IN THE STATE OF VERMONT
SUPREME COURT
* Vermont
Supreme Court docket
Jonathan A. Pahnke,
* Nos.
2013-007, 2012-387
Appellant
*
and 2012-416
vs. *
* Re: Appeal from Vermont
Superior Ct.
Paula J. Pahnke and Vermont
OCS
* Chittenden
Unit, Family Division
Appellees
*
File no. 622-8-00
Cndm
*
-------------------------------------------------------
Jonathan Pahnke, Pro Per
130 Meeks Ave.
Findlay, OH. 45840 Ph. 419-371-8324
-------------------------------------------------------
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MOTION FOR REHEARING
-----------------------------------------------------------------------------------------------------------------
PARTIES & COUNSEL
For Appellant:
For Appellees:
Jonathan A. Pahnke, pro per
Vermont Office of Child Support
130 Meeks Ave.
Att. Sarah
Hazelton, esq.
Findlay, OH. 45840
32 Cherry St.
Suite 310
Ph: 419-371-8324
Burlington, Vt. 05401
Jan 21, 2014
Paula Pahnke
48
Lexington Rd.
Colchester, Vt. 05446
I. MOTION
FOR REHEARING
- Initial Statement:
Appellant now comes forth under Rule 40 of the V.R.A.P. and moves the Court for re-hearing
in this matter, stating the following.
II.
ARGUMENT
A. In affirming the holding of the courts below
that Appellant has “waived” his insufficiency/ lack of service claims, this
court has overlooked both the proper timeline of filings and events in this
case as well as effect of this Court’s Oct. 11, 2011 and Superior Court’s July
26, 2011 dismissals to the question of the preservation of the
insufficiency/lack of service issue in this matter, misapprehended that
Appellees’ themselves “waived” this argument by failing to raise it in their
Feb. 9, 2011 filing opposing Appellant’s Motion to Dismiss, and failed to apply
its own “law of the case” jurisprudence flowing from this court’s Dec 8, 2010
order (see Morrisseau v. Estate of Fayette, 164 Vt.
358, 670 A.2d 820 (1995) (law of the case doctrine “ 'posits that when a court
decides upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.' ” (id. at 164 Vt. 364, 670
A.2d, 824) cf. Christianson v. Colt Industries Operating Corp., 486 U.S. 800,
816, 108 S.Ct. 2166, 100 L.Ed.2d 811 {1988})).
This court thus should rehear and/or amend its Jan. 10, 2014 order denying
relief on this issue.
1. The
Court’s waiver holdings re Appellant’s
lack of service/insufficiency of service claims
This court in its Jan. 10, 2014 order
upheld the holding of the courts below that father had “waived” his objection
to the lack/insufficiency of service in this matter, see order, par. 23).
However, in doing so this court overlooks
Appellant’s argument that Plaintiffs— who undoubtedly swayed the trial court
with their last minute “waiver” claims, if not wrote the court belows’ rulings
on the same— have themselves waived
consideration of their “waiver” argument by failing to raise it prior to their
June 15, 2011 “Response Memorandum” to Appellant’s then-pending Magistrate’s
Appeal of the denial of his Motion to Dismiss for lack of sufficient
service/personal jurisdiction, (see Appellant’s Brief, ps. 13-15,
Appellant’s Reply Brief ps. 6-7).
This is clear from the court’s own conclusions in this appeal apparently
finding relevant to its holding of “waiver”— as did the trial court—
Appellant’s motions and filings going back to the beginning of Appellant’s 2009
filing for Emergency Relief and to the 2010 appeal, (see Jan. 10, 2014 order,
paragraphs 20-24, fn 6); Surely if Appellant’s failure to properly “reserve”
this issue was so apparent stemming from the very beginning of this party’s
2009 attempts at relief, (id., par. 20), Appellees had no reasonable excuse for
failing to equally raise their “waiver” argument in their Feb. 9, 2011 “first
responsive pleading” to Appellant’s Motion to dismiss, (see V.R.C.P. 12(h)(1),
V.R.C.P. 78(b) ).
a. The
Court’s key factual conclusions undergirding its Jan 10, 2014 order overlook
key arguments in Appellant’s brief on the points at issue and are unsupported
by a fair review of the whole chronology and record in this case.
The Court also rules in its Jan.
10, 2014 order that, “Only after the
remand from this Court in December 2010 did father begin to qualify his
participation as a “special appearance” and assert lack of service of the 2000
amended custody order and the 2008 motion to modify and hearing notice as
defects in the legal process. Even then, however, he did not object to
OCS’s service of the motion to modify in 2011 by regular mail.”
However, the court overlooks
that the timeline and entire record clearly show that, however concisely,
appellant father did indeed timely raise
his lack of/ insufficiency of service arguments in his Aug. 2009 Emergency
Motion, to wit, “Therefore, there being no legal service and/or
jurisdiction on respondent re: this significant modification of his
obligations in the above-styled action, the magistrate's default judgment...
and all other current enforcements, administrative actions, and other
consequences flowing from this lack of legal service should be vacated.” (see
Aug. 13, 2009 Motion at p.2 ¶3), but father also raised his
service related jurisdictional arguments before this court in his 2010
appeal and in his Jan. 31, 2011
“Special appearance/Motion to Dismiss,” (id. ps 3-4, albeit in the context
of the Aug. 15, 2000 order initially establishing “jurisdiction” over this case
in Vermont).
Taking into account father’s pro se
status and that as a simple matter of law and chronology the alleged “ordinary
mail” service of Appellees on appellant father of the 2008 modification process
hadn’t even taken place yet at the time
of father’s Jan. 31, 2011 Motion, as well as the fact that the Vermont
magistrate and family courts— prior to the 2010 appeal to this court— had failed to even give father an evidentiary
hearing on his claims, (thus making impossible his elaborating before the
court on the exact nature and extent of his lack of service/“insufficiency of
service” claims, at least before the 2010 appeal and the June 15, 2011
“service” of Appellees by “ordinary mail”), Appellant submits that his raising
the issue in the time and manner he did was timely and satisfied V.R.C.P.
12(b)(1) and V.R.C.P. 12(h)(1).
This court also states that “Father, however, failed to challenge
the sufficiency of the 2011 service in any of the motions that he filed prior
to the November 14, 2011 modification hearing.” (Jan. 23, 2009 order).
However, this statement of “fact” completely overlooks the unrebutted arguments of Appellant in his brief, (id at par. ), that with the exception of Appellant’s Oct. 31, 2011 and Nov. 7, 2011 additional motions for relief from judgment of orders of the trial court not related to his appeal of the modification proceedings— which clearly raise the service issues— virtually all of the motions referred to in fn 6 of this court’s Jan. 10, 2014 ruling must necessarily, as a matter of chronology, refer to the then-pending and subsequently dismissed Magistrate’s appeal!
However, this statement of “fact” completely overlooks the unrebutted arguments of Appellant in his brief, (id at par. ), that with the exception of Appellant’s Oct. 31, 2011 and Nov. 7, 2011 additional motions for relief from judgment of orders of the trial court not related to his appeal of the modification proceedings— which clearly raise the service issues— virtually all of the motions referred to in fn 6 of this court’s Jan. 10, 2014 ruling must necessarily, as a matter of chronology, refer to the then-pending and subsequently dismissed Magistrate’s appeal!
