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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
BUU HO AND LIEN NGUYEN )
)
Plaintiffs, )
vs. )
) CASE NO. 18-CV-1157-2
GWINNETT COUNTY, GEORGIA et al )
)
Defendants. )
PLAINTIFFS’ CROSS-MOTION TO VACATE AND SET ASIDE 12/14/22 ORDER GRANTING MOTION
OF GWINNETT FILED 11/14/22 AND FOR DENIAL OF MOTION OF DEKALB FILED 11/17/22.
Plaintiffs moves to reconsider the Order entered 12/17/22 granting the Motion for Reconsiderations of
Gwinnett and opposes that of DeKalb filed 11/17/22. Gwinnett and DeKalb seek to vacate the Orders entered on
11/07/22 granting Plaintiff’s Motions filed 11/21/21 and 09/26/22, to which Gwinnett and the other Defendants
failed to respond: a crucial fact omitted in them with other issues requiring this relief. Plaintiffs see no point in
burdening the Court with briefing aside from this legal Cross-Motion. They incorporate their below documents.
CURRENT BRIEFING DUE ON 02/24/23
1. Plaintiffs note the Court issued an email requesting “letter briefs” be filed today, attached as Ex 1.
That email is not filed in the record or signed by the Court, contrary to O.C.G.A. § 15-6-21 (c) which states:
“When he or she has so decided, it shall be the duty of the judge to file his or her decision with
the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the
losing party of his or her decision.” See Shirley v. Abshire, 655 S.E. 2d.694 (Ga. App. 2007)
[“Until an order is signed by the judge and filed, it is ineffective for any purpose.”]
2. The above email is also inaccurate as all of Plaintiff’s pending motions remain at issue since at
least April 2020, none of which were adjudicated by this Court by an order as required above.
3. Defendants filed “Letter Briefs” which fail to cite any authority as provided by U.S.C.R. 6.1 and
O.C.G.A. 9-11-7 (b) which are likewise invalid. Plaintiffs also rely upon their prior scheduling order that was
entered which remains perfectly valid as shown here, requiring no other order.
STATEMENT OF FACTS AND CITATIONS OF AUTHORITY
4. On 01/05/18, Plaintiffs filed this action against Defendants DeKalb, Gwinnett and the Nguyens,
raising civil rights claims and alleging wrongful destruction or withholding of Open Records relating to the claims.
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Gwinnett’s Failure to Timely Respond to the Spoliation Motion.
5. On 08/26/21, Plaintiffs filed their Cross Motion for Spoliation addressing the wrongful destruction
or withholding of the Open Records, to which Gwinnett failed to file a timely response. U.S.C.R. 6.2 and O.C.G.A.
9-11-6. Gwinnett never addressed the facts and arguments in the Cross Motion in its untimely Response of
11/22/12 which Gwinnett did not obtain leave of this Court to file.
6. Plaintiff’s Motion for Spoliation is supported by an affidavit of their investigator who sought to
obtain the records. Gwinnett provided no evidence in its untimely and skeletal ‘Response’ to this Motion.
7. Plaintiffs raised spoliation in their Motions for Extension since May 2020 [Cross-Motion pp.
2]. [See Motions for Extensions, filed 4/24/20, p. 2, filed 5/13/20, p. 4, filed 6/12/20, p. 4] See also Third, Fourth
and Fifth Amended Motions for Extension filed 07/14/20, 08/17/20 and 08/21/20, p. 3-4] See also Motion filed
12/27/21, pp. 8, 17] which argue: the “Settlement provides a basis for relief to Plaintiffs, averting alleged statute of
limitations defenses raised by Gwinnett….based upon spoliation. “[D]estruction or failure to preserve evidence that
is necessary to contemplated or pending litigation.” Phillips v. Harmon, 297 Ga. 386, 393 (2015)] Gwinnett never
addressed this issue in its response to those motions.
Defendants fail to Respond to the Cross Motion to Reopen Discovery: for over ONE YEAR.
8. On 11/21/21, Plaintiffs filed their Cross-Motion to Reopen Discovery and for Related Relief, in
response to Gwinnett’s Motion for Case Management Order [CMO Motion], in which the other Defendants joined,
raising 5 baseless arguments. Plaintiffs raised many issues with the CMO Motion, requested the Court rule on their
pending motions, objected to an order restricting amendment of the complaint before a case management order per
O.C.G.A. § 9-11-16, objected to entry of a pretrial or case management order without a conference, objected to
unequal treatment of parties on amendment of pleadings, requested discovery be reopened under O.C.G.A. § 9-11-
12 (j) and a case management conference.
9. Defendants failed to respond to Plaintiff’s 2021 Motion, whose counsel was served with it, but
did not even bother to open its service envelopes. See U.S.C.R. 6.2. Their current arguments ignore this fact.
Defendants ignore the Seventh Amended Complaint.
10. On 05/24/22, Plaintiffs filed their Seventh Amended Complaint prior to entry of a pretrial order
The Orders of 09/01/22: No Candor to the Tribunal or Disclosure of Adverse Authority by Gwinnett.
