Petition for Writ of Certiorari — Jaffe v. Virginia Phototherapy, L. L. C.

4 . Supreme Court, U.S,

FILED

03 8 68 DEC 1 3 2003

UBF ice . :

SMe wg ’ te WELK

IN THE

Supreme Court of the United States

ALLEN V. JAFFE,

Petitioner,

v,

VIRGINIA PHOTOTHERAPY, L.L.C.,

Respondent.

On PETITION FOR A WRIT OF CENTIORARI TO THE

SUPREME Court OF VIRGINIA,

City oF RICHMOND

PETITION FOR A WRIT OF CERTIORARI

ALLEN V. JAFFE, pro se

3211 Fox Chase Drive

Midlothian, VA 23112

(804) 744-8381

1

QUESTIONS PRESENTED

1. This court should grant certiorari to clear up confusion

as to whether during a motions hearing the courts must

consider whether the party asserting Res Judicata must

present evidence to prove by a preponderance that the issues

asserted as bars were previously raised so as to assure a fair

and impartial hearing guaranteed under the 14" amendment.

2. This court should grant certiorari and decide whether

on plea of Res Judicata, the courts must consider whether a

lower court judge in a current action may simply take judicial

notice of the record in previous actions and dispense with

the necessity of proof of record of those previous actions in

which that same judge presided, in determining the outcome

of the current matter before.

3. This court should grant certiorzri to decide whether

the court must consider whether the dismissal of a matter

for lack of jurisdiction under the Virginia Medical

Malpractice Act may serve as a bar under Res Judicata to

future actions.

4. This court should grant certiorari and decide the most

fundamental issue of fairness and impartiality guaranteed

under the 14" with regard to whether a lower court judge on

motion to disqualify for bias and prejudice, does in fact

disqualify and recuse themself from those matters to which

recusal had been sought then , should that judge be able to

affect the determinations of those matters from which they

are then barred.

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5. This court should grant certiorari and decide whether

on a petition for appeal, a higher court should consider an

appellant’s submitted statement of facts, in lieu of transcripts,

when all the requirements necessary for admission of that

statement of facts have been satisfied, but for the lower court

judge’s refusal to sign, or amend and sign such statement for

admission when such a refusal serves to defeat the appellant’s

right of appeal.

6. This court should grant certiorari and decide whether

in denying an appeal, the court should have considered an

order correcting Nunc Pro Tunc, a previous fraudulent order,

as being Nunc Pro Tunc to the date of the original final order

so as not to affect an appellant's right of appeal with regard

to the determination of appellate jurisdiction and filing time

requirements.

iii

PARTIES TO THE PROCEEDING

Petitioner is Allen V. Jaffe, pro se, who was the plaintiff,

pro se, in the circuit court, and the appellant, pro se, before

the Virginia Supreme Court.

Respondent is Virginia Phototherapy, L.L.C., a Virginia

limited liability company which was the defendant in the

Circuit Court and the appellee before the Virginia Supreme

Court.

iv

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved . .

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Reasons For Granting The Petition .............

Conclusion

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13

25

TABLE OF CITATIONS

Page

CASES

Agar v. Winslow, :

123 Cal. EE Coe DPE note Fest a Ney. 19

Arnold y. Eastern Airlines, Inc.,

712 F.2d 899 (4" Cir. | eran eo ne a nee 20

Bierce v. Hutchins,

Gee Se hk kt eee 18

Bistine v. United States,

Da Pe OE bs Say sva eee oe 18, 19

In re Cement Antitrust Litigation,

O73 F260 1020 9" Cir, 1982) otc ee cc cccwss 20

Council v. Commonwealth,

198 Va. 288, 94 S.E.2d 245 (1956) ........... 24

Cromwell v. County of Sac.,

We a PE ono oaks eh eee 20

Cutshaw v. Cutshaw,

220 Va. 638, 261 S.E.2d 52 (1979) ........... _ 24

Darnell v. Barker, ‘ ;