As such they should not be used to
show “waiver” of an issue that this pro se father had originally raised in his
2009 Motion for relief and continued to litigate, in one fashion or other, up
until this court’s recent order! Indeed,
Appellant had already raised the insufficiency issue(s), however concisely, in
his Aug. 2009 Motion, and continued to litigate them in every motion he filed; Nor can it be disputed that the trial court took notice of
these claims at the very same Nov. 14, 2011 hearing in which the trial court
claims they were “waived,” (see Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:38,
1:10:40, 2:19:56, 2:20:06, 2:20:20).
Indeed,
the trial court took judicial notice of Appellant’s service-related
jurisdictional arguments at the March 12, 2012 and Nov. 14, 2011 hearings! (“According to the records on file there is a certificate
of service, I believe signed by Ms. Haselton, indicating that under Rule 5 of
the V.R.C.P. she served you with notice, the motion, and the attached
affidavits in these proceedings; Are you saying that that is insufficient?” See
dvd transcript of March 12, 2012 hearing at 3:07:28, cf. Nov. 14, 2011 dvd tr.
at 1:04:22, 1:06:38, 1:10:40, 2:19:56, 2:20:06, 2:20:20).
b. The Court’s Jan. 10, 2014 order
overlooks that father did, in fact, timely raise his lack of
service/insufficiency of service claims and that rather than waive his
sufficiency of service claims, Father’s claims were preserved by the July 26,
2011 order of the Superior Court.
Further,
when taken in conjunction with the fact of the Superior Court’s July 26, 2011
order which says nothing about waiver
of these issues raised fully in that appeal and the waiver by plaintiffs’
themselves effected by their failure to raise the “waiver” argument in either the first appeal to this
honorable court, Appellees utter failure to respond to Defendant’s Aug. 2009
Motion or raising their “waiver” claim in their Feb. 9, 2011 response to Appellant’s Motion to Dismiss where
the argument is further fleshed out, it defies credulity that such a stance
should be taken to deny a ruling on the merits of this critical issue,
(especially in consideration of the deference required to be shown pro se
litigants, [3] Indeed, contrary to this court’s holdings of
“waiver” it seems clear that— however, concisely pro se father raised this issue initially— defendant did raise the “insufficiency of service” issue
with enough specificity that it should have apprised the trial court of the
nature of his service-related jurisdictional claims.[4]
Consequently, given that in the
circumstances of this case defendant's "service of process" and
personal jurisdiction claims were closely related, (May 10, 2012 order,
PC 17 ¶2), and defendant's insufficiency claim was apparent to the court in the
hearings before it,[5](see
dvd transcript of March 12, 2012 hearing at 3:08:36), as well as that the Rules
of Civil Procedure are to be construed “liberally,” (see Price v. Leland,
149 Vt. 518, 546 A.2d 793, 795 (1988), (“when construing and administering
rules of civil procedure, we must do so liberally, in a way that
" 'secure[s] the just, speedy, and inexpensive determination of every
action,' " id. at 520, quoting V.R.C.P. 1, italics added for
emphasis), it defies credulity that defendant could be said to have “waived”
his insufficiency of service/jurisdictional claims in any manner whatsoever.
Further, key to the court’s Jan. 10, 2014 holdings on
“waiver” seems to be various conclusions by the court, including an assertion,
unsupported by other than mother’s bald assertions and a history of never
received mail from the court— which defendant counters is explained by plaintiff’s
lack of diligence and compliance with the Rules of Civil procedure as noted by
the original Feb. 23, 2009 order of the Magistrate, father’s ADD, and father’s
noted frequent moving for economic and personal reasons— that, 1) father has
attempted to “elude” service (Jan. 10, 2014 order, par. 20), and the affirmance
of the trial court’s holding that, 2) due to continual litigation of this
matter since 2009 father “obviously
knew about the pending motion to modify, since in 2009 he filed his own
emergency motion to set aside the order establishing child support in the
mother’s favor,” (id par. 24).
However, from a constitutional perspective it is
irrelevant whether Appellant found out through other means after the improper 2009 service and filing of
the 2008 modification that his ex wife considered the cars, home, and years of
support by Pahnke family money pursuant to their off record agreement as
insufficient and wanted “court ordered” support, as this court had already thrown out the 2009 “tack”
service and Vermont law clearly requires
some form of service pursuant to the Rules of Civil Procedure in order to
effect “physical, in personum jurisdiction over Father, (elsewise what was
the basis of this court’s 2010 reversal? See V.R.C.P. 4, V.R.F.P. 4, Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, {1987}, Bessette v. Dept of Corrections, 2005 Vt. Super, Lexis
137, Vt Dept of Taxes v. Marshall, No. S0819-04 CnC, Primus v.
Conservation Commission of the Town of Southington 2007 Conn. App. Lexis 2004,
101 Conn App. 238, 920 A.2d 1031 (2007), Beebe v. Eisemann, M.D., et al. 2012
VT 40 (Vermont Supreme Court, 2012, docket 2011-365), Howe v. Lisbon
Savings Bank and Trust Co., 111 VT 201, 207; 14 A.2 3, 6 (1940), Society for Propagating
the Gospel v Ballard, 4 VT 119 (1832), 4.A. C.Wright & A. Miller,
Federal Procedure & Practice 511 §1094, (2002). Cf. In re: Estate of
Francis Duval, 133 VT 197 332 A.2d 802, (1975), (constructive service by
publication on out of town party not notice reasonably calculated to apprise
party of action under Mullane et al.); Smith v. Brattleboro Retreat Inc., 147
VT 303, 515 A.2d 1056 (1986), (lack of service by registered mail left the
court without jurisdiction to hear the case); Emmons v. Emmons, 124 VT. 107,
197 A.2d 812 (1964) (absent voluntary submission only personal service in state
can confer jurisdiction, partially overruled in Von Ohlsen v. Von Ohlsen,137 VT
377, 406 A.2d 393 (1979)Morrisseau v. Fayette, 155 Vt. 371, 584 A.2d 1119,
(1990), (Proper service jurisdictional, absence of which requires dismissal);
Fercenia v. Guiduli, 2003 VT 50 ¶8, 175 VT 541, 830 A.2d 55 (mem) (2003),
(Failure of plaintiffs to comply with the time for service provisions or
“waiver” requirements of V.R.C.P. 3 and V.R.C.P. 4(l) properly resulted in
dismissal of case), Aiken v. Malloy, 132 VT 200, 208-209, 315 A.2d 488, (1974)
(public policy requires courts uphold preference for 'best possible service,',
and Driver v Driver, 515 A.2d 1058, (1986), ("personal jurisdiction must
be somehow acquired, it cannot be merely ordered”),
Additionally, while perhaps this pro se party doesn’t
understand the effect of the 2010 order, unless “vacate and reverse” mean
something different than ordinary language suggests, the 2008 process and
modification were, at that point, a legal “nullity” having been found by this
court to have lacked proper service/notice; thus the raising of the issue of
insufficiency of service/lack of service promptly on remand would seem then to
be timely. Indeed, if raising this claim in Appellant’s Aug. 13, 2009 Motion,
and again promptly in his “Special Appearance/Motion to Dismiss…” upon
“vacation and reversal” of the 2008 modification process under the Dec. 8, 2010
order wasn’t considered “timely” under Rule 12(b)(1), then when exactly should
Appellant have raised his insufficiency of service claims?? Tellingly, neither
this court in 2010, nor Appellees in response upon father’s raising of this
issue on remand, objected at the time; Indeed, as pointed out by Appellant in
his reply brief to this court, Appellees
themselves waived their right to object on this basis by failing to timely file
any
reply at all to Appellant
father’s Aug. 13, 2009 Motion OR raise
it in response to his Jan. 31, 2011 Motion to Dismiss, (Appellant’s brief, ps.
