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Amended Memorandum of Law (for current appeal)

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TABLE OF CONTENTS AND CASES

Statement of Issue on Appeal - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -      3

Statement of The Case  - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  3 - 7

Standard of Review - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  7 - 8

Argument - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -     9 

     Question 1 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  9 - 42

Conclusion - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  42

 

CASES and LAWS

85 S.Ct. 1191 - - - - - - - - - - - - - - - - - - - - - - - -  - - - - - - - - -  26,27,28,30,33,34,41,42

584 S.E.2d 405 (2003) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  34

 

Levi v. Legg & Bell, 23 S.C. 282 (1885) - - - - - - - - - - - - - - - - - - - - - - - - - - - - 39,40

Lorick & Lowrance v. Julius H. Walker & Co. 153 S.C. 309),

150 S.E. 789 (1929) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  36,39,40

 

Rule 501, SCACR and Code of Judicial Conduct   - - - - - - - - - - - - - - - - - - - - -   20

S.C. Code § 15-32-510, 520, 530 (Punitive Damages) - - - - - - - - - - - - - - - - -   30,34

S.C. Code § 18-7-170  (Standard of Review) - - - - - - - - - - - - - - - - - - - - - - - - - -   7

SC R RCP Rule 8 (d)  (Responsive Pleading Requirements - Answer) - - - - -- - -  19

 

STATEMENT OF ISSUE ON APPEAL

            Should this Circuit Court, sitting as an Appellate Court, remand the case back to the Magistrate’s Court for a new trial because numerous unfair and unreasonable conditions occurred in the Magistrate’s Court below that effectively denied the Plaintiff fundamental "due process of law" and thereby prevented the plaintiff from having a fair and full opportunity to present important evidence to the six jurors during the one-day trial conducted on February 15, 2019?

 

STATEMENT OF THE CASE

 

     The plaintiff/appellant ABC’s of Health, Inc. is appealing the Final Judgment of the Magistrate’s Court in the above listed case to the Court of Common Pleas, in the County of Greenville.

     Lonnie E. Willoughby, Jr. is the founder and president of ABC’s of Health, Inc., the plaintiff in the civil litigation one-day jury trial conducted on February 15, 2019.  Mr. Willoughby participated in the trial as the pro se representative of the plaintiff, ABC’s of Health, Inc., hereinafter identified as ABC of Health or as ABC.

    The plaintiff’s pro se representative, Lonnie E .Willoughby, Jr., will also be identified herein as Lonnie Willoughby, or  Lon Willoughby, or simply as Willoughby.  He developed the plaintiff’s detailed 28-page affidavit styled word-processed Complaint pleadings and timely filed the Complaint on October 9, 2017 in the Fairview/Austin Summary Court in Simpsonville, South Carolina.

     The Complaint was about an oral contract dispute between two South Carolina businesses located in Mauldin, SC, in the jurisdiction of the Fairview/Austin Summary Court.  (Plaintiff ABC’s of Health, Inc. and Defendant Next Gen Trading, LLC.)  

     The plaintiff’s 28-page Complaint contained Supplement A (23 pages), Supplement B and C (1 page each) and Exhibit 1 (the last page of the detailed Complaint). 

     Exhibit 1 was a one-page detailed listing of 17 types of equipment that the Defendant LLC had agreed to purchase from the Plaintiff on July 19, 2014 but had failed to pay for that equipment at the time of trial on February 15, 2019. 

     An evolving Oral Purchasing Agreement had gradually developed over a period of many weeks in 2014 for Next Gen Trading LLC to purchase an assortment of equipment from ABC’s of Health, Inc., and that oral agreement was finally confirmed in writing on July 19, 2014, shown in Exhibit 1.  The Oral Purchasing Agreement that had gradually evolved was between Chris Johnson, of Next Gen Trading, LLC, and Lonnie Willoughby, as the president of ABC’s of Health, Inc. 

     The Defendant LLC filed a one-page Form type Answer that provided no denials of any of the Plaintiff’s clearly identified and noticed Complaint issues. 

     The Defendant LLC also filed a hand-written one-page Form document titled as a “Reply” but the document was allegedly intended to be a Counterclaim pleading (that was filed on the wrong form improperly, apparently with the help of a summary court clerk).

     The disputed amount claimed in the Plaintiff’s Complaint was about $1400 after duly considering some credit amounts due the Defendant LLC. 

     The one-day jury trial was conducted on February 15, 2019 (a Friday).  Lon Willoughby was the pro se representative of the Plaintiff, and Chris Johnson was the pro se representative of the Defendant LLC. 

     The Plaintiff’s Complaint explained in some detail how the two businesses had gotten involved with each other.  ABC of Health was closing their health and wellness nutrition store permanently in Mauldin, SC, and Next Gen Trading, LLC had made arrangements with the shopping center property manager to lease the store facility that ABC of Health was going to move out of by April 30, 2014. 

     Chris Johnson, representing Next Gen Trading, LLC, talked with Lonnie  Willoughby about ABC’s potential moving project, and Chris Johnson suggested that he could provide the manpower to help Lon move out of the 3500 square feet floor plan facility (that contained a lot of equipment and health store supplies)..  Their oral agreement about that moving out project is how they became involved with each other.  

     The Plaintiff’s Complaint explained that the moving project actually began on April 24, 2014, and the Complaint explained how Chris Johnson had unilaterally decided to begin moving Next Gen Trading into the facility as soon as enough of ABC’s equipment and supplies had been moved out to enable Next Gen Trading to have space to begin moving their equipment and supplies into the facility. 

     There was no specific agreement between the businesses for that two-way moving project to begin.  It occurred because Chris Johnson unilaterally decided that Next Gen Trading was going to start moving into the Mauldin facility as quickly as possible. 

     When Lon Willoughby saw those additional moving actions occurring, and interfering with the ABC of Health moving project, he understood that it was near the end of the month time (April 2014), and Next Gen Trading was apparently trying to get moved out of the facility that they had been leasing in Greenville, SC on Antrim Drive. (About six miles from the Mauldin store location.) Chris Johnson apparently wanted to get moved out of that facility quickly so they could avoid having to pay additional rent for the month of May 2014.

     The two-way moving operation obviously interfered with ABC’s moving project because the same people were involved in both moving projects.  Next Gen Trading was using Chris Johnson’s pickup style vehicle for their initial moving actions, and Lon Willoughby realized that he could help them move much easier and faster if he allowed Next Gen Trading to use the 28 feet long U-Haul enclosed moving van that he had already rented for the ABC of Health moving project.   

      Using the enclosed moving van would prevent the need for them to pack in boxes many of their supplies and seal those boxes so supplies would not be blowing around and out of the back of Chris Johnson’s pick-up type truck.

     Using the U-Haul van would enable them to simply put their equipment and supplies on the floor of the large van and save a lot of time by avoiding the boxing, packing, and sealing many boxes of their supplies, and they would be able to move all of their remaining equipment and supplies in one or maybe two very efficient moving van trips. 

     Consequently, Lon Willoughby cooperated in their expedient moving project in that manner to help minimize the loss of manpower and moving man-hours of work time that was clearly interfering with the ABC of Health moving project.  

    The moving project for Next Gen Trading was completed quickly in that manner, and they were able to move everything out of their Greenville location by the afternoon on April 30, 2014 (A Wednesday.)  They were also able to get their equipment installed in the Mauldin location facility so they could begin to conduct business on May 1, 2014 (A Thursday). 

    Most of ABC’s equipment and supplies had been moved out of their new facility, and the ABC equipment that was still in their new store had been moved out of their operational area.  Consequently, Next Gen Trading was able to conduct normal business in their new store location without any significant problems on May 1, 2014.

As the two-way moving project was progressing during the last week of April 2014, Chris Johnson explained to Lon Willoughby which ABC equipment items needed to be left in the facility for purchase by Next Gen Trading.  Those equipment items were subsequently listed in writing on a one-page listing that is shown in the Plaintiff’s Complaint as Exhibit 1. 

     The problem that caused the lawsuit was the fact that Chris Johnson later decided that Next Gen Trading was not going to pay ABC of Health for the equipment that he had previously agreed that Next Gen Trading would pay for. (The 17 types of equipment that is listed in Exhibit 1 of the Plaintiff’s Complaint.)

     ABC of Health generously allowed them almost three years to pay for that equipment, but they refused to pay for the equipment and ABC of Health had to file the resulting lawsuit before the three-years statute of limitation expired.

     As soon as the trial was completed on February 15, 2019, the trial court judge (Laura M. Saunders) presented Lon Willoughby with a two-page photocopy of the two verdicts rendered by the jury (one compensation amount for the Plaintiff’s Complaint and one compensation amount for the Defendant’s Counterclaim.

      Lon Willoughby looked at the jury verdicts, and he was very disappointed in the jury verdict compensatory award rendered in favor of  the plaintiff, and he was also very disappointed that the jury had awarded any compensation amount for the Defendant’s Counterclaim allegations. 

