Legal Magazine

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

Posted on the 19 August 2019 by Rogershuler @RogerShuler

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)

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