179 Va. 86, 18 S.E.2d 271 (1942) ............ 16

DeCancino v. Eastern Airlines, Inc.,

283 S.2d 97 (Fla. 1973) .................... 16

vi

Cited Authorities

.Page

Dixon vy. Pugh,

244 Va. 539, 423 S.E.2d 169 (1992) .......... 24

El Fenix De Puerto Rico v. The M/Y Johanny,

See LSOTE Cie, BPE) occ kav ceeeehiowes 20

Eugene H. Proctor, Jr. v. Town Of Colonial Beach,

425 S.E.2d 818, 15 Va. App. 608, Va.0734 .... 22

Highsmith v. Commonwealth,

ao Va. App. 440, 409 S.B.26 6 on ces cciassass 14, 18

Johnson Steel Street Rail Co. v. William Wharton,

Jr., & Co., 152 U.S. 252, 261, 14S. Ct. 608,

a I oo okey ae Ree 14

Lamb v. Commonwealth,

222 Va. 161, 279 S.E. 2d 389 (1981) .......... 24

Liljeberg vy. Health Services Acquisition Corp.,

486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855

RS er rrr Pare) Bearer fog hg) ti 21

Mcelmoyle v. Cohen, in

NE goa hea ee eee Cre ee oe Re ee 20

McLaughlin v. Austin,

Se Tn bas hay cea nk eweuae eres 19

Moody vy. Simmons,

i ow Sey ek ok ae | er rea 20

Vil

Cited Authorities

Mowry v. City of Virginia Beach,

198 Va. 205, 93 S.E.2d 323 (1956) ........ 13-

Netzer v. Reynolds,

231 Va. 444, 345 S.E.2d 291 (1986) ..........

Newton v. Newton,

202 Va. 96, 116 S.E.2d 94 (1960) ............

Northern Assurance Co. v. Grand View

Building Association,

Be Oh TD og vk ccc awe wcccns re aaa

Rohrbach vy. AT & T Nassau Metals Corp.,

915 F. Supp. 712 (M.D. Pa. 1996) ............

Southern Pacific Co. v. Bogert,

Ee eo hance ee tisk eee

Stone v. Robinson,

I ONS Sg oo oe oe cs eto

Townsend v. Jemison,

I hae oe hrc ee er ee

Tullos v. Mayfield,

PO I eee e aaa Cuy nd sucaday elas

Page

14, 18

Vili

Cited Authorities

Page

U.S ex rel. Carrono v. Richmond,

177 F. Supp. 504 (D. Conn. 1959) ............ 2

Ward v. Monroeville,

409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972)

OTL EPEC OP TCT PT eee OTe Pe rer ore 21

Whitehead v. Nevada Commission On

Judicial Procedure,

oy we 8: | er rere reer er 21

Williams v. Florida,

399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed 2d 446

CO dae cad eRe wee Rees RO 2

Wright v. Castles,

232 Va. 218, 222 S.E. 2d 125 (1986) ....... 13, 14, 18

UNITED STATES CONSTITUTION

Fourteenth Amendment ...............206- i, 3, 13, 23

STATUTES

eg No Ee 9 Sr rene ee meee nese y re 5, 8,9

Wh Se USED i. he 8606 ce ste eee 5, 7,9

Va. Code B.01-4200) . <5 occ cc cane ccee eee: 6, 24

“ix

Cited Authorities

Page

We A SAO 0 5 anode xdpaaina dada 4,7,8,9

er NE os is Knob an 44S dae eee a ae

RULES

Pe EE ED i % ka da ee eek ae eines 23

UNE ee CU re premiere wage eee 23

OTHER AUTHORITIES

30 Am Jur., Judgements,

a ed ee aot PNG YT A ere ry aa 14

30 Am. Jur., Judgements,

eT reo as uk aes de ate ee a eee ee 15

30 Am. Jur., Judgements,

So se eo hee ae 16

50 C.J.S., Judgements,

BG SOE Se Sie cans Kean eee iets 14

50 C.J.S., Judgements,

EE Ca aay ct err re Poor eee. 15

50 C.J.S., Judgements,

ey SE GS ca wie a a ee ee eee 16

x

Cited Authorities

Burk’s Pleading and Practice,

Ble ge Shs eS ere eee ee

Charles A. Wright, Arthur Miller & Edward H.

Cooper, Federal Practice and Procedures,

eee fo eevee eee ere Ter rere ere

Freeman on Judgements,

rn eR ES, a aa a dp db hh ek & ee ee ee

Jones’ Commentaries On Evidence,

De BE 6a eta EE Oe eel

Page

20

xi

TABLE OF APPENDICES

. Page

Appendix A — Order Of The Supreme Court Of

Virginia, City Of Richmond Denying Petition For

Appeal Dated June 25, 2003 ................. la

Appendix B — Final Order Of The Circuit Court Of

The County Of Henrico Dated April 29, 2003

Lvetsesd eee OM OAH ee PEPSI SR WOO KS Vea EKG 3a

Appendix C — Order Of The Circuit Court For The

Couty Of Henrico Dated January 24, 2003 ..... Sa

Appendix D -— Order Of The Supreme Court Of

~ Virginia Denying Petition For Rehearing Dated

SO a ey.) |. ee rn 7a

Petitioner respectfully petitions for a Writ of Certiorari

to review the judgements of the Circuit Court and the

Supreme Court of Virginia.

OPINIONS BELOW .

The opinion of the supreme court of Virginia record no.

030874 concerning the circuit court matter styled CL02-

1730-00 dated June 25, 2003, denying Allen v. Jaffe’s direct

appeal is attached as appendix A, the order denying Jaffe’s

petition for rehearing dated September 12, 2003, is also

attached as appendix D. The circuit court fraudulent order

submitted by the defendant, is attached as appendix C, and

the corrected legitimate order signed on April 29, 2003, is

attaches as appendix B.

STATEMENT OF JURISDICTION

The jurisdiction of the court is invoked under 28 U.S.C.

§ 1257, which states that writs will be issued from

“final judgements and decrees rendered by the highest court

of a state in which a decision could be had.” Petitioner had

originally planned to base his appeal on numerous ruling

errors committed during the hearing on January 24, 2003,

which he expected to be memorialized in the order submitted

by the defendant/appellee counsel, but conflicts which

resulted from the fraudulent order submitted by the appellee

counsel and the exclusion of a properly submitted Statement

of Facts because of the refusal of the judge to sign it, served

to defeat appellant’s Right of Appeal.

In an article entitled, “Commentary on 1988 revision,”

appearing after 28 U.S.C. § 1257, David Siegel observed that

the statute governing Writs of Certiorari to state courts allows

2

review of “not just a decision of the highest court in which a

decision could be had.” Observing that this language was the

same as what appeared before the 1988 revisions, Mr. Siegel

said it “takes note of the internal strictures a state may impose

on appeals within its own court system, perhaps stopping a case

at some lower level and barring it from review by the state’s

highest court. A lower federal court has held that, where a higher

state court is by constitution or statute without power to review

a decision of a lower court, the decision of the lower court

becomes the decision of the highest court within the meaning

of 28 U.S.C. §§ 1257, giving the United States Supreme Court

power to review final judgements by the highest court of the

state in which a decision could be had, U.S. ex rel. Carrono v.

