Tag Archives: Plaintiff

Henry D. “Butch” Binford, Circuit Judge, 20th Judicial Circuit Court of Houston County, (Civil Division, Dothan) Alabama, invited to ALTER or AMEND his NOVEL LEGAL THEORY Judgment, Monday, March 27, 2017 (3/27/2017) 9:50:07 AM (38-CV-2015-900261.00)


_________________________________________________
Unified Judicial System

State of Alabama

AlaFile E-Notice

38-CV-2015-900261.00

To: Jerry Michael Blevins
ATTYJMBlev@LawOfficeOfJerryMBlevins.com

Judge: Henry D. “Butch” Binford

NOTICE OF ELECTRONIC FILING

In the Circuit Court of Houston County, Alabama

Plaintiff

v.

Brian Ralph Beasley

38-CV-2015-900261.00

The following matter was Filed on 3/27/2017 9:50:07 AM

C001

Motion to Vacate or Modify

[Filer: Blevins Jerry Michael]

Notice Date: 3/27/2017 9:50:07 AM

Carla H. Woodall
Circuit Court Clerk
Houston County, Alabama
P.O. Drawer 6406
Dothan, AL 36302
334-677-4859
_________________________________________________
DOCUMENT 51

In the Circuit Court of Houston County, Alabama

Plaintiff

v.

Beasley Brian Ralph
Defendant

Civil Action No.: CV-2015-900261

MOTION TO ALTER OR AMEND JUDGMENT

COMES NOW the Plaintiff, by and through his undersigned counsel, and respectfully moves the Court to alter or amend the judgment previously rendered in this cause, and in support thereof says as follows:

Relevant Procedural History

1. On May 12, 2015, Plaintiff filed his Complaint in this cause seeking damages stemming from an assault and battery committed on his person by Defendant on or about February 9, 2015

2. On July 2, 2015, Defendant filed his answer

3. On February 21, 2017, a bench trial occurred at which Defendant failed to attend in-person or through counsel

The only testimony presented at trial was Plaintiff’s, which was uncontroverted by other admissible evidence

4. On February 23, 2017, the Court rendered a final judgment in favor of Defendant

Discussion

5. Plaintiff contends that pursuant to Rule 55, Ala.R.Civ.P., because Defendant failed to appear at trial in-person or through counsel, he was entitled to a default judgment against Defendant on the assault and battery claim

See Seventh Wonder v. Southbound Records, Inc.,

364 So.2d 1173 (Ala. 1978)

(A party who fails to appear on the day the case is set for trial is in default);

and

Cassioppi v. Damico,

536 So.2d 938 (Ala. 1988)

(A judgment entered after one party fails to appear at trial is treated as a default judgment)

6. Plaintiff further contends that because his trial testimony was uncontroverted by other

1
_________________________________________________
admissible evidence, he was entitled to an award of damages stemming from the assault and battery

7. Plaintiff contends the Court erred in not granting him a judgment, and in not awarding appropriate damages, on the assault and battery claim

WHEREFORE Plaintiff requests that the Court alter or amend the judgment previously entered in this cause, and grant him a default judgment against Defendant, and award him damages in the sum of $30,000.00, on the assault and battery claim, for the reasons set forth herein

Jerry M. Blevins
(BLE003)
Attorney for Plaintiff

OF COUNSEL:
Law Office of Jerry M. Blevins
Carr, Riggs and Ingram Building
7550 Halcyon Summit Drive, Suite 100
Montgomery, Alabama 36117
(334) 262-7600 (Voice)
(334) 262-7644 (Fax)
E-Mail: ATTYJMBlev@LawOfficeOfJerryMBlevins.com

2

Filing
_________________________________________________
DOCUMENT 51

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing upon:

Mr. Brian Ralph Beasley
368 Hanchey Field Road
Daleville, Alabama 36322

via electronic transmission and / or by depositing a copy of the same in the U.S. Mail, postage prepaid this 27th day of March, 2017

Jerry M. Blevins
_________________________________________________
Alabama Rules of Civil Procedure (ARCP) VII. JUDGMENT Rule 55.
………………………………………………..
(a) Entry
(b) Judgment
(1) By the Clerk

Committee Comments on 1973 Adoption

The rule eliminates the requirement of notice prior to entry of judgment by default when the default arises from failure to appear on the day the case is set for trial

