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COMES NOW, Petitioner ABC and pursuant to O.C.G.A. §15-10-43(g) files

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  as a new action, in which he Moves to have default judgment

against him set aside. The Petitioner shows with specificity the grounds for which

the Court may Grant his Motion.

 




ABC is registered agent for, and owner of HIJ Services, Inc., a Georgia

Corporation. Ã




ABC is not the proper party defendant to case No.: 09-M-31900:

³4F. Corporations. A corporation is a legal entity separate and distinct

from its owners. The proper party is the legal name of the corporation.
For example "John's Garage, Inc. You can get information on
corporations from the Georgia Secretary of State «You should
determine the correct legal name of the corporation, the county «, and
the name and address of the Registered Agent.´
 *http://www.gwinnettcourts.com/#courtsjudges_magistrate_faqs/
Also see Ã




 


 


Respondent entered ³The Neat Game´ competition, featured in ³Makin It

Right´, where he entered into a legal agreement with ³HIJ Services Inc´1

The complaint against ABC, filed by DEF failed to inform the Court

(misrepresented) that the matter involved a Corporation (see Ã



 ). One

can easily see why he did not attach a copy of the agreement, or any other evidence

to support the monetary claim.

The Terms of Use/Contract/Agreement is attached hereto as Ã



  and

clearly states the following:

³ACCEPTANCE OF CONTRACT TERMS

The following terms« a legal agreement (³Agreement´) between you
and HIJ«By participating«you agree that you have read, understood,
and agree to be bound by these terms and comply«IF YOU DO NOT
AGREE TO THESE TERMS, DO NOT USE THIS SITE«´ 2
³Prizes, Winner Selection and Notification
«The Neat Game reserves the right to provide a substitute Prize«´

1
Mr. ABC is registered agent for, and owner of HIJ Services, Inc. a Georgia
Corporation. Mr. ABC is not the proper party defendant to case No.: 09-M-
31900: ³4F. Corporations A corporation is a legal entity separate and distinct
from its owners. The proper party is the legal name of the corporation. For
example "John's Garage, Inc. You can get information on corporations from the
Georgia Secretary of State «You should determine the correct legal name of the
corporation, the county «, and the name and address of the Registered Agent.´
*http://www.gwinnettcourts.com/#courtsjudges_magistrate_faqs/
2
First page, first paragraph

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 ³General Conditions
By entering the competition, entrants accept and agree« which shall be
final«´
³Obligations of the Grand Prize Winner
«(C) «Winners assume sole liability for injuries, including personal
injuries«caused or claimed to be caused by participating in this
Competition,«loss«The Heat Game has the right to cancel, terminate,
or modify this Competition«or other conditions«´
³By entering into this Competition, each entrant«agrees to release and
hold The Neat Game and its respective parents, subsidiaries, and
affiliates and their employees, officers, directors, shareholders, agents,
representatives and advertising, promotion, and fulfillment agencies, and
legal advisors, harmless from any and all losses, damages, rights, claims
and actions of any kind in connection with the Competition, or resulting
from acceptance, possession, or use of«´
³The Meat Game may at any time revise these Terms of Use by making
amendments to the terms«By participating« you agree to be bound by
any such revisions«periodically visit our website to determine the then
current Terms of Use to which you are bound.´
³This Agreement shall be construed«the parties irrevocably consent to
bring any action to enforce this Agreement in the United States Federal
and Georgia State Court located in DeKalb County«waive any defenses
to jurisdiction or venue to lawsuits«All rights not expressly granted
herein are expressly reserved«The heading in this Agreement are for
purposes of reference only. Last updated: May 2007.´

The Respondent agreed to all terms, conditions, and responsibilities set forth in

the Competition Terms of Use and Rules, see Ã



  showing the

Respondent¶s name and on the forms, and the ³I agree´ box which has a check

mark in it.

The Terms clearly stated that a legal agreement (³Agreement´) between you

and HIJ«By participating«you agree that you have read, understood, and agree

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to be bound by these terms and comply«IF YOU DO NOT AGREE TO THESE

TERMS, DO NOT USE THIS SITE«´ There is no excuse for failing to name the

corporation as the defendant in Respondent¶s case.

The agreement clearly stated that the prize could be substituted. Respondent

and the Corporation were negotiating a substitute prize when Respondent suddenly

filed suit against Mr. ABC in Gwinnett County Magistrate Court. Mr. DEF

violated almost every term of the agreement, obviously the reason Mr. DEF

refused to have the agreement attached to his Statement of Claim.

Respondent filed a case in Gwinnett Magistrate Court titled: Stephen D. DEF

v. ABC and 123, Civil Action No.: 0X-M-XXXX on or around October 23, 2009.

At some point, according to the Docket Report, the case closed, then reopened on

or around December 02, 2009. Apparently the case was reopened when

Respondent Amended the complaint by removing/dismissing 123 as a defendant.

The Court then apparently found ABC in default, a Default Judgment hearing

for damages was held on February 11, 2010. Although Mr. ABC attended the

hearing, the Court refused to allow Mr. ABC to present any evidence, the

Agreement, or other documentation, because he was in Default.