Richmond, 177 F. Supp. 504 (D. Conn. 1959). The Supreme

Court granted Certiorari in Williams v. Florida, 399 U.S. 78, 90

S. Ct. 1893, 26 L. Ed. 2d 446 ( 1970) to an intermediate appellate

court which had affirmed a trial judge’s enforcement of the

Florida Supreme Court’s criminal procedural rule concerning

the alibi defense in order to decide whether the rule passed

constitutional muster. It could not be stretch anyone’s

imagination to realize a court which issued a body of rules,

such as the guidelines in question here, would be unimpressed

with an argument challenging the Constitutionality of the court

imposed rule. As is the case presented herein, the State’s

Supreme Court lacked jurisdiction to hear Williams after the

district court of appeal had affirmed.

In this current matter before this court, so was Allen Jaffe

denied an appeal because the higher court in failing to comply

with it own rules, refused to recognize the appellant’s corrected

order as being Nunc Pro Tunc, the consequence being the court

invalidated the order based on improper jurisdiction, which as

a result served to defeat appellant Jaffe’s night to appeal.

J

Additionally, that same failure of the court to follow its

own rules permitted the refusal of the lower court judge to

sign a properly submitted statement of facts in lieu of

transcripts. The lack of which resulted in the statement not

being admitted and served to defeat the appellant’s right of

appeal because the Virginia Supreme Court in denying the

petition for appeal ruled that “a transcript or written statement

of facts is necessary to determine whether the appellant stated

objections with reasonable certainty at the time of the ruling

as required by rule 5:25.”

Pursuant to the denial of the petition for appeal, Allen

V. Jaffe subsequently filed a petition for hearing which was

subsequently denied on September 12, 2003.

This court now has jurisdiction under title 28 U.S.C.

1257(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The questions presented implicate the following

provisions of the United States Constitution:

Amend. XIV

The Fourteenth Amendment states in pertinent part:

No state shall make or enforce any law which

shall bridge the privilege or immunities of citizens

of the united states; nor shall any state deprive

any person of life, liberty, or property, without due

process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

4

28 U.S.C. § 1257(a)

States in pertinent part:

Final judgements or decrees rendered by the

highest court of a state in which a decision could

be had, may be reviewed by the supreme court by

writ of certiorari where the validity of a treaty or

statute of the united states is drawn in question or

where the validity of a statute of any state is drawn

in question on the ground of its being repugnant

to the constitution, treaties, or laws of the united

States....

Virginia Code 16.1-93

States in pertinent part:

Every action or other proceeding in a court

not of record shall be tried according to the

principles of law and equity, and when the same

conflict the principles of equity shall prevail. No

warrant, motion or other pleading shall be

dismissed by reason of a mere defect, irregularity

or omission in the proceedings or in the form of

the pleadings and enter such orders as may be

necessary to correct any such defects, irregularities

and omissions, and to bring about a trial of the

merits of the controversy and promote substantial

justice to all parties. ...

5

Virginia Code 8.01-272

States in pertinent part: .

In any civil action, a party may plead as many

matters, whether of law or fact, as he shall think

necessary. A party may join a claim in tort with

one in contract provided that all claims so joined

arise out of the same transaction or occurrence. —

The court, in its discretion, may order a separate

trial for any claim.

Virginia Code 8.01-275

States in pertinent part:

No action or suit shall abate for want of form

when the Motion for Judgement or Bill of

Complaint sets forth sufficient matter of substance

for the court to proceed upon the merits of the

cause. The court shall not regard any defect or

imperfection in the pleading, whether it has been

heretofore deemed misleading or insufficient

pleading or not, unless there be omitted something

SO essential to the action or defense that

judgement, according to law and the very right of

the cause, cannot be given.

6

Virginia Code 8.01-428(b)

States in pertinent part:

Clerical mistakes in all judgements or other

parts of the record and errors therein arising from

oversight or from an inadvertent omission may

be corrected by the court at any time on its own

initiative or upon the motion of any party and after

such notice, as the court may order.

STATEMENT OF THE CASE

Allen V. Jaffe, pro se, filed a civil action in Henrico

Circuit Court on September 13, 2001, styled Allen V. Jaffe v.

Virginia Phototherapy, L.L.C., case no. CL01-1543, the single

defendant, Virginia Phototherapy, L.L.C., is a Virginia limited

liability company, with its place of business at 5700 Old

Richmond Avenue, suite E 21, Richmond, Virginia 23226. ~

The action styled case no. CL01-1543, sought relief

against Virginia Phototherapy, L.L.C., for its failure to

permanently remove plaintiff’s unwanted hair as they

advertised and promised. They advertised permanent hair

removal using an FDA controlled medical device by the name

of “Epilight”, which the defendant alleged and advertised

‘was approved and effective for use in permanent hair

removal. The action sought recovery for monies paid as well

as damages for pain and suffering.

Shortly after filing case no CL01-1543, Allen V. Jaffe

discovered that the medical device they had advertised as

FDA approved for permanent hair removal, had in fact, not

been approved for the purpose they had advertised and for

7

which it was used. The device was illegally advertised and its

use was adulterated contrary to regulations of the food and

drug administration act. The fact that the device had not been

approved for permanent hair removal meant that the device as

they used it, could not have produced the results they advertised

and promised no matter how many times the treatments were

performed, whether 50 or 1,000 times. The FDA as part of its

approval, had determined that the device was not capable of

producing “permanent hair removal’’.

