S
Spinning
Guest
I know this is a long question, but here goes anyway. This is in Georgia so that makes it ever worse. Prison counselor where my husband is told us about this ruling, says he know it will not clear my husband's name but should get him out of prison so he can work on clearing his name from the outside. Husband excepted a plea bargain for probation instead of jail time by attorney telling him this was the only way to help himself. After accepting plea husband cracked up and violated probation by 1. Due to living circumstances stayed out one night because roommate had girlfriend and children over, husband was not allowed to be around children so he slept in his car and not int he apartment where it was noted he was suppose to be, given special conditions of no further violations or jail time. 2. 7 years later cracked up due to not being able to find work, etc. Slipped into deep depression and literally crawled in a hole for 8 months until he resurfaced and went for help. Judge in Thomson, GA sentenced him to 10 years for violation of probation and being around a minor child who did not live on premise where he was but actually lived in another county, grandchild of friend only 2 months old at time. Judge says he still has to serve time of 10 years. Even with the following being decided in Georgia Supreme court. SUPREME COURT OF GEORGIA
February 21, 2000 Calendar
NOTE. The following are summaries of appeals scheduled for oral argument before the Georgia Supreme Court. These summaries are intended to help you determine which arguments you want to attend. For more information, contact the public information officer at (404) 651-9385.
Monday, February 21, 2000
10 a.m. session
Dunlap v. City of Atlanta, S00A0269. Appeal from Fulton County.
Allen v. Dominy, S00A0215. Appeal from Bibb County.
2 p.m. session
Brown et al. v. Walton Electric Membership Corp., S99G1407. Appeal from Oconee County.
Glover v. The State, S99G1677. Appeal from Cobb County.
Monday, February 21, 2000
10 a.m. session
Dunlap v. City of Atlanta, No. S00A0269. Appeal from the Superior Court of Fulton County.
The issues in this appeal are whether the Supreme Court has jurisdiction; whether the City's method of set off under the 1978 Pension Act is unconstitutional; whether the trial court erred in denying certification to the class of persons allegedly harmed by the 1978 Pension Act.
Joe Dunlap, worked for the Public Works Department of the City of Atlanta as a laborer and then truck driver from 1967 until 1985. Dunlap was injured on April 1, 1985 while on the job. He retired on October 20, 1988, and was awarded in-line-of-duty disability pension benefits of $1,110.66 per month. Dunlap was also awarded $585.00 per month in workers' compensation benefits in January of 1990. The worker's compensation award held that Dunlap's worker's compensation attorney was entitled to a portion of the award for four hundred (400) weeks.
The City of Atlanta relied on the 1978 Pension Act to reduce Dunlap's pension benefits. The 1978 Pension Act provides that total pension benefits and Workmens' Compensation benefits shall not exceed 100% of an employee's salary at the time of his retirement. The City deducted Dunlap's benefits without adjusting for the attorney's fees that were paid directly to the attorney. Dunlap never appealed to the City pension Board of Trustees regarding the reduction. The 400-week period during which Dunlap's attorney received part of his worker's compensation benefits ended on September 5, 1997.
Dunlap filed for declaratory judgment (a court statement declaring the rights and responsibilities of the parties before a final decision is made.) Dunlap challenged the constitutionality of the manner in which the City offsets disability pension benefits under the 1978 Pension Act, and sought class certification. The trial court granted the City's motion for summary judgment. The court found that declaratory judgment was not appropriate because Dunlap's worker's compensation attorney no longer receives his fees. The court held that the method of set off was constitutional because Dunlap never had a vested right to attorney's fees. The trial judge also denied class certification.
Dunlap claims that the Supreme Court has jurisdiction because Dunlap challenged the constitutionality of the City ordinance at the trial level and the trial court specifically ruled on the issue holding that "the 1978 Pension Act is constitutional and does not violate due process."
The City of Atlanta contends that appeals from a superior court's review of an administrative agency decision must be made within thirty days after entry of the superior court order and Dunlap failed to follow the appeal procedures.
