Monday, August 19, 2019

U.S. 11th Circuit, led by Nixon-era geezer Gerald Bard Tjoflat, brazenly cheats us on appeal of "The House Case," citing law that has been overridden for 25 years


Gerald Bard Tjoflat

"The House Case," a federal lawsuit over the theft of our home of almost 25 years in Birmingham, AL, via a wrongful foreclosure, shows corruption runs strong and deep in federal courts -- at both the trial and appellate levels. The good news: Crookedness in "The House Case" is so brazen that it might mean a ruling can be attacked as void, and we have unlimited time to do that. The same concept might be used to breathe life back into other cases that were dismissed on unlawful grounds.

We still are researching this issue and will address it in future posts. But of all the cases of court corruption we've reported on this blog over 12 years -- some involving my wife Carol and me, some where I was not involved, other than as a journalist -- "The House Case" might be among the two or three most grotesque cases we've encountered.

We've already shown that U.S. Judge R. David Proctor butchered "The House Case" at the trial level in the Northern District of Alabama. (See here, here, and here.) The case might have been butchered even more grossly in the U.S. Eleventh Circuit Court of Appeals, thanks to Gerald Bard Tjoflat, a Richard Nixon/Gerald Ford nominee who happens to be the longest-serving federal appeals-court judge in active service. Tjoflat has a long and disturbing history of serving on three-judge panels that issued shockingly unlawful rulings, which includes upholding the convictions of former Alabama governor Don Siegelman and former HealthSouth CEO Richard Scrushy.

Tjoflat seems to be at his worst when the defendant/appellees include financial institutions, and our research reveals a likely reason Tjoflat almost always sides with banks, mortgage companies, brokerages, and the like -- as he did with Chase Mortgage in "The House Case." (Details about Tjoflat's conflicts re: financial institutions will be in upcoming posts.)

Our problems on "The House Case" appeal started with a mistake I made. For reasons I'll never fully understand, I stated in our Notice of Appeal that we were appealing denial of our Rule 59 Motion to Reconsider in the district court. I did not specify that we actually intended to appeal the entire case, especially the Order of Dismissal and all of the orders leading up to it. It was frustrating to learn that I had somehow screwed up our Notice of Appeal, but there is good news: Such a mistake essentially is a "no harm, no foul" matter, one that does not preclude an appellate hearing on our entire case, especially when the appellate brief makes it clear (as ours did) that our goal was to seek a full appeal.

We filed a Motion for Panel Rehearing (see here and here), seeking to overturn the three-judge panel's (Tjoflat, Stanley Marcus, Robin Rosenbaum) wildly erroneous ruling. How badly did Tjoflat and Co. botch our appeal? Well, they admit that our appellate brief shows out intent to appeal the entire case, including multiple unlawful rulings by both Proctor and Judge Virginia Emerson Hopkins, who took over after Proctor finally acknowledge he had a conflict that required recusal -- and essentially meant he was disqualified from hearing the case at the outset.

Here is the gist of the Tjoflat panel's ruling:

In their appellate brief, however, the Shulers challenge three rulings outside the scope of their notice of appeal: Judge Proctor’s order dismissing their complaint, Judge Hopkins’ February 27 order insofar as it denied their Rule 15 motion, and Judge Hopkins’ order denying their Rule 60 motion. Defendants-Appellees (Jessica Medeiros Garrison, Luther Strange, Rob Riley, etc.) contend that under Federal Rule of Appellate Procedure 3(c) and related case law, we have jurisdiction over only the District Court’s denial of the Shulers’ Rule 59(e) motion. We agree.

“The notice of appeal must . . . designate the judgment, order, or part thereof being appealed.” F. R. App. P. 3(c); Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). “Where the appellant notices the appeal of a specified judgment only or a part thereof,” moreover, “this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.” C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981). Otherwise, because the intent to appeal is not clear, prejudice would likely fall upon the adverse party. Id. But we also recognize that “the Federal Rules of Appellate Procedure ‘were not adopted to set traps and pitfalls by way of technicalities for unwary litigants.”’ Finch v. City of Vernon, 845 F.2d 256, 259 (11th Cir. 1988) (quoting Des Isles v. Evans, 225 F.2d 235, 236 (5th Cir. 1955)). We may thus show some leniency when an appellant’s exhibited intent is contrary to a technical mistake that would otherwise impede his appeal. See Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1374–75 (11th Cir. 1983); C. A. May Marine, 649 F.2d at 1056. This is especially so for pro se litigants. See Finch, 845 F.2d at 259–60.

How do Tjoflat and Co. start sliding off the road? They cite two cases, highlighted in yellow above, from 1987 and 1981. Those cases are more than 30 years old, and no longer are good law -- as we pointed out repeatedly in our Motion for Panel Rehearing.

On top of that, the Tjoflat panel admits that, even by 1980s law, "We may thus show some leniency when an appellant’s exhibited intent is contrary to a technical mistake that would otherwise impede his appeal" -- as ours was. The panel further admits, "This is especially so for pro se litigants" -- which we were.

In essence, the panel swallowed the Garrison/Strange/Riley argument completely, while admitting the argument is full of holes.