Because Virginia Phototherapy, L.L.C., knew or had to

know that the Epilight device would not and could not

permanently remove the plaintiff’s hair and yet they lied and

deceived him, intending him to suffer the unnecessary torture

of the treatments; and because the plaintiff believed that Virginia

Phototherapy, L.L.C. was a health care provider and subject to

the Virginia Medical Malpractice Act, the plaintiff was forced

to split his claim and filed an additional and separate cause of

action for medical malpractice against the single defendant

Virginia Phototherapy, L.L.C. styled case no. CL01-2094.

The defendant responded by filing a dernurrers and special

plea. The plaintiff, pro se, attempted to file cross motions and

arguments, but the judge refused to hear those arguments or

motions over the Jaffe’s objections.

During the motions hearings the judge made it impossible

for the plaintiff to correct his pleadings to satisfy any defects in

his pleadings because Judge Hammond issued an order

precluding the plaintiff from filing any future motions to amend

his actions if necessary, contrary to the Virginia Code 16.1-93

and 8.01-275. The plaintiff. Allen V. Jaffe timely objected to all

those and other improper rulings, but those objections were

overruled.

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During the proceedings, it is vitally noteworthy to

mention that the judge continually chided the plaintiff for

not having and attorney, and reminded him that “this is what

happens when you represent yourself”.

Neither cases were judged on their merits. In the matter

of case CLO1-1543 defendant argued that the matter was

duplicative of CL01-2094. the judge in turn affirmed that

argument over plaintiff’s objection, contrary to 8.01-272 and

16.1-93 of the Virginia Code, and forced the plaintiff to

choose between the two matters (even though the plaintiff

had submitted a motion to consolidate and which she denied)

if Jaffe wanted to proceed with his action.

Basing his reluctant decision on language and

affirmations by the defendant that they were health care

providers and therefore actionable under the medical

malpractice act, the plaintiff chose to proceed with the

medical malpractice action styled-CL01-2094. following his

reluctant election, the matter styled CL0O1-1543 was

dismissed over plaintiff’s objections for being duplicative —

of CL01-2094.

At that point the judge instructed the parties to proceed

on CL01-2094 and to set a trial date and proceed to establish

pre-trial procedures. The trial date was set for October of

2002 and the pre-trial procedures were initiated.

Shortly after the trial date was set, the defendant then

filed a demurrer and special plea seeking dismissal on

grounds that Virginia Phototherapy, L.L.C. was not a health

care provider under the Medical Malpractice Act, and Jaffe

was not a patient of Virginia Phototherapy, L.L.C., therefore

the company was not actionable under its provisions.

9

The defendant’s pleadings were misleading and consequently,

but in spite of the numerous objections of Allen V. J affe, the

judge dismissed the action for lack of jurisdiction.

Following dismissal of the medical malpractice cause

of action for lack of jurisdiction, Jaffe, subsequently, under

the proper jurisdiction filed the personal injury cause of action

styled CL02-1730, against Virginia Phototherapy, L.L.C.,

which is this matter appealed.

Simultaneously, the appellant Allen J affe, filed a medical

malpractice action against the Virginia licensed physician

Dr. Ronald Mark Landess, DPM, as the desi gnated physician

in charge and personally responsible for performing the

Epilight treatments as stipulated in the patient doctor consent

form signed by Jaffe.

While the matters of CL01-1543 and CL01-2094, were

presided on by Judge Hammond, those cases were not decided

on their merits in particular CLO1-1543 was dismissed as a

result of the judge’s bias and prejudice contrary to the code

of Virginia statutes 8.01-272, 8.01-275 and 16.1-93; and

CL01-2094 was dismissed because the court ruled the lack

of jurisdiction regarding the application of the medical

malpractice act to a non-healthcare provider, yet the

defendant seeks to use those dismissals as bars to deny Allen

v. Jaffe his right to justice under the constitution.

As a result of the improper rulings, the plaintiff filed a

written complaint against Judge Hammond with the judiciary

committee, but was told there was nothing they could do.

Plaintiff’s current matter which is the subject of this

appeal, styled CL02-1730 against Virginia Phototherapy,

Se

10

L.L-C., is for numerous torts actionable under the theories

of personal injury and product liability. The previous matters

CLO01-1543 and CL01-2094 are not duplicative of CL02-

1730, nor were they properly adjudicated and may not serve

as bars under the Doctrine Of Res Judicata.

In response to case no. CL02-1730, the matter now under

appeal, the defense filed numerous pleas and motions, among

which was a speciai plea of Res Judicata.

In response to defense motions and pleas, plaintiff filed

a motion to strike the special pleas ; and, upon discovering

that Judge Hammond had been assigned to the matter styled

CL02-1730, plaintiff Allen V. Jaffe also filed a motion to

disqualify Judge Hammond for prejudice and bias.

A motions hearing was held on January 24, 2003, and

during the motions hearing which /asted approximately 15

minutes, the judge after careful consideration, granted the

plaintiff's motion to disqualify and she recused herself from

cases CL02-1729 and CL02-1730. then without reason, over

the plaintiff’s most vocal objections, continued to preside

over those same matters over which she had recused herself.

The judge, after recusal, and without the presentation of

evidence or testimony, prejudicially sustained the defendant’s

special plea of Res Judicata and dismissed the action

styled CL02-1730, once again, over the plaintiff’s objections.

The judge then continued with additional improper rulings

as follows:

(a) Denied all parties motions for sanctions.