14-15, record). More to the point, if
Appellant had already “waived” consideration of the lack of
service/insufficiency of service claim in filing motions relating to the 2010
appeal to this court, as the Magistrate found, (see May 10, 2012 order, PC 17),
what, exactly, was the point of the Court’s Dec. 8, 2010 reversal?
Moreover, as noted elsewhere and in
Appellant’s Brief, (id ps. ), and
accepting for now the legality of Appellees on remand simply “renewing” the
2008 modification already struck down by this court in 2010, (rather than the
trial court dismissing the 2008 modification when plaintiffs/appellees couldn’t
show any “evidence” on remand of proper service on father in line with this
court’s remand directive in its 2010 order), Vermont law is clear on the
“jurisdictional” nature of proper service and the effect of non-compliance with
the service requirements of the rules, (as exhaustively shown above).
c. The Court’s Jan. 10, 2014 order has
completely ignored Appellant’s comprehensive arguments regarding the core issue
of the effect of non-compliance with V.R.C.P. 3 and V.R.C.P. 5(a) in this case
and overlooked the effect of Plaintiffs’ failure to file and properly serve a
second modification action upon their failure to show proper service of the
2008 modification in accord with this Court’s Dec. 8, 2010 remand directive or timely comply with the trial court’s
March 10, 2011 order that they “properly” serve defendant father.
In this regard, this party
finds this court’s utter ignoring of Appellant’s arguments regarding service
within 60 days per Rule 3 of the Vermont Rules of Civil procedure, as well those
regarding the necessity of service itself, to be perplexing in light of the
long line of precedents affirming that, absence proper service of a complaint, a case is never even commenced and must be
dismissed, (see Beebe, supra, Fercenia, supra, Driver, supra, Aiken,
supra).
Indeed, under
V.R.C.P. 5(a) and above-cited settled caselaw, Appellant submits that plaintiffs were required to either show on
remand they had properly served Defendant or file a new modification motion to
be served on defendant pursuant to the Rules of civil procedure found in
V.R.C.P. 4 and/or V.R.F.P.
4(b)(2)(B)(iii)-(v) (which
plaintiff’s, in spite of knowing defendant’s address for at least the prior
three years, utterly failed to do).
Further, contrary to this court’s dicta regarding an
ostensibly “renewed” or “second modification process,” (Jan. 10 order, par.
25), the only modification action
filed by Plaintiffs is the Sept 2008 modification “tack served” Jan. 23, 2009—
which as saliently noted above already had
been struck down by this honorable court— and the second point, with all
due respect, is putting the cart before the horse, as the whole reason for the Rules of Civil Procedure’s existence is not just a pragmatic one to afford actual
notice, but under settled,
substantive law of the State of Vermont proper service is also required to effect “physical, personal
jurisdiction” in the first instance, (see Brady,
supra, Beebe, supra, Fercenia, supra, Emmons, supra, Duval, supra, Bessette,
supra, Brattleboro Retreat, supra, Driver v. Driver, supra). In either
case, careful and even application of
the Rules must be adhered to in order
to insure protection against creeping evisceration of the important
constitutional interests at stake. (And
such interests are no less worthy of protection when the issue is the “hot
potato” issue of child support and alleged “dead beat” dads than when the State
wishes to take the liberty of a citizen for an alleged crime committed by a
defendant).
More pertinently, as above noted, this court clearly has overlooked
Appellant’s critical on-point arguments that, 1) Under settled Vermont law proper service of process under the
Rules of Civil Procedure is a prerequisite for personal jurisdiction under Vermont Rules of Civil and Family
procedure, (see Appellant’s Brief, ps. 3-6), and arguably can’t be waived other than as the rules allow , (Appellant’s Brief,
12-13), 2) Absent proper service of the
modification at any time throughout
the pendency of this case, under V.R.C.P. 5(a) and settled Vermont caselaw the 2008
modification action— clearly a “new or additional claim” touching the constitutional property rights of defendant distinct
from the claims plaintiff raised in prior proceedings, including the 2006 RFA
hearing— has never even commenced
sufficient to personally and physically “bind” defendant, (see Appellant’s
Brief, ps. 5-9), and, 3) It is irrelevant
that plaintiffs showed service “after the fact” in 2011, as once this court
reversed the 2009 “tack service” via its Dec. 2010 order— a ruling which
incidentally emphasized the necessity of proper service to properly commence
the modification action— absent plaintiffs showing “evidence” of “actual or
constructive” notice of the original and
sole modification “tack served” in 2009, (the question at issue in the 2010
remand, see Dec. 8, 2010 order of the Court, p. 3, Appellant’s Brief, ps. 1-3), the only
proper course by the trial court was dismissal
of the 2008 modification (which, again, under the “law of the case” and
clear terms of this court’s Dec. 2010 order, was vacated and nullified by this
court’s 2010 order).
d. The
court has overlooked that the prior July 26, 2011 and Oct. 11, 2011 dismissals
cannot act to bar resolution of Father’s service-related jurisdictional claims
because neither order addressed the merits of father’s claims and Appellant had
timely raised them before the Family Court judge.
Court nor this court in 2011 addressed father’s claims on the merits, (as is required generally in order to preclude raising of issue, see In re St. Mary's Church Cell Tower, 180 Vt. 638, 910 A.2d 925 (2006), Agway Inc. v. Keith Gray, 167 Vt. 313, 706 A.2d 440 {1997}, Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469; 661 A.2d 89 {1995). Thus, this court’s Jan. 10, 2014 order seems to run afoul of this Court’s precedents in the related “Res Judicata” context that an issue is not precluded from being litigated unless there has been a “full and fair” opportunity for it to be “resolved on the merits,” (see Appellant’s Reply Brief, p. 6, Agway Inc. v. Keith Gray, 167 Vt. 313, 706 A.2d 440 {1997}, citing Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469; 661 A.2d 89 {1995}), see also Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040; Dougherty v. Surgen, 147 Vt. 365, 366, 518 A.2d 364, 365 {1986} (policy of Vermont favors resolution of suits “on the merits” over dismissals on technicalities).
This court also overlooks in recounting of the “facts” and
timeline of events that pro se Appellant didn’t just appeal the “new” child
support order to the Superior Court, (see Jan. 14, order, par. ), but in fact he timely appealed— and both parties fully briefed— the Magistrate’s denial of his 2011
“Special Appearance/Motion to Dismiss” to the Superior/Family Court judge, before
the Superior court dismissed said appeal for “interlocutory” reasons, (cf.
docket entries for March 10, 2011, April 11, 2011, May 20, 2011, May 26, 2011,
and June 15, 2011, and docket entries dated 7/26/11 and 7/27/11 dismissing the
appeal, in record, as well as Appellant’s arguments regarding re-raising
the-non prejudicial effect of the July 26, 2011 dismissal to his
service-related claims due to no Vermont court actually ruling on the merits of them, an issue addressed in more detail in Appellant’s Reply Brief
at ps. 3-6 and elsewhere herein).
Indeed, due to Appellant’s Memorandums /brief(s) in the
2011 appeal of the Magistrate’s March 10, 2011 order clearly raising the issue of insufficiency/lack of service and the absence
of jurisdiction which flowed therefrom, (although not specifically regarding
the June 15, 2011 “ordinary mail” service because at the time of defendant’s
filing of his initial memorandum of law in the 2011 Magistrate’s appeal
Appellees had still not “served” on defendant via “ordinary mail” the 2008
modification, Appellant clearly couldn’t
have “waived” his right to redress on these issues, (Agway, supra, Cold Springs, supra).