     Mr. Willoughby’s has prepared and filed an eyewitness account Affidavit in this appeal case that reports in some detail relevant events that occurred in the litigation process conducted in the Magistrate’s Court below. 

     His Affidavit reports that he realized at that moment in time, when the trial judge handed him a copy of the jury’s two monetary compensation verdicts, that the jury verdict confirmed that the trial had been a serious failed attempt at being a fair and responsible jury trial.  Mr. Willoughby expressed to the judge his intent to appeal the jury verdict, and he discussed briefly with the judge what appeal record evidence would be available for an appeal, since a court reporter was not present for the trial.  

     He had observed that the trial judge was apparently recording the audio of the trial events, and he asked judge Saunders if he could obtain a copy of the trial audio recording.  She agreed to make him a CD ROM copy of the audio recording of the trial. 

     Mr. Willoughby’s Affidavit reports that the trial had been conducted in a manner that was much different than what he had anticipated prior to the trial, and he wanted to review the audio recording of the trial to refresh his memory of those events.

     Mr. Willoughby’s Affidavit reports that he researched the legal issues involved and decided to file a motion for a new trial.  Judge Laura Saunders summarily dismissed his initial motion for a new trial, and he prepared and timely filed another motion for a new trial, to provide additional information about the need for a new trial.  Judge Saunders summarily denied that motion also.

 

Standard of Review

This Circuit Court has jurisdiction to hear this appeal, involving two businesses located in Greenville County, and has a broad standard of review for appeals from the Magistrate’s Court pursuant to S.C. Code § 18-7-170 which states: 

 

Upon hearing the appeal the [Circuit Court] shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits.  In giving judgment the court may affirm or reverse the judgment of the court below, in whole or in part, as to any or all the parties and for errors of law or fact.

 

     The clear language of said statute shows that an appeal from Magistrate’s Court sounds in equity.  The Circuit Court “has jurisdiction to find facts in accordance with its views of the preponderance of the evidence.” Townes Assocs., Ltd. V. Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (S.C. 1976). 

     In addition to correcting errors of law, the statute gives the Circuit Court authority to reverse a Magistrate Court’s findings of fact.  Burns v. Wannamaker, 281 S.C. 352, 315 S.E.2d 179 (Ct. App. 1984). 

     Another relevant case stated that “Sections 18-7-140 and 18-7-170 give the Circuit Judge sitting as an appellate capacity the ability to make a determination in the same manner as Circuit Courts in trials without a jury and to reverse a judgment for errors of fact even though the Circuit Judge may not have had the opportunity to observe the demeanor of the witnesses.“  Vacation Time of Hilton Head Island, Inc. v. Kiwi Corp., 280 S.C. 232, 234, 312 S.E. 2d 20, 21, (S.C. App. 1984). 

     It is clear that the Circuit Court can reverse the judgment of the court below, in whole or in part, if the Circuit Court finds the Magistrate Court judgment erred in fact or law.  S.C. Code § 18-7-170.     

Upon hearing the appeal, the [Circuit Court] shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits.  In giving judgment the court may affirm or reverse the judgment of the court below, in whole or in part, as to any or all the parties and for errors of law or fact.

 

 

ARGUMENT

 

     The STATEMENT OF THE CASE presented previously is incorporated herein verbatim by this reference.  This argument information will continue the information that was presented in the STATEMENT OF THE CASE.

      Over the next few weeks, Mr. Willoughby filed a series of post-trial motions that progressively moved the trial court judge (Laura M. Saunders) to provide a new trial due to several serious judicial errors and mistakes during the litigation process, in combination with the presentation of a lot of unfair, unethical and improper surprise ambush type argument testimony by the defendant LLC’s manager witnesses, and two other defendant witnesses during the one-day trial.. 

     In addition to those critically important litigation problem issues, Willoughby’s Affidavit reports that his motions for a new trial had reported that the six jurors must have made serious mistakes in calculations of their monetary compensation award in favor of the plaintiff.   

     Willoughby’s Affidavit reports that he realized that the value of that monetary compensatory award (for equipment to be purchased by Next Gen Trading) was a lower value than it should have been (by at least $600). 

     In addition to those deficiencies, Mr. Willoughby also understood why the jury did not award any punitive damages, as had been requested properly in the Plaintiff’s Complaint pleadings.  He understood that the trial court judge had not allowed him time to present testimony to the jury about the plaintiff’s alleged punitive type damages.  Consequently, the jury had no understanding of the punitive type damages that had occurred to the plaintiff Corporation by the actions of the Defendant LLC.

     Mr. Willoughby’s Affidavit reports that when he was filing a progressive series of post-trial motions that moved the trial court judge for a new trial, Mr. Willoughby could not determine the nature of the jurors mistakes in monetary award calculations because the trial court judge did not present him with any information of that type, along with the jury’s compensatory monetary award verdict.  Consequently, Lon Willoughby could not determine (understand) how the jury’s two award calculations had been made. .

     Mr. Willoughby Affidavit reports that he could not present specific argument about the nature of the jurors monetary award calculations errors, but some of the plaintiff’s post-trial motions did report that the jurors did not provide the plaintiff with adequate information about how the jurors had calculated their monetary compensation award to the Plaintiff or to the Defendant LLC for a Counterclaim compensatory award.

     Mr. Willoughby’s Affidavit reports that the Plaintiff’s post-trial motions responsibly reported and complained about the lack of transparency about the jurors compensatory monetary award calculations for the Plaintiff or the Defendant LLC.  

     In responding to the plaintiff’s progressive series of post-trial motions that moved the court for a new trial, Judge Laura Saunders did not provide any additional information to Lon Willoughby about that very important jury award calculation data complaint issue. 

     The digital ROA (DROA) shows that Judge Laura Saunders summarily denied all of progressive motion filed by Lon Willoughby’s for the Plaintiff moving the trial court for a new trial – motions that also complained about the lack of transparency regarding the juror’s monetary awards calculations for the Plaintiff and for the Defendant LLC.   

     Mr. Willoughby’s eye-witness Affidavit provides very important essential background information about the civil case below, and that information is related herein wherever it is needed appropriately as the “best evidence available” regarding numerous fact evidence issues.

    The Record on Appeal (ROA) documents that were filed by the trial court judge below was only a very small portion of the documents that had been filed in the trial court case.  Mr. Lonnie Willoughby then communicated with the trial court judge by FAX and requested that the complete trial court record be filed in this appeal case.  That judicial action was promptly taken due to Lon’s FAX request and a complete trial court record was filed by the court as the Record on Appeal herein.

.  The digital format ROA documents show that trial court judge Laura Saunders summarily denied each of the progressive post-trial motions that were properly and timely filed by Mr. Lonnie Willoughby in the trial court below, as the plaintiff’s pro se representative.  Willoughby’s Affidavit reports that he spent hundreds of hours developing that progressive series of complex post-trial motions moving the court for a new trial, but nothing that he did with those detailed post-trial motions resulted in getting a new trial. 

     After trial court judge Laura Saunders summarily denied the plaintiff’s final Amended Motion moving the court for a new trial, and the Final Judgment was rendered, Lon Willoughby reports that he prepared and filed the plaintiff’s Notice of Appeal timely with the clerk of court for Greenville County on May 1, 2019.   

     Mr. Willoughby then timely served a “clocked in copy” of that Notice of Appeal upon the Magistrate’s Court’s Summary Court Judge, Laura M. Saunders and also served a true copy of that document upon the opposing party, Next Gen Trading, LLC.

     The plaintiff/appellant’s exceptions to the Final Judgment were shown in the appellant’s Notice of Appeal (filed on May 1, 2019) and those exceptions were subsequently reported in more detail in the appellant’s Memorandum of Law (MOL) that Mr. Willoughby prepared and filed pro se with the clerk of court for Greenville County. (Filed on 6-21-2019)   Mr. Willoughby was still acting as the pro se representative of appellant ABC’s of Health, Inc., and he then timely served a “clocked in copy” of that MOL on the opposing party, Next Gen Trading, LLC (still doing business at the same address in Mauldin, SC).

     The circuit court then scheduled a 15 minutes appeal hearing for June 26, 2019 before Judge Miller.  Both parties were present at the scheduled appeal hearing, and that hearing lasted about one minute because Judge Miller instantly postponed this appeal case for 60 days and essentially ordered the two pro se litigants to obtain legal counsel during that time period to represent them individually in this appeal case.

     While attempting to obtain legal counsel to represent the appellant Corporation in this appeal, Mr. Willoughby reports that he also worked on preparing a detailed affidavit report that would provide his eyewitness report of relevant actions and events that occurred in the Magistrate’s Court litigation process below. 

     Willoughby’s Affidavit reports witness actions and judicial actions and inaction's and jury actions and inaction's that are relevant to this appeal case.  That Affidavit will be designated herein as the Willoughby Affidavit or as the LEW Affidavit.  The Willoughby Affidavit provides the detailed background information that is related in this Amended Memorandum of Law (AMOL).