(b) In action CLO2-1729, denied defendant’s plea

of privity.

1]

(c) Upon suggestion by the defendant as to the

appropriateness of rendering decisions after her recusal,

the judge withdrew her previous order denying defendants

plea of privity in CL02-1729 and ordered that the matter

be remanded for hearing by another judge.

Once again plaintiff noted his objections to the rulings, and

relying on the improprieties and error of the j udge’s post recusal

adjudications, stated his intention to appeal.

Based upon the oral rulings of judge Hammond during the

motions hearing and believing that the order would accurately

reflect and memorialize them, the plaintiff filed his Notice of

Appeal to the Supreme Court of Virginia on F ebruary 7, 2003.

The plaintiff was never sent a copy of the final order which

was prepared by the defendant counsel and submitted to the

judge for signing. Consequently the plaintiff Allen V. Jaffe was

never provided an opportunity to see, review and challenge the

order within the 21 days permitted by the court rules.

Unfortunately it was not until after the 21 days that the plaintiff

managed to get a copy of the signed order by going to the Henrico

County Courthouse and paying a $3.00 fee.

When the appellant Allen Jaffe examined the order, he

discovered that the judge’s most crucial ruling granting Allen

4 Jaffe’s motion to disqualify was deliberately omitted as well as

other portions of her rulings. In order to correct the order back

to the date of the ruling, appellant Allen Jaffe filed a motion to

correct Nunc Pro Tunc, and also provided a sketch order

designating the corrections. Thereafter, a motions hearing on

plaintiff's motion to correct Nunc Pro Tunc was noticed for

April 4, 2003.

a

ay

*

12

The defendant during the hearing on April 4, 2003, on

Jaffe’s motion to correct Nunc Pro Tunc, although being fully

aware that the order they submitted was incorrect and

fraudulent, objected to any changes to correct or modify the

improper order citing the 21 day rule. The judge as outlined

in her order dated April 29, 2003, overruled the defendant’s

objection and even chided the defense counsel for the failure

to provide a copy of the order to the appellant and the failure

to certify that such a copy was sent to the plaintiff. The judge

chastised the defense and went on to point out that the order

as they had prepared it was grossly incorrect in that the

submitted order omitted most of her rulings. The judge then

she granted the plaintiff’s motion to correct the order Nunc

Pro Tunc and subsequently wrote the correct order to reflect

her true rulings and intentions in the matter.

The judge drafted and signed her own order granting the

motion to correct Nunc Pro Tunc, but the order was captioned

final order rather than Nunc Pro Tunc and included the judges

refusal to sign the presented statement of facts in lieu of

transcripts. The mistake in the caption of the order created a

timeline jurisdictional issue which served to defeat the

appellant’s right of appeal.

The petition for appeal was filed on April 21, 2003 and

according the Virginia Supreme Court order dated June 25"

2003, it appears the petition was denied because the court

did not recognize the order Nunc Pro Tunc correcting the

order issued January 24, 2003; the confusion of which was

created by the defendants initially submitted fraudulent order.

It also appears that the denial was based on the lack of a

statement of facts by the defendant which was the result of

the lower court judge’s refusal to sign or amend and sign the

statement of facts which was properly submitted by plaintiff.

13

In response to the dismissal, the appellant filed a petition

for rehearing and addressed those issues on which the

Supreme Court appeared to have based their dismissal:

however, the Petition For Rehearing was also denied and as

prescribed by law, the matter was noticed for appeal to this

the Supreme Court of the United Stated under a Special Writ

of Certiorari.

REASONS FOR GRANTING THE PETITION

1. In order to sustain a plea of Res Judicata, the party

asserting the defense must present evidence and witnesses

to support by a preponderance of the evidence those

assertions. Absent such evidence that party may not prevail

to defeat the other parties right to a fair and impartial hearing

on the merits of the action as guaranteed under the

14" amendment.

The proponent of Res Judicata has the burden of proving

by a preponderance of the evidence that an issue was

previously raised and decided in an appropriate court in a

prior cause of action.

The defender of Res Judicata must prove by a

preponderance of the evidence the following: (1) the identity

of the things sued for; (2) the identity of the causes of action;

(3) the identity of the persons and parties to the actions; and -

(4) the identity of the quality in the persons for or against

whom the claim is made. ;

It has long been established that the above four elements

must be present before Res Judicata can be asserted to bar a

subsequent proceeding, Wright v. Castles, 232 Va. 218, 222,

349, S.E.2d 125, 128 (1986); Mowry v. City of Virginia Beach,

14

198 Va. 205, 211, 93 S.E.2d 323, 327 (1956); Highsmith v.

Commonwealth, 25 Va. App. at 440, 489 S.E.2d at 241;

Wright v. Castles, 232, 349 S.E.2d at 128.

While the admissions in the pleadings or the stipulation

of counsel may dispense with the necessity of the entire

record in certain cases, generally only an inspection of the

entire record in the previous action will disclose whether the

identities in controversy in the pending suit was settled

between the parties.

In the present case it is difficult to see how it can be

determined except from the complete record of the former

proceedings whether the defendant was improperly named

and whether the plaintiff’s individual rights under personal

injury had been actually litigated and decided. 50 C.J. S.,

Judgements, sec. 771, pp. 300, 301; 30 Am Jur., Judgements,

sec. 224, pp. 956,957.

The basis of this principle is that the conclusiveness of

the prior adjudications upon the issue sought to be retried

depends not upon whether the judgement was subject to

review, but upon whether it was a final determination by a

court, which had jurisdiction of the subject matter and of

the parties, of the identical issue and between the same

parties before the court in the subsequent litigation.