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11. On 09/01/22, the Court entered two orders, denying Plaintiff’s prior motion for joinder, denying the
motions to dismiss of the Defendants and entering a scheduling order. The Court did not address the Seventh
Amended Complaint. Defense counsel remained silent about this omission and other issues with the Orders.
Defendants fail to respond to the Motion to Clarify
[The third Plaintiff’s motion to which they failed to respond].
12. On 09/26/22, Plaintiffs filed their Motion to Clarify and correct the 09/01/22 Orders, which
cited O.C.G.A. §§ 9-11-60, 15-1-3 and 9-2-14 and five detailed arguments in support of the relief sought.
13. None of the Defendants responded to the Motion to Clarify and Correct. See U.S.C.R. 6.2
14. Plaintiff’s counsel advised the Court of the lack of response by the Defendant as shown below:
From: Paul Wersant pwersant@gmail.com Date: Mon, Sep 26, 2022 at 2:02 PM
Subject: Re: 18CV1157 -- Buu Ho and Lien Nguyen v. Gwinnett County et al - Motion to Correct
and Clarify Scheduling Order and related documents
To: Beth Bedingfield
Cc: Simmons, Terri R. , Dobras, Rebecca J.
RJDobras@dekalbcountyga.gov>, Angela Couch , Williams,
Tuwanda , tlburkhalter@dekalbcountyga.gov
, Crawford, Omari J. ,
Duane L. Cochenour , Abe C. Varner
, mike@pnwlaw.com , P W
, Paul Wersant
Ms. Simmons,
Attached, please find the following documents filed today: Plaintiffs' Motion to Correct and Clarify
filed 9/26/22, with proposed orders in PDF and MS Word. This Motion to Correct addresses the
Court's Scheduling Order filed 09/01/22. This Motion to Correct also addresses Plaintiffs' Seventh
Amended Complaint filed 05/9/22 and Plaintiffs' Cross Motion to Reopen Discovery filed 11/15/21
No response has been filed to the Seventh Amended Complaint or the Cross Motion.
Please let me know if you need copies of the Seventh Amended Complaint, Cross Motion and the
Scheduling Order as well.
Sincerely,
Paul Wersant Attorney for Plaintiffs
678-894-5876 pwersant@gmail.com
15. None of the Defendants even responded to the above email and remained silent which is an
admission of its contents under the Georgia business letter law.
16. On 11/07/22, the Court granted Plaintiffs Motion to Reopen Discovery, its Motion for Clarification
and its Motion for Spoliation by both of its Orders entered that day.
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The Baseless Improper Motions for “Reconsideration” by Gwinnett and Dekalb.
17. On 11/14/22, Gwinnett filed its Motion for Reconsideration of the 11/07/22 Orders. The Motion
cites no basis for “reconsideration” under O.C.G.A. 9-11-60 and other applicable authority as required by law.
18. First, Gwinnett’s Motion omits the central fact: Defendants never responded to either of Plaintiffs’
motions filed 11/21/21 or 09/26/22, as required by law [See USCR 6.2]. This is a serious omission by this motion.
19. Second, Gwinnett’s Motion argues the Court should not have ordered an extended discovery period
under O.C.G.A. 9-11-12 (j), beginning from 03/24/20, when the first motion to dismiss was filed, as the discovery
period restarted 90 days after each motion [to dismiss] was filed by Gwinnett [Gwinnett Motion pp. 5] This
argument has no basis as O.C.G.A. 9-11-12 (j), refers just to an initial motion to dismiss and no others.
20. Third, Gwinnett argues the Court should not have granted Plaintiffs’ Spoliation Motion which
allegedly sought “summary judgment” on Plaintiff’s Open Records Claims [Gwinnett Motion, p. 7] This argument
is baseless as Plaintiffs sought sanctions for Gwinnett’s misconduct in failing to provide Open Records for they
paid as part of the settlement of the 2016 Open Records Case which substantially delayed this action from its filing
in 2018. This ruling is consistent with the allegations of the Seventh Amended Complaint, which seeks the same
relief on this issue as the prior Sixth Amended Complaint, contrary to Gwinnett’s Motion which misrepresents that
fact [Gwinnett Motion, pp. 8]. And again: Gwinnett failed to respond timely to this Motion which it conceded.
21. Fourth, Gwinnett argues that the Court improperly granted Plaintiffs Motions “outside its term of
court [Gwinnett Motion, pp. 8] which is again a baseless argument as the Court could consider those motions at any
time which the Defendants failed to oppose.
22. Fifth, Gwinnett’s Motion was filed on 11/11/22 and served on Plaintiffs’ counsel on 11/14/22,
which the Court prematurely granted on 12/14/22, prior to the 33-day deadline mandated under U.S.C.R. 6.2 and
O.C.G.A. 9-11-6 (b), precluding Plaintiff’s response, without addressing the above issues and allowing Gwinnett
and Dekalb not to answer Plaintiffs Motions for a much longer period of period.
