court document: Order

20190327.1222.order.pdf

court document: Filed email to Judge Hardison 2019-03-22

20190322.1257.filed.email.to.hardison.pdf

Copy from email blog: https://grodnermiller.blogspot.com/2019/03/grodner-v-grodner-pitt-13cvd398-update.html

court document: Filed Rule 8C-1.201 / 1A-1.58 Motion

20190315.1512.rule.201.motion.filed.with.exhibits.with.pages.pdf

============

STATE OF NORTH CAROLINA                 IN THE GENERAL COURT OF JUSTICE

COUNTY OF PITT                                  DISTRICT COURT DIVISION

                                                            FILE NO.: 13 CVD 398

HUNTER F. GRODNER,                           )

(now Hunter Summerlin)             )                    

                    Plaintiff,                            )           

)              VERIFIED RULE 8C-1.201

)                                 AND      

          vs.                                              )               RULE 1A-1.58 MOTION

                                                            )               

ANDRZEJ GRODNER,                              )                

          (now Andrew Grodner)                )             

                    Defendant,                        )            

_________________________________)

          NOW COMES the Defendant, Andrzej Grodner, represented pro se, and pursuant to N.C. Gen.Stat. § 8C-1, Rules 201(d)(f) respectfully requests a hearing on the issue of taking judicial notice of adjudicative facts necessary for preparation of proposed Order related to 7 March 2019 hearing and presided by Honorable Judge Paul Hardison in Pitt County District Court, and pursuant to N.C. Gen.Stat. § 1A-1, Rule 58 requests for disqualification of attorney for Plaintiff, Jeffrey L. Miller, from preparation of the proposed Order because he plans to misrepresent statements of the Court which prejudices the Defendant and conflicts with the general mandate of this Court to administer justice. In support hereof, Defendant shows:

1. N.C. Gen.Stat. § 8C-1, Rule 201.Judicial notice of adjudicative facts states:

(a)      Scope of rule. – This rule governs only judicial notice of adjudicative facts.

(b)      Kinds of facts. – A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c)      When discretionary. – A court may take judicial notice, whether requested or not.

(d)      When mandatory. – A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e)      Opportunity to be heard. – In a trial court, a party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f)      Time of taking notice. – Judicial notice may be taken at any stage of the proceeding.

(g)      Instructing jury. – In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. (1983, c. 701, s. 1.)

2.           Defendant files this motion within the time limits allowed by the N.C. Gen.Stat. § 8C-1.201(f) and he provides necessary information herein as required by N.C. Gen.Stat. § 8C-1.201(g) for this Court to take judicial notice of adjudicative facts which are "not subject to reasonable dispute in that (...)" they are "(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," as required by N.C. Gen.Stat. § 8C-1.201(g).

3.               Defendant provides the proposed Order sent by Jeffrey L. Miller to the Defendant on 10 March 2019 and 12 March 2019 (identical copies), as Exhibit (A). It includes sixty four (64) findings of fact, most of which describe false or irrelevant statements regarding adjudicative facts or their misrepresentations, as proposed by Jeffrey L. Miller.

4.               Proposed Order in part states:

FINDING OF FACT (55) (...) Other than the Defendant's persistent personal statement that Mr. Miller was a liar, the Defendant presented no evidence to support his statements or claims or to support to any entitlement to any form of relief. The exhibits presented by Defendant do not prove that Mr. Miller made any false representations or statements to this or any other Court. (...) There is no evidence Mr. Miller lied to anyone or had ex parte contact with Judge Teague. The evidence indicates that the Court finds Mr. Miller did not lie or make misrepresentations to the Court and he did not have ex parte contact with Judge Teague.

5.               Defendant provides Exhibits (B)(C)(D)(E)(F)(G), which were introduced in Court by the Defendant as Exhibits (1)(2)(3)(4)(5)(6), that demonstrated that Jeffrey L. Miller lied about his ex parte communication with Judge Teague. Jeffrey L. Miller confirmed in open court that he was the sender of those emails.

6.               Defendant provides Exhibits (H)(I), which were introduced in Court by the Defendant as Exhibits (7)(8), that demonstrated that Jeffrey L. Miller had ex parte communication with Judge Teague. During 7 March 2019 Honorable Judge Hardison allowed Jeffrey L. Miller to review Exhibits (7)(8) before they were introduced into evidence. At no point Jeffrey L. Miller objected or otherwise questioned the fact that those emails described his actual ex parte communication with Judge Teague.

7.           The NC case law established that that a court may take judicial notice of a fact if it is an indisputable adjudicative fact; however, a court may not take judicial notice of a disputed question of fact. Hinkle v. Hartsell, 131 N.C. App. 833, 836, 509 S.E.2d 455, 458 (1998).

8.           Defendant requests that this Court takes judicial notice of adjudicative fact that:

Defendant presented evidence to support his statements or claims that Jeffrey L. Miller had ex parte communication with Judge Teague.

9.               Defendant provides transcript of the part of 7 March 2019 hearing pertinent to the discussion of whether Mr. Miller lied or made misrepresentations to the Court as Exhibit (J). At no point the Court made any direct or indirect statement regarding whether Mr. Miller lied or made misrepresentations to the Court.

10.           Defendant provides email sent from the Defendant to Jeffrey L. Miller on 11 March 2019 at 12:40 AM as Exhibit (K), where the Defendant informed Jeffrey L. Miller that both the audio of the 7 March 2019 hearing and introduced Exhibits (1)-(9) had been posted and were publically available for his review at his convenience on the following webpage: http://grodnerdivorce.blogspot.com/2019/03/court-hearing-3719-full.html.

11.        Defendant requests that this Court takes judicial notice of adjudicative fact that:

Honorable Judge Hardison refused to determine whether Jeffrey L. Miller lied or made misrepresentations to the Court.