To the contrary, since the trial court was abundantly aware of this
pro se Appellant’s attempts to raise this issue, (“According
to the records on file there is a certificate of service, I believe signed by
Ms. Haselton, indicating that under Rule 5 of the V.R.C.P. she served you with
notice, the motion, and the attached affidavits in these proceedings; Are you
saying that that is insufficient?” dvd transcript of March 12, 2012 hearing at
3:07:28, cf. Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:38, 1:10:40, 2:19:56,
2:20:06, 2:20:20), and had expressly noted the close relation and similarity
of previous claims of Appellant’s, (See May 10, 2012 order of
Magistrate, PC 17), father submits that this hyper-technical finding of
“waiver” of his sufficiency of service argument as it relates to the 2011
“ordinary mail” service— while the Magistrate’s appeal in which said service
was clearly at issue and was still pending!— is against both the weight of the
record evidence as well as unfairly fails
to afford father the deference as a pro se litigant which at least one member
of this court has noted is critical
to justice being done, (“the court has an obligation to insure that pro se
litigants are not ‘taken advantage of by strict application of rules of
procedure’ lest the court violate its sacred ‘promise to protect the rights of
pro se litigants,’” see Town of
Washington v Emmons, 2007 Vt. 22, par. 7, citing In re Estate of Knott, 149 Vt.
245 at 247, (1988) (Dooley, justice, dissenting), Appellant’s brief ps.
16-17, record). [6]
e.
Moreover, this pro se litigant clearly
relied on the July 26, 2011 order of the Superior Court, which says nothing
about “waiver,” but quite the contrary, assured defendant father that he can
raise his “personal jurisdiction” issues “when and if he appeals a final child
support order” for preservation of his service-related jurisdictional claims, (cf. Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:38, 1:10:40,
2:19:56, 2:20:06, 2:20:20). Consequently, to then turn around and hold father
to a strict application of Rule 12(h)(1) of the Vermont Rules of Civil
Procedure and allow plaintiffs to belatedly raise their “waiver” argument after
Appellant had “placed all his cards on the table” in the 2011 (and subsequently
dismissed) Magistrate’s appeal clearly
violates the principles of finality spoken of in Putney School v. Schaaf, 157 Vt. 396 at 407, (1991), and is fundamentally
unfair, as it gave Appellees a “second gratuitous chance” to cure their
fatal defect of lack of service, (see Appellant’s opening brief, ps.
13-17).
While this court asserts
that “father’s initial filings did not
reserve the defense of lack of service” (id., par. 20), that
father “failed to challenge the sufficiency
of the 2011 service in any of the motions that he filed prior to the November
14, 2011 modification hearing,” id., par. 23), and that father “did not object to service of the renewed motion to modify filed
in 2011 and the second hearing until after the 2011-2012 child support
modification hearings,” (Jan. 10, 2014 order, par. 23),
the record clearly
shows not only did father raise his insufficiency of service arguments
beginning with his Aug. 13, 2009 “Emergency” Rule 60(b) Motion for Relief from
Judgment, (see Aug. 13, 2009 Motion at p.2 ¶3), but father has raised his “insufficiency of
service” claims at almost every turn and in every filing and brief in this case
since, (including in his Jan. 31, 2011 “Special Appearance/Motion to
Dismiss…” see in record, cf. ).
Moreover, Appellant father clearly
raised such matters in the 2010 appeal to this court, as pointed out in
Appellant’s opening brief in the instant appeal at p. 12 and fn 15, to wit, "In spite of Appellees conceding that Appellant could
not have received service in this case, Appellees go on, (particularly on the
question of jurisdiction, dealt with substantively in Part III of this reply
brief), to copiously quote Appellant's Brief, Docketing Statement, and Printed
case in a seeming end run around the critical,
indisputable fact of the role the utter lack of service in this case plays vis
a vis jurisdiction with irrelevant claims in an attempt to distract the
court from the issues at hand" (Appellant's reply brief in 2010 Appeal to
Vermont Supreme Court, p. 1 ¶2, italics and bold added for emphasis, see also id., p. 2 ¶3, pp. 5-8, Appellant's 2010 opening
Brief in Vermont Supreme Court, p. 11, fn 16, Appellant's Reply Brief in the
previous and subsequently-dismissed 2011 Magistrate's Appeal, p. 5 ¶3, p. 11,
fn 8, as well as defendant's Special Appearance/Motion to dismiss and Oct. 31,
2011 and Nov. 7, 2011 Rule 60(b) Motions for Relief from Judgment, rec).
Thereafter, upon father’s appeal to this court of the
Superior court’s July 26, 2011 dismissal of Appellant’s pending appeal on
“interlocutory” grounds, this honorable court dismissed on the “jurisdictional”
grounds of untimely notice of appeal, thus also failing to address the merits of Appellant’s insufficiency of service
claims, (indeed, the issue in the then pending appeal to this court was
whether the Superior court had properly dismissed the appeal for being
“interlocutory,” so this court’s disposition of dismissal couldn’t have addressed the merits of father’s jurisdictional
claims regarding lack/insufficiency of service).
Thus, while this court properly notes the dismissals by
the Superior/Family court judge and this court in 2011, this court’s Jan. 10,
2014 order entirely overlooks and fails
to address the core, salient arguments of Appellant regarding the effect of these dismissals to the
instant appeal when neither of the prior dismissals resolved Appellant’s then-timely-raised
lack of service/insufficiency of service issues on the merits, (see In re St. Mary's Church Cell Tower, supra, Agway Inc. v. Keith Gray, supra,
Cold Springs Farm Dev., Inc. v. Bal, supra).
Finally, there is
a more fundamental reason why this court should not allow the finding of waiver
to stand post the July 26, 2011 dismissal.
f. This
court’s order overlooks the fundamental unfairness of allowing Plaintiff’s a
“second bite at the apple” in demonstrating “waiver” of Appellant’s
insufficiency of service claims after the July 26, 2011 dismissal by the Superior
Court judge when Appellant had been forced to fully brief the relevant issues
and Appellees had failed to timely raise this defense in their Feb. 9, 2011
Memo in opposition to defendant’s Motion to Dismiss. Indeed, to do so violates
due process and this court’s ruling in Putney v, Schaaf, (duly raised in
Appellant’s reply brief but not even mentioned in the Court’s Jan. 10, 2014
ruling).
Leaving aside the
fact that Appellant’s motions in the prior appeals cannot reasonably be used to
indicate “waiver,”— as pointed out in Appellant’s brief, (ps. 1-2, 10), and the
above mentioned chronology of this case— the trial court’s “sua sponte” raising
the issue of “waiver” after the
parties had briefed the 2011 Magistrate’s appeal and Appellant had fully argued
his “insufficiency of service” claims allowed Appellees, (who to that point
hadn’t pressed their “waiver” argument), to “spring a new ground” on which to
defend, contrary to the principles of fairness and finality noted in Putney
School v. Schaaf, supra, (cf Appellant’s Brief, p. 11).
Along those lines,
while not a constitutional scholar, Appellant believes this could very well
constitute a violation of the both the Federal and State of Vermont’s
constitutional guarantee of “due process” in the appeals process, as if this
court’s rulings re “waiver” are correct it prohibited Appellant from having his
meritorious and duly raised claims resolved by the courts while it simultaneously
(and unfairly!) gave Appellees a “gratuitous second chance” to raise this
argument before the trial court contrary to long-settled Vermont precedents,
see Putney School v. Schaaf, supra, V.R.C.P.