Johnson Steel Street Rail Co. v. William Wharton, Jr., & Co.,

152 U.S. 252, 261, 14S. Ct. 608, 38 L. Ed. 429.

The plaintiff/appellant holds that the judge in the

previous matters erred in sustaining Res Judicata and

dismissing the action because no evidence at all was

presented during the 15 minute hearing that would in any

way support any assertion of Res Judicata. No evidence was

15

introduced or allowed to prove that the matters were decided

with finality by a court which had jurisdiction of the subject

matter of the parties, the identity of the remedies sought, the

identity of the causes of action, or identity of the quality of

the persons for or against.

2. A judge may not in a present matter take judicial

notice of the records in previous actions and dispense with

the necessity of proof of the content of the records of those

previous actions even though the same judge may have

presided over those previous actions.

The general rule is that the court will not travel outside

the record of the case before it in order to take notice of the

proceedings in another case, even between the same parties

and in the same court, unless the proceedings are put into

evidence. The reason for the rule is that the decision of a

case must depend upon the evidence introduced, if the courts

should recognize judicially facts adjudicated in another case,

it makes those facts, though unsupported by evidence in the

case at hand, conclusive against the opposing party, while if

they had been properly introduced they might have been met

and overcome.

. Regardless of the fact that previous actions were presided

over by the same judge in the same court, a plea of Res

Judicata does not permit the judge to dispense with the

necessity of proof of record in the previous actions. To sustain

a claim of Res Judicata, the court will not take notice judicial

of the record in the first suits (30 Am Jur., Judgements,

Sec. 273, p. 993; 50 C.J.S., Judgements, sec. 836, p. 404.)

it is appropriate to point out that ordinarily to sustain the

allegation of Res Judicata, the whole record of the former

proceedings must be put in evidence (See Freeman on

|

4

ES

4

16

Judgements. 5" Ed., Sec. 1030. pp. 2147, 2148; Jones’

commentaries on evidence, 2d Ed., Sec. 1886, p. 3514;

30 Am Jur., Judgements, sec., 274, p. 993; 50 C.J.S.,

Judgements, Sec. 843-c, p. 417). Generally, only an inspection

of the entire record in the first actions will disclose whether the

identical issues in the controversies in the pending suit was

settled in the previous litigations. Generally a court must review

the entire record of the previous case to determine whether the

judgement is Res Judicata (DeCancino v. Eastern Airlines, Inc.,

283 S.2d 97 (Fla. 1973)).

The fact that the adjudication relied upon by the appellee

was made by the same judge who then sustained the plea of Res

Judicata is not sufficient. Individual and extrajudicial knowledge

on the part of the judge will not dispense with the proof of the

facts not judicially cognizable, and cannot be resorted to for the

purpose of supplementing the record. The consideration of facts

outside of and not made part of the record is improper. Newton

v. Newton, 202 Va. 96, 116 S.E.2d 94 (1960); Darnell v. Barker,

179 Va. 86, 18 S.E.2d 271 (1942).

Nevertheless, Virginia Phototherapy, L.L.C., the defendant/

appellee sought in the case under review to rely affirmatively

upon the facts which were allegedly determined in the prior

proceedings brought by it against this appellant Allen V. Jaffe.

Virginia Phototherapy, L.L.C., alleged those prior determinations

as bars to appellant’s motion for judgement although Virginia

Phototherapy, L.L.C. neither filed the record as an exhibit with

its plea, nor offered it in evidence at the January 24, 2003

motions hearing. Such failure to do so is fatal for “whether the

former adjudication is affirmatively or defensively asserted,

the record of the prior action must be offered in evidence”.

Burk’s pleading and practice, § 357 at 675 (4% ed. 1952).

17

During the motion hearing on January 24, 2003, no proof

of the whole records of the previous actions en which the

plea of Res Judicata was relied upon, were put into evidence

for inspection in order to support any claims of identity of

issues in controversy which were alleged to have been settled

in the previous litigations. Without those records in evidence

to inspect and compare, the judge was not permitted to

dispense with the necessity of the proof of those whole

records in those previous actions. Lacking the introduction

of such proof, the defendant failed to satisfy the evidentiary

requirements necessary to sustain the plea of Res Judicata;

and for those reasons the trial court erred in sustaining the

plea of Res Judicata and dismissing the action now under

appeal.

The brief time period of 15 minutes in which all the

motions were heard demonstrates how summarily the Henrico

County Circuit Court treated plaintiff’s arguments and shows

how his constitutional claims and his right to a fair hearing

were not seriously considered.

Without the introduction of the records of the prior cases

into evidence, the burden of proof was not met and therefore

the plea of Res Judicata should not have been sustained and

accordingly, the action of the lower court should be reversed

and the matter being appealed should be remanded with

direction that it be reinstated on the docket of the original

court for trial on its merits.

3. The defender of Res Judicata must prove by a

4 preponderance of the evidence the following: (1) the identity

i of the things sued for; (2) the identity of the causes of action;

(3) the identity of the persons and parties to the actions; and

(4) the identity of the quality in the persons for or against

whom the claim is made.

18

It has long been established that the above four elements

must be present before Res Judicata can be asserted to bar a

subsequent proceeding, Wright v. Castles, 232 Va. 218, 222,

349, S.E.2d 125, 128 (1986); Mowry v. City of Virginia Beach, ~

198 Va. 205, 211, 93 S.E.2d 323, 327 (1956); Highsmith v.

Commonwealth, 25 Va. App. at 440, 489 S.E.2d at 241;

Wright v. Castles, 232, 349 S.E.2d at 128.