12.        Defendant provided evidence herein that Jeffrey L. Miller intends to submit a proposed Order regarding 7 March 2019 hearing which include false statements regarding adjudicative facts.

13.        On 14 March 2019 at 10:01 AM Defendant requested in an email that Jeffrey L. Miller take corrective action and apologizes to the Defendant for his defaming statements directly related to the adjudicative facts described herein, provided by Exhibit (M). In his email response on 15 March 2019 at 11:17 AM Jeffrey L. Miller again denied adjudicative facts in question even though he did not deny them during 7 March 2019 hearing; email provided by Exhibit (N).

14.        Therefore because Jeffrey L. Miller he demonstrated that he will never contemplate taking corrective action and therefore he will never be truthful to the Defendant or the Court even if presented with uncontested evidence of adjudicate facts, there is no remedy available to this Court other than him being disqualified as one of the authors of the proposed Order.

15.        Because Jeffrey L. Miller plans to abuse the designation given to him by Honorable Judge Hardison to prepare proposed Order, pursuant to N.C. Gen.Stat. § 1A-1, Rule 58 the Defendant requests that this Court disqualifies Jeffrey L. Miller from preparation of the proposed Order regarding 7 March 2019 hearing.

WHEREFORE, Defendant respectfully requests the Court to enter an Order taking judicial notice of aforementioned adjudicative facts determined during 7 March 2019 hearing and to disqualify Jeffrey L. Miller from being involved in preparation of the proposed Order because he already plans to provide false statements regarding numerous adjudicative facts.

This is the .... day of ................... (month), ........................ (year)

____________________________

Andrzej Grodner, pro se

(currently Andrew Grodner)

P.O. Box 3571

Greenville, NC 27836

(252) 558 3040

email: agrodnercase@gmail.com

Sworn to and subscribed before me this

                .... day of ................... (month), ........................ (year)

(Official Seal)                                                            ____________________________

                                                                      Signature of Notary Public

                                                                      ____________________________

                                                                      Printed Name of Notary Public

My commission expires: _________________

CERTIFICATE OF SERVICE

          I, Andrzej Grodner, Defendant in the cause, do hereby certify that the foregoing was served upon all parties via email delivery per ORDER TO WITHDRAW entered on December 13, 2016 and by depositing in a post office or official depository under the exclusive care and custody of the United States Postal Service a copy of the same in a postage prepaid envelope properly addressed to counsel of record of the parties as follows:

VIA EMAIL AND BY US MAIL

                             Mr. Jeffrey Miller, Esq.

Email address:        jeff@millerandaudino.com

US Postal address:  2510 E. 10th Street

                            Greenville, NC 27858

This is the .... day of .................. (month), ................. (year)

____________________________

Andrzej Grodner, pro se

(currently Andrew Grodner)

P.O. Box 3571

Greenville, NC 27836

(252) 558 3040

email: agrodnercase@gmail.com

 

official document: proposed Order sent by Mr. Jeffrey Miller

20190310.Proposed.Order.on.Motions.from.Miller.pdf
- see copy converted below by MS Word.

===== Attached to email
https://grodnermiller.blogspot.com/2019/03/grdner-order-for-judge-hardison.html

From: Jeff Miller <jeff@millerandaudino.com>
Date: Sun, Mar 10, 2019 at 7:23 PM
Subject: Grdner Order for Judge Hardison
To: Hartzog, Megan L. <Megan.L.Hartzog@nccourts.org>, Brown, Kay <Kay.A.Brown@nccourts.org>
Cc: <Sandra@millerandaudino.com>, Andrew Grodner <agrodnercase@gmail.com>, Anna M. Davis <amdavis@ncdoj.gov>

Attached is the proposed Order for Judge Hardison's signature based on his ruling on 7 March 2019.  I will note the following:

1.    Mr. Grodner agreed at the hearing to receive email, so I am sending a copy of the proposed Order to him by email today, Sunday, 10 March 2019.

2.    I have not agreed or consented to receive any email communication from Mr. Grodner.  Any belief he may have had that there was some authority for him to email me against my wishes was dismissed by Judge Hardison on 7 March 2019.  Judge Hardison told him directly, and ordered, that he shall not communicate with me by email. If he has a response, he is subject to a gatekeeping order which requires an attorney's certification.  In any event, he should not communicate with me by any means other than in a mailing through the US Mail.

3.    Let me know if you or Judge Hardison have any questions.

Best regards,

jeff

 

-- 
Jeffrey L. Miller
Miller & Audino, L.L.P.
Attorneys at Law
2510 East Tenth Street
Greenville, North Carolina 27858
Telephone:  (252) 364-8929
Facsimile:  (252) 364-8932
jeff@millerandaudino.com

=================================================================

===== COPY OF THE PROPOSED ORDER CONVERTED BY MS. WORD ==========

=================================================================

	FILE NO. 13-CvD-398
NORTH CAROLINA	IN THE GENERAL COURT OF JUSTICE
PITT COUNTY	DISTRICT COURT DIVISION

HUNTER GRODNER (SUMMERLIN), )

)

                                Plaintiff                                  )

) vs.     )

                                                                                                )                       ORDER

                                                                        )

                                                                                                )          

ANDRZEJ (ANDREW) GRODNER,       )

)

)

                                Defendant                              )

THIS CAUSE came before the undersigned District Court Judge, assigned to hear this matter, at the 7 March 2019 Family Court session of the Pitt County District Court; and having reviewed the record and taken judicial notice of the prior Orders entered in this cause, received evidence and statements, and heard the arguments on behalf of the parties, the Court makes the following entries:

FINDINGS OF FACT

1.                  The undersigned has been specially assigned to hear this matter based on an email and statements of the Defendant which resulted in the recusal of the assigned Pitt County Judge. The undersigned came into this court this day without knowledge of, or prior relationship of any kind with, the parties or the attorneys who appeared in this matter.