12(b)(1), V.R.C.P. 12(h)(1) and V.R.C.P. 78(b)(1), Follo v. Florindo, 2009 VT
11, ¶14, 185 Vt. 390, 970 A.2d 1230 {2007}, Deyo v. Kinley, 152 Vt. 196, 200,
565 A.2d 1286, 1289 {1989} (issues not timely raised below are prohibited from being
raised on appeal), cf. Putney, supra. Thus this court should rehear and/or
reconsider this matter and amend its judgment accordingly. [7]
2.
Service issues
and arguments overlooked by the Court
As shown in Appellant’s Reply Brief in response to
Appellees “Res Judicata” argument, Appellant contends that as a matter of
settled Vermont and federal law he must prevail as both “minimum contacts” and proper
service are required to effect “personal, physical, jurisdiction” over a
defendant, (see Northern Aircraft, Inc., 154 Vt.
at 40, 572 A.2d at 1385 (both personal AND
subject jurisdiction are required in order for a court to lawfully exercise
authority over a person), accord U.S. v. Kramer 225 F.3d 847
(7th Cir. 2000), United States v. Bigford, 365 F.3d
859 (10th Cir. 2004), ¶¶21-22, ¶42, fn 2,
15B V.S.A. §611(a)(B)(2), 15B VSA §611(a)(C)(2), 15B VSA §611(a)(1)(B), 15B VSA §613(a), 15B VSA §603(b)
and (c), 28 USC § 1738B [d], OCS/Pappas v. O’Brien 2013 VT 11 (2010-398,
filed March 1, 2013), cf. Bessette v. Dept of
Corrections, 2005 Vt. Super, Lexis 137,
Vt Dept of Taxes v. Marshall, No. S0819-04 CnC, Primus v. Conservation
Commission of the Town of Southington 2007 Conn. App. Lexis 2004, 101 Conn App.
238, 920 A.2d 1031 (2007) 4.A. C.Wright & A. Miller, Federal Procedure
& Practice 511 §1094, (2002), Brady, supra, Weisburgh, supra,
(accord Appellant’s Reply Brief, p. 9, Appellant’s Brief, 7-9).
Since, however, the issues of lack of proper service and
the lack of personal jurisdiction that necessarily flows from the lack of
proper service in this matter have never been
resolved on the merits due to the courts’ below— and now this Court’s— adoption
of the “waiver” argument (as shown above and in Appellant’s Reply Brief at
length, see id ps. 7-10, record), resolution
of these issues of Appellants’ now is proper, nay, essential to justice being served, (see St. Mary’s Church cell tower, supra, Agway,
supra, Cold Springs, supra). At
the very least, Defendant father’s well supported and presented arguments
deserve more than a mere summary affirmance of the trial court’s rulings, (or
lack thereof) with “no comment” from this Court as to the merits of these core
issues.
On the merits of the issue of lack of/insufficiency of service
in this case, and the many ways in which Plaintiffs’ service in this case did
not meet the requirements of the law under the Vermont Rules of Civil Procedure
in this matter, (thus requiring dismissal due to the consequent failure to
effect personal jurisdiction over defendant, this party requests additional
briefing and/or directs the court to his opening brief where he examines in
detail the problems with Plaintiffs’ service in this matter, (see Appellant’s
brief, ps. 7-13).
- Law
of the Case
a.
The factual “details” in the court’s timeline and
analysis of the alleged “waiver” of father’s right to raise his lack
of/insufficiency of service argument is fatally flawed and against not just the
law but the clear record and prior 2010 order in this matter!
For starters, as above-noted, this court’s Jan. 10, 2014
ruling that,“As the magistrate noted, father’s initial filings did not reserve
the defense of lack of service,” clearly contradicts the record in this
case.
As pointed out in Appellant’s Brief, (id. p. 12), while
not raised as comprehensively as Appellant might have liked, father clearly raises the lack of
service/insufficiency of service defense sufficiently to apprise the court
of his insufficiency claims in his very first Aug. 13, 2009 “Emergency Filing”
in this matter, to wit:
Therefore, there being no legal
service and/or jurisdiction on respondent re: this
significant modification of his obligations in the above-styled action, the
magistrate's default judgment... and all other current enforcements,
administrative actions, and other consequences flowing from this lack of legal
service should be vacated.
Appellant/Defendant's Aug.
13, 2009 "Emergency Motion/Appeal to Set Aside..." p.2 ¶3, in record,
see also Appellant’s opening brief, ps. 12-13.
More
saliently here, this court’s Jan. 10, 2014 ruling seems to ignore its earlier
2010 decision, (which stressed the necessity of compliance with the Rules of
Civil Procedure to commence a case, see Dec. 8, 2010 order, in record), while
ignoring the fundamental disconnect with its earlier 2010 ruling that the Jan.
10, 2014 ruling poses.
Indeed, the court does this however while
(apparently) completely ignoring or overlooking
the critical issue raised by Question 1 of Appellant’s appeal, to wit:
Q 1.
Did the Magistrate and/or Superior Court below err in that they violated the
"law of the case" in proceeding to find personal jurisdiction over
defendant notwithstanding the utter failure of plaintiffs to show any
evidence on remand that Defendant father had "actual or constructive
notice" of the 2008 modification action in accord with this honorable
court's remand for that very purpose as directed by this court's Dec. 8,
2010 order?
As a result the Court completely ignores or overlooks Appellant’s extremely salient “law
of the case” arguments raised in his very
first question and argued in ps. 1-3 of his opening brief dealing with the
effect the Dec. 2010 ruling must
necessarily have on this case upon failure of plaintiff’s on remand to show
any proper service on father of the
2008 modification process— the stated purpose for the 2010 remand— as pointed
out in virtually every one of Appellant’s briefs and Motions from his Aug. 13,
2009 “Emergency Motion” to his timely raised Motion to Dismiss on remand (and without responding to virtually any of Appellant’s
arguments in his Briefs!)
In short, as noted elsewhere, the Court in its Jan. 10, 2014 order appears to have bought hook, line and sinker the trial court’s time-shifting analysis that contradicts the principles in Putney, supra, while ignoring entirely Appellant father’s well supported rebuttals of its conclusions in his briefs where he has exhaustively addressed every single one of the lower courts’ “conclusions” with significant authority.
While Appellant cannot account for this sudden and mysterious lack of foresight and thoroughness on the part of this erstwhile body, Appellant therefore will not here repeat every one of his arguments, (as he is confident the court, or its clerks, can read his Briefs, referenced here as appropriate).
However, because this party can’t help but think the court’s judgment is at least partly influenced by the modern day obsession with “making father’s pay” for their children, (a philosophy which this party agrees with in principle, if it presents a poor one to base legal decisions on to the derogation of much more fundamental principles).
With that end in mind, Appellant thought it behooves him to examine the philosophical basis for the Rules of Civil Procedure re proper service on individuals in order for personal jurisdiction to properly attach.
b. The principle that defendants must be properly served
in order for personal jurisdiction to attach over a defendant and a case to
properly be commenced, while grounded in constitutional law, (see U.S. v. Kramer, supra, U.S. v. Bigford,
supra, Amend XIX of the U.S. Constitution), stems from the fundamental unfairness of hauling someone
into court who has no idea of the grounds for such an action or that even such
an action might be commenced in their absence; As a result, our founders,
and American jurisprudence generally, share an inordinate concern that the rules governing the service of process
be zealously guarded against creeping
evisceration of the important constitutional interests at stake from lack of
proper notice.