Rule 55(a) authorizes the clerk to enter defaults upon the civil docket when the party fails to plead or otherwise defend
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_________________________________________________
Seventh Wonder v. Southbound Records, Inc.
364 So. 2d 1173
(Ala. 1978)
77-602
………………………………………………..
Alabama Supreme Court

December 1, 1978
——————————————————————
http://www.ecases.us/case/ala/c1102643/wonder-v-southbound-records-inc
——————————————————————
(A party who fails to appear on the day the case is set for trial is in default)
——————————————————————
https://www.courtlistener.com/opinion/1102643/wonder-v-southbound-records-inc/
——————————————————————
http://law.justia.com/cases/alabama/supreme-court/1978/364-so-2d-1173-1.html
_________________________________________________
Cassioppi v. Damico
536 So. 2d 938
(Ala. 1988)
87-965
………………………………………………..
Alabama Supreme Court

November 18, 1988
——————————————————————
https://www.courtlistener.com/opinion/1932665/cassioppi-v-damico/
——————————————————————
(A judgment entered after one party fails to appear at trial is treated as a default judgment)
——————————————————————
https://casetext.com/case/cassioppi-v-damico
_________________________________________________
Henry D. “Butch” Binford, Houston County Circuit Court, 20th Judicial Circuit Judge, Dothan, Alabama (since February 12 2008) Huntingdon College (@HuntingdonColl) University of Alabama School of Law (@UALawSchool) former Veteran Prosecutor, in the Assault and Battery Civil case: Plaintiff v. Brian Ralph Beasley, Defendant (of Daleville, Dale County, Alabama) WHO FAILED TO APPEAR on the DAY the CASE (38-CV-2015-900261.00) WAS SET FOR TRIAL (February 21 2017) on February 23, 2017, espoused a NEW LEGAL THEORY when he ENTERED JUDGMENT for the DEFENDANT CONTRARY to Alabama Rules of Civil Procedure (ARCP) VII. JUDGMENT Rule 55: The rule eliminates the requirement of notice prior to entry of JUDGMENT BY DEFAULT when the DEFAULT arises from FAILURE TO APPEAR on the day the case is set for trial
——————————————————————
http://wp.me/p5tuFO-1rB
_________________________________________________

Plaintiff’s First Set of Interrogatories and Request for Production to Defendant, Notice of Service of Discovery Documents, Filed August 19, 2016, Case No. SM-16-704, v. Billy Shaun McGhee, Defendant, In the Small Claims Court of Houston County, Alabama

Plaintiff's First Set of Interrogatories and Request for Production to Defendant, Notice of Service of Discovery Documents, Filed August 19, 2016, Case No. SM-16-704, v. Billy Shaun McGhee, Defendant, In the Small Claims Court of Houston County, Alabama

FILED AUG 19 2016

Carla Woodall, Clerk
Houston County, AL

IN THE SMALL CLAIMS COURT OF HOUSTON COUNTY, ALABAMA

Plaintiff v. BILLY SHAUN MCGHEE, DEFENDANT

Case No. SM-16-704

NOTICE OF SERVICE OF DISCOVERY DOCUMENTS

TO: Carla Woodall, Clerk of the Court
Houston County Courthouse
P.O. Drawer 6406
Dothan, AL 36302

Please take notice that the follow discovery documents have been filed on behalf of the Plaintiff:

(X) Request for Production

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing on the Defendant this 19th day of August, 2016, by United States Postal Service

Specific Service having been made to:

B. Shaun McGhee
Smith and McGhee, P.C.
211 West Main Street, Suite 1
Dothan, Alabama 36301

PLAINTIFF, Pro se

Plaintiff's First Set of Interrogatories to Defendant B. Shaun McGhee

PLAINTIFF’S FIRST SET OF INTERROGATORIES and REQUEST FOR PRODUCTION TO DEFENDANT

COMES NOW the Plaintiff, Pro se, and desiring the testimony of the Defendant, the following interrogatories to be answered separately and fully, in writing and under oath; and Request for Production to be provided by the Defendant in the manner and form provided by law. viz:

INSTRUCTIONS

Plaintiff requests that the Defendant answer the following Interrogatories separately and fully, in writing and under oath, and that the answers be signed by the person making them

First Interrogatories to Defendant
Page 1 of 9

B. Shaun McGhee

signed answers to the following Interrogatories shall be served on the Plaintiff within 30 days after service of the Interrogatories

If, after exercising due diligence, you are unable to respond fully and completely, so state and respond to the extent possible, under such circumstances, be specific as to the areas you are unable to answer fully and completely