2.                  The Plaintiff did not appear. She was represented by her attorney of record, Jeffrey L. Miller, of the Pitt County Bar. Based on the record, he has been the Plaintiff’s attorney since the commencement of this action. The Defendant appeared and represented himself. Anna M. Davis, Assistant Attorney General, appeared on behalf of a court administrator and state employee, Megan Hartzog, who had been subpoenaed by the Defendant.

3.                  This matter is properly before the Court for hearing on Defendant’s announced Motion and Request to  Continue, and his “Verified Motion for a New Trial on Motion For Summary Judgement [sic] To Remove Opposing Counsel (filed 27 December 2018),” as well as the Plaintiff’s “Motion to Modify and Limit Plaintiff’s Communications (filed 28 November 2018),” “Objection, Motion to Strike, Motion to Summarily Deny and Dismiss, Motion for Attorney Fees and Sanctions, Motion for Pre-filing Restraint and Gatekeeper Order (filed 11 January 2019),” and “Objection, Motion to Quash, Motion for Attorney Fees (filed 28 February 2019).”

4.                  The Plaintiff, Hunter Summerlin, is a resident of Nash County, North Carolina.

5.                  The Defendant, Andrew Grodner is a resident of Pitt County, North Carolina. He is an economics professor at East Carolina University.

6.                  The Plaintiff and Defendant were married on 12 June 2010, separated on 13 February 2013, and were divorced on 15 May 2014 in Pitt County file #14-CVD-699.

7.                  There was one (1) child born of the parties’ marriage, namely: LUCAS H. GRODNER, born 3 August 2011.

8.                  Pursuant to an Order entered on 9 January 2015, which contained numerous substantive findings of fact, the Plaintiff was granted primary physical custody of the parties’ minor child and final decision-making authority, subject to a specified schedule for the Defendant’s secondary custody and visitation, and Defendant was required to provide child support for the parties’ child.

9.                  The 9 January 2015 Order made findings, relevant to this hearing, of some significant behavioral and conduct issues on the part of the Defendant during his marriage to Plaintiff, namely: He distrusted and disbelieved his wife to such an extent that he remained away from home for lengthy periods and had angry outbursts which included pounding his head into a wall of the marital home with enough force to cause a hole in the wall; he demanded Plaintiff make journal entries in a diary as dictated by him; he installed video cameras to observe and surveil the Plaintiff and the minor child while he was away; he isolated himself and the parties’ child; Defendant was dishonest and not truthful at times it served his purposes; he had gambling and pornography issues; he blocked Plaintiff’s phone calls; and, he had fits of rage. He was controlling, distrustful, dishonest, and manipulative.

10.              On 30 January 2015, Defendant’s then attorney of record, Teresa D. Bryant, filed a Motion for Reconsideration and Relief concerning the 9 January 2015 Order.  The motion sought to have this Court reconsider the portion of its Order granting plaintiff-mother final decision-making authority.

11.              On 4 February 2015, Defendant’s attorney, Teresa D. Bryant, filed a Motion

to Withdraw as Defendant’s counsel.  Defendant objected to her withdrawal.

12.              On 11 February 2015, Larry Economos, attorney at law, filed a Limited Notice of Appearance as attorney for the Defendant.  The notice indicated Mr. Economos was appearing on behalf of the Defendant in “post-judgment matters subsequent to the entry of the January 19, 2015 custody order in this cause, including but not limited to the Defendant’s Motion for Reconsideration and Relief, but excluding representing Defendant in regard to Plaintiff’s reserved attorney’s fees issue.”  Mr. Economos did not appear and participate in any court matters and he did not file any documents on behalf of the defendant. Upon his request, he was subsequently allowed to withdraw as counsel for Defendant.

13.              On 19 February 2015, this Court conducted a hearing on the motion of the Defendant’s attorney, Teresa D. Bryant, requesting that she be permitted to withdraw as Defendant’s attorney in this matter.  Defendant and Plaintiff’s attorney were present and participated in the hearing.  Defendant did not desire for his attorney to withdraw. Ms. Bryant asserted that the Defendant was uncooperative and made it difficult for her to represent him. Defendant was complimentary of Ms. Bryant’s representation and her services, and he agreed to abide by certain conditions if Ms. Bryant would not withdraw.  Defendant and Ms. Bryant made an agreement in open court, and the Honorable W. Brian Desoto entered an Order which relieved Ms. Bryant of any further responsibility or duty with regards to this case except for pending equitable distribution issues and trial.  Defendant was ordered to cooperate fully with Ms. Bryant and to follow her instructions.

14.              On 22 December 2015, Defendant’s attorney Teresa D. Bryant filed her “Second and Final Motion to Withdraw” stating there was “no way possible that she can continue to represent [Defendant] as a result of his actions and behavior” and because the Defendant desired her to represent him in a manner “which would be violative of her ethical, professional, and moral standards.”

15.              On 22 December 2015, the Defendant filed an “Amended Motion for Reconsideration and Relief” of the 9 January 2015 child custody and child support Order. This motion was filed by the Defendant pro se.

16.              On 12 January 2016, the Defendant filed his “Objection to Motion to Withdraw” with an attached transcript of the 19 February 2015 hearing before Judge DeSoto.

.

17.              A hearing on Ms. Bryant’s second motion to withdraw was conducted on 19 January 2016.  Following the hearing, the Court orally announced on the record and in open Court that Ms. Bryant was allowed to withdraw and she was relieved as Defendant’s attorney in this matter.  Plaintiff’s attorney was present and did not object to the withdrawal.  The

Defendant desired to communicate directly with Plaintiff’s attorney.  However, because of the nature of the Defendant’s past behavior, Plaintiff’s attorney made clear to Defendant and the Court that he desired limited communication and in the form of e-mail or writings only.