   The Willoughby Affidavit has been properly filed in this appeal case, and it has also been timely served on the defendant/respondent Next Gen Trading, LLC. 

     Mr.Lonnie Willoughby is aware of what perjury is in the courts of South Carolina, and he understands that his affidavit report is filed with the penalty of perjury being applicable for all evidential type fact statements contained in his affidavit report. 

     That vital affidavit is a major part of the “best evidence available” for this appeal, along with the digital presentation of the Record on Appeal (DROA).  The DROA contains all printed documents filed in the trial court case below, and the ROA also contains a CD ROM format audio recording of the one-day jury trial conducted on February 15, 2019 (about six hours of recorded audio).  That trial audio recording is also a major part of the “best evidence available” for this appeal case since there is no transcript of the Magistrate’s Court’s jury trial actions on February 15, 2019.

     The LEW Affidavit reports (references) specific sections of the trial audio recording that are relevant to important argument issues for this appeal.  The affidavit reports that Lonnie Willoughby personally received notice of the Final Judgment rendered for the Magistrate’s Court civil case below on April 2, 2019 (Tuesday).  He timely filed the appellant’s Notice of Appeal on May 1, 2019.

     The LEW Affidavit reports that the civil action case below was between two businesses with their respective business offices in the Mauldin, SC area.  The civil litigation was about a Breach of Oral Contract Complaint that was filed by ABC's of Health, Inc., a South Carolina Corporation with its natural healthcare concepts consulting business in Mauldin, SC,    

     The defendant business, Next Gen Trading, LLC, is a South Carolina LLC located in Greenville County, and does business at 437 N. Main Street, Mauldin, SC 29662.  Consequently, both businesses conduct their business from offices within the same Magistrate’s Court’s jurisdiction – the Fairview/Austin Summary Court.    

     ABC's of Health, Inc. used to own and operate a natural healthcare and wellness store in the same Mauldin shopping center store location where Next Gen Trading LLC is now conducting business. (In the Golden Strip Center.)  

     In October 2013, ABC’s of Health, Inc. timely notified the shopping center property owners by letter that ABC’s of Health, Inc. had decided to close their health store business permanently on April 24, 2014 (Thursday at 8:00 PM) and would begin moving out of that retail store facility with the objective of being moved out of the facility by April 30, 2014. 

     The LEW Affidavit states that Lon Willoughby subsequently learned that prior to April 2014, Next Gen Trading, LLC had arranged with the landlord to begin leasing the commercial store facility that ABC of Health planned to move out of by April 30, 2014, and that the new lease for Next Gen Trading, LLC would begin after April 30, 2014 (presumably on May 1, 2014).  

     Willoughby reports that several weeks prior to April 25^th one of Next Gen Trading’s  managers, namely Chris Johnson, orally contracted with Lonnie Willoughby as president of ABC’s of Health, Inc. to arrange for some people that Chris Johnson knew to help Lonnie Willoughby move out of the facility.  The two men also discussed doing a barter arrangement where Next Gen Trading personnel might help with some of the moving project and their moving man-hours work time would be used as barter to offset some of the cost of equipment units that they might want to purchase from ABC’s of Health, Inc., hereinafter designated as ABC of Health or simply ABC.  

     Willoughby’s affidavit reports that Chris Johnson gradually decided that Next Gen Trading did want to purchase some of the equipment that ABC of Health would want to sell. That  decision was an ongoing evolving decision process that gradually increased the units of equipment that Next Gen Trading agreed  to purchase from ABC’s of Health. 

     Examples of equipment to be purchased: seven tables and 33 quality built padded stackable chairs from ABC of Health’s classroom, two refrigerators, one ten feet long kitchen type counter with quality type sink and faucet, two metal storage cabinets with locking doors, a glass enclosed display case with locking doors, and other miscellaneous units of equipment. 

     Those evolving oral purchasing agreements were made by Lon Willoughby and Chris Johnson, as representatives of the two respective businesses.

    The moving project began on April 25, 2014 – a Friday morning, as explained in some detail in the plaintiff’s Complaint pleadings in the case below.

     Chris Johnson made those oral contractual moving action agreements with Lon Willoughby because Next Gen Trading personnel wanted to move into the Mauldin store facility as quickly as possible and move into the facility at minimized cost. 

     As stated above, Chris Johnson agreed for Next Gen Trading, LLC to purchase several types of equipment from ABC’s of Health, and they wanted the flexible option of using bartering arrangements for their LLC personnel man-hours of labor in helping with the moving project in order to possibly reduce their cash payments for equipment units that they wanted to purchase from ABC’s of Health.

     The LEW Affidavit’s background information reports that during said moving out project, Chris Johnson informed Lon Willoughby, the president of ABC’s of Health, that Next Gen Trading LLC wanted to move into the Mauldin store facility as soon as possible (ASAP). 

     Chris Johnson then unilaterally decided to begin moving Next Gen Trading equipment (from the Greenville, SC store location that they wanted to vacate by the end of April 2014) into the ABC of Health store facility.  Chris Johnson began moving into the Mauldin facility as soon as enough of ABC of Health’s equipment and supplies had been moved out of their way to enable them to begin moving some of their equipment and supplies into that Mauldin store facility.  Next Gen Trading, LLC also began setting up that equipment in preparation of doing business in their new Mauldin location facility as soon as possible – hopefully by May 1, 2014.

     Those unilateral moving-in actions occurred although it was clear that they Next Gen Trading had a definite oral agreement (Oral Contract) with ABC of Health that they would provide the manpower that Lonnie Willoughby would need to help him move ABC of Health out of the facility by April 30, 2014 (by midnight was understood).

     Their efforts to move their Next Gen Trading business equipment into the new facility in Mauldin quickly became their number one moving priority (starting on Tuesday, April 29, 2014), although there was no oral agreement with Lonnie Willoughby about those unilateral moving-in actions.  It was clear that those moving in actions would directly interfere with the ABC of Health moving-out project.

     The manpower efforts to move ABC’s of Health. out of the facility in Mauldin at that point in time became a much lower priority for Next Get Trading’s working personnel (Christopher Johnson and Bradley Johnson – two brothers and the grown sons of father Chris Johnson).  The two sons were working in both of the moving projects – ABC of Health’s moving-out project and Next Gen Trading’s moving-in project).

     That dual moving situation began when enough of ABC of Health’s equipment and supplies had been moved out of the store facility to enable Next Gen Trading personnel to begin moving their equipment into their soon-to-be new store location.

     Lonnie Willoughby learned that their desired objective was to begin conducting business in their new store location in Mauldin, SC on May 1, 2014 (Thursday at about 2:00 P.M - their usual opening time for Next Gen trading business).  They typically closed down their trading business each night at about 1:00 A.M.to 2:00 A.M.

     The LEW Affidavit also reports that unforeseen problem situations arose with Chris Johnson’s actions that eventually caused serious problems for ABC's of Health, as explained in ABC’s Complaint (a detailed 28-pages affidavit styled report that contains Supplement A, Supplements B and C and Exhibit 1 - last page of the Complaint). 

     The Complaint pleading is located in the digital format DROA in Part 3 beginning at pages 76 and Supplement A begins at page 78 and goes to page 102.  Page 103 is Supplement B and page 104 is Supplement C.  Exhibit 1 is at page 105.

    The detailed information reported in Supplements A, B, and C, and Exhibit 1 were component parts of the plaintiff’s Complaint and that information showed why ABC's of Health, Inc. was entitled to a judgment for monetary compensation for the delinquent payment of numerous equipment units that Next Gen Trading had agreed to purchase, but had irresponsibly refused to pay for during the three years prior to ABC filing its Complaint.  Those equipment units are itemized clearly in Exhibit 1, the last page of the Complaint that was filed in the Magistrate’s Court on October 9, 2017.  As stated above, that very important document is located in the digital format ROA in Part 3, see page 76 for the first page of the Complaint.

     ABC’s Complaint included a Rental Fee Award claim for nine specific types of equipment that the defendant LLC had confiscated (kept against ABC’s will) for more than four years at the time of trial.  The Complaint also included a Punitive Damages Award claim due to the extremely unfair, unethical, and ruthless, willful, wanton, and reckless manner that Chris Johnson had acted toward ABC of Health (and Lonnie Willoughby) over an extended period of time (more than four years at the time of the trial on February 15, 2019).  Each of those claims were explained in some detail in ABC’s of Health’s detailed Complaint (includes Supplement A, B, and C and Exhibit 1 as component parts of the plaintiff’s detailed Complaint pleadings (28 word-processed pages). .

     The Defendant LLC’s Answer pleading is located in the digital ROA in Part 3, at page 69.  It is a one-page form type Answer that provides no additional information. The defendant’s Answer pleading provided no denials of any kind about the 28-page detailed Complaint filed by the plaintiff.