23. The Order granting Gwinnett’s motion should vacated as detailed below.
24. The equally baseless Motion of DeKalb dated 11/16/22 should be denied. It parrots that of
Gwinnett and shares its basic flaws: no legal basis and ignores the fact that DeKalb did not respond to Plaintiffs’
Motions and does not get a second chance to reargue them.
4
MEMORANDUM
Per O.C.G.A. § 24-2-201 and applicable law, Plaintiffs requests the Court take notice of matters of record.
Several issues exist with regard to the Motions of Gwinnett and Dekalb, requiring their denial.
I. Gwinnett and DeKalb Failed to Respond to Plaintiffs Motions, which they conceded.
Second, Gwinnett and DeKalb never responded to Plaintiff’s September 2022 or November 2021 motions
and Gwinnett offered no substantive response or evidence in opposition to either of them as shown above including
to the Motion for Spoliation required by law. Even now, they offer no justification for ignoring Plaintiff’s Motions.
The Supreme Court upheld summary judgment and a motion to strike a jury demand for a defendant after a plaintiff
failed to respond to both defense motions per U.S.C.R. 6.2: Wimberly v. Karp, 185 Ga. App. 571 (1988) stating:
We likewise find no error in the trial court's grant of summary judgment to Southern and Curran.
Appellant's February 11 motion contained no response to Southern and Curran's motion. The
response filed on March 4 was in violation of U.S.C.R. 6.2, 253 Ga. 801, 816-817, because it was
not filed within 30 days after service of the motion for summary judgment, and the motion for
additional time filed with the response, in addition to violating U.S.C.R. 6.2, contained no
indication the failure to file a response was the result of excusable neglect. O.C.G.A. 9-11-6 (b)
(2). By failing to respond timely to the motion for summary judgment, appellant "gave up his
opportunity to be heard," Spikes v. Citizens State Bank, 179 Ga. App. 479, 481 (1) (347 SE2d
310) (1986), and thus the trial court correctly found no questions of fact existed to refute the
evidence submitted by Southern and Curran in support of their motion for summary judgment.
“Since appellant failed to comply in any way with the Rules under which he was supposed to
operate, he cannot be heard to complain that the wheels of justice have rolled over him.” Id.
In Spikes, the Supreme Court again affirmed summary judgment for a defendant after the plaintiff failed to
respond to the defense motion for summary judgment which the plaintiff “offered” to answer holding:
“Our review of the record reveals that appellant's failure to comply with Rules 6.2 and 6.3 resulted
in his loss of opportunity to persuade the trial court. It is undisputed that appellant did not file a
response pursuant to Rule 6.2. Neither did he file a written request for oral hearing pursuant to Rule
6.3. The trial court entered summary judgment in appellee's favor on August 23, more than two
months after appellee's motion was filed. Under the circumstances, appellant had sufficient notice
that judgment was imminent and gave up his opportunity to be heard.” See Premium Distrib. Co.,
supra.
In fact, all defense counsel were placed on notice of the pending Motions to which no response was filed
due to the above 11/01/22 email of Plaintiff’s counsel to which they failed to respond.
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II. The Court Could Grant Plaintiff’s Motions at Any Time.
Third, the arguments of Gwinnett’s argument that the Court lacked authority to rule on Plaintiffs’ motion
“outside the term of the Court’ is baseless, as Plaintiff’s Motion sought relief from these interlocutory orders, which
were not final and which the Court could address at any time, prior to final judgment, as found in a similar case:
“Paden bases this argument on the fact that the motion for reconsideration was not filed or ruled on
until after the term of court at which the order denying Rudd's motion for summary judgment had
been entered. Paden relies on the general rule that “a court cannot set aside or alter its final
judgment after the expiration of the term at which it was entered, unless the proceeding for that
purpose was begun during the term.” Paden's reliance on this rule is misplaced, as the order
denying Rudd's motion for summary judgment was not a final judgment. Rather, it was an
interlocutory order that remained within the breast of the court until entry of final judgment. Rudd.
V. Paden, 630 S.E. 2d. 648 (2006)
Fourth, furthermore, Gwinnett’s counsel is notably silent on her failure to advise the Court of the existence
of the Seventh Amended Complaint or the other issues with the Orders, contrary to her duty of candor to this
tribunal and her duty to disclose adverse authority as did other defense counsel, as required by the Rules of
Professional Conduct. See Ga. R. Prof. Conduct 3.3 (a) generally.
See Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 613 (Ga. App. 1949) finding that a
““judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term
subsequent to that at which the judgment was rendered, so as to make the judgment speak the truth of the decision
that was actually rendered, or to make it conform to the verdict; but the judgment must be amended by an
inspection of the record, including the pleadings and the verdict, without resort to extraneous evidence. [court found
no basis to amend monetary judgment to include in-rem relief which was never sought in original action]
Furthermore “O.C.G.A. §§ 15-1-3 (6) and 9-12-14. O.C.G.A. § 15-1-3 (6) gives a trial court the power to
"amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its
own records, so as to make them conform to the truth." O.C.G.A. § 9-12-14 states that "[a] judgment may be
amended by order of the court to conform to the verdict upon which it is predicated, even after an execution
issues.” Floyd v. Springfield Plantation Prop. Owners' Ass'n, 245 Ga. App. 535, 536 FN 2 (Ga. App. 2000)
[Court clarified order under § 9-11-60 (g) that HOA could enforce declarations, seven years after its entry] Morgan
v. Starks, 447 S.E. 2d. 651 (Ga. App. 1994) [affirmed order vacating dismissal for failure to prosecute per § 9-11-
60 (f) and inherent authority as motion brought within three years]. This relief is also available under O.C.G.A. § 9-
6
11-16 (b) to prevent “manifest injustice.” Lee Haddock & Associates LLC v. Barlow, 328 Ga. App. 279, 283 (Ga.
App. 2014) [court abused its discretion in denying a motion to modify a pretrial order to allow plaintiff to pursue
claims for breach of contract and attorney’s fees which instead dismissed its claims] The relief sought is justified.
III. No Basis for “Reconsideration” by Gwinnett or DeKalb: Nguyen remains silent.
Furthermore, both Motions by Gwinnett and Dekalb fail to cite any grounds for ‘reconsideration’ of the
orders with specificity under O.C.G.A. § 9-11-60 and as required by O.C.G.A. § 9-11-7 (b). Ndlovu v. Pham, 314
Ga. App. 337 (Ga. App. 2012) [motion to dismiss failed to cite its grounds with specificity and should have been
denied] Hutchinson v. Whaley, 333 Ga. App. 773, 776-77 (2) (777 S.E..2d 251) (2015) [assertions in appellant’s
brief were abandoned which lacked separate enumerations of errors and were unsupported by cogent legal
argument or citation to authority) The Motions provided no notice of the basis for their relief. See Parker v.
Silviano, 248 Ga. 278, 282 (Ga. Ap. 2007) stating as follows:
“[Plaintiffs] had no notice that [Defendant] was seeking summary judgment as to any claim other
than negligent entrustment. “Nothing in the applicable law places a burden on a plaintiff to respond
to issues which are not raised in the motion for summary judgment or to present [his or her] entire
case on all allegations in the complaint — even on issues not raised in the defendant's motion.”
(Citation and punctuation omitted.) Knight v. American Suzuki Motor Corp., 272 Ga. App. 319,
326 (2) (612 SE2d 546) (2005). And “the trial court must ensure that party against whom summary
judgment is rendered is given full and fair notice and opportunity to respond prior to entry of
summary judgment.” Id. (2) Thus, only the issue of negligent entrustment could be considered on
Peterson's summary judgment motion.” [the motion did not address a still timely claim for loss of
consortium as detailed further below]
The Court prematurely granted Gwinnett’s Motion before the 33-day deadline to respond to it under
U.S.C.R. 6.2 and O.C.G.A. § 9-11-6 (d), another error requiring this relief. Cosidine v. Murphy, 320 Ga. App. 316
(Ga. App. 2013) [court erred in granting motion to dismiss without notice or opportunity to respond] Lastly, the
December 14, 2022 Order granting Gwinnett’s Motion is a nullity: which is dated November 17, 2022: which is
utterly inconsistent with its actual date of entry and void-ab initio.
CONCLUSION
WHEREFORE, Plaintiffs respectfully prays that this Motion be granted, that the 12/14/22 Order be vacated
and set aside, that the original orders extended on their Motions be reinstated with full force and effect and that the
Motion of DeKalb be denied with all other just relief.
7
Respectfully submitted this 24th day of February 2023.
By: /s/Paul G. Wersant
Paul G. Wersant
GA Bar No. 748341
3245 Peachtree Parkway, Suite D-245
Suwanee, Georgia 30024
Telephone: (678) 894-5876
Email: pwersant@gmail.com
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I certify filing and or serving this document by U.S. First Class Mail upon the Defendants in this case on
the above date and/or by electronic mail in the e-filing system of the Court.
By: /s/Paul G. Wersant
Paul G. Wersant
8
Exhibit 1
From: Simmons, Terri R.
Date: Fri, Feb 10, 2023 at 12:39 PM
Subject: Re: 18CV1157-2 2/28 Hearing Reset Buu Ho et al v. Gwinnett et al - proposed briefing schedule
To: Paul W. , Dobras, Rebecca J.
Cc: Green, Rakilah R. , angela.couch@carmitch.com
, Tuwanda.Williams@gwinnettcounty.com
, Burkhalter, Trey L. , Crawford,
Omari J. , DCochenour@hallboothsmith.com
, paulgwer@yahoo.com , Abe C. Varner
, Beth Bedingfield ,
TDuncan@hallboothsmith.com , richard.carothers@carmitch.com
, myoshintai@aol.com , mary.minter@carmitch.com
, Thomas Mitchell , mike@pnwlaw.com
Hello All,
Per my review of the file, the only motion pending is DeKalb's motion to vacate from November of
2022. It's also my understanding that there are issues/disputes with respect to the scheduling order.
With that being said, Judge Jackson will allow proposed orders/letter briefs on the issue. Please only
provide one proposed order that addresses both the pending motion and scheduling order. She will
extend the parties the option to send a 2 page max letter brief along with your proposed order. We're
asking that these be sent to the Court no later than 2/24. Thank you.