While in a different context, the seeming extremes of a
slavish devotion to the procedural rules in civil cases under due process may
in some regards be compared to the obsession among the Founders to mandating
the requirement that a jury of 12 of one’s peers must agree on a citizen’s
guilt before he may properly be punished for a crime alleged by the State.
In either case, careful and even application of the Rules must
be adhered to in order to insure protection of liberty and the rights of a
democratic society, (the saying “It is better that one guilty go free than one
innocent be wrongfully imprisoned” comes to mind).
And while the modern interests of insuring absent parents
(usually fathers, sadly) contribute financially to their children’s needs when a
marriage fails is important, the societal and constitutional interests noted
above are no less worthy of protection when the issue is the “hot potato” issue
of child support and alleged “dead beat” dads than when the State wishes to
take the liberty of a citizen for an alleged crime committed by a defendant.
Essentially, and in purely philosophical terms, we as a
society have adjudged that the downside to the risk of a plaintiff not being
able to locate a defendant who they wish, for whatever reason, to sue, is less than the downside of a defendant
being sued in absentia without clear and proper notice of the complaint against
them sufficient to allow them to appear and defend. Indeed, this court’s
holding seems oblivious to the fact that the rules are designed for society’s
benefit to best insure that the right to
notice is protected in a broad swath of cases lest the important interests
protected are gradually eroded to the detriment of society as a whole.
Of course, while perhaps understandable in light of the
limited ability of courts to dispense justice in matters oftentimes beyond its
scope of knowledge, this party submits that in the details of the case at hand such
principles matter even more and cannot be ignored lest the cause of justice in
this matter suffer irreparable harm.
Indeed, Appellant submits such principles are critical in the case at bar, which, as
the trial court below noted in its May 10, 2012 order, is “procedurally
complicated,” and this is especially true when there is a “back story” which
this austere body seems uninterested in— i.e., WHY and how the physical custody
of the minor children changed and the “off record” agreement of the parties and
houses, cars, and years of support provided from Pahnke family funds and
“estates” (in the words of defendant’s ex-wife) which has been documented in
the record by this party as best as possible having discovery denied him came
to be— lest rulings of this court appear to be based less about on the “rule of
law” than judgments based on a certain “moral perspective” which the courts
usually and regularly eschew in cases from domestic/divorce law to gay rights.
Coming then to some of the “details” that might matter to
this court, as pointed out above, as a factual matter, this court is plainly incorrect in several of its factual and legal
premises in this matter having (apparently) overlooked Appellant’s replies to
them in his briefs.
c. While in its Jan. 10, 2014 ruling the Court concludes— based
primarily upon continued litigation with Appellees and father’s providing the
court with his address the last five years of litigation that father has “voluntarily”
submitted to the jurisdiction of the court, (notwithstanding the contradiction
this poses to the Court’s assertion in par. 20 of its recent order that father
has “eluded” service)— that, “As the magistrate noted, father’s initial filings
did not reserve the defense of lack of service, (Jan. 10, 2014 order, par. 20),
the factual details of this case’s timeline say otherwise.
Accordingly, while the court concludes that “Only after
the remand from this Court in December 2010 did father begin to qualify his
participation as a “special appearance” and assert lack of service of the 2000
amended custody order and the 2008 motion to modify and hearing notice as
defects in the legal process,” (id. Par. 21), this is irrelevant if this court’s Dec. 8, 2010 order truly “vacated” the
prior service and service under the Rules of Civil Procedure is indeed
“jurisdictional” as a wide swatch of cases from this court indicate, (see Beebe, supra, Morrisseau, supra, Bessette,
supra, Fercenia, supra, Driver, supra, Aiken, supra, Brattelboro Retreat,
supra, Ballard, supra).
d. Likewise, this court’s conclusions that Father,
however, failed to challenge the sufficiency of the 2011 service in any of the
motions that he filed prior to the November 14, 2011 modification hearing.[6]
(id ¶ 23), and that, “As the magistrate
noted, father’s initial filings did not reserve the defense of lack of service,”
are unsupported by the record, as shown above and at length in this party’s
opening Brief, (see Appellant’s brief, ps. 12, 5-6 and 9-13).
Further, although this court has found, “father continued
to argue that he was never properly served at the inception of this case in
2000, [but] he did not object to OCS’s service of the motion to modify by
regular mail. Father therefore waived this defense,” (Jan. 10 order,
par. ), as noted above, Appellant’s
insufficiency-of-service claims at the time of the “ordinary mail” service
which this court claims father “waived” the right to object to— which in any
case this party has shown at length in his previous briefs and above was contrary
to law— were already pending in the 2011 Magistrate’s Appeal to Superior Court,
and every motion the trial court has
suggested should have raised father’s service-related jurisdictional challenge
was related to either this, or the previous 2010 appeal to this court. As
such it is unreasonable to expect father to have either “seen the future” or
objected again! Then too, as above
noted, the court was well advised of father’s
claims at the Nov. 14, 2011 hearing
and again at the March 12, 2012 hearings, (dvd
transcript of March 12, 2012 hearing at 3:07:28, cf. Nov. 14, 2011 dvd tr. at
1:04:22, 1:06:38, 1:10:40, 2:19:56, 2:20:06, 2:20:20), and, as a result,
any “waiver” of them was unknowing and unintentional contrary to Vermont law,
(see See Chimney
Hill Owners' Ass'n v. Antignani, 136 Vt. 446, 453; 392 A.2d 423, 427 (1978)
(waiver “involves both knowledge and intent.” Cf. Liberty Mutual Ins. Co. v. Cleveland, 127 Vt. 99, 103, 241 A.2d 60, 63
{1968}).
e. Finally, and leaving
aside Appellant’s argument already made above that under V.R.C.P. 5(a) and
settled Vermont service and notice jurisprudence, “new or additional claims”
are required to be served under 4(b)(2)(B)’s
more rigorous service requirements and that neither
the Superior Court’s July 26, 2011 order of dismissal nor this court’s
subsequent Oct. 11, 2011 order of dismissal state father “waived” his right to
redress of his service-related issues, nor did the Vermont courts resolve these
critical issues which had been been timely raised and continually before the
Vermont courts since at least 2009 on the merits, (in spite of
father’s prior appeals being then-properly before the Superior and this
Honorable Court in both 2010 and 2011!)
Rather, this court in
2010 ruled in father’s favor and only dismissed his 2011 appeal due to an
untimely notice of appeal, (see Oct. 11, 2011 entry order), and the Superior
Court by its July 2011 order dismissed due to an ostensibly impermissable
“interlocutory” filing, (see July 26, 2011 order of the Superior Court, record) . [8] Thus, the “law of the case,” (see Morrisseau,
supra), still required Appellees to show
proper service of the 2008 modification in 2009 prior to the trial court allowing this matter to proceed on remand,
(under V.R.C.P. 5(a) and settled precedents, as above recounted).
f. Further, the Superior Court in its July
26, 2011 order expressly found that Appellant could re-raise his “personal
jurisdiction” issues without
qualification if and when he appealed any “final order” of modification entered
by the Magistrate, (ostensibly including appellant’s
insufficiency-of-service-related “personal jurisdiction” claims which father
had diligently raised up to that point; indeed, the fact that he had done so is
reflected in both the failure of this court to dismiss the first 2010 appeal on
the basis of “waiver” as well as the language of the Superior Court’s July 26,
2011 order itself). While this court’s
Jan 10, 2014 order affirming the trial court’s finding of “waiver” less than
clearly indicates the law and facts upon which it concludes acts of father
following the July 2011 and Oct. 2011 orders of dismissal show an “intentional”
and subsequent waiver of the service related jurisdictional issue(s), the court
appears to base its conclusion of “waiver” on the fact of father’s continuing
to litigate relevant issues in the Vermont Courts and his telephonic
“appearance” related to resolution of the modification proceedings and his
various Rule 60(b) motions for relief, (see Jan. 14, 2014 order, paragraphs 12,
18, record).