Dunlap asserts that City's method of set off under the 1978 Pension Act is unconstitutional and that he is entitled to back-pay or a refund. He claims that the trial court erred in finding that a declaratory judgment was inappropriate because the "actual controversy" is that no court has determined the constitutionality of the City's method of set off or decided whether Dunlap might be entitled to back-pay or refund. He argues that the end of the 400-week payments simply determines the time period in which the City is liable.
The City of Atlanta counters that the trial court properly determined that a declaratory judgment action was not appropriate because no future conduct is contemplated because the 400-week period in which Dunlap's attorney was to be paid part of his benefits has ended. The City points out that Dunlap failed to pursue his administrative remedy before the City Board of Trustees.
Dunlap asserts that he could not challenge the set off rule before his property was taken from him and that he was never afforded due process to challenge the rule. He claims that the law treats pension recipients unequally under the law. He claims that the court focused on whether he had a vested interest in attorney's fees when the focus should have been on whether he had a vested right to in his workers' compensation benefits.
The City of Atlanta asserts that the 1978 Pension Act is constitutional and that Dunlap's fee contract with his attorney does not entitle him to a lesser set off, absent an explicit exception in the pension act. The City claims that Dunlap has no vested right in the attorney fees because he had no reasonable expectation that the City pension plan would reimburse him for his attorney's fees.
The court did not certify the class because it lacked numerosity (there are not enough persons harmed.) Dunlap asserts that the court failed to certify the class because the appropriate number of persons were not included.
The City claims that Dunlap failed to file a transcript.
--------------------------------------------------------------------------------
Allen v. Dominy, No. S00A0215. Appeal from the Superior Court of Bibb County
The issue in this case is whether an agent and fiduciary who took unconditional title to realty committed a fraud that prevents her from retaining title?
Edison Dominy was survived by his 83-year old widow, Geraldine Dominy, and by his sister, Bertie Allen. During his final illness, Mr. Dominy gave a general power of attorney to his sister. Mrs. Dominy also granted a limited power of attorney to her. In conversations with her brother, Ms. Allen agreed that she would take title to his real property in order to "protect" it and to assure that his wife would benefit therefrom. However, Ms. Allen instructed her attorney to draw up a deed conveying unencumbered title to her with no express provision for Mrs. Dominy's interest. During her brother's hospitalization, Ms. Allen obtained his signature on the deed and on a will, and did so without Mrs. Dominy's knowledge. Ms. Allen then held the deed for five months, and recorded it only after Mr. Dominy's death. Mr. Dominy's will named his sister as his executrix. The will also contained the following provision:
I give, devise and bequeath all of my real property to my sister ...
February 21, 2000 Calendar
NOTE. The following are summaries of appeals scheduled for oral argument before the Georgia Supreme Court. These summaries are intended to help you determine which arguments you want to attend. For more information, contact the public information officer at (404) 651-9385.
Monday, February 21, 2000
10 a.m. session
Dunlap v. City of Atlanta, S00A0269. Appeal from Fulton County.
Allen v. Dominy, S00A0215. Appeal from Bibb County.
2 p.m. session
Brown et al. v. Walton Electric Membership Corp., S99G1407. Appeal from Oconee County.
Glover v. The State, S99G1677. Appeal from Cobb County.
Monday, February 21, 2000
10 a.m. session
Dunlap v. City of Atlanta, No. S00A0269. Appeal from the Superior Court of Fulton County.
The issues in this appeal are whether the Supreme Court has jurisdiction; whether the City's method of set off under the 1978 Pension Act is unconstitutional; whether the trial court erred in denying certification to the class of persons allegedly harmed by the 1978 Pension Act.
Joe Dunlap, worked for the Public Works Department of the City of Atlanta as a laborer and then truck driver from 1967 until 1985. Dunlap was injured on April 1, 1985 while on the job. He retired on October 20, 1988, and was awarded in-line-of-duty disability pension benefits of $1,110.66 per month. Dunlap was also awarded $585.00 per month in workers' compensation benefits in January of 1990. The worker's compensation award held that Dunlap's worker's compensation attorney was entitled to a portion of the award for four hundred (400) weeks.