You are not limited to your own personal knowledge, but you are required to furnish all information available to you or anyone acting on your behalf

If you have NO information as to the answer, you shall so state

If any question or portion thereof is found objectionable and is for that reason not answered, Defendant shall state the basis for each objection and shall sign each such objection

These Interrogatories are continuing in nature and as such shall be supplemented with additional information if it becomes necessary

DEFINITIONS

Words in CAPITALS in these Interrogatories are defined as follows:

a. REPRESENTATION includes the circumstances and events surrounding the alleged injury, or other occurrence or breach of contract between Friday, January 2, 2015 and Wednesday, February 25, 2015, giving rise to this action or proceeding

First Interrogatories to Defendant
Page 2 of 9

b. YOU OR ANYONE ACTING ON YOUR BEHALF includes you; Billy Shaun McGhee a/k/a (also known as) B. Shaun McGhee, Smith and McGhee, P.C., Smith and McGhee’s agents, employees, contractors, insurance companies, their agents, their employees, Smith and McGhee’s attorneys, accountants, investigators, and anyone else acting on your behalf, excluding your legal assistant, when specifically named

c. Person includes a natural person, firm, association, organization, partnership, business, trust, corporation, or public entity

d. WRITING includes the original or copy of handwriting, photostating, photographing, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, videos, sounds, and symbols, or combination of them

You may answer on this form (attach additional sheets if necessary)

Interrogatories

1. Did you have a meeting with the Plaintiff, Friday, January 2, 2015? (Yes / No)

2. Did your legal assistant meet with the Plaintiff, Friday, January 2, 2015? (Yes / No)

First Interrogatories to Defendant
Page 3 of 9

3. Did you create in writing a receipt on Friday, January 2, 2015, acknowledging a $300.00 (Three hundred and 00/100) Dollars “Ret. pmt. BSM – letter” (Retainer payment BSM – letter) from “client,” the Plaintiff? (Yes / No)

4. Did your legal assistant create in writing a receipt on Friday, January 2, 2015, acknowledging a $300.00 (Three hundred and 00/100) Dollars “Ret. pmt. BSM – letter” (Retainer payment BSM – letter) from “client,” the Plaintiff? (Yes / No)

5. Did you sign or initial the receipt under the “Smith and McGhee” writing? (Yes / No)

6. Did your legal assistant sign or initial the receipt under the “Smith and McGhee” writing? (Yes / No)

7. If you did not have a meeting with the Plaintiff on Friday, January 2, 2015, what is the reason for not doing so?

8. Did your legal assistant take notes in writing on Friday, January 2, 2015, regarding the “letter” that was to be put in writing for the Plaintiff? (Yes / No)

9. Did you take notes in writing on Friday, January 2, 2015, regarding the “letter” that was to be put in writing for the Plaintiff? (Yes / No)

First Interrogatories to Defendant
Page 4 of 9

10. Did you sign an agreement concerning the scope of representation per the Alabama Rules of Professional Conduct, Client-Lawyer Relationship Rule 1.2, Scope of Representation, regarding the Friday, January 2, 2015, “Ret. pmt. BSM – letter”? (Yes / No)

11. Did Plaintiff sign an agreement concerning the scope of representation per the Alabama Rules of Professional Conduct, Client-Lawyer Relationship Rule 1.2, Scope of Representation, regarding the Friday, January 2, 2015, “Ret. pmt. BSM – letter”? (Yes / No)

12. Did you provide Plaintiff with a writing of an agreement concerning the scope of representation per the Alabama Rules of Professional Conduct, Client-Lawyer Relationship Rule 1.2, Scope of Representation, regarding the Friday, January 2, 2015, “Ret. pmt. BSM – letter,” signed by you? (Yes / No)

13. Did Carruthers provide Plaintiff with a writing of an agreement concerning the scope of representation per the Alabama Rules of Professional Conduct, Client-Lawyer Relationship Rule 1.2, Scope of Representation, regarding the Friday, January 2, 2015, “Ret. pmt. BSM – letter,” signed by you? (Yes / No)

14. If the answer to 12 or 13, above, is “No,” what is the reason for not doing so❓

First Interrogatories to Defendant
Page 5 of 9

15. Are you a Partner of Smith and McGhee, P.C. who had “direct supervising authority” of your legal assistant, from Plaintiff’s first interaction with her regarding this engagement until Wednesday, February 25, 2015, per the Alabama Rules of Professional Conduct, Law Firms and Associations, Rule 5.3, Responsibilities Regarding Nonlawyer Assistants? (Yes / No)