     However, the defendant LLC also filed a Counterclaim that was presented on an improper “Reply” form that has no certification of authenticity regarding perjury.  The alleged Counterclaim is a one-page handwritten document that is mostly perjured documentary factual testimony that is extremely unfair, unethical, and fraudulent information.   

     That was why Lon Willoughby was very disappointed at the end of the trial on February 15, 2019 when the jury awarded the Defendant LLC a compensation award for their grossly unfair and fraudulent alleged Counterclaim that had no proof at trial to show that the Plaintiff, ABC of Health, had any duty of any kind to be responsible to the Defendant LLC regarding their alleged Counterclaim issues.

      It was clear to Lon Willoughby at the end of the trial that the six jurors had been too lazy to read the Plaintiff’s 17-page Answer to Counterclaim.  That affidavit styled document presented an abundance of factual evidential documentary testimony about the unfair, unethical, fraudulent and perjured fact statements presented in the Defendant’s alleged one-page Counterclaim.

     Willoughby’s Affidavit reports that he recognized that the Counterclaim pleading contained unfair, unethical, false and perjured statements of fact.  The defendant’s Counterclaim is located in the digital ROA (DROA) in Part 3 at page 70. 

     Consequently, the plaintiff responded to the Counterclaim by filing a 17-page word-processed affidavit styled  Answer to Counterclaim that disputed all of the unfair, unethical, false and perjured statements of evidential facts in the defendant’s alleged Counterclaim (filed on an improper “Reply” form).  

     The plaintiff’s responsive pleading to said Counterclaim also contained a very important Motion that moved the Magistrate’s Court to compel the defendant LLC to produce specified business sales records as evidence to prove that the defendant’s Counterclaim contained grossly perjured fact evidence statements. 

     The plaintiff’s Answer to Counterclaim also moved the Magistrate’s Court to initiate an appropriate investigation of the grossly perjured fact evidence statements contained in the defendant’s alleged Counterclaim.

     The Magistrate’s Court apparently failed to review the plaintiff’s Answer to Counterclaim because the court did not conduct a motion hearing about the plaintiff’s Motion to Compel Production of identified business sales records.

      The court also failed to initiate an appropriate investigation of the grossly unfair, fraudulent and perjured statements contained in said Counterclaim.  

     On February 15, 2019 (Friday), the Magistrate’s Court conducted a one-day jury trial for the case.  Lonnie E. Willoughby, Jr. was the plaintiff’s pro se legal representative at trial, as the founder and president of ABC’s of Health, Inc.  His eye witness affidavit report has been filed herein to provide very important factual background information about the civil case below that is related appropriately herein.

     According to the LEW Affidavit eyewitness report, the trial was conducted in an outrageously unfair, unethical, and corrupt judicial manner toward the plaintiff during  the trial – as reported in this Amended Memorandum of Law (AMOL).

     The STATEMENT OF ISSUE ON APPEAL is a single issue: Has the appellant provided an adequate basis for this appellate court to remand the case to the trial court below for a new trial?

     We will show herein that the answer to that single question is a resounding YES.  This circuit court, in its appellate court capacity, should remand the case back to the trial court below for a new trial for the multiple reasons presented below. 

 

Unfair and Improper Actions and Inaction's

in the Magistrate’s Trial Court Below That

Justify a Remand for a New Trial:

 

Issue 1 – Reason For A New Trial

     In a Magistrate’s Court jury trial, when a Defendant LLC files an Answer to the Plaintiff’s Complaint that does not deny any of the complaint issues that were clearly noticed in the Plaintiff's Complaint pleading, the trial court judge has a responsibility and a duty to be competently aware of the well-established SC Rules of Court regarding pleading standards.  

     The judge should not have allowed the defendant’s witnesses to give lots of surprise ambush type testimony during trial to the jury that essentially denied almost all of the fact issues that were noticed clearly in the Plaintiff’s 28-page word-processed Complaint. 

     That surprise ambush litigation tactic during trial denied the plaintiff any opportunity to conduct discover actions about those surprise ambush type testimony issues.  Furthermore, the plaintiff had no fair and reasonable opportunity to prepare defensive arguments about the unfair, unethical, false, fraudulent, and grossly perjured testimony that was presented by two of the Defendant LLC’s management personnel and by two other witnesses for the Defendant LLC. 

     The plaintiff’s pro se representative during trial, Lon Willoughby, was surprised and literally shocked by the large amount of extremely unfair, unethical, false, and fraudulent perjured testimony that Summary Court Judge Laura M. Saunders cassually allowed, and actually enabled, those witnesses to present to the jury. 

     The trial court judge should have reviewed the litigant’s pleadings before trial, and she should have quickly acted judicially to restrict testimony that was clearly in conflict with the argument issues and evidential fact issues that had been noticed in the Defendant LLC’s Answer pleading. 

     The judge should have also acted quickly to judicially strike improper testimony that had already been presented to the jury.  Her grossly deficient judicial actions in that respect totally destroyed any hope of having fundamental “due process of law standards” for the jury trial.

     The trial audio recording of the trial proves conclusively that the judge did not take those badly needed responsible judicial actions at any time during the trial. 

 

     SC R RCP Rule 8 (d)  Effect of failure to deny averments in a pleading in which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading.

 

     Summary Court Judge Laura M. Saunders is a law school graduate who has been a member of the SC Bar for more than nine years.  During the jury trial that she conducted on February 15, 2019, she casually allowed and effectively enabled the Defendant LLC to present a lot of fact testimony to the jury that was clearly contrary to, and in conflict with, the Defendant LLC’s Answer pleading. 

     In practical effect, her improper judicial actions joined her with the Defendant’s improper actions during the trial, and that caused an “extrinsic fraud upon the court” to occur. 

     That situation clearly caused a very important reason for this honorable court to remand the case to the Magistrate’s Court for a new trial. 

     The information presented in this appeal shows that judge Laura Saunders damaged the plaintiff’s jury trial wherever possible in a systematic manner by willingly allowing outrageously unfair and unethical perjured surprise ambush type testimony during trial by the Defendant LLC management witnesses - testimony that was clearly outside the bounds of the established pleaded argument and fact issues for the case. 

     Judge Saunders judicial actions and inaction's of casually allowing surprise ambush type testimony by the defendant’s witnesses clearly violated the Code of Judicial Conduct that a summary court judge is explicitly subject to by Rule 501, SCACR, the Code of Judicial Conduct – found in Volume 22A of the Code of Laws.  The improper judicial acts that are reported herein violated Canon 1, Canon 2, and Canon 3 of that rule.

     Willoughby’s Affidavit reports that ROA documents and the trial court audio recording show that Judge Laura Saunders improper and unfair and unethical judicial actions and inactions were consistently very beneficial to the defendant LLC herein (Next Gen Trading) and those judicial actions and inaction's were consistently very harmful to the plaintiff below (ABC of Health). 

     Willoughby’s Affidavit  reports that the judge’s actions of allowing multiple surprise “ambush” testimony events during the trial were clearly a criminal-minded calculated obstruction of justice situation for this case.

      Judge Laura Saunders clearly intended to punish severely the honest plaintiff herein and reward the very unfair, unethical, and very dishonest and corrupt defendant LLC.

     Willoughby’s eyewitness Affidavit reports that he believes the factual and legal issues presented in this appeal will show that judge Laura Saunders took those unfair judicial actions in a willful knowledgeable manner with the intent of harming the plaintiff’s case substantially on trial day, February 15, 2019.

 

     Lon Willoughby developed and filed the Plaintiff’s complex 55-page AMENDED CONSOLIDATION OF RELATED MOTIONS (moving the court for a new trial), and he filed that motion on 4-22-2019.  The information presented below is a direct quote and copy of a part of that document.

  

 

+++ MOTION TO RESCIND – WITHDRAW ORDER DATED APRIL 2, 2019 +++

 

     ABC's of Health, Inc., the plaintiff in this civil litigation action do hereby move the court to RESCIND - WITHDRAW the premature COURT ORDER dated April 2, 2019.  

 

     That order attempted to improperly terminate the plaintiff’s diligent responsible attempts to obtain a new trial to replace the extremely unfair, unethical, and fraudulent jury trial that was conducted and orchestrated in an outrageously unfair and unethical judicial manner by Summary Court Judge Laura M. Saunders in a one-day jury trial on February 15, 2019. 

 

     Her judicial acts (actions, inaction's), as an officer of the court, caused the heinous fraud that was perpetrated upon the plaintiff herein, the jury, and this Magistrate’s Court to be an extrinsic fraud upon the court, as defined and explained below.

 

     Extrinsic fraud is fraud that induces a person not to present a case or deprives a person of the opportunity to be heard.  Relief from a final judgment is granted for extrinsic fraud on the theory that because the fraud prevented a party from fully exhibiting and trying his case, there has never been a real contest before the court on the subject matter of the action.  Chewning v. Ford Motor Co., 354 S.C. 72, 80, 579 S.E.2d 605, 610 (2003) (quoting Hilton Head Ctr. Of South Carolina v. Public Serv. Comm’n, 294 S.C. 9, 11, 362 S.E.2d 176, 177 (1987)). On the other hand, intrinsic fraud is fraud which was presented and considered in the trial.  Chewning, 354 S.C. at 81, 579 S.E.2d at 610.  It is fraud which misleads a court in determining issues and induces the court to find for the party perpetrating the fraud. (Bold print added by plaintiff for selected emphasis.)