However, this court
has clearly misapprehended or overlooked that however the Vermont courts ruled
on his subsequent Rule 60(b) Motions they could not (lawfully), under precedents
cited herein and in p. 16 of father’s opening brief, abrogate his previously
and timely-raised arguments regarding the sufficiency of service of the
modification which Vermont courts had chosen not yet to resolve. Nor is it
reasonable to require pro se father to have to continually utter the magic
phrase “special appearance” or file a particularly-styled motion to “quash”
service or object to the insufficiency of service as the trial court held when father
had already made clear his objections to the insufficient service. (Indeed, to do so would seemingly
violate the latitude required to be given pro se litigants under settled
Vermont precedents, as pointed out
by Appellant in his opening Brief, see Beyel
v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (1983), cited in Appellant’s
Brief at ps. 11, 15, Bingham v. Tenney, 154 Vt. 96, 101-02, 573 A.2d 1185,
1187-88 (1990)cited in Appellant’s opening brief at ps. 11, 15, and Vahlteich
v. Knott, 139 Vt. 588, 590-91, 433 A.2d 287, 288-89 (1981) cited in Appellant’s opening brief at ps. 11,
15).
Federal authority on this point is
apropos. In Hospital Corp of American v.
District Ct., 112 Nev. 1159, 924 P.2d 725 (1996), the federal court ruled,
So long as the personal
jurisdiction issue is properly presented to the District Court, [initially], a
Defendant does not waive the rights to challenge jurisdiction by making an
appearance at trial and arguing the case on the merits.
Hospital Corp v. District Ct., supra, at 1161, n. 2, 924
P.2d at 726, n. 2 (1996).
In this light it would appear that the
holding of Hospital Corp of America
is distinctly contrary to the holding of the trial court, now upheld by this
Court, that pro-se appellant must formulaically and ritualistically
reiterate—and in a separate Rule 12(h) motion at that— his “special appearance”
challenge to the jurisdiction of the court based on insufficiency/ lack of
service (and apparently continue to raise it again and again in order to
preserve it, cf. Rule 12(b) of the Federal Rules of Civil Procedure stating
that not only may a defense of lack of jurisdiction or insufficient service be
made by motion or responsive pleading, but "no defense is
waived by being joined with any other defenses or objections in a responsive
pleading or motion," see Gasset v. Snappy Car Rental, 111 NV 1416, 906
P.2d 258 (1995) Cf. IN re B.C., supra).
This
holding that Appellant must continually re-raise his “special appearance”
jurisdictional challenge, Appellant submits, is preposterous and contrary to
caselaw.
Rather,
since it is indisputable in the present case on the clear face of the
record that defendant timely filed his “Special Appearance/Motion to Dismiss”
on remand, which he continued to rely on in proceedings before the Magistrate,
(see American Hospital Corp, dvd transcript of Nov. 14, 2011 hearing at
1:04:22, 1:06:38), even to the point of orally “renewing” his “Special
Appearance” in challenging the court's jurisdiction on remand from the
dismissed 2011 Magistrates Appeal (id. at 1:04:22), and in fact challenged the
court's void orders in his Rule 60(b) Motions with no objection or correction
by the court or parties, (id.), defendant submits he clearly satisfies the rule in Hospital
Corp., supra and is entitled to relief.
4.
To uphold the lower courts’ rulings that Appellant was required to file his
insufficiency of service claims separately in a Rule 12(h) filing or “motion to
quash” is contrary to federal law and undermines Rule 60(b) and the important
rights and grand purposes for which it was designed.
Finally,
this court appears to agree with the trial court that Appellant, instead of
relying on his insufficiency of service arguments already made in his Rule
60(b) Motions and pending in the 2011 Magistrate’s appeal, (and the July 26,
2011 order of the Superior Court) father was required to separately raise his
claims in a Rule 12 (h)(1) motion.
However, not only does this contradict the leniency
to be given to pro se litigants, as above shown, but this improperly subjects Rule 60(b) to Rule 12(h)(1) and consequently
seriously undermines the important purposes for which 60(b) was designed, as
shown in Appellant’s Brief, (id., p. 11 and fn 10). This court
accordingly should grant rehearing to address this critical issue and amend its
Jan. 10, 2014 order accordingly.
Moreover, while not exactly apropos here,
the doctrine of Res Judicata has arisen in order to bring to rest issues which
have already been resolved; In that context, this court has unambiguously addressed what constitutes a valid
application of “res judicata,” otherwise known as “claim preclusion,” ruling:
To
preclude a claim from being litigated, [Appellees] must show that (1) A
previous final judgment on the merits exists, (2)
the case was between the same parties or parties in privy, and (3) the claim
has been or could have been fully litigated in the prior proceedings.
In
re St. Mary's Church Cell Tower, 180 Vt. 638, 910 A.2d 925 (2006)
Key to the question of
whether res judicata bars litigation of a claim is whether or not any prior
order on the matter was a final, and hence “appealable” order, which this
court has defined as “whether it makes a final disposition of the subject
matter before the court.” (See Morrisette v. Morrissette, 143 Vt. 52, 463
A.2d 1384 {1983}). [9]
In this case it is abundantly clear
under the Superior Court’s July 26, 2011 order and this court’s Oct. 11, 2011
order, that, in spite of the trial court stating at the last evidentiary
hearing in this matter, “I will have to rule as to whether or not that was
sufficient, or not sufficient, in terms of having you still served.” March 12, 2012 hearing, dvd tr at 3:08:36), this did not happen due to the trial court’s
subsequent ruling on “waiver” and the Superior court’s subsequent July 26, 2011
dismissal of the Magistrate’s appeal and its Aug. 1, 2012 misapplication of the
“Law of the Case” doctrine, (erroneously believing the magistrate’s prior
address of the issue forbade it from reviewing the issue as an appellate court,
see Appellant’s brief, p. 18, 5-6).
Consequently, through no fault of Appellant
and in spite of squarely raising these issues before the trial court, (see dvd
transcript of Nov. 14, 2011 hearing at 1:04:22,
1:06:38, 1:10:40, 2:19:56, 2:20:06, 2:20:20), these key issues were
never addressed “on the merits.” It is thus incredibly
unfair to uphold the lower courts and neglect to grant relief, (or even
rule on these issues!) now.
III.
CONCLUSION
Therefore,
for the above and foregoing reasons, Appellant respectfully urges this court to
rehear and/or reconsider its Jan. 10, 2014 order, and amend its judgment
accordingly.
Submitted this
23rd day of Jan., 2014.
__________________________________
Jonathan A. Pahnke, Appellant
[1] See p. 8 of Appellant’s opening brief p. 8 and fn 6, cf. id., 14, “Indeed, Plaintiff's have openly conceded they don't believe
service of process is even necessary to effect jurisdiction, see Appellees'
June 15, 2011 Mag. Appeal Response Memorandum, p. 14 ¶2, in record. Moreover, the Superior Court family judge
found that proper service has never been accomplished in this case since
it's 2000 inception in Vermont, (“The record in this case contains no
indication that Father was provided such notice, but rather suggests that he
was provided with the modified order approximately one month after its
issuance,” (Aug. 1, 2012 order, PC 8¶2, in record), “Indeed, it appears that
Mother failed to meet the deadline...” id. Of course, under this court’s settled
precedents, “this
Court on appeal, as well as the superior court in a post-conviction
relief proceeding, will defer to the [trial] court's findings of fact that have support in the
record,” IN_RE_ROBINSON.93-174; 161 Vt. 550;
641 A.2d 779, slip. Op, p. 5, and content itself to matters of law unless
forced to draw contrary factual conclusions clear on the face of the
record.