Mr. ABC was not allowed to show that he was Registered Agent and not the

proper party defendant; that a corporation would have had to be named as

defendant for there to be a proper suit.

-4-
 The Court awarded Mr. DEF $5,000.00, plus $500.00. The Docket Report

reflects that same day, February 11, 2010, Mr. DEF requested a fifa, and post

judgment interrogatories to Mr. ABC.

  
 

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Although the Supreme Court agrees with the Court of Appeals that

³proceedings in magistrate court are not directly subject to the Civil Practice Act

by the express language to that effect in OCGA § 15-10-42´; ³some procedural

rules, other than those limited matters set forth in OCGA § 15-10-40 et seq., «

must apply to magistrate court proceedings´ =   = 




  Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga.

617) (1989).

In the   case, Howe named Roberts as a defendant rather than the

corporation. The Magistrate Court dismissed Roberts, the individual, due to being

an improper party defendant, which was affirmed by the State Court, Court of

Appeals of Georgia and The Supreme Court of Georgia. In the case at bar, the

Magistrate Court has obviously decided that neither the Rules of Magistrate Court,

nor the Civil Practice Act pertained, and the Court ignored that the case named an

individual rather than the corporation as defendant.

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The facts remain clear, the trial Court allowed an improper party defendant to

be sued. The Court appears to have issued a fifa, and post judgment interrogatories

to be levied upon the Petitioner. For these reasons alone, Petitioner addresses the

following arguments:

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It has been long held that when suing a corporation, the proper party to the suit

is not the individual that owns the corporation or the registered agent, but the

corporation.

The ³cardinal rule of corporate law is that a corporation possesses a legal

existence separate and apart from that of its officers and shareholders, the mere

operation of corporate business does not render one personally liable for corporate

acts. Sole ownership of a corporation by one person or another corporation is not a

factor´  

, 246 Ga.App. 324, 246 Ga.App. 324, 540 S.E.2d 250,

540 S.E.2d 250 (Ga.App. 10/06/2000).

Further, as was held in 
  , 441 F.3d 931 (11th Cir. 03/06/2006)

³Under Georgia corporate law,« individual shareholders and officers of a

-6-
corporation are "shielded by the corporate veil, in the absence of fraud or abuse of

the corporate form." Y  , 210 Ga. App. 552, 554, 436 S.E.2d 746, 749

(1993).

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The Terms of Use and Contract Agreement entered into between the

Corporation and Respondent specified ³a legal agreement (³Agreement´) between

you and HIJ´; ³«The Meat Game reserves the right to provide a substitute

Prize«´; ³By entering the competition, entrants accept and agree« which shall

be final«´ Respondent failed to state the facts of the contract, and alleging that

the amount of prize money was contractually agreed upon.

Respondent further misrepresented the fact that a corporation was involved,

and/or that there were ongoing negotiations about substitution of the prize.

Apparently Respondent failed to inform the Court that the Agreement also

stipulated ³the parties irrevocably consent to bring any action to enforce this

Agreement in the United States Federal and Georgia State Court located in DeKalb

County´.

Furthermore, a Ruling against Petitioner, an improper party to the suit, makes

the Judgment not merely voidable, but it is void; "a judgment is void on its face

when there is a non-amendable defect appearing on the face of the record or

pleadings which is not cured by verdict or judgment and the pleadings

-7-
affirmatively show that no legal claim in fact existed." Id. at 444. =   

 ., 233 Ga. 439, 445 (211 SE2d 733) (1975); See also  

 

 ., 146 Ga. App. 594 (1 & 2) (247 SE2d 133) (1978) (cert. den.).

-%'"#-%'
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At the hearing for damages, the Court refused to review the contract, or

consider anything that Petitioner would have said. Instead, the Court ruled against

Petitioner without allowing him the opportunity to provide evidence.

It was held that a judgment is void where ³the magistrate awarded « the full

amount of his claim even though his claim was unliquidated and he presented no

evidence«. because no evidence and no proof of damages were presented«The

magistrate also admitted that the judgment had no legal basis and was void, «´

 !  (449 S.E.2d 861) (215 Ga. App.) (1994).


c
 
 

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Petitioner in this matter has made argument showing that Mr. DEF sued the

individual rather than the corporation. Mr. ABC believes that the act of attempting

to sue him personally was an act of fraud and fraud upon the court.

Further Mr. ABC has shown this Honorable Court why the Judgment against

him should be set aside and that it would not be an abuse of discretion to set aside

the judgment.

Petitioner prays that this Court will consider his Statement of claim/Motion

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to Set Aside Judgment and find in his favor in the interest of justice.

Respectfully submitted this 15th day of March, 2010

By: ________________________
Mr. ABC, Pro Se
4567 Ha Ha Ha Lane.
Hootie, GA 30000
(555) 555-5555

STATE OF GEORGIA
COUNTY OF _________

ABC, being first duly sworn on oath, says the foregoing is true and correct to his

knowledge and belief.

______________________
ABC

Sworn and subscribed before me

this ____ day of ________, 2010

_______________________
Notary public

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