9
Preview
IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA BUU HO AND LIEN NGUYEN ) ) Plaintiffs, ) vs. ) ) CASE NO. 18-CV-1157-2 GWINNETT COUNTY, GEORGIA et al ) ) Defendants. ) PLAINTIFFS’ CROSS-MOTION TO VACATE AND SET ASIDE 12/14/22 ORDER GRANTING MOTION OF GWINNETT FILED 11/14/22 AND FOR DENIAL OF MOTION OF DEKALB FILED 11/17/22. Plaintiffs moves to reconsider the Order entered 12/17/22 granting the Motion for Reconsiderations of Gwinnett and opposes that of DeKalb filed 11/17/22. Gwinnett and DeKalb seek to vacate the Orders entered on 11/07/22 granting Plaintiff’s Motions filed 11/21/21 and 09/26/22, to which Gwinnett and the other Defendants failed to respond: a crucial fact omitted in them with other issues requiring this relief. Plaintiffs see no point in burdening the Court with briefing aside from this legal Cross-Motion. They incorporate their below documents. CURRENT BRIEFING DUE ON 02/24/23 1. Plaintiffs note the Court issued an email requesting “letter briefs” be filed today, attached as Ex 1. That email is not filed in the record or signed by the Court, contrary to O.C.G.A. § 15-6-21 (c) which states: “When he or she has so decided, it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision.” See Shirley v. Abshire, 655 S.E. 2d.694 (Ga. App. 2007) [“Until an order is signed by the judge and filed, it is ineffective for any purpose.”] 2. The above email is also inaccurate as all of Plaintiff’s pending motions remain at issue since at least April 2020, none of which were adjudicated by this Court by an order as required above. 3. Defendants filed “Letter Briefs” which fail to cite any authority as provided by U.S.C.R. 6.1 and O.C.G.A. 9-11-7 (b) which are likewise invalid. Plaintiffs also rely upon their prior scheduling order that was entered which remains perfectly valid as shown here, requiring no other order. STATEMENT OF FACTS AND CITATIONS OF AUTHORITY 4. On 01/05/18, Plaintiffs filed this action against Defendants DeKalb, Gwinnett and the Nguyens, raising civil rights claims and alleging wrongful destruction or withholding of Open Records relating to the claims. 1 Gwinnett’s Failure to Timely Respond to the Spoliation Motion. 5. On 08/26/21, Plaintiffs filed their Cross Motion for Spoliation addressing the wrongful destruction or withholding of the Open Records, to which Gwinnett failed to file a timely response. U.S.C.R. 6.2 and O.C.G.A. 9-11-6. Gwinnett never addressed the facts and arguments in the Cross Motion in its untimely Response of 11/22/12 which Gwinnett did not obtain leave of this Court to file. 6. Plaintiff’s Motion for Spoliation is supported by an affidavit of their investigator who sought to obtain the records. Gwinnett provided no evidence in its untimely and skeletal ‘Response’ to this Motion. 7. Plaintiffs raised spoliation in their Motions for Extension since May 2020 [Cross-Motion pp. 2]. [See Motions for Extensions, filed 4/24/20, p. 2, filed 5/13/20, p. 4, filed 6/12/20, p. 4] See also Third, Fourth and Fifth Amended Motions for Extension filed 07/14/20, 08/17/20 and 08/21/20, p. 3-4] See also Motion filed 12/27/21, pp. 8, 17] which argue: the “Settlement provides a basis for relief to Plaintiffs, averting alleged statute of limitations defenses raised by Gwinnett….based upon spoliation. “[D]estruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Phillips v. Harmon, 297 Ga. 386, 393 (2015)] Gwinnett never addressed this issue in its response to those motions. Defendants fail to Respond to the Cross Motion to Reopen Discovery: for over ONE YEAR. 8. On 11/21/21, Plaintiffs filed their Cross-Motion to Reopen Discovery and for Related Relief, in response to Gwinnett’s Motion for Case Management Order [CMO Motion], in which the other Defendants joined, raising 5 baseless arguments. Plaintiffs raised many issues with the CMO Motion, requested the Court rule on their pending motions, objected to an order restricting amendment of the complaint before a case management order per O.C.G.A. § 9-11-16, objected to entry of a pretrial or case management order without a conference, objected to unequal treatment of parties on amendment of pleadings, requested discovery be reopened under O.C.G.A. § 9-11- 12 (j) and a case management conference. 9. Defendants failed to respond to Plaintiff’s 2021 Motion, whose counsel was served with it, but did not even bother to open its service envelopes. See U.S.C.R. 6.2. Their current arguments ignore this fact. Defendants ignore the Seventh Amended Complaint. 10. On 05/24/22, Plaintiffs filed their Seventh Amended Complaint prior to entry of a pretrial order The Orders of 09/01/22: No Candor to the Tribunal or Disclosure of Adverse Authority by Gwinnett. 2 11. On 09/01/22, the Court entered two orders, denying Plaintiff’s prior motion for joinder, denying the motions to dismiss of the Defendants and entering a scheduling order. The Court did not address the Seventh Amended Complaint. Defense counsel remained silent about this omission and other issues with the Orders. Defendants fail to respond to the Motion to Clarify [The third Plaintiff’s motion to which they failed to respond]. 