The judge erred in applying the doctrine and dismissing

the action because no proof of any of the required identities

in the previous actions, asserted as bars, were ever presented

and entered that would support any claims asserted.

4. A matter dismissed for lack of jurisdiction under the

Virginia Medical Malpractice act may not serve as a bar to

the assertion of future actions under the proper jurisdiction.

During all times relevant to the filing of the action which

was dismissed for lack of jurisdiction, the plaintiff believed

that the defendant/appellee Virginia Phototherapy, L.L.C. was

a healthcare provider governed by the Virginia Medical

Malpractice Act and as such filed the action against the single

defendant Virginia Phototherapy, L.L.C. It is well settled that

the pursuit of a remedy which a party may think himself

entitled to, but to which it develops he is not, does not bar

the bringing of a suit on the remedy which does exist.

Northern Assurance Co. v. Grand View Building, 203 U.S.

106; Bierce v. Hutchins, 205 U.S. 341; Southern Pacific Co.

v. Bogert, 250 U.S. 483; Bistline v. United States, 229 Fed.

546.

In the Bistline rule when the united states filed its bill in

equity to secure the cancellation of the patents, it was met

with a plea by the defendants that the suit was barred because

19

not brought within six years from the date the patents were

issued. The government asserted that the suit was not barred

because it was brought within six years after it had received

notice of fraud. The case went to trial and the court held the

suit barred because the united states had notice of the fraud

more than six years before suit was filed. It therefore

dismissed the bill on that ground. It was very clear therefore,

that when the suit in equity was filed the united states did

not have a right to the remedy therein sought, namely, the

cancellation of the patents. Hence its course in pursing that

supposed remedy does not bar the prosecution of the present

suit at law to recover the value of the land.

It is no answer to that proposition to say that when the

suit was brought the facts respecting notice were known, or,

to be exact, that knowledge was chargeable to the united

states. Granting that they were known, whether those facts

constituted such notice as would operate to set the statute of

limitations in motion was a question of law, and because the

United States thought the statute not applicable, would not

mitigate against the prosecution of the present suit, its mistake

being due to an erroneous view of the law.

The law has not gone so far as to deprive parties of

meritorious claims merely because of attempts to collect them

by inappropriate action, upon which recovery could not be

had. McLaughlin v. Austin, 104 Mich. 489, 491. If the rule

were otherwise, a mere mistake of judgement would result

in depriving one of valuable rights. Agar v. Winslow, 123

Cal. 587. The instant case resembles Bistine v. United States,

229 Fed. 546. See Tullos v. Mayfield, 198 S.W. 1073; Stone

v. Robinson, 218 S.W. 5.

20

The fact that the defendant was not actionable under the

Virginia Medical Malpractice act and therefore dismissed,

the action being dismissed merely barred the remedy but did

not extinguish the right of Allen V. Jaffe to recover for his

injuries

Again, the fact that Allen V. Jaffe pursued his action

under medical malpractice when met with the plea in bar,

does not make the Judgement Res Judicata in the instant suit,

for the sole question decided there was the applicability of

the Virginia Medical Malpractice Act. That was no

adjudication of the rights of Allen V. Jaffe but only of the

availability of the remedy. The Virginia Medical Malpractice

Act affects the remedy, not the merits. Jownsend v. Jemison,

9 How. 406; Mcelmoyle v. Cohen, 13 pet. 312. A judgment

not on the merits is not Res Judicata. Cromwell v. County of

Sac, 94 U.S. 351.

5. A lower court judge upon recusal pursuant to a

motion to disqualify for bias and prejudice may not be able

to affect the determinations of those actions from which

disqualification and recusal have been granted.

As a general matter, the courts have almost uniformly

held that a trial judge who has recused herself “should take

no other action in the case except the necessary ministerial

acts to have the case transferred to another judge.” E/ Fendix

de Puerto Rico v. The M/Y Johanny, 36 F.3d 136 at 141

(1* Cir. 1994). 13a Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 3550,

at 629 (2d 1984 ); see also Moody v. Simmons, 858 F.2d 137,

143 (3d Cir. 1988); Arnold v. Eastern Airlines, Inc., 712 f.

2d 899, 904 (4" Cir. 1983); In Re Cement Antitrust Litigation,

673 F.2d 1020, 1025 (9 Cir. 1982); Rohrbach v. AT&T

21

Nassau Nassau Metals Corp., 915 F. Supp. 712, & N.5 (M.D.

Pa. 1996); Whitehead vy. Nevada Commission on Judicial

Procedure, 920 P. 2d 491, 502-03 (Nev. 1996).

Surely it would be improper for a judge to decide the

issues of a case in which he or she had recused themselves if

this decision violated the litigant’s constitutional right to be

heard by a neutral and detached judge or it undermined the

publics confidence in the impartiality of the judicial process.

See Liljeberg v. Health Services Acquisition Corp., 486 U.S..

847, 858 N.7 & 861, 108 S. Ct. 2194, 2201 N.7. 100 L. Ed.

2d 855 (1988) (noting that a judge is called upon to take the

steps necessary to maintain public confidence in the

impartiality of the judiciary); Ward v. Monroeville, 409 U.S.

57, 62, 93S. Ct. 80, 84, 34 L. Ed. 2d 267 (1972) (stating that

_due process guarantees litigants a neutral and detached

judge.)