18.              Ms. Bryant did not prepare and present her proposed Order to the Court for signature until December 2016.  The written Order was signed and filed on 13 December 2016 allowing Ms. Bryant’s withdrawal effective 19 January 2016 as Defendant’s attorney. The Court made specific findings in the Order justifying the allowance of Ms. Bryant’s withdrawal as Defendant’s counsel. The Defendant had continued to engage in behavior inconsistent with and disruptive of Ms. Bryant’s efforts to act as his attorney.  Ms. Bryant was required to prohibit him from coming to her office.  She was no longer comfortable being in the same room with him.  Defendant was abusive in terms of the number and content of his e-mails to Ms. Bryant, forcing her to prohibit calls and e-mails from him.  Ms. Bryant came to believe Mr. Grodner had improper motives in recording their meetings.  Defendant had transcribed recordings of their meetings and placed it in the public record.  Ms. Bryant was concerned about the level of conflict with Defendant such that she might be required to obtain a restraining Order.  Defendant had not cooperated with Ms. Bryant as required by Judge DeSoto’s Order, and Ms. Bryant remained concerned that the Defendant desired her to engage in improper conduct in her handling of his case. The Order also specified the Defendant was to have no direct contact with Plaintiff’s attorney and that his direct communication was to be by e-mail only. The Defendant was specifically ordered and instructed that his email communications were to be concisely related to the case and were not be abusive in content or in quantity. 

19.              The hearing on the Defendant’s pending motions for reconsideration was held 14 December 2016. The Defendant appeared and represented himself at that hearing. Initially he argued with the court about his motions to continue.  Even after the Court advised him his motions to continue were denied, Defendant kept inquiring of the Court and arguing with the Court about the matter. Defendant continued to argue about his “rights” and his desires regarding the records notwithstanding the Court’s continued effort to have him focus on and argue the merits of the allegations in his motions for reconsideration. The Defendant has exhibited similar conduct with this Court during this hearing.

20.              On 12 January 2017, an Order was entered denying the Defendant’s motions for reconsideration. The Defendant appealed the 12 January 2017 Order to the North Carolina Court of Appeals. That Court affirmed the District Court’s Order. The Defendant petitioned for discretionary review and appealed the decision to the Supreme Court, which has not yet decided whether to grant review in the matter.

21.              The issues now before this Court involve interlocutory matters unconnected to the pending appeal.

22.              Because of problems with the Defendant’s direct e-mail communications with him, which Mr. Miller alleged to be abusive, harassing, and excessive, in 2018 Mr. Miller directed Defendant to cease his email communications and to communicate only by regular mail. Defendant declined to do so, contending that the Court had authorized him to communicate by e-mail and that he was required to conduct his communications by e-mail pursuant to the Court’s Order allowing Ms. Bryant’s withdrawal in 2016.

23.              Because Defendant failed to cease the e-mail communications as requested, Mr. Miller informed Defendant of his intent to deliver the e-mails to law enforcement for appropriate action.

24.              On 12 October 2018, Defendant filed a “Motion to Remove Opposing

Counsel,” alleging as grounds that Mr. Miller violated Rule 4.1 of the Rules of Professional Conduct by stating to Defendant in an e-mail “If you [i.e., Defendant] send me another text or e-mail communication I plan to contact law enforcement. Any further communications with me [i.e., Mr. Miller] should be in writing in the form of a letter or formal court document” and later stating “I [Mr. Miller] am delivering your [Defendant’s] text messages to law enforcement. I am also reminding you to stop texting or e-mailing me.” Defendant alleged these statements were false because the 13 December 2016 Order explicitly provided for direct communication with Mr. Miller by e-mail only and were statements of “material fact” because Mr. Miller’s unwillingness to comply with the 13 December 2016 Order prevented the parties from communicating with each other, thereby making it impossible to abide by any court Order in the case.

25.              The Defendant has mailed communications to Mr. Miller via the U.S. Postal Service. He is able to communicate with Mr. Miller about this case by means of regular mail. Mr. Miller has not objected to relevant, court-related mailings from the Defendant through the U.S. Postal Service.

26.              On 18 October 2018, the Defendant served a Notice of Deposition on Jeffrey

L. Miller seeking an oral deposition of Mr. Miller to be taken in Wilson, North Carolina on 1 November 2018. Mr. Miller is the Plaintiff’s attorney of record. He is a resident of Pitt County, North Carolina.  He is not a party in this action. The Notice also requested Mr. Miller to produce privileged documents at the deposition.

27.              In addition to the deposition Notice, Defendant served Mr. Miller with a subpoena issued by a Deputy Clerk on 18 October 2018, commanding Mr. Miller to appear in Wilson, North Carolina and to produce documents.

28.              On 26 October 2018, Mr. Miller filed and served his Objection to the deposition and subpoena and a Motion to Quash the subpoena. Mr. Miller alleged as grounds in support of his Objection and Motion to Quash, inter alia, that he was not subject to deposition in Wilson, North Carolina pursuant to Rule 30(b)(1) of the Rules of Civil Procedure; that the subpoena was unreasonable, burdensome, and oppressive and subjected Mr. Miller to an undue burden and expense; and, that the deposition Notice and subpoena sought production of documents which were protected by the attorney-client privilege. Mr. Miller requested that his objection be sustained, that the subpoena be quashed, and that the Defendant be taxed with attorney’s fees and costs.