16. Did you “consult” with the Plaintiff regarding this engagement per the Alabama Rules of Professional Conduct, Client-Lawyer Relationship, Rule 1.2, Scope of Representation, (a)? (Yes / No)

17. Did your legal assistant receive an e-mail from the Plaintiff dated Sunday, January 18, 2015, 5:44 PM, Subject: “client:”? (Yes / No)

18. If the answer to 16, above, is “No,” what is the reason for not doing so?

19. Did your legal assistant inform you of Plaintiff’s Sunday, January 18, 2015, 5:44 PM writing to her? (Yes / No)

20. If the answer to 19, above, is “Yes,” what date were you advised of this, and what time?

21. Did you read Plaintiff’s Sunday, January 18, 2015, 5:44 PM writing that was sent to your legal assistant? (Yes / No)

First Interrogatories to Defendant
Page 6 of 9

22. If the answer to 21, is “Yes,” what date did you read Plaintiff’s Sunday, January 18, 2015, 5:44 PM writing which he sent to your legal assistant, and what time?

23. Did you put in writing the January, “no day,” 2015, CERTIFIED MAIL, addressed to “DNH and GC? (Yes / No)

24. Why does the writing in 23, above, have “no day” of the week provided on it?

25. Did you address the writing in 23, above, based on information available from the Alabama Secretary of State; which does not list a business named “DNH and GC,” or some other source; and if some other source, which source?

26. Did your legal assistant advise the Plaintiff that he would be allowed to review any writing before it was sent to a person, regarding this engagement? (Yes / No)

27. Does Smith and McGhee, P.C., have a policy, in writing, that a client will be allowed to review a writing before it is sent to a person regarding the client’s engagement? (Yes / No)

First Interrogatories to Defendant
Page 7 of 9

28. Does Smith and McGhee, P.C., have an unwritten policy that a client will not be allowed to review a writing before it is sent to a person regarding the client’s engagement, because Smith and McGhee, P.C., is of the opinion that they do not commit any errors? (Yes / No)

29. Has your legal assistant ever advised a client that they would be allowed to review a writing before it is sent to a person regarding the client’s engagement? (Yes / No)

30. Did you “explain” to the Plaintiff per the Alabama Rules of Professional Conduct, Client-Lawyer Relationship, Rule 1.4, Communication, (b), that you would not be allowing him to review any writing before it was sent to a person regarding Plaintiff’s engagement; so that Plaintiff could not correct any possible errors? (Yes / No)

31. Did you keep the Plaintiff “reasonably informed” per the Alabama Rules of Professional Conduct, Client-Lawyer Relationship, Rule 1.4, (a)? (Yes / No)

32. If the answer to 31, above, is “Yes,” what dates/times did you do this?

First Interrogatories to Defendant
Page 8 of 9

33. Did your legal assistant meet with the Plaintiff between Friday, January 2, 2015, and Wednesday, February 25, 2015? (Yes / No)

34. If the answer to 33, above, is “Yes,” what dates and times did your legal assistant meet with Plaintiff?

First Interrogatories to Defendant
Page 9 of 9

FILED
AUG 19 2016

Carla Woodall
Carla Woodall, Clerk
Houston County, AL

REQUEST FOR PRODUCTION

Plaintiff requests that the Defendant produce the following documents or writings in a form that is legible to the Plaintiff and such shall be served on the Plaintiff within 30 days after service of this Request for Production

a. A copy of the Friday, January 2, 2015, receipt of $300.00 (Three hundred and 00/100) Dollars from the client for “Ret. pmt. BSM – letter”

b. A copy of any notes your legal assistant made in writing regarding this representation, and this representation only, regarding the “letter” mentioned in “a,” above

c. A copy of all e-mails and notes your legal assistant received from the Plaintiff regarding this representation, and this representation only, regarding the “letter” that was to be sent, mentioned in “a,” above

d. A copy of the January “no day” 2015, CERTIFIED MAIL, and its accompanying domestic return receipt, certified mail receipt, and any receipt from the United States Postal Service

Respectfully submitted this the 19th day of August, 2016

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing on the Defendant this 19th day of August, 2016, by United States Postal Service

Specific service having been made to:

B. Shaun McGhee
Smith and McGhee, P.C.
211 West Main Street, Suite 1
Dothan, Alabama 36301

PLAINTIFF, Pro se

First Request to Defendant
Page 1 of 1