 

Fraud Upon the Court

     Prior to the Chewning case cited above, the Supreme Court of South Carolina had not previously defined fraud upon the court in connection with setting aside a final judgment. [3] In Evans v. Gunter, 294 S.C. 525, 529, 366 S.E.2d 44, 46 (Ct. App. 1988), the Court of Appeals noted one commentator described “fraud upon the court” as “that species of fraud which does, or attempts to, subvert the integrity of the Court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” (citing H. Lightsey, J. Flanagan, South Carolina Civil Procedure, 408 (2nd ed. 1985).  (Bold print above was added by the plaintiff to emphasize selected text.)

     Other jurisdictions describe fraud upon the court as follows:

     Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated will constitute fraud on the court.  Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court.

Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5^th Cir. 1978) citing United States v. Int’l Telephone & Telegraph Corp., 349 F.Supp. 22, 29 (D. Conn. 1972) (internal citations omitted).

     Fraud upon the court is a “serious allegation . . . involving ‘corruption of the judicial process itself’.” Cleveland Demolition Co., Inc. v. Azcon Scrap Corp., supra 827 F.2d at 986 quoting In re Whitney-Forbes, 770 F.2d 692, 698 (7^th Cir. 1985).

. . . ‘[F]raud on the court,’ whatever else it embodies, requires a showing that one has acted with an intent to deceive or defraud the court. A proper balance between the interests of finality on the one hand and allowing relief due to inequitable conduct on the other makes it essential that there be a showing of conscious wrongdoing - - what can properly be characterized as a deliberate scheme to defraud - - before relief from a final judgment is appropriate. .Thus, when there is no intent to deceive, the fact that misrepresentations were made to a court is not of itself sufficient basis for setting aside a judgment for ‘fraud on the court.’  (Bold print up above and below was added by plaintiff for selected emphasis.)

United States v. Buck, 281 F.3d 1136, 1342 (10^th Cir. 2002) quoting Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10^th Cir. 1995).

     Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), is the United States Supreme Court’s leading “fraud upon the court” decision.  In that decision, an attorney for Hartford drafted an article in support of a particular glass manufacturing process, had an officer of the glass-workers’ union sign the article as its author, and then had the article published in a trade journal. The article was included in support of Hartford’s controversial patent application. The patent was granted. Hartford then initiated a patent infringement suit against Hazel-Glass. In finding Hazel-Glass had infringed upon Hartford’s patent, the Third Circuit Court of Appeals relied on the article. Ultimately, the true identity of the author was discovered. In upholding Hazel-Glass’ suit, the USSC Court emphasized:

     This is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed to have been guilty of perjury.  Here, . . .we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals. This matter does not concern only private parties. There are issues of great moment to the public in a patent suit.  Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant.  It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.  Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud. Id. U.S. at 245-46 (internal citations omitted).

     (Bold print emphasis in the quoted information above was added by the plaintiff herein, ABC’s of Health, Inc., for improving the clarity of emphasis of selected text.)

 

     The plaintiff’s previous MOTION FOR A NEW TRIAL, filed timely on 2-25-2019, provided a detailed report, consisting of ten numbered argument issues.  Several of those argument issues showed a very strong basis for this court to grant the plaintiff herein a new trial.  Judge Laura Saunders improperly denied that responsible motion, demonstrating that she did not have enough judicial integrity to fairly and responsibly consider the very important factual and legal issues reported therein that involved her own unfair and unethical judicial acts.

 

     The plaintiff also timely filed a Motion for Reconsideration of the Order dated 3/19/2019 which contained some of the plaintiff’s previous motion’s argument information and added appropriate relevant factual and legal argument information wherever needed to provide additional information to strengthen the basis for this court to grant the plaintiff’s reasonable and responsible request herein for a new trial.  The defendant LLC’s numerous acts of surprise “ambush” trial testimony, and the judge’s unfair and unethical judicial actions to knowingly and willfully “allow” all of that unfair and unethical inadmissible testimony to be presented to the jury, in an unrestricted manner, contaminated the trial to an outrageously corrupt level causing the trial to clearly become a heinous mistrial. 

 

     The trial conducted on February 15, 2019, was corrupted to an extreme level by the defendant LLC through two of their managing personnel who presented witness testimony during the trial.  Two defendant LLC personnel, Chris Johnson and grown son Christopher Johnson, each gave a lot of unfair, unethical, and fraudulent perjured surprise ambush testimony during the trial that was clearly inadmissible testimony.   

 

     Judge Saunders knew or should have known that the testimony that was being presented to the jury by those witnesses was contrary to, and in conflict with, the ANSWER pleadings of the defendant LLC.  She also knew or should have known that the surprise ambush “evidential testimony” that was being presented to the jury by the defendant’s managing personnel, Chris Johnson and son Christopher Johnson was clearly in direct conflict with, and contrary to, the defendant’s filed ANSWER pleading.

 

     The trial audio recording proves that the judge allowed the defendant’s witnesses to ruthlessly ambush the plaintiff during the trial with “evidential testimony” that had not been disclosed in the defendant’s responsive ANSWER pleading to the plaintiff’s timely filed COMPLAINT pleading.  The trial court audio recording proves clearly that Judge Saunders knowingly and willfully allowed and enabled the defendant’s corrupt dishonest witnesses to deny the plaintiff basic American due process of law standards – causing a clear mistrial.

 

     Judge Saunders judicial actions and inaction's willingly allowed the Defendant LLC witnesses to ruthlessly ambush the Plaintiff during trial with “evidential issues testimony” that the plaintiff had not had a fair and responsible opportunity to review and conduct discovery actions about prior to the trial.  Those judicial actions and inaction's constituted a heinous “extrinsic fraud upon the court.”

 

     Those outrageously unfair and unethical surprise ambush testimony situations were allowed to contaminate the jury trial severely due to judge Laura Saunders' numerous failures to take fair and responsible judicial actions to quickly terminate the defendant’s extremely unfair and unethical ambush testimony type litigation schemes and tactics during the jury trial. 

 

     Judge Saunders’ judicial actions and inaction's effectively enabled the defendant LLC to unfairly and unethically corrupt the trial process in an outrageously unfair and unethical manner, and those extremely irresponsible judicial actions and inaction's effectively caused the judge to become a willing party to those outrageously unfair and unethical defensive actions.

 

     Zach Johnson, a non-employee witness,  a nephew of Chris Johnson, also gave substantial amounts of unfair, unethical, perjured ambush type testimony for the defendant LLC.  Several of the perjured testimony situations presented by witness Zach Johnson were surprise ambush material fact issues that were clearly in direct conflict with the plaintiff’s COMPLAINT report about those events and the defendant’s ANSWER that had agreed with the COMPLAINT report – with no denials in the Defendant LLC’s ANSWER pleading. 

 

     Those conflicting “testimony evidence presentations to the jury” had not been properly presented in the defendant LLC’s ANSWER pleadings, as should have been done, if those “evidence fact issues” were true at the time that the defendant LLC had filed their ANSWER (11-20-2017) to the plaintiff’s COMPLAINT (filed 10-9-2017). 

 

     It is very important to understand that the defendant LLC did not move the court to amend their pleadings; therefore, the defendant LLC was duty bound to litigate with the ANSWER pleading that the Defendant LLC had filed for this case. 

 

     If the surprise ambush testimony material fact issues had been presented properly and responsibly in the defendant LLC’s ANSWER, the plaintiff would have had an opportunity to conduct responsible discover actions about those issues prior to the trial.  However, because those defensive ambush fact issues were not identified and presented in the defendant LLC’s ANSWER pleading, the plaintiff herein was denied any opportunity to conduct responsible discovery actions regarding the surprise ambush alleged defensive material fact issues that were presented to the jury with unfair, unethical, false, and fraudulent perjured testimony during the trial.  See defendant’s ANSWER and REPLY (an alleged  COUNTERCLAIM) at EXHIBITS one and two respectively. NOTE: Those EXHIBITS were presented in a separately filed EXHIBITS DOCUMENT – same filing date.

 

     All of the defendant’s surprise ambush material “issues of fact” arose for the first time after the trial was in progress.  Judge Laura Saunders should have reviewed the pleadings of the two opposing parties before trial; therefore, the judge knew or should have known that those surprise ambush type defensive material issues of factual “evidentiary testimony” were inadmissible in the trial.  None of those surprise ambush type testimony fact issues had been noticed to the plaintiff in the defendant’s ANSWER pleading. 

 

     The defendant LLC did not file a motion to amend its pleadings, and Summary Court Judge Laura Saunders knew that.  Consequently, the judge knew or should have known that the defendant LLC was restricted during the trial to defensive argument issues that had been presented properly (noticed) in the defendant’s ANSWER pleading. 

