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| Gerald Bard Tjoflat |
You might think that when changes are made to the Federal Rules of Appellate Procedure (FRAP), U.S. judges would be capable of keeping up with them. But that apparently is too much to ask of the three-judge panel, led by Richard Nixon-era geezer Gerald Bard Tjoflat, which cheated us raw in "The House Case" -- a federal lawsuit over the theft of our Birmingham home via a wrongful foreclosure.
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 the 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.
Our intent to appeal the entire district-court dismissal is objectively clear in our appellate brief -- and the Tjoflat panel admits this. From our Motion for Panel Rehearing:
As the panel notes, the Shulers make it clear in their appellate brief – in two places – that they intended to appeal the dismissal, in its entirety. In their “Statement of Jurisdiction” on page 1, the Shulers’ state regarding the Eleventh Circuit: “. . . this court has jurisdiction to consider an appeal of the district court’s order dismissing the case. . . .
In the “Statement of the Issues” on page 2 of their appellate brief, the Shulers specifically raise three issues on appeal, including this: Did the district court unlawfully dismiss the Shulers’ case . . . ? It could not be more clear that the Shulers intended to appeal the dismissal, plus all orders leading up to that.
Do objectively clear statements in the appellate brief override a flawed Notice of Appeal? Case law flowing from the 1993 committee amendment to FRAP 3 shows the answer is yes. In fact, the Bogle finding goes beyond that, invoking the U.S. Supreme Court in the process. From our panel-rehearing motion:
Bogle then mentions the notion that an appellate brief may serve as a notice of appeal (“Assuming that an appellate brief may serve as a notice of appeal.”) That notion later was confirmed with clarity by the U.S. Supreme Court in Smith v. Barry, 502 U.S. 244 (1992), finding: “In this case, we hold that a document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3.” Thus, the Shulers’ appellate brief lawfully serves as a notice of appeal, and the panel admits that the brief shows the Shulers’ intent to appeal the entire district-court case.
Barry further holds: “Courts will liberally construe the requirements of Rule 3. . . . Thus, when papers are "technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." The Shulers’ appellate brief, where they mention in two places their intent to appeal the entire district-court case, clearly serves as the functional equivalent of Rule 3 requirements.
It cannot be disputed that current law, under FRAP 3 and its progeny: (1) Allows statements in an appellate brief to override a flawed Notice of Appeal; (2) Allows an appellate brief to qualify as a Notice of Appeal; and (3) Calls for the requirements of Rule 3 to be liberally construed, especially where the litigant's actions are the "functional equivalent of what the rule applies."
Do you need more evidence that Tjoflat and the Gang screwed us, big time? Consider the holdings of Rinaldo v. Corbett, 256 F.3d 1276 (11th Cir., 2001). Consider this from our panel-rehearing motion:
Rinaldo v. Corbett, 256 F.3d 1276 (11th Cir., 2001) drives home the totality element of the Shulers’ appeal: “When a district court enters a final judgment, `all prior non-final orders and rulings which produced the judgment' are merged into the judgment and subject to review on appeal." The record shows the district court entered a final judgment – meaning all non-final orders and rulings which produced the judgment are merged into the judgment and subject to review on appeal – especially where the Shulers’ appellate brief makes clear their intention of appealing the entire district-court case.
And then, we have this:
Rinaldo holds: “Now, Rule 3(c)(4) directs that "[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice." Fed. R.App. P. 3(c)(4). Explaining this new subsection, the 1993 Advisory Committee Notes state that: “Finally, the rule makes it clear that dismissal of an appeal should not occur when it is otherwise clear from the notice that the party intended to appeal. If a court determines it is objectively clear that a party intended to appeal, there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward.” There can be no dispute that the Shulers intended to appeal. They say so in their notice of appeal and they say so again, twice, in their appellate brief. And the law is clear this presents no fairness or prejudice concerns for adverse parties.
If this were a case of incompetence in the 11th Circuit, that would be alarming enough. But this involves intentional cheating, which probably rises to the level of fraud on the court. And that, by law, should give us grounds to reopen "The House Case," along with all of the other federal matters -- including our employment cases against UAB and Infinity Insurance -- where we were intentionally cheated due to fraud on the court.
As for Tjoflat, our research reveals a clear reason why he tends to favor big financial outfits like Chase Mortgage, which wrongfully foreclosed on our home of almost 25 years.
We will provide details in upcoming posts.
(To be continued)
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