Unbelievably, the panel punished us for being too specific in our flawed Notice of Appeal. Get a load of this:

The Shulers’ notice of appeal specifies with precision what they are appealing, down to the relevant dates and docket numbers. This specificity indicates that appealing only the denial of their Rule 59(e) motion was not a technical mistake; their notice of appeal does not illustrate intent to bring a broader appeal. See Pitney Bowes, 701 F.2d at 1374–75. Further, allowing the Shulers’ brief to dictate the scope of this appeal would be unfair to the DefendantsAppellees, who from the notice of appeal could derive only that the Rule 59(e) motion was at issue. This appeal is therefore limited to the District Court’s denial of the Shulers’ Rule 59(e) motion.

Did the panel cite any law from this century -- any law that hasn't been overridden since the 1980s -- to support its finding? Nope. Did the Tjoflat Gang even respond to our Motion for Panel Rehearing? Nope, they just issued a document declaring heir bogus ruling was the "mandate" of the court. I can only assume that means they had no legitimate grounds to counter our rehearing motion, that they already had blown all the smoke they could up our fannies.

How thick was that smoke? We will answer that question in an upcoming post.


(To be continued)

13 comments:

Anonymous said...

I thought appellate courts were supposed to correct lower court errors, not compound them.

legalschnauzer said...

@9:25 --

That's how it works in theory, but not in reality.

Anonymous said...

Sounds like this old far got his appointment, and his ethics, from Richard Nixon.

Danno said...

We need term limits for federal judges.

Anonymous said...

What kind of name is Tjoflat?

legalschnauzer said...

@1:15 --

I'm pretty sure it's Dutch, as in The Netherlands.

I have no idea how to pronounce it.

Anonymous said...

So, you're saying your house WAS targeted for a wrongful foreclosure by Chase Mortgage and others -- and the 11th Circuit just got it wrong?

legalschnauzer said...

@2:33 --

No, I'm not saying that in this post. The wrongful foreclosure issue was not even considered at the 11th Circuit. They dismissed the appeal because of an error on the notice of appeal, even though our appellate brief made it clear our intent was to appeal the entire case, including dismissal at trial level. Current law holds the appeal should be heard under such circumstances. That's what this post is about.

Anonymous said...

If a movie producer ever needs to fill the role of a crusty, old, crooked judge from the South, he needs to put Tjoflat in that role. God, he looks like he's right out of central casting.

Anonymous said...

I have done my fair share of appeals. The notice of appeal is jurisdictional, which means the appellate court has no power to consider the case if the issue is not set forth in the notice of appeal. For that reason, whenever I appeal a case, I write something like this: "appellant appeals from the judgment of DATE, the order/verdict of DATE, and all interlocutory orders." The "al interlocutory orders" part catches all issues, and the reference to the judgment and underlying order/verdict catches the core decision that needs to be reviewed. Done that way, the notice of appeal almost never waives anything.

In your case, it sounds like the court simply said they would not go beyond the notice of appeal, given the jurisdictional defect. Harsh, but that is the law. At least in the 9th Circuit, where I practice. I imagine the 11th Circuit is the same. They could accommodate a pro se, but they don't have to. And, since you often write about legal issues and show much deeper legal knowledge than the average pro se party, they probably decided not to give you that benefit.

Tough result, but not much to do about it. If it means anything, you probably would have lost on the merits anyway. With the Iqbal / Twombly pleading standard, plaintiffs usually get fucked when appealing from orders granting motions to dismiss.

legalschnauzer said...

@9:16 --

Thanks for an interesting comment. I like the way you handle the notice of appeal. That should tie things up nicely in most any case. However, you are wrong about 11th Circuit law. I will jump ahead to the followup post to this, where I explain in detail how the panel got it wrong:


"The Tjoflat panel based its denial of our appeal on a 1980s version of FRAP 3, holding in its 2017 ruling that a mistake in the declared scope of our Notice of Appeal meant the court had no jurisdiction to hear our full appeal:



“The notice of appeal must . . . designate the judgment, order, or part thereof being appealed.” F. R. App. P. 3(c); Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). “Where the appellant notices the appeal of a specified judgment only or a part thereof,” moreover, “this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.” C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981). Otherwise, because the intent to appeal is not clear, prejudice would likely fall upon the adverse party. Id.



As shown in the green highlighted areas above, the panel relied on case law from 1987 and 1981, respectively, ignoring important changes made to FRAP 3 in 1993. We described those changes in our Motion for Panel Rehearing: (See here and here.)


A 1993 advisory committee amendment to FRAP 3, plus a string of case law, has changed the landscape for notice of appeal requirements and made the panel’s cited law obsolete.

A case styled Bogle v. Orange County, 162 F.3d 653 (11th Cir., 1998) holds: “The test for determining the sufficiency of a notice of appeal is "whether it is objectively clear that a party intended to appeal." Fed. R.App. P. 3(c) advisory committee's note (1993 amendment). Signs that the Shulers’ intended to appeal are all over the documents filed with this court and served on adverse parties."


I will have more on this issue in subsequent posts.

Anonymous said...

I have always treated the rule to be hard and jurisdictional. But, there is actually a revision in the works to avoid this type of thing. Good thread about it here: https://twitter.com/smmarotta/status/1163509242789355520

legalschnauzer said...

The revision isn't in the works; it's done and has been for 25-plus years. It started with a change to FRAP 3 in 1993, as I note in my comment @10:05. By now, there is plenty of case law in the 11th Circuit, and probably in all circuits, to reflect the current law and show how the Tjoflat panel got it wrong in our "House Case."

If your circuit is just now getting around to these revisions, it is operating about 26 years behind the times.