 

     The trial court judge knew or should have known that it was outrageously unfair and unethical for her to allow the defendant’s witnesses to turn the civil action trial process into a despicable ruthless avalanche of surprise ambush type unfair, unethical, false and fraudulent perjured testimony events that went on for hours during the trial.  Those unfair and unethical “evidence situations” severely contaminated the six jurors mental and emotional capacity.  How could they possibly determine who was telling the truth and who was lying to them?

 

     Those multiple surprise ambush type testimony situations were outrageously unfair and unethical toward the plaintiff.  The plaintiff was clearly denied a fair responsible opportunity to defend itself from an avalanche of surprise ambush type grossly perjured testimony during the trial – material fact issues that had not been subject to review and discovery actions prior to the trial. 

 

     The six-hours audio recording of the one-day trial shows that Summary Court Judge Laura M. Saunders made no effort at all (NONE) to take responsible judicial actions to prevent numerous surprise ambush type material fact testimonies events (with perjured testimony) from being presented to the jury during the one-day trial.

 

      Lonnie Willoughby understood that a Magistrate’s Court has somewhat relaxed litigation standards, compared to litigation in the Circuit Court, but that situation does not mean that the basic rules for fair and responsible American due process of law standards for pleadings have been eliminated for jury trial civil litigation in the Magistrate’s Court. 

     The trial court judge is still responsible for conducting a trial that provides fair and impartial American due process of law standards.  The judge is responsible for requiring that the litigant and their witnesses present only evidence testimony that is clearly within the confines of their pleading’s defensive argument issues.

 

     The trial court judge must not allow a defendant litigant or their witnesses to come into trial and present unfair, unethical surprise ambush type defensive fact issue testimony that converts the jury trial into a heinous corrupt event where defendant’s witnesses are allowed to present an avalanche of surprise ambush type testimony that is clearly in direct conflict with, and contrary to, the defendant’s ANSWER pleadings and/or their COUNTERCLAIM pleadings.

 

     As stated previously, “Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.”  Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)  Id. U.S. at 245-46 (internal citations omitted).

    

     The information presented above is a relevant part of the information presented in the Plaintiff’s complex 55-page word-processed AMENDED CONSOLIDATION OF RELATED MOTIONS (that collectively moved the Magistrate’s Court for a new trial).  Lon Willoughby developed that motion and then timely filed the motion for Plaintiff ABC of Health on 4-22-2019. 

 

     The argument information herein for Issue 1 shows very clearly that this appellate court should remand the case back to the trial court for a new trial.

Issue 2 – Reason For A New Trial

 

     As shown above, the trial court judge had a duty and responsibility to be familiar with the pleaded/noticed issues for trial and then monitor witness testimony to the jury during trial so the judge could responsibly require that the defendant’s witnesses confined their testimony to argument and defensive fact issue testimony that had been noticed in the defendant’s Answer pleading. 

     However, during the one-day trial below, trial court judge Laura Saunders failed to accomplish those important judicial duties and responsibilities.  She casually allowed and effectively enabled the surprise ambush tactics testimony that was used repeatedly during trial by the Defendant LLC’s witnesses. 

     That situation  totally destroyed any possibility of having fundamental “due process of law standards” for the jury trial conducted on February 15, 2019.   

    

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965); 141 L.Ed.2d 62,

     85 S.Ct. 1191 [6]  A fundamental requirement of due process is “the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783.  It is an opportunity which must be granted at a meaningful time and in a meaningful manner.  The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the cans anew.  Only that would have wiped the slate clean.  Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.  His motion should have been granted.  For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

    

SC R RCP Rule 8 (d)  Effect of failure to deny averments in a pleading in which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading.

    

     The relevant legal issues cited above in Issue 1, and incorporated verbatim herein for this Issue 2 argument, show very clearly that this appellate court should remand the case back to the Magistrate’s Court for a new trial.

Issue 3 – Reason For A New Trial

     The defendant LLC’s witnesses (4) presented a lot of apparently unfair, unethical, fraudulent and perjured surprise ambush type testimony during the jury trial.  Throughout all of it, the trial court judge casually ignored her judicial duty and responsibility to promptly take judicial actions to terminate and thereby prevent that type of ambush testimony from being presented to the jury – or alternatively, the judge should have stricken that kind of surprise ambush type testimony from jury consideration.

     The six hours of trial audio recording prove conclusively that  judge Laura Saunders did not take those needed judicial actions at any time during the trial. 

    

     SC R RCP Rule 8 (d)  Effect of failure to deny averments in a pleading in which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading.

 

     As stated previously In Issue 1, “Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.”  Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)  Id. U.S. at 245-46 (internal citations omitted).

    

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965); 141 L.Ed.2d 62,

     85 S.Ct. 1191 [6]  A fundamental requirement of due process is “the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783.  It is an opportunity which must be granted at a meaningful time and in a meaningful manner.  The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the cans anew.  Only that would have wiped the slate clean.  Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.  His motion should have been granted.  For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

 

     Argument information presented in Issue 1 and Issue 2 above combine with this Issue 3 argument to provide an exceptionally strong basis for this appellate court to remand the case back to the Magistrate’s Court below for a new trial.

 

Issue 4 – Reason For A New Trial

     The trial court judge has a duty and responsibility to initiate actions to have such testimony investigated in a responsible manner after the trial has been conducted (and after the plaintiff has reported numerous defendant perjury actions to the judge and to the jury during trial). 

      In the trial court below, the trial court judge took no responsible judicial actions to initiate a proper responsible investigation of unfair and unethical perjured testimony in the Defendant’s Counterclaim pleadings and a lot of grossly unfair, unethical, fraudulent and perjured testimony during trial.  

    

     Self-evident responsible judicial actions were needed to initiate appropriate investigations of the numerous perjurious fact testimonies by Defendant Witnesses during the trial and also the perjurious fact testimony presented in the Defendant LLC’s fraudulent Reply, alleged Counterclaim, pleading. 

    

As stated previously herein, “Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.”  Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)  Id. U.S. at 245-46 (internal citations omitted).

    

 

Issue 5 – Reason For A New Trial

     The trial court judge had a duty and responsibility to manage the trial activities so that the plaintiff would have a fair and full opportunity to present its evidence to the jury about noticed complaint issues, but the judge failed to do that during the one-day trial conducted below.  

   

     Rule 13 (a), Your Guide to Magistrate’s Court.  - - - the court shall question the parties and witnesses in order to assure that all claims and defenses are fully presented.

     The trial court audio recording proves conclusively that judge Laura Saunders denied the plaintiff’s pro se representative, Lon Willoughby, a fair opportunity to present testimony to the jury after the jury lunch break ended at 2:00 P.M. on February 15, 2019.  The judge unilaterally decided to terminate any further testimony by the Plaintiff and immediately moved the trial into the Defendant’s “Defense in Chief” testimony.  Audio Recording, part 2, time 2:00 to time 7:00 (2:00 minutes to 7:00 minutes). 

     Judge Saunders failed to ask Lon Willoughby if he had finished presenting testimony to the jury for the Plaintiff ABC of Health.  Mr. Willoughby had no idea what the judge was doing with her confusing “trial management actions.” 

     The trial below was his first experience with a jury trial, and he politely and responsibly followed the judge’s lead in those judicial matters.  He later realized that the judge was not going to allow him any time to present additional testimony to the jury, and that situation prevented him from presenting testimony to the jury about the Plaintiff’s pleaded claim for a punitive damages award (which could have amounted to several thousand dollars). 

     In addition to that very serious problem, judge Laura Saunders gave the jury an improper charge about punitive damages, claiming that punitive damages could not be awarded unless the alleged actions were committed in a malicious manner or with malicious intent (to harm). 

     The Punitive Damages statute does not require that alleged actions be committed in a malicious manner or with malicious intent.  The statute clearly says willful, wanton, or reckless actions. SC Code 15-32-520 (D)

 

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965); 141 L.Ed.2d 62,

     85 S.Ct. 1191 [6]  A fundamental requirement of due process is “the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783.  It is an opportunity which must be granted at a meaningful time and in a meaningful manner.  The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the cans anew.  Only that would have wiped the slate clean.  Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.  His motion should have been granted.  For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

    

     Consequently, it is very clear that this appellate court should remand the case back to the Magistrate’s Court for a new trial.

Issue 6 – Reason For A New Trial

 

     The trial court judge had a duty and responsibility to allow the plaintiff to call three of the defendant LLC’s management personnel for examination during the trial, after the judge had failed to conduct a competent pretrial hearing about witnesses to be examined during trial. 

     Her very brief pretrial hearing (about 3 minutes) was conducted impromptu (unannounced) in her judicial chambers just a few minutes before the trial began.  She simply asked Lon Willoughby “Are you going to call a witness?”  He interpreted the question to mean “Are you going to call a supporting witness?”  He answered her question by saying “Yes, I’m going to call my wife.” 