29.              On 2 November 2018, Defendant filed and served his “Verified Motion for Summary Judgment or in alternative, Motion to Compel Discovery.” Attached to the verified Motion were the Motion to Remove Opposing Counsel, copies of e-mails sent by Defendant on 15 October 2018 and 18 October 2018, the Notice of Deposition and subpoena served on Mr. Miller, Mr. Miller’s Objection and Motion to Quash, and a proposed Order granting Defendant’s Motion for Summary Judgment.

30.              In his verified Motion, Defendant alleged as “material facts” the communication terms of the 13 December 2016 Order and Mr. Miller’s refusal to communicate via e-mail and “threatening the Defendant with ‘law enforcement’ ” if he continued his e-mail communications. Defendant contended he was entitled to a summary judgment granting the removal of Jeffrey Miller as Plaintiff’s attorney because there was no issue of material fact that Mr. Miller had violated Rule 4.1 of the Rules of Professional Conduct and because his conduct prevented the parties from communicating with each other.

31.              On 14 November 2018, a hearing was held on the Defendant’s motions seeking to remove Mr. Miller as Plaintiff’s attorney and/or to compel discovery, and on the Plaintiff’s and Plaintiff’s attorney’s objections and motion to quash the Defendant’s noticed deposition and subpoena.

32.              On 17 December 2018, the Court entered its Order from the 14 November 2018 hearing in which it denied the Defendant’s Motion to Remove the Plaintiff’s attorney, denied the Defendant’s Motion for Summary Judgment removal of Plaintiff’s attorney, sustained and allowed Plaintiff’s Objection and Motion to Quash the deposition and Defendant’s subpoena, denied the Defendant’s motion to compel discovery, and reserved ruling and held open the Plaintiff’s request for attorney fees to be paid by Defendant. In its Order, the Court made specific findings as follows:

The Defendant has shown no basis in law or fact for this Court’s removal of Jeffrey L. Miller as the Plaintiff’s attorney. The motions and the Defendant’s allegations are wholly frivolous and  insufficient on their face to support or require the requested relief. The Motions are without factual or legal merit or support. There is no showing or evidence that Mr. Miller has violated Rule 4.1 of the Rules of Professional Conduct, or that such a violation would require or authorize this Court to summarily remove him as the Plaintiff’s chosen attorney. The Defendant’s Motions seeking a summary judgment or an Order for the removal of Mr. Miller as Plaintiff’s attorney should be and are properly denied.

33.              On 27 December 2018, Defendant filed a Motion pursuant to Rule 59 of the Rules of Civil Procedure requesting “a new trial” on his 2 November 2018 Motion for Summary Judgment to Remove Opposing Counsel. The Motion for Summary Judgment to Remove Opposing Counsel was heard on 14 November 2018, and the Court denied that Motion by its Order entered on 17 December 2018.

34.              In support of his Rule 59 Motion, Defendant cites Rule 59(a)(2) “misconduct of the jury or prevailing party” and makes allegations that Plaintiff’s counsel “committed misconduct” by making false statements of material fact to the Court in violation of Rules of Professional Conduct.

35.              A jury was not involved in this matter. Plaintiff’s counsel is not a party or a

“prevailing party.”

36.              The Order denying Defendant’s motions seeking to remove Plaintiff’s attorney is an interlocutory Order. The law is well established that such interlocutory Orders are not the proper subject of, and are not properly challenged by, a Rule 59 motion for a new trial. See Davis v. Rizzo, __ N.C. App. __, 819 S.E.2d 574, 580 (2018); Tetra Tech Tesoro, Inc. v. JAAAT Tech. Services, LLC, __ N.C. App. __, 794 S.E.2d 535, 540 (2016).

37.              The Defendant’s “Verified Rule 59 Motion...” is frivolous, without merit, nonjusticiable, and it is not supported by the well-established law. Plaintiff’s counsel filed a response to the Motion that put Defendant on notice that the Rule 59 motion was frivolous and unsupported by law, but Defendant persisted and pursued his motion, and he desired to present it to this Court notwithstanding such prior notice.

38.              On 16 November 2018, Defendant sent an email to Kay Brown, a Pitt County Family Court administrator, Connie Bland, an assistant clerk of court, Mr. Miller, and Mr. Miller’s legal assistant, Sandra Worthington. In the email, Defendant advised Ms. Brown and Ms. Bland to communicate to Judge Braddy that he was going to file a Motion to Recuse Judge Braddy, and that if Judge Braddy didn’t “do it on his own...he will only have himself to blame because now he knows what is coming.” Defendant stated that if Judge Braddy had any reservations about what Defendant might write about his conduct, he should familiarize himself with what the Defendant wrote in his Petition for Discretionary Review in which he presented how the Court of Appeals Chief Judge McGee and Associate Judge Murphy “lied and acted unethically which, if rejected by NC Supreme Court, will result in Complaint to the Judicial Standards Commission.” [Emphasis added] Defendant cited his personal “blogspot” on an internet site as a reference. He also contended Judge Braddy recited “lies” that Mr. Miller is saying, that Judge Braddy “may actually not be able to read and understand COA opinions and NC Statutes, that Mr. Miller will never tell Judge Braddy the truth, that Mr. Miller “mercilessly took advantage of Judge Braddy’s inability to comprehend the law for his personal gain without any regard of the consequences for Judge Braddy,” that Defendant could not expect Judge Braddy “to uphold the law since he cannot comprehend it,” and, that Defendant was “sorry that Motion to Recuse (and what follows) will be embarrassing for him.”

39.              As a consequence of the Defendant’s 16 November 2018 email, Judge Braddy filed a copy of the email in the record of this action, and a hearing was scheduled on 7 January 2019 before Judge Lee Teague on the issue of Judge Braddy’s recusal as raised by the Defendant. The parties were given notice of the hearing. Mr. Miller did not in any manner cause or precipitate the hearing.  The Defendant’s conduct was the sole reason for the hearing and for Judge Teague’s ultimate decision about Judge Braddy’s recusal.

