substituted. Respondent
and the Corporation were negotiating a substitute prize when Respondent suddenly
filed suit against Mr. ABC in Gwinnett County Magistrate Court.
Mr. DEF
violated almost every term of the agreement, obviously the reason Mr. DEF
refused to have the agreement attached to his Statement of Claim.
Respondent filed a case in Gwinnett Magistrate Court titled: Stephen D. DEF
v. ABC and 123, Civil Action No.: 0X-M-XXXX on or around October 23, 2009.
At some point, according to the Docket Report, the case closed, then reopened on
or around December 02, 2009.
Apparently the case was reopened when
Respondent Amended the complaint by removing/dismissing 123 as a defendant.
The Court then apparently found ABC in default, a Default Judgment hearing
for damages was held on February 11, 2010. Although Mr. ABC attended the
hearing, the Court refused to allow Mr. ABC to present any evidence, the
Agreement, or other documentation, because he was in Default.
Mr. ABC was not allowed to show that he was Registered Agent and not the
proper party defendant; that a corporation would have had to be named as
defendant for there to be a proper suit.
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The Court awarded Mr. DEF $5,000.00, plus $500.00. The Docket Report
reflects that same day, February 11, 2010, Mr. DEF requested a fifa, and post
judgment interrogatories to Mr. ABC.
ARGUMENT AND CITATIONS TO AUTHORITY
Although the Supreme Court agrees with the Court of Appeals that
“proceedings in magistrate court are not directly subject to the Civil Practice Act
by the express language to that effect in OCGA § 15-10-42”; “some procedural
rules, other than those limited matters set forth in OCGA § 15-10-40 et seq., …
must apply to magistrate court proceedings” W. Gerry Howe v. William Douglas
Roberts, et., al., Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga.
617) (1989).
In the Howe case, Howe named Roberts as a defendant rather than the
corporation. The Magistrate Court dismissed Roberts, the individual, due to being
an improper party defendant, which was affirmed by the State Court, Court of
Appeals of Georgia and The Supreme Court of Georgia. In the case at bar, the
Magistrate Court has obviously decided that neither the Rules of Magistrate Court,
nor the Civil Practice Act pertained, and the Court ignored that the case named an
individual rather than the corporation as defendant.
Although Petitioner has not waived the argument of proper service, and in
no way relinquishes jurisdiction, either personal or subject matter, to this
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Court, he addresses the following, only for the sake of arguendo.
The
following arguments and citations are in no way to be construed as Petitioner
acting as the Corporation or for the sake of the Corporation; Petitioner is
acting only in his individual capacity.
The facts remain clear, the trial Court allowed an improper party defendant to
be sued. The Court appears to have issued a fifa, and post judgment interrogatories
to be levied upon the Petitioner. For these reasons alone, Petitioner addresses the
following arguments:
Improper Service/Improper Venue/Lack of Jurisdiction
It has been long held that when suing a corporation, the proper party to the suit
is not the individual that owns the corporation or the registered agent, but the
corporation.
The “cardinal rule of corporate law is that a corporation possesses a legal
existence separate and apart from that of its officers and shareholders, the mere
operation of corporate business does not render one personally liable for corporate
acts. Sole ownership of a corporation by one person or another corporation is not a
factor” Dews v. Ratterree, 246 Ga.App. 324, 246 Ga.App. 324, 540 S.E.2d 250,
540 S.E.2d 250 (Ga.App. 10/06/2000).
Further, as was held in Dearth v. Collins, 441 F.3d 931 (11th Cir. 03/06/2006)
“Under Georgia corporate law,… individual shareholders and officers of a
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corporation are "shielded by the corporate veil, in the absence of fraud or abuse of
the corporate form." Moore v. Barge, 210 Ga. App. 552, 554, 436 S.E.2d 746, 749
(1993).
Fraud/Misrepresentation to the Court to Obtain a Ruling
The Terms of Use and Contract Agreement entered into between the
Corporation and Respondent specified “a legal agreement (“Agreement”) between
you and HIJ”; “…The Meat Game reserves the right to provide a substitute
Prize…”; “By entering the competition, entrants accept and agree… which shall
be final…” Respondent failed to state the facts of the contract, and alleging that
the amount of prize money was contractually agreed upon.
Respondent further misrepresented the fact that a corporation was involved,
and/or that there were ongoing negotiations about substitution of the prize.
Apparently Respondent failed to inform the Court that the Agreement also
stipulated “the parties irrevocably consent to bring any action to enforce this
Agreement in the United States Federal and Georgia State Court located in DeKalb
County”.
Furthermore, a Ruling against Petitioner, an improper party to the suit, makes
the Judgment not merely voidable, but it is void; "a judgment is void on its face
when there is a non-amendable defect appearing on the face of the record or
pleadings which is not cured by verdict or judgment and the pleadings
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affirmatively show that no legal claim in fact existed." Id. at 444. Wasden v. Rusco
Indus., 233 Ga. 439, 445 (211 SE2d 733) (1975); See also Ricks v. Liberty Loan
Corp., 146 Ga. App. 594 (1 & 2) (247 SE2d 133) (1978) (cert. den.).
Liquidated/Unliquidated Damages
At the hearing for damages, the Court refused to review the contract, or
consider anything that Petitioner would have said. Instead, the Court ruled against
Petitioner without allowing him the opportunity to provide evidence.
It was held that a judgment is void where “the magistrate awarded … the full
amount of his claim even though his claim was unliquidated and he presented no
evidence…. because no evidence and no proof of damages were presented…The
magistrate also admitted that the judgment had no legal basis and was void, …”
Davalos v Perdue (449 S.E.2d 861) (215 Ga. App.) (1994).
CONCLUSION AND PRAYER FOR RELIEF
Petitioner in this matter has made argument showing that Mr. DEF sued the
individual rather than the corporation. Mr. ABC believes that the act of attempting
to sue him personally was an act of fraud and fraud upon the court.
Further Mr. ABC has shown this Honorable Court why the Judgment against
him should be set aside and that it would not be an abuse of discretion to set aside
the judgment.
Petitioner prays that this Court will consider his Statement of claim/Motion
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to Set Aside Judgment and find in his favor in the interest of justice.
Respectfully submitted this 15th day of March, 2010
By: ________________________
Mr. ABC, Pro Se
4567 Ha Ha Ha Lane.
Hootie, GA 30000
(555) 555-5555
STATE OF GEORGIA
COUNTY OF _________
ABC, being first duly sworn on oath, says the foregoing is true and correct to his
knowledge and belief.
______________________
ABC
Sworn and subscribed before me
this ____ day of ________, 2010
_______________________
Notary public
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