[2] Of course, under this court’s settled precedents, “this Court on appeal, as well as
the superior court in a post-conviction relief proceeding,
will defer to the
[trial] court's findings of fact that have support in the record,” IN_RE_ROBINSON.93-174; 161 Vt. 550; 641 A.2d 779,
slip. Op, p. 5, and content itself to matters of law unless forced to draw
contrary factual conclusions clear on the face of the record. However, among the many factual
determinations of the courts below which this court
for unclear reasons in fact does not give
deference to but substitutes its own
factual determinations are : Appellant was granted “discovery” by the trial
court, (Jan. 10, order, par. 24, compare Appellant’s motion for additional
hearing, for discovery, and to compel attendance of Paula Pahnke at the March
10, 2012 hearing and the subsequent ignoring of this request of Appellant’s by
the trial court); that the “proof of service” which the family court referenced
in its order to lawfully change custody in Aug. of 2000 was not, in fact, under
the UCCJA in effect at the time, advance notice of the change of custody hearing, see the Aug. 1, 2012 order of
the Superior Court at p. 6-7, (“The
record in this case contains no indication that Father was provided such
notice, but rather suggests that he was provided with the modified order
approximately one month after its issuance,” Aug. 1, 2012 order, PC 8¶2, in
record, “Indeed, it appears that Mother failed to meet the deadline...” id, compare this
court’s subsequent and non-deferential
characterization of the Aug. 15, 2000 order,
to wit, “The court issued the order on an
emergency basis and ordered mother to submit proof of service of the amended
order within three days,” Jan. 10. 2014 order, par. 4). See also this court’s independent factual conclusion, entirely apart from any findings of the
trial court, that father has intentionally “eluded service,” based on the
mere sayso of mother on a “Sheriff’s info form,” (Jan. 10, 2014 order, paragraphs
19, 20). Indeed, on that score, while it
is certainly clear that father has moved four times in 13 years and that many
pieces of mail have not reached defendant, the court overlooks that the reasons for this may be solely due to
the fact of Appellant’s ADD and moves in an effort to seek greater economic
security or personal reasons that have nothing
to do with plaintiff’s efforts, (or lack thereof), at service of legal matters
which father was not aware of. Indeed,
as the trial court initially noted in its Feb. 23, 2009 order, “there have been
no efforts to modify by plaintiff’s in this jurisdiction prior to 2008,” id. in
record, ps. 5A-5B. Further, there is at least equal evidence in the record that
such failure of service has been due to Plaintiffs lack of diligence, (e.g.,
what is the excuse for Plaintiff’s failure to attend the Oct 2000 motion to
modify in Vermont, to properly serve defendant when they knew where he lived in
Ohio or Indiana, (Appellees Brief, ps. 14, 21), or for failing to approach the
Michigan court to modify the divorce decree long before choosing Vermont as a
forum?)
[3]
See Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (1983), (court
will consider issues raised by pro-se litigant even though litigant failed to
properly or clearly brief issue), Bingham v. Tenney, 154 Vt. 96, 101-02, 573
A.2d 1185, 1187-88 (1990) (reversing denial of relief from summary judgment
when pro se party opposed summary judgment with contested facts but failed to
file an affidavit), and Vahlteich v. Knott, 139 Vt. 588, 590-91, 433 A.2d
287, 288-89 (1981) (reversing denial
[*8] of relief from judgment
against a pro se litigant who failed to answer a complaint because a
co-defendant's answer purported to speak for both defendants).
[4] A fact presumably salient in this
court's Dec. 8, 2010 reversal. Otherwise, why didn't this court (or parties)
notice such “waiver” then and merely dismiss Appellant's 2010 appeal on that
basis? In any event, by failing to timely respond and raise this objection plaintiff's
have themselves “waived” their right to do so in the proceedings below, (see
V.R.C.P. 12(b), 78(b) ).
[5] Cf. “According
to the records on file there is a certificate of service, I believe signed by
Ms. Haselton, indicating that under Rule 5 of the V.R.C.P. she served you with
notice, the motion, and the attached affidavits in these proceedings; Are you
saying that that is insufficient?”(dvd transcript of March 12, 2012 hearing at
3:07:28.
[6] And this is beyond the inappropriate and
time-bending analysis of the Magistrate incorrectly denominating Appellant’s
pre-2010 appeal motions as relevant to the alleged post-June 15-2011 “waiver”
and the admission of the Magistrate that the “service” of the 2008 Motion for modification
had confusingly been served along with Appellees “Response Memorandum” in the
then-pending Magistrate’s appeal, (“All of these [motions] were in response to
OCS’ June 15, 2011 Response Memorandum, which
was served on Mr. Pahnke along with OCS’ Motion to Modify.” Magistrate’s
May 10, 2012 order, PC 17, par. 2).
Indeed, as pointed out elsewhere at length, requiring Appellant to have
filed a separate Rule 12(h)(1) challenge to this on-the-record and clearly
insufficient service in the midst of an appeal in which these same issues were
(at that time) imminently expected to be resolved would have made utterly no
sense, (see Appellant’s Brief, ps.
) and improperly subjects Rule 60(b) critical and “grand” purposes to
the more mundane requirements of Rule 12(h)(1), the important purposes for
which Rule 60(b) were designed, (and issue which this court clearly overlooked,
as it failed to address it in its Jan. 10, 2014 order in spite of being duly
raised by Appellant, see Brief, ps.
). Which makes all the more this
court’s sudden preference for “form over substance” in the filings of pro se
litigants perplexing, (and see Appellant’s claim that, since virtually every motion cited by the trial and
Superior courts in finding “waiver” related to already-pending appeals, they
cannot be considered “responsive pleadings” under Rule 12(b)(1) or V.R.C.P.
12(h)(1), (Appellant’s brief, ps.
). Indeed, this court’s prior
precedents have not required such defenses to be raised in any particular form
as long as the requirements for relief under Rule 60(b) are met, (see In re
B.C., 169 Vt. 4, (1999).
[7] Or at the very least take additional briefs
from the parties and/or reopen this matter to take argument on the issues
raised herein which this court did not address in its Jan. 10, 2014 order.
[8]
This court has also ruled that
Appellant father has “waived” his right to challenge the Aug. 15, 2000 change
of custody order notwithstanding its ostensible voidness for lack of service
due to the passage of time; However, even if true, this is logically an
altogether separate matter, raised by a separate Rule 60(b) Motion, which
should have no bearing on the issue of whether or not father has diligently and
timely prosecuted his lack of service/insufficiency of service claims regarding
Plaintiffs’ motion for modification.
[9] Black's Law Dictionary defines
“interlocutory” as having to do with an order, judgment, or appeal that is
“interim or temporary; not constituting a final resolution of the whole
controversy.” Blacks Law Dictionary, 9th Ed., West Publishing.
Applied to this case, then, Appellant’s “insufficiency of service” issue as it
relates to personal jurisdiction has, in spite of diligently being placed
before the Vermont Courts, never been “finally” resolved on the merits.
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