40.              On 27 December 2018, the Defendant issued subpoenas for the 7 January 2019 hearing, including a subpoena for Judge Braddy, Jeffrey Miller, Eric Summerlin, and Hunter Summerlin to appear and testify at the 7 January 2019 hearing on the issue of Judge Braddy’s recusal.

41.              On 2 January 2019, Plaintiff’s counsel filed an Objection, Motion to Quash, Motion for Attorney Fees, and Motion for Rule 11 Sanctions in opposition to the subpoenas served on Eric Summerlin, Hunter Summerlin, and Jeffrey Miller.

42.              Because Defendant issued a subpoena for a judicial official, Anna Davis, Assistant Attorney General, was assigned to represent Judge Braddy.

43.              On 4 January 2019, Defendant issued another Notice of Deposition and subpoena on Jeffrey L. Miller for a deposition seeking to compel Mr. Miller to appear and testify at a deposition on 18 January 2019 in the Pitt County Clerk’s office. The subpoena indicated the purpose of the deposition was related to the Plaintiff’s 28 November 2018 Motion to Modify and Limit Defendant’s Communications.

44.              Over the weekend of 5 January 2019, the Defendant sent an email withdrawing the four subpoenas he had issued for 7 January 2019. At 8:06 a.m. on the morning of the hearing scheduled on the issue created by Defendant’s email and statements, Defendant came to the Pitt County Courthouse and filed with the Clerk’s office written notices of his withdrawal of the subpoenas. 

45.              The hearing on the issue of the Defendant’s 16 November 2018 email demands and statements about Judge Braddy was heard as scheduled on 7 January 2019. Though he had been at the courthouse earlier that morning, the Defendant did not appear for the hearing. Because Anna Davis, Assistant Attorney General, had not received notice of the Defendant’s withdrawal of the subpoena for Judge Braddy, she appeared in Court and was present for the hearing. Though the subpoena had been withdrawn, Ms. Davis filed a Motion to Quash the subpoena served on Judge Braddy. Mr. Miller appeared in court on behalf of the Summerlins and as attorney for Plaintiff. The Honorable Lee Teague conducted a hearing and entered his Order on 8 January 2019. In the Order, Judge Teague made specific findings about the Defendant’s conduct and derogatory statements about Judge Braddy, court staff, Mr. Miller and the District Court judiciary and staff, which Defendant publishes in his internet public blog. In his communications, Defendant accused the Family Court staff of being dishonest, and claimed the Court accepted Mr. Miller’s lies as the truth. Defendant solicits money donations from his blog readers.

46.              In his 8 January 2019 Order, Judge Teague found that Defendant was the one who actively created the perception of  a bias against him, and that Judge Braddy did not have a bias. However, because of the Defendant’s conduct and statements, and out of an abundance of caution to avoid even the suspicion or appearance of bias, Judge Teague ordered that Judge Braddy was allowed to recuse himself from further proceedings in this case. Nothing in the Order suggested or supported any contention that Mr. Miller or any person other than the Defendant was responsible for the recusal of Judge Braddy.

47.              In reference to the recusal Order, on 11 January 2019, Defendant authored one of his numerous false and derogatory emails proclaiming “Chief Pitt County Judge Braddy brutally removed from a case for Jeffrey L. Miller’s misconduct.” The email was sent to Megan Hartzog, Kay Brown, Sandra Worthington, Connie Bland, Debra Toomey, Nancy Ray, Patricia Perkins, Sandra Ruffin, Sarah Page, Vonda Hausle, Yari Carreno, Jeff Miller, Larry Economos, Teresa Bryant, Matthew Jackson, Jay Audino, and Luella Crane. The false statement was made by the Defendant notwithstanding his knowledge and the Court’s findings of the true facts surrounding the recusal of Judge Braddy, which the Defendant alone caused by his own misconduct.

48.              On 9 January 2019, Plaintiff’s counsel filed an Objection, Motion to Quash, Motion for Protective Order, and Motion for Attorney Fees in opposition to Defendant’s 4 January 2019 notice of deposition and subpoena.

49.              On 25 February 2019, Defendant issued another subpoena to Jeffrey Miller to appear and testify at this hearing on 7 March 2019 and to produce “any materials” supporting email statements concerning an unrelated 1982 case, Cannon v. Miller. On 28 February 2019,

Mr. Miller filed an Objection, Motion to Quash, and Motion for Attorney fees concerning the subpoena.

50.              Because of the circumstances created by Defendant and his statements about the judicial and court staff of Pitt County, the undersigned was assigned to hear this matter as an out-of-district Judge with no prior connections to the case, the parties, or the attorney.

51.              This matter is properly before the Court for hearing. At the outset of the case, the Defendant requested that the hearing be continued. The basis for the request was that Mr. Miller is a liar and the Defendant can not get a fair hearing as long as Mr. Miller is the attorney for the Plaintiff. There is no merit to the Defendant’s request and his Motion to Continue should be denied.

52.              During this hearing Defendant repeatedly called Mr. Miller a “liar”, accused Mr. Miller of lying, and accused Mr. Miller of lying to the Court. The premise of his Rule 59 new trial motion was that he could not get a fair trial and that he would be prejudiced because Mr. Miller was a liar and the Court accepted his “lies.” The Defendant made a similar argument in his Motions before the Court at the 14 November 2018 hearing when he sought to have Mr. Miller removed and his Motions were denied by the Order entered 17 December 2018.