     However, during the trial he tried to call Christopher Johnson for examination (the eldest grown son of Chris Johnson).  Lon had learned that son Christopher Johnson was actually the primary owner of Next Gen Trading, LLC because he had used his college funding (provided by his now deceased grandfather) to purchase the Next Gen Trading business from its previous owner. 

     During the trial, son Christopher Johnson was sitting at the defendant’s table with his father (in the courtroom).  Lon Willoughby started to call Christopher Johnson as an adverse witness.  He quickly learned that Judge Saunders’ vague question about “a witness” had been a trick question because she interrupted him in mid-sentence as soon as he said "Christopher" [Johnson] the judge instantly pitched an emotional fit by exclaiming loudly “You didn’t tell me that you were going to call all of the defendant’s witnesses.”  She then had the six jurors leave the courtroom so she could chastise Lon Willoughby further because he had attempted to call Christopher Johnson as an adverse witness.

     Judge Saunders acted as though her impromptu pretrial question had been “What are the names of all witnesses that you intend to call for examination during the trial?”  Unfortunately, her attempt at presenting an impromptu pretrial hearing was badly done and very incompetent. Lon  Willoughby realized later that she had probably deliberately planned that type of outcome for her confusing and incompetent 3 minute surprise impromptu "pretrial hearing."

      How could any trial court judge make such an incompetent mess out of a simple pretrial hearing; a brief hearing that simply inquired about the witnesses that each party planned to call for direct examination during the trial? 

      Judge Saunders rudely and dictatorially denied Lon Willoughby’s responsible attempt to call Christopher Johnson for direct examination as an adverse witness.  Lon Willoughby understood that her grossly improper dictatorial reactions about that situation also meant that the judge would not allow Lon Willoughby to call younger son Bradley Johnson (an adult) for direct examination as an adverse witness. 

     Brothers Christopher and Bradley Johnson had both helped with the moving operation of getting ABC of Health moved out of the facility in Mauldin, SC that the Defendant LLC wanted to move into as quickly as possible (before May 1, 2014). 

     Christopher and Bradly Johnson were key adverse witnesses that Lon Willoughby had planned to call for examination during trial, but judge Laura Saunders’ unfair and unreasonable dictatorial judicial actions denied him any opportunity to call either of those brothers for direct examination during the trial. 
     Both brothers were in the courtroom, apparently for anticipated participation in the trial.  Father Chris Johnson did call older son Christopher Johnson for direct examination as a supporting witness during the trial.  That situation enabled Lon Willoughby to cross-examine son Christopher Johnson during the trial, but a cross examination is not as valuable as a direct examination.  Judge Saunders certainly knew that. 

      Chris Johnson did not call younger son Bradly Johnson for examination as a supporting witness during the trial, and that situation totally prevented Lon Willoughby from having an opportunity to cross-examine Bradly Johnson during the trial.  His testimony was very important to the Plaintiff about three critical evidential situations.

     Father Chris Johnson obviously did not want Lon Willoughby to have an opportunity to cross-examine son Bradly Johnson during the trial.  There were three critical issues that Lon Willoughby wanted to examine Bradly Johnson about, and his testimony could have been very important to the Plaintiff's case evidence during the trial.

     However, Judge Saunders’ improper and unfair judicial actions during the trial strategically prevented the Plaintiff (via Lon Willoughby) from examining two of the defendant’s management personnel.  That very important witness situation effectively wrecked the plaintiff’s responsible efforts to present vital fact evidence testimony to the jury about critically important fact evidence issues about some of ABC’s moving actions.  Those actions became disputed actions due to the surprise ambush type perjured testimony that was presented to the jury by Chris Johnson.  

 

     Rule 13 (a), Your Guide to Magistrate’s Court.  - - - the court shall question the parties and witnesses in order to assure that all claims and defenses are fully presented.

 

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965); 141 L.Ed.2d 62,

     85 S.Ct. 1191 [6]  A fundamental requirement of due process is “the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783.  It is an opportunity which must be granted at a meaningful time and in a meaningful manner.  The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the cans anew.  Only that would have wiped the slate clean.  Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.  His motion should have been granted.  For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

 

     The argument presented in this Issue 6 also shows that there are very strong reasons for this appellate court to remand the case back to the Magistrate’s Court for a new trial.

Issue 7 – Reason For A New Trial

 

     The trial court judge had a duty and responsibility to come to trial with a competent understanding of the Plaintiff’s pleaded Complaint issues and also the relevant Punitive Damages Statute that had been properly noticed clearly in the plaintiff’s Complaint (S.C. Code § 15-32-510, 520, 530), but the judge failed to accomplish those fundamental level judicial duties in a competent manner. 

     The trial audio recording proves conclusively that Judge Laura Saunders did not understand properly the relevant Punitive Damages Statute.   That is proven with the trial audio recording - Part 2 at 2:00 minutes to 3:00 minutes and then again at 1:58:00 (one hour, 58 minutes) when judge Saunders was giving the jury instructions about a punitive damage award.

   

      Self-evident judicial duties and responsibilities.

 

Cole v. South Carolina Electric and Gas, Inc., 355 S.C. 183, 584 S.E.2d 405 (2003)

Trial - Matter of Law:  The trial court must charge the current and correct law.

 

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965); 141 L.Ed.2d 62,

     85 S.Ct. 1191 [6]  A fundamental requirement of due process is “the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783.  It is an opportunity which must be granted at a meaningful time and in a meaningful manner.  The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the cans anew.  Only that would have wiped the slate clean.  Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.  His motion should have been granted.  For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

 

     This Issue 7 argument provides an additional valid reason for this appellate court to remand the case back to the Magistrate’s Court for a new trial.

 

Issue 8 – Reason For A New Trial

 

     The six jurors rendered a verdict which demonstrated that they had failed to read the plaintiff’s affidavit styled Complaint and Answer to Counterclaim, after the plaintiff pro se trial representative, Lon Willoughby, had given each juror a copy of those two affidavit styled vital evidential documents during the plaintiff’s evidence presentation to the jury. 

     The trial audio recording proves conclusively that Lon Willoughby gave each juror a personal copy of those two vital pleading documents to clearly establish the plaintiff’s core evidence issues in the case.  Trial audio, Part 1 at time 36:50 (36 minutes, 50 seconds) to 38:00.  He gave each juror a copy of the Plaintiff’s Complaint and also a copy of the Plaintiff’s Answer to Counterclaim.  Those two documents were sworn affidavit type pleadings that presented the plaintiff’s major fact evidence to the jurors for all pleaded issues in the trial.   

     The trial judge apparently did not understand the evidential significance of Willoughby giving each juror a copy of those documents at that early stage in the trial, and that made it much more difficult for Lon Willoughby to present his evidence testimony to the jurors during his “case in chief” evidence presentation. 

     Due to the judge’s lack of comprehension about that vital evidence issue, Willoughby was not able to present testimony evidence to the jury In the logical sequential easy to understand manner that he had planned for his evidence presentation to the jury.  The judge was initially insistent at that point in the trial that he needed to call a witness, and the audio recording cited above shows that she gradually realized that Lon Willoughby was in fact the Plaintiff’s first witness and he was trying to give “case in chief” evidential testimony to the jury. 

     The jury verdict that was subsequently rendered later that day in favor of the plaintiff was about $600 too low for the pleaded sales agreement that the Plaintiff had clearly established with the Defendant LLC in July 2013, as shown in Exhibit 1 in the Plaintiff’s Complaint (last page of the Complaint).

     The fact that the six jurors all apparently totally ignored Exhibit 1 as a written contractual agreement between the Plaintiff and the Defendant LLC about the prices that would be paid by the Defendant LLC to the Plaintiff ABC of Health proved conclusively that the six jurors had all failed to simply read through the Plaintiff’s Complaint pleading evidential documentary proof document. 

     Consequently, it is now clear that the six jurors failed to comply with the applicable “preponderance of evidence” rule. That vital specific situation caused the jury trial and verdict to be very unfair and grossly improper toward the plaintiff, and those grossly deficient jury actions clearly justify a new trial. 

      

     Self-evident duties and responsibilities of the jurors.

 

     SC R RCP Rule 8 (d)  Effect of failure to deny averments in a pleading in which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading.

 

Lorick & Lowrance v. Julius H. Walker & Co., 153 S.C. 309), 150 S.E. 789 (1929)

[1] Court should order new trial when verdict is so confused that jury’s intent is not absolutely clear.

[5] Facts admitted by pleadings must not be contradicted by verdict.  (Remember that the defendant’s Answer pleading did not deny any part of the Complaint.)

[6]  Verdict for defendant in amount, which pleadings conceded plaintiff was entitled to recover, if defendant’s offsets and counterclaim were not sustained, was erroneous.  (Defendant did not prove allegations in their Counterclaim.)