The City of Atlanta relied on the 1978 Pension Act to reduce Dunlap's pension benefits. The 1978 Pension Act provides that total pension benefits and Workmens' Compensation benefits shall not exceed 100% of an employee's salary at the time of his retirement. The City deducted Dunlap's benefits without adjusting for the attorney's fees that were paid directly to the attorney. Dunlap never appealed to the City pension Board of Trustees regarding the reduction. The 400-week period during which Dunlap's attorney received part of his worker's compensation benefits ended on September 5, 1997.
Dunlap filed for declaratory judgment (a court statement declaring the rights and responsibilities of the parties before a final decision is made.) Dunlap challenged the constitutionality of the manner in which the City offsets disability pension benefits under the 1978 Pension Act, and sought class certification. The trial court granted the City's motion for summary judgment. The court found that declaratory judgment was not appropriate because Dunlap's worker's compensation attorney no longer receives his fees. The court held that the method of set off was constitutional because Dunlap never had a vested right to attorney's fees. The trial judge also denied class certification.
Dunlap claims that the Supreme Court has jurisdiction because Dunlap challenged the constitutionality of the City ordinance at the trial level and the trial court specifically ruled on the issue holding that "the 1978 Pension Act is constitutional and does not violate due process."
The City of Atlanta contends that appeals from a superior court's review of an administrative agency decision must be made within thirty days after entry of the superior court order and Dunlap failed to follow the appeal procedures.
Dunlap asserts that City's method of set off under the 1978 Pension Act is unconstitutional and that he is entitled to back-pay or a refund. He claims that the trial court erred in finding that a declaratory judgment was inappropriate because the "actual controversy" is that no court has determined the constitutionality of the City's method of set off or decided whether Dunlap might be entitled to back-pay or refund. He argues that the end of the 400-week payments simply determines the time period in which the City is liable.
The City of Atlanta counters that the trial court properly determined that a declaratory judgment action was not appropriate because no future conduct is contemplated because the 400-week period in which Dunlap's attorney was to be paid part of his benefits has ended. The City points out that Dunlap failed to pursue his administrative remedy before the City Board of Trustees.
Dunlap asserts that he could not challenge the set off rule before his property was taken from him and that he was never afforded due process to challenge the rule. He claims that the law treats pension recipients unequally under the law. He claims that the court focused on whether he had a vested interest in attorney's fees when the focus should have been on whether he had a vested right to in his workers' compensation benefits.
The City of Atlanta asserts that the 1978 Pension Act is constitutional and that Dunlap's fee contract with his attorney does not entitle him to a lesser set off, absent an explicit exception in the pension act. The City claims that Dunlap has no vested right in the attorney fees because he had no reasonable expectation that the City pension plan would reimburse him for his attorney's fees.
The court did not certify the class because it lacked numerosity (there are not enough persons harmed.) Dunlap asserts that the court failed to certify the class because the appropriate number of persons were not included.
The City claims that Dunlap failed to file a transcript.
--------------------------------------------------------------------------------
Allen v. Dominy, No. S00A0215. Appeal from the Superior Court of Bibb County
The issue in this case is whether an agent and fiduciary who took unconditional title to realty committed a fraud that prevents her from retaining title?
Edison Dominy was survived by his 83-year old widow, Geraldine Dominy, and by his sister, Bertie Allen. During his final illness, Mr. Dominy gave a general power of attorney to his sister. Mrs. Dominy also granted a limited power of attorney to her. In conversations with her brother, Ms. Allen agreed that she would take title to his real property in order to "protect" it and to assure that his wife would benefit therefrom. However, Ms. Allen instructed her attorney to draw up a deed conveying unencumbered title to her with no express provision for Mrs. Dominy's interest. During her brother's hospitalization, Ms. Allen obtained his signature on the deed and on a will, and did so without Mrs. Dominy's knowledge. Ms. Allen then held the deed for five months, and recorded it only after Mr. Dominy's death. Mr. Dominy's will named his sister as his executrix. The will also contained the following provision:
I give, devise and bequeath all of my real property to my sister ...