53.              The Defendant calls those with whom he disagrees “liars” or dishonest or corrupt. He has prepared and filed documents with the North Carolina Appellate Courts accusing the entire panel of the Court of Appeals of having made intentional misrepresentations for the knowing purpose of rendering a miscarriage of justice, calling Judge Murphy corrupt and accusing him of making a false statement with the assistance of Chief Judge McGee, stating Judge Murphy intentionally made multiple false statements, and that Chief Judge McGee willfully promoted Judge Murphy’s false statements and misrepresentations.

54.              Notwithstanding the facially improper, unsupported, and frivolous Rule 59 Motion for a New Trial concerning an interlocutory Order, this Court attempted to give the Defendant some leeway and to indulge his efforts by trying to have him focus on his request of the Court in a structured and understandable manner. The Court frequently asked him direct questions and gave him direct instructions. Defendant evaded the Court’s efforts and generally refused to follow the Court’s instructions. He attempted to argue with and question the Court, and he was frequently non-responsive in his statements. He complained about the Court interrupting him when the Court attempted to have him focus on the relevant matters. 

55.              This Court reviewed the documents presented by Defendant. Other than the Defendant’s persistent personal statement that Mr. Miller was a liar, the Defendant presented no evidence to support his statements or claims or to support to any entitlement to any form of relief. The exhibits presented by Defendant do not prove that Mr. Miller made any false representations or statements to this or any other Court. This Court finds there is nothing in the evidence presented, or otherwise, to substantiate the Defendant’s personal speculations, feelings, statements or claims. In Exhibit 6 introduced by the Defendant in support of his claims, Mr. Miller clearly and succinctly stated he had not lied about anything, that he did not have ex parte contact with Judge Teague, and that Judge Teague did not receive a message from him with regard to the hearing and Order for the recusal of Judge Galen Braddy. Defendant stated he believed there were deleted e-mails, that Megan Hartzog deleted emails, and that he believed Mr. Miller urged or caused ex parte contacts and misbehavior by Ms. Hartzog. When asked by this Court for any substantive evidence of such a serious claim, Defendant admitted he had none. The Court finds Defendant’s perceptions and belief to be unique to himself and not supported by any credible evidence presented to this Court. There is no evidence Mr. Miller lied to anyone or had ex parte contact with Judge Teague. The evidence indicates and the Court finds Mr. Miller did not lie or make misrepresentations to the Court and he did not have ex parte contact with Judge Teague. Defendant is not credible.

(See actual evidence and record regarding the hearing: http://grodnerdivorce.blogspot.com/2019/03/court-hearing-3719-full.html)

56.              Defendant did not present any relevant fact, item of evidence, or rational argument that in any manner would have supported a proper Rule 59 Motion. There is no legitimate factual support or basis for the Defendant’s Rule 59 motion premised on any claim that Mr. Miller lied, or otherwise.

57.              The Defendant’s Rule 59 Motion for a New Trial should be denied as unsupported, unauthorized, frivolous, non-justiciable, and wholly lacking in merit. The Motion  is not well-grounded in fact, and it is not warranted by existing law or any good faith argument related to existing law. The Motion has been interposed for an improper purpose to harass and needlessly increase the costs of this litigation. In a text message sent to the Plaintiff in 2017, Defendant told her he had planned to make matters long and extended and that his costs were no longer important because he did not have a lawyer and was representing himself. The clear implication was that Defendant intended to drag matters out in order to cause the Plaintiff to incur costs needlessly as shee had an attorney to pay. He has needlessly and purposely increased the costs of this litigation for his own agenda and purposes unconnected to any substantive matter connected to the case itself.

58.              This Court quashed the subpoena issued to Megan Hartzog upon the Motion of the Assistant Attorney General and a separate Order has been entered on that matter.

59.              The Defendant has issued numerous subpoenas to Jeffrey L. Miller, attorney for the Plaintiff. Mr. Miller has filed an objection and motion to quash as to each subpoena, with a request for attorney fees. There has been no showing of any particularized need or relevant evidence that might justify or require the subpoenaed testimony of Mr. Miller. The issues for which Defendant has issued the subpoenas as reflected on the subpoenas have no relation to any substantive fact in this case and appear to serve only the Defendant’s own personal agenda and animus toward Mr. Miller. Mr. Miller and this Court have advised the Defendant that he should pursue any grievances or personal issues with Mr. Miller as a lawyer in a different forum and in a different manner, but Defendant disagreed and chose to argue with the Court. Defendant’s subpoenas are unreasonable and oppressive, and have been designed for the specific and improper purpose of interfering with and preventing the attorney-client relationship between Mr. Miller and his client, the Plaintiff. They have served to harass the Plaintiff and her attorney, and have created a needless increase in the costs of this litigation. The subpoenas violate Rule 11 as they are a document prepared by and issued in this action on behalf of Defendant. Counsel’s objection and motion to quash the subpoena should be allowed.

60.              The Defendant has engaged in frequent and repeated email communications with Mr. Miller and with court staff. Mr. Miller has repeatedly advised and requested Defendant to cease his email communications with him. The Defendant refuses to heed or to comply with Mr. Miller’s request. The Defendant’s emails are harassing and abusive in nature, frequency, and content. The volume of emails is excessive. The Defendant believes he has a right to engage in email communications with Mr. Miller. Though the Court’s order allowing Ms. Bryant to withdraw as Defendant’s attorney because of his abusive and problematical conduct with her permitted direct communication with Mr. Miller by email only, that contact was consented to at the time by Mr. Miller as a means to avoid personal contact and personal communication, and Defendant was ordered to make such email contact concisely related to the case and to refrain from any abusive emails in content or in quantity. In 2018, Mr. Miller gave Defendant repeated notice the email consent was revoked and that Defendant should discontinue any further email communication. The Defendant’s email communications were and are harassing and abusive in nature and they violate the Court’s Order that they not be abusive in content or in quantity.