Issue 9 – Reason For A New Trial

     The plaintiff subsequently learned, many weeks after the trial, by searching through the digital ROA, that the six jurors had collectively agreed to delete a $200 sales item (kitchen counter and sink/faucet equipment) during their improper deliberation about the cost value of equipment to be paid by the Defendant LLC to the Plaintiff Corporation.  See Part 3 of DROA, page 33.

     The jury did not understand those cost value issues competently because they had failed to read the Plaintiff’s Complaint and carefully review Exhibit 1, as referenced therein.  However, the jury would have understood those equipment value issues much better if the trial judge had not interfered so much with Willoughby’s “case in chief” evidence presentation in the early part of the trial, as explained previously – when he was giving each juror a copy of the Complaint.. 

     The jury clearly had no duty or responsibility and no authority on February 15, 2019 to attempt to revise an oral contract that was initially established between the two parties in April 2014 and then confirmed in a written agreement in July 2014 (Exhibit 1 – presented as the last page in the plaintiff’s 28-page Complaint).

     The jury clearly had no authority to attempt to modify or revise the written agreement about equipment purchases by Next Gen Trading, LLC (Exhibit 1), as they did during their jury deliberations.

     That specific jury action, improperly deleting the $200 cost value of the “kitchen counter and sink/faucet equipment” in their calculations of their plaintiff verdict award value clearly justifies that the case be remanded for a new trial. 

 

     Self-evident violations of jury duties, responsibilities, and authority. 

 

Additional relevant Information for Issue 9.

 

     Willoughby eventually discovered the jury’s calculations data sheet in the digital ROA in Part 3, when he found document 33.  That data sheet clearly shows that the jury improperly deleted the $200 price value of the ten-feet long countertop with sink and faucet equipment from their improperly calculated jury award value for the Plaintiff. 

     Their improper award calculations also ignored about 400 dollars’ worth of price value equipment because the six jurors totally ignored Exhibit 1 when they were making their jury award calculation for the Plaintiff ABC of Health. 

     Exhibit 1 was the written sales agreement listing of all equipment items that Next Gen Trading, LLC had agreed to purchase from ABC of Health (that written agreement document was completed on July 19, 2014). 

     After Lon Willoughby discovered (found) the jury’s data calculation sheet as reported above, It was finally clear to him why the jury verdict award to Plaintiff ABC of Health was at least $600 below the minimum amount that the jury should have awarded the Plaintiff in their trial verdict in favor of the Plaintiff.

     Consequently, it was also now clear to Lon Willoughby that trial court judge Laura Saunders could have presented a photocopy of that one-page calculations data sheet to him at the end of the trial on February 15, 2019, when she handed Lon Willoughby a photocopy of the jury’s two-pages monetary awards verdict for the trial. 

     However, judge Saunders did not give Lon Willoughby a copy of the jury’s calculation data sheet, as she clearly should have done.  Otherwise, he would have no way of understanding how the jury calculated their jury award value in favor of the Plaintiff ABC of Health.  Without that calculations data sheet, the plaintiff would have never understood the jury award value and would have never discovered that the six jurors had improperly deleted the $200 value of the 10 feet long kitchen counter and sink/faucet equipment, and had neglected to consider about $400 worth of other equipment items identified clearly in Exhibit 1.

     Judge Saunders then repeatedly failed to take that needed judicial action when Lon Willoughby reported that he needed to understand how the jury had made their calculations for a compensatory award value for the Plaintiff ABC of Health. 

     Willoughby repeatedly reported to judge Laura Saunders, via his progressive motions for a new trial, that he needed the jury’s calculations data information so he could understand how the jury had calculated (or miscalculated) their compensatory monetary award for Plaintiff ABC of Health.  

     Judge Laura Saunders summarily denied his multiple motion requests for that vital jury calculations data information – inquires presented in his progressive motions for a new trial.

   

     This situation provides another very strong reason for this appellate court to remand the case back to the Magistrate’s Court for a new trial.

Levi v. Legg & Bell, 23 S.C. 282 (1885)

4. Error on the part of the jury in finding damages without sufficient proof, can be corrected only by motion on Circuit for a new trial.

Lorick & Lowrance v. Julius H. Walker & Co., 153 S.C. 309), 150 S.E. 789 (1929)

[1] Court should order new trial when verdict is so confused that jury’s intent is not absolutely clear.

[5] Facts admitted by pleadings must not be contradicted by verdict.

[6]  Verdict for defendant in amount, which pleadings conceded plaintiff was entitled to recover, if defendant’s offsets and counterclaim were not sustained, was erroneous.

Issue 10 – Reason For A New Trial

 

     The six jurors clearly failed to follow the trial court judge’s competent jury charge instructions about the “preponderance of evidence” standard for weighing evidence.  The six jurors irresponsibly and unethically ignored that “evidence standard” by failing to read the plaintiff’s 17-pages of word-processed affidavit styled Answer to Counterclaim as documentary evidence in the trial. 

     The jury verdict granted the defendant LLC a compensatory award for their clearly unfair, unethical, fraudulent and perjured testimony during trial about their one-page handwritten Counterclaim pleading.  It is very clear that the jury ignored the “preponderance of evidence” rule with those improper jury actions regarding awarding the Defendant LLC a compensatory monetary award for their clearly unfair, unethical, fraudulent and perjured alleged Counterclaim pleading.

     The Plaintiff’s Answer to Counterclaim provided almost all of the responsible  evidence during trial about the Defendant’s Counterclaim pleaded issues.  Those improper, unfair, and irresponsible jury actions totally ignoring the plaintiff’s affidavit styled documentary evidence (the plaintiff’s Answer to Counterclaim).

    

     That improper jury action clearly shows that a new trial should be granted.  

    

     Self-evident violations of jury’s duty and responsibility to comply responsibly with the “preponderance of evidence” that was presented to them during trial.

 

Levi v. Legg & Bell, 23 S.C. 282 (1885)

4. Error on the part of the jury in finding damages without sufficient proof, can be corrected only by motion on Circuit for a new trial.

 

Lorick & Lowrance v. Julius H. Walker & Co., 153 S.C. 309), 150 S.E. 789 (1929)

[1] Court should order new trial when verdict is so confused that jury’s intent is not absolutely clear.

[5] Facts admitted by pleadings must not be contradicted by verdict.

[6]  Verdict for defendant in amount, which pleadings conceded plaintiff was entitled to recover, if defendant’s offsets and counterclaim were not sustained, was erroneous.

 

Issue 11 – Reason For A New Trial

 

     The Magistrate Court failed to provide any responsible judicial action about the Plaintiff’s Motion to Compel Production of Sales Document Records from the Defendant LLC, as requested timely in the Plaintiff’s Answer to Counterclaim (about one year before the subsequent jury trial conducted on February 2019).

    Those sales records documents were essential evidence documents for the Plaintiff during trial, and the fact that the court failed to take responsible actions about the production of those vital evidence documents enabled the Defendant LLC to come to trial and present unfair, unethical, fraudulent, and grossly perjured testimony about their falsely alleged “deficient sales activities.”  The Defendant LLC manager witnesses (2) at trial falsely blamed their falsely alleged “deficient sales activities” on the Plaintiff during the trial 

     If the Plaintiff had been provided with access to true photocopies of those actual sales record’s activities, the trial evidence about those alleged issues would have been a totally different matter.  The Plaintiff would have been able to prove conclusively that the Defendant LLC had not had seriously deficient sales during May and June of 2014, aa they falsely alleged during trial. 

    

     The fact that the Magistrate’s Court failed to take responsible judicial actions regarding the Plaintiff’s timely filed Motion to Compel Production of Sales Activity Records clearly justifies a new trial.

 

     Self-evident violations of the court’s judicial duties and responsibilities.

 

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965); 141 L.Ed.2d 62,

85 S.Ct. 1191 [6]  A fundamental requirement of due process is “the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783.  It is an opportunity which must be granted at a meaningful time and in a meaningful manner.  The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the cans anew.  Only that would have wiped the slate clean.  Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.  His motion should have been granted.  For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

 

 

Issue 12 – Reason For A New Trial

 

     The trial court judge failed to provide competent and responsible judicial actions for the specified deficient judicial issues identified above.  The judge then summarily refused to grant the plaintiff a new trial when those judicial issues were raised responsibly in a series of timely filed post-trial motions that progressively requested that a new trial be granted.  

 

     Self-evident violations of judicial duties and responsibilities.

 

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965); 141 L.Ed.2d 62,

85 S.Ct. 1191 [6]  A fundamental requirement of due process is “the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783.  It is an opportunity which must be granted at a meaningful time and in a meaningful manner.  The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the cans anew.  Only that would have wiped the slate clean.  Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.  His motion should have been granted.  For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

 

CONCLUSION

 

     It is abundantly clear that this circuit court, in its appellate court capacity, should remand this case to the trial court below for a new trial.

 

   Respectfully submitted,

Attorney and Law firm

Information here:

 

 

 

 Delete the inormation below in the amended appeal brief that is filed in this appeal.

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Updated last on August 21, 2019