As a consequence it was error for the judge to have

affected the outcome of this matter under appeal by sustaining

the plea of Res Judicata and dismissing the action. In light

of the foregoing, the appellant was denied his right to equal

protection and a fair trial.

6. Ona petition for appeal from a circuit court motions

hearing, absent a transcript, the appellate court should

consider an appellant’s statement of facts when all the

requirement for admission have been satisfied, but for the

judge’s refusal to sign or amend and sign the statement for

admission.

The admission of the statement of facts is necessary to

an accurate and complete history of the proceedings in the

trial court and the appellant should not be made to suffer for

the faults of the court.

22

The appellant Allen V. Jaffe complied with rule 5a:8(c)

and (d) which state that a written statement becomes a part

of the record when: (1) it is filed in the office of the clerk of

the trial within fifty-five (55) days after entry of judgement,

to which the appellant Allen V. Jaffe complied; (2) a copy of

the statement is mailed or delivered to opposing counsel

along with a notice that the statement will be presented to

the trial judge within the specified time period to which the

appellant also complied; (3) the trial judge signs the statement

and the signed statement is filed in the office of the clerk.

The judge however, refused to sign or offer to amend and

sign the statement.

In Eugene H. Proctor, Jr. v. Town of Colonial Beach, 425

S.E.2d 818, 15 Va. App. 608, Va. 0734 it was held that the

requirement does not provide a means by which

the trial judge, through design, inattention or

inadvertence, may thwart an appeal by neglecting

or refusing to sign the statement of facts. For these

reasons, we hold that, once the appellant has

complied with the first two elements of rule

5a:8(c), he or she has established prima facie

compliance with the requirements of the rule.

Thereafter, the trial judge must sign the statement,

correct the statement and sign the corrected

statement, or, in cases where the judge cannot in

good faith recall or accurately reconstruct the

relevant proceedings, order a new trial. This court

will not dismiss an appeal where an appellant has

established prima facie compliance with rule

5a:8(c)(1). rather, in such situations, we will

remand the case to the trial judge for appropriate

action as required by rule 5a:8(c)(2) or (d).

23

In this case, just as in Proctor, Allen V. Jaffe, the appellant

established prima facie compliance, and there is nothing in

the record to explain or justify why the trial judge did not

comply with the requirements of rule 5a:8(c)(2) or (d) by

signing the statement of facts or signing it after it was

corrected to accurately recite the facts and procedural history

of the case. Therefore, this court should have remanded this

case to the trial court with instructions to the trial judge to

sign the statement, correct the statement as needed and sign

the corrected statement, or order a new trial if the judge is

unable accurately to recall or reconstruct the relevant

proceedings. To deny the petition for appeal because the judge

thwarted the appellant’s efforts to enter his statement of facts

would be to grossly deny the appellant his Constitutional

right under the 14" amendment to a fair and equitable hearing

on the merits of his cause.

The decision of the higher court to not properly deal with

the admissibility of the statement of facts has a particularly

debilitating effect on an individuals right of appeal. In effect,

by failing to ensure the admission of statement of facts when

submission requirements are met prima facie met, then those

individuals who do not engage a court reporter, even for a

brief motions hearing, will find their right to appeal will be

denied for lack of a transcript setting down the events of the

hearing appealed from.

7. A lower court has no jurisdiction to issue final orders

in a matter once that matter has been noticed foe appeal;

except that an incorrect or fraudulent order may be corrected

at any time by a motion and order to correct nunc pro tunc to

the original date of the corrected order.

24

The judge while prohibited from issuing any final orders

related to a matter noticed for appeal, was within her

jurisdiction to correct Nunc Pro Tunc, the fraudulently

prepared and erroneous order submitted by the defendant‘s

counsel by order Nunc Pro Tunc to the date when the order

was originally issued and signed.

In Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52

(1979) it was held that an attorney’s failure to prepare an

order for entry by the court, deemed to be an oversight, could

be corrected by a Nunc Pro Tunc order. Code § 8.01-428(b)

authorizes a trial court to correct “clerical mistakes in all

judgements or other parts of the record and errors therein

arising from the oversight or from the inadvertent omission.”

By a Nunc Pro Tunc order, see Lamb v. Commonwealth, 222

Va. 161, 279 S.E.2d 389 (1981); Council v. Commonwealth,

198 Va. 288, 94 S.E.2d 245 (1956).

The Supreme Court of Virginia “has adopted the majority

view that the trial court has the inherent power, independent

of statutory authority, to correct errors in the record so as to

cause its acts and proceedings to be set forth correctly.”

In short, the court has the inherent power, independent of

statute, upon any competent evidence, to make the record

“speak the truth”, Netzer v. Reynolds, 231 Va. 444, 449, 345

S.E.2d 291, 294 (1986).

When acting Nunc Pro Tunc, the court does not require

jurisdiction over the case, see Dixon v. Pugh, 244 Va. 539,

543, 423 S.E.2d 169, 171 (1992), rather, the trial court merely

corrects the record by entry of an order Nunc Pro Tunc, under

the accepted fiction that the order relates back to the dare of

the original action of the court “‘now for then”.

25

The Supreme Court of Virginia improperly rejected the

relevance of equal protection principles in denying legitimacy

of the appellant’s motion and order to correct Nunc Pro Tunc

and in so doing served to defeat his right of appeal.

CONCLUSION

For the reasons set forth above, the Petition for a Writ of

Certiorari should be granted. And this matter returned to the

lower court for trial on the merits of the cause>\

- Respectfully submitted,

ALLEN V. JAFFE, pro se

3211 Fox Chase Drive

Midlothian, VA 23112

(804) 744-8381