61.              At approximately 12:30 p.m. on 7 March 2019, this Court in open court granted Mr. Miller’s motion to limit Defendant’s communications, and it specifically directed and instructed the Defendant to cease his email communications with Mr. Miller.

62.              It is clear to this Court that the Defendant has engaged in repeated conduct disruptive to the orderly and efficient administration of justice. His emails and his filings with the Court are abusive, frivolous, and disturbing. The evident purpose of his actions has been to harass, persecute, vex, and cause unnecessary cost to Plaintiff, her attorney, and the judicial system. He has used his access and connections to the Court, the Court system, and the Court’s staff and officers, including Mr. Miller, for improper purposes and his own personal agenda and soapbox. He has violated Rule 11 and is subject to sanctions and an assessment of reasonable attorney fees for his conduct in his filings and his subpoenas.

63.              The Plaintiff’s motion for a restraint and gatekeeper limitation on Defendant’s conduct has merit, is justified and should be allowed. The Defendant’s court filings, and his email and other communications with counsel and the court staff of Pitt County should be restrained and limited. Due to the Defendant’s conduct the sanction of a gatekeeper order is a necessary and appropriate sanction.

64.              In order to consolidate the Plaintiff’s and her counsel’s several requests and entitlements to attorney fees, and because there remains an unresolved matter still pending determination by the North Carolina Supreme Court in which additional attorney fees may be awarded, upon the Plaintiff’s request, the issue of the amount of reasonable attorney fees and costs to be awarded Plaintiff and her counsel is deferred for later determination.  

CONCLUSIONS OF LAW

1.                  This Court has jurisdiction over the parties and the subject matter.

2.                  The Defendant’s motion to continue is without merit and should be denied.

3.                  The Defendant’s Rule 59 Motion for a New Trial is wholly without merit, frivolous, non-justiciable, unsupported by facts or law, and has been asserted for an improper purpose. It is insufficient on its face and it has been filed in violation of Rule 11. It should be dismissed and Defendant should be sanctioned.

4.                  The Defendant’s subpoenas of Plaintiff’s counsel are unreasonable, burdensome, and oppressive. They should be quashed.

5.                  The Defendant’s emails to Mr. Miller and to court staff are harassing and abusive.

6.                  The Plaintiff’s Motion to modify and limit Defendant’s contacts and communications and to stop Defendant’s email communications has merit and should be allowed. Counsel for Plaintiff has withdrawn consent for Defendant to email him. In addition to prior notice, Defendant was on actual notice of same effective 7 March 2019. This Court directly informed, advised, and instructed Defendant at approximately 12:30 pm on 7 March 2019 that he was restrained and prohibited from emailing Mr. Miller.

7.                  Plaintiff and her counsel and the court system are entitled to a gatekeeper order as a sanction against Defendant. Defendant has abused his privileges of communication and court filings by his frivolous, non-justiciable, harassing, abusive, vexatious, and costly conduct.

8.                  Defendant has violated the requirements of Rule 11 and he should be sanctioned.

9.                  The Plaintiff’s and her counsel’s entitlement to reasonable attorney fees and costs should be deferred and determined by this Court at a later date.

ORDER

BASED ON THE FOREGOING, IT IS ORDERED, ADJUDGED, AND DECREED as follows:

1.                  Defendant’s Motion to Continue is DENIED.

2.                  Defendant’s Rule 59 Motion for a New Trial is DENIED.

3.                  Plaintiff’s and her counsel’s Motion to limit the Defendant’s communications is ALLOWED. Effective 12:30 p.m on 7 March 2019, and pursuant to the express instructions, directions, and order rendered in open Court in the Defendant’s presence, the Defendant shall cease, and he is ordered restrained from, sending or transmitting, or causing to be transmitted or sent, any emails or text communications to any of the following: (a) the Plaintiff and her husband Eric Summerlin; (b) Plaintiff’s attorney, Jeffrey L. Miller, his office, and any member of his office or staff; (c) any District Court Judge; (d) any employee, administrator, or staff of the District Court of Pitt County; (e) any clerk or office member or employee of the Pitt County Clerk’s Office. Hereafter, any communications, service of documents, or filings by Defendant with any of the above-named entities shall be by regular mail, UPS, or Federal Express delivery, and shall be subject to the certification and review provisions of the gatekeeper order sanction described below. Defendant shall not go about or upon Mr. Miller’s office or residential premises and he is restrained from any direct communication or contact with Plaintiff’s counsel outside of the courtroom or except as permitted with an attorney’s certification as set forth in the gatekeeper provision below.

4.                  Plaintiff’s and her counsel’s Objection and Motion to Quash the Defendant’s subpoena is ALLOWED.

5.                  Defendant has violated Rule 11 and should be sanctioned. A gatekeeper order is an appropriate and necessary sanction. It is reasonable under the circumstances.

6.                  The Defendant is restrained from any further written communications or filings in this or any other action in the trial court divisions of the North Carolina General Court of Justice unless there accompanies or appears on the proposed document(s) for communication, to be delivered, or to be filed, a contemporaneous written certification and signature by a licensed and active member of the North Carolina State Bar with an office address in this State that he/she has read the document and certifies it to be relevant, appropriate, factually supported, supported by existing law, and submitted for a proper purpose. The signing attorney shall be subject to and constrained by the provisions of Rule 11 of the Rules of Civil Procedure.

7.                  The Plaintiff’s and her counsel’s entitlements to costs and reasonable attorney fees shall be deferred and reserved for later determination.

This ___ day of March 2019.

________________________________

Paul Hardison

District Court Judge

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Order was served upon the defendant by mailing same to him personally, Andrew Grodner, P. O. Box 3571, Greenville, NC 27836, as provided by the applicable North Carolina Rules of Civil Procedure.

This the ___ day of March 2019.

_________________________________

Jeffrey L. Miller