12. On 09/26/22, Plaintiffs filed their Motion to Clarify and correct the 09/01/22 Orders, which cited O.C.G.A. §§ 9-11-60, 15-1-3 and 9-2-14 and five detailed arguments in support of the relief sought. 13. None of the Defendants responded to the Motion to Clarify and Correct. See U.S.C.R. 6.2 14. Plaintiff’s counsel advised the Court of the lack of response by the Defendant as shown below: From: Paul Wersant pwersant@gmail.com Date: Mon, Sep 26, 2022 at 2:02 PM Subject: Re: 18CV1157 -- Buu Ho and Lien Nguyen v. Gwinnett County et al - Motion to Correct and Clarify Scheduling Order and related documents To: Beth Bedingfield Cc: Simmons, Terri R. , Dobras, Rebecca J. RJDobras@dekalbcountyga.gov>, Angela Couch , Williams, Tuwanda , tlburkhalter@dekalbcountyga.gov , Crawford, Omari J. , Duane L. Cochenour , Abe C. Varner , mike@pnwlaw.com , P W , Paul Wersant Ms. Simmons, Attached, please find the following documents filed today: Plaintiffs' Motion to Correct and Clarify filed 9/26/22, with proposed orders in PDF and MS Word. This Motion to Correct addresses the Court's Scheduling Order filed 09/01/22. This Motion to Correct also addresses Plaintiffs' Seventh Amended Complaint filed 05/9/22 and Plaintiffs' Cross Motion to Reopen Discovery filed 11/15/21 No response has been filed to the Seventh Amended Complaint or the Cross Motion. Please let me know if you need copies of the Seventh Amended Complaint, Cross Motion and the Scheduling Order as well. Sincerely, Paul Wersant Attorney for Plaintiffs 678-894-5876 pwersant@gmail.com 15. None of the Defendants even responded to the above email and remained silent which is an admission of its contents under the Georgia business letter law. 16. On 11/07/22, the Court granted Plaintiffs Motion to Reopen Discovery, its Motion for Clarification and its Motion for Spoliation by both of its Orders entered that day. 3 The Baseless Improper Motions for “Reconsideration” by Gwinnett and Dekalb. 17. On 11/14/22, Gwinnett filed its Motion for Reconsideration of the 11/07/22 Orders. The Motion cites no basis for “reconsideration” under O.C.G.A. 9-11-60 and other applicable authority as required by law. 18. First, Gwinnett’s Motion omits the central fact: Defendants never responded to either of Plaintiffs’ motions filed 11/21/21 or 09/26/22, as required by law [See USCR 6.2]. This is a serious omission by this motion. 19. Second, Gwinnett’s Motion argues the Court should not have ordered an extended discovery period under O.C.G.A. 9-11-12 (j), beginning from 03/24/20, when the first motion to dismiss was filed, as the discovery period restarted 90 days after each motion [to dismiss] was filed by Gwinnett [Gwinnett Motion pp. 5] This argument has no basis as O.C.G.A. 9-11-12 (j), refers just to an initial motion to dismiss and no others. 20. Third, Gwinnett argues the Court should not have granted Plaintiffs’ Spoliation Motion which allegedly sought “summary judgment” on Plaintiff’s Open Records Claims [Gwinnett Motion, p. 7] This argument is baseless as Plaintiffs sought sanctions for Gwinnett’s misconduct in failing to provide Open Records for they paid as part of the settlement of the 2016 Open Records Case which substantially delayed this action from its filing in 2018. This ruling is consistent with the allegations of the Seventh Amended Complaint, which seeks the same relief on this issue as the prior Sixth Amended Complaint, contrary to Gwinnett’s Motion which misrepresents that fact [Gwinnett Motion, pp. 8]. And again: Gwinnett failed to respond timely to this Motion which it conceded. 21. Fourth, Gwinnett argues that the Court improperly granted Plaintiffs Motions “outside its term of court [Gwinnett Motion, pp. 8] which is again a baseless argument as the Court could consider those motions at any time which the Defendants failed to oppose. 22. Fifth, Gwinnett’s Motion was filed on 11/11/22 and served on Plaintiffs’ counsel on 11/14/22, which the Court prematurely granted on 12/14/22, prior to the 33-day deadline mandated under U.S.C.R. 6.2 and O.C.G.A. 9-11-6 (b), precluding Plaintiff’s response, without addressing the above issues and allowing Gwinnett and Dekalb not to answer Plaintiffs Motions for a much longer period of period. 23. The Order granting Gwinnett’s motion should vacated as detailed below. 24. The equally baseless Motion of DeKalb dated 11/16/22 should be denied. It parrots that of Gwinnett and shares its basic flaws: no legal basis and ignores the fact that DeKalb did not respond to Plaintiffs’ Motions and does not get a second chance to reargue them. 4 MEMORANDUM Per O.C.G.A. § 24-2-201 and applicable law, Plaintiffs requests the Court take notice of matters of record. Several issues exist with regard to the Motions of Gwinnett and Dekalb, requiring their denial. I. Gwinnett and DeKalb Failed to Respond to Plaintiffs Motions, which they conceded. Second, Gwinnett and DeKalb never responded to Plaintiff’s September 2022 or November 2021 motions and Gwinnett offered no substantive response or evidence in opposition to either of them as shown above including to the Motion for Spoliation required by law. Even now, they offer no justification for ignoring Plaintiff’s Motions. The Supreme Court upheld summary judgment and a motion to strike a jury demand for a defendant after a plaintiff failed to respond to both defense motions per U.S.C.R. 6.2: Wimberly v. Karp, 185 Ga. App. 571 (1988) stating: We likewise find no error in the trial court's grant of summary judgment to Southern and Curran. Appellant's February 11 motion contained no response to Southern and Curran's motion. The response filed on March 4 was in violation of U.S.C.R. 6.2, 253 Ga. 801, 816-817, because it was not filed within 30 days after service of the motion for summary judgment, and the motion for additional time filed with the response, in addition to violating U.S.C.R. 6.2, contained no indication the failure to file a response was the result of excusable neglect. O.C.G.A. 9-11-6 (b) (2). By failing to respond timely to the motion for summary judgment, appellant "gave up his opportunity to be heard," Spikes v. Citizens State Bank, 179 Ga. App. 479, 481 (1) (347 SE2d 310) (1986), and thus the trial court correctly found no questions of fact existed to refute the evidence submitted by Southern and Curran in support of their motion for summary judgment. “Since appellant failed to comply in any way with the Rules under which he was supposed to operate, he cannot be heard to complain that the wheels of justice have rolled over him.” Id. In Spikes, the Supreme Court again affirmed summary judgment for a defendant after the plaintiff failed to respond to the defense motion for summary judgment which the plaintiff “offered” to answer holding: “Our review of the record reveals that appellant's failure to comply with Rules 6.2 and 6.3 resulted in his loss of opportunity to persuade the trial court. It is undisputed that appellant did not file a response pursuant to Rule 6.2. Neither did he file a written request for oral hearing pursuant to Rule 6.3. The trial court entered summary judgment in appellee's favor on August 23, more than two months after appellee's motion was filed. Under the circumstances, appellant had sufficient notice that judgment was imminent and gave up his opportunity to be heard.” See Premium Distrib. Co., supra. In fact, all defense counsel were placed on notice of the pending Motions to which no response was filed due to the above 11/01/22 email of Plaintiff’s counsel to which they failed to respond. 5 II. The Court Could Grant Plaintiff’s Motions at Any Time. Third, the arguments of Gwinnett’s argument that the Court lacked authority to rule on Plaintiffs’ motion “outside the term of the Court’ is baseless, as Plaintiff’s Motion sought relief from these interlocutory orders, which were not final and which the Court could address at any time, prior to final judgment, as found in a similar case: “Paden bases this argument on the fact that the motion for reconsideration was not filed or ruled on until after the term of court at which the order denying Rudd's motion for summary judgment had been entered. Paden relies on the general rule that “a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the term.” Paden's reliance on this rule is misplaced, as the order denying Rudd's motion for summary judgment was not a final judgment. Rather, it was an interlocutory order that remained within the breast of the court until entry of final judgment. Rudd. V. Paden, 630 S.E. 2d. 648 (2006) Fourth, furthermore, Gwinnett’s counsel is notably silent on her failure to advise the Court of the existence of the Seventh Amended Complaint or the other issues with the Orders, contrary to her duty of candor to this tribunal and her duty to disclose adverse authority as did other defense counsel, as required by the Rules of Professional Conduct. See Ga. R. Prof. Conduct 3.3 (a) generally. See Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 613 (Ga. App. 1949) finding that a ““judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term subsequent to that at which the judgment was rendered, so as to make the judgment speak the truth of the decision that was actually rendered, or to make it conform to the verdict; but the judgment must be amended by an inspection of the record, including the pleadings and the verdict, without resort to extraneous evidence. [court found no basis to amend monetary judgment to include in-rem relief which was never sought in original action] Furthermore “O.C.G.A. §§ 15-1-3 (6) and 9-12-14. O.C.G.A. § 15-1-3 (6) gives a trial court the power to "amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth." O.C.G.A. § 9-12-14 states that "[a] judgment may be amended by order of the court to conform to the verdict upon which it is predicated, even after an execution issues.” Floyd v. Springfield Plantation Prop. Owners' Ass'n, 245 Ga. App. 535, 536 FN 2 (Ga. App. 2000) [Court clarified order under § 9-11-60 (g) that HOA could enforce declarations, seven years after its entry] Morgan v. Starks, 447 S.E. 2d. 651 (Ga. App. 1994) [affirmed order vacating dismissal for failure to prosecute per § 9-11- 60 (f) and inherent authority as motion brought within three years]. This relief is also available under O.C.G.A. § 9- 6 11-16 (b) to prevent “manifest injustice.” Lee Haddock & Associates LLC v. Barlow, 328 Ga. App. 279, 283 (Ga. App. 2014) [court abused its discretion in denying a motion to modify a pretrial order to allow plaintiff to pursue claims for breach of contract and attorney’s fees which instead dismissed its claims] The relief sought is justified. III. No Basis for “Reconsideration” by Gwinnett or DeKalb: Nguyen remains silent. Furthermore, both Motions by Gwinnett and Dekalb fail to cite any grounds for ‘reconsideration’ of the orders with specificity under O.C.G.A. § 9-11-60 and as required by O.C.G.A. § 9-11-7 (b). Ndlovu v. Pham, 314 Ga. App. 337 (Ga. App. 2012) [motion to dismiss failed to cite its grounds with specificity and should have been denied] Hutchinson v. Whaley, 333 Ga. App. 773, 776-77 (2) (777 S.E..2d 251) (2015) [assertions in appellant’s brief were abandoned which lacked separate enumerations of errors and were unsupported by cogent legal argument or citation to authority) The Motions provided no notice of the basis for their relief. See Parker v. Silviano, 248 Ga. 278, 282 (Ga. Ap. 2007) stating as follows: “[Plaintiffs] had no notice that [Defendant] was seeking summary judgment as to any claim other than negligent entrustment. “Nothing in the applicable law places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present [his or her] entire case on all allegations in the complaint — even on issues not raised in the defendant's motion.” (Citation and punctuation omitted.) Knight v. American Suzuki Motor Corp., 272 Ga. App. 319, 326 (2) (612 SE2d 546) (2005). And “the trial court must ensure that party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.” Id. (2) Thus, only the issue of negligent entrustment could be considered on Peterson's summary judgment motion.” [the motion did not address a still timely claim for loss of consortium as detailed further below] The Court prematurely granted Gwinnett’s Motion before the 33-day deadline to respond to it under U.S.C.R. 6.2 and O.C.G.A. § 9-11-6 (d), another error requiring this relief. Cosidine v. Murphy, 320 Ga. App. 316 (Ga. App. 2013) [court erred in granting motion to dismiss without notice or opportunity to respond] Lastly, the December 14, 2022 Order granting Gwinnett’s Motion is a nullity: which is dated November 17, 2022: which is utterly inconsistent with its actual date of entry and void-ab initio. CONCLUSION WHEREFORE, Plaintiffs respectfully prays that this Motion be granted, that the 12/14/22 Order be vacated and set aside, that the original orders extended on their Motions be reinstated with full force and effect and that the Motion of DeKalb be denied with all other just relief. 7 Respectfully submitted this 24th day of February 2023. By: /s/Paul G. Wersant Paul G. Wersant GA Bar No. 748341 3245 Peachtree Parkway, Suite D-245 Suwanee, Georgia 30024 Telephone: (678) 894-5876 Email: pwersant@gmail.com Attorney for Plaintiffs CERTIFICATE OF SERVICE I certify filing and or serving this document by U.S. First Class Mail upon the Defendants in this case on the above date and/or by electronic mail in the e-filing system of the Court. By: /s/Paul G. Wersant Paul G. Wersant 8 Exhibit 1 From: Simmons, Terri R. Date: Fri, Feb 10, 2023 at 12:39 PM Subject: Re: 18CV1157-2 2/28 Hearing Reset Buu Ho et al v. Gwinnett et al - proposed briefing schedule To: Paul W. , Dobras, Rebecca J. Cc: Green, Rakilah R. , angela.couch@carmitch.com , Tuwanda.Williams@gwinnettcounty.com , Burkhalter, Trey L. , Crawford, Omari J. , DCochenour@hallboothsmith.com , paulgwer@yahoo.com , Abe C. Varner , Beth Bedingfield , TDuncan@hallboothsmith.com , richard.carothers@carmitch.com , myoshintai@aol.com , mary.minter@carmitch.com , Thomas Mitchell , mike@pnwlaw.com Hello All, Per my review of the file, the only motion pending is DeKalb's motion to vacate from November of 2022. It's also my understanding that there are issues/disputes with respect to the scheduling order. With that being said, Judge Jackson will allow proposed orders/letter briefs on the issue. Please only provide one proposed order that addresses both the pending motion and scheduling order. She will extend the parties the option to send a 2 page max letter brief along with your proposed order. We're asking that these be sent to the Court no later than